The Supreme Court, the same court that trashed decades of settled precedent to overturn Roe and, in NFIB, for-the-first-time-ever ruled that a federal spending program (the Medicaid expansion) was “coercive” upon states, that court, is about to decide whether to completely wipe out the rights of Medicaid enrollees. Buckle up, friends.
On November 8, the Supreme Court will hear oral arguments in Health and Hospital Corporation of Marion County, Indiana v. Talevski, the most consequential case you’ve never heard of. And the future of Medicaid enrollees hangs in the balance.
Gorgi Talevski, now deceased, was a Medicaid enrollee who was forcibly sedated by his state-run nursing home to restrain him. Medicaid law unequivocally lists freedom from forced sedation as a nursing home resident right. Neither of these points is at dispute in the case. So what is the issue?
The nursing home (a public nursing home that pursued the lawsuit in secrecy, in violation of state transparency laws, for which it was itself recently sued) argues that Mr. Talevski’s right is not enforceable in federal court. That may sound unfair and absurd, but just wait, it’s actually far, far worse than it sounds. To make sense of all of this, we have to talk about law a moment. Sorry.
Though it is counter intuitive to anyone sensible, even if a state indisputably violates Medicaid law and harms an enrollee, a court might not be willing to enforce the enrollee’s rights. This is because to bring a lawsuit individuals need a “right of action” – something like a legal trigger for a court to come in and resolve their case.
Good news! In the Civil Rights Act of 1871, Congress created such a trigger, a broadly applicable private right of action for individuals who have had a federal right violated by a state. It’s known as “Section 1983” (based on where it is codified). Bad news! It doesn’t always apply. Because that would be too straightforward, right?
Under Supreme Court precedent, courts applying section 1983 look at the specific language in the statute to determine if it “creates rights.” For example, if the provision is about an enrollee’s right to a benefit, it would likely create a right; but if it was about a state’s obligation to report data to CMS, the court might conclude a state violating that Medicaid law has not violated anyone’s right–even if someone was somehow harmed.
Turning back to Talevski then, the Indiana nursing home asked the Supreme Court to review two issues. The first is exactly what you would expect—they argue that the prohibition on forcibly sedating patients in the statute is not written to create a right for Mr. Talevski. This argument is harmful to nursing facility residents, though not why the case is shocking. As to its merits, let’s just say that statute’s prohibition on sedation stipulates “the right to be free from” sedation, and it falls under the list of “Specified Rights,” within the subsection titled “General Rights,” under the section on “Requirements Relating to Residents’ Rights.” Emphasis added, for comic relief.
The second issue presented to the Supreme Court is catastrophic. The nursing home argues that no spending clause program requirement should ever qualify for a private right of action under section 1983. This would mean no Medicaid requirement would be an enforceable right for beneficiaries, regardless of how Congress wrote the right or the harm or rights implicated for enrollees. It is like a nuclear bomb for Medicaid rights. (The wrong outcome would also wipe out rights in other spending clause programs, such as SNAP and federal public housing benefits.)
The nursing home argues that spending clause programs like Medicaid are akin to a contract between the federal government and the state – the federal government offers funding in exchange for the state complying with the funding requirements – and that mere “third parties” (you know, the real people whose lives depend on Medicaid) should have no right to sue based on the contract. There is a serious possibility that this Supreme Court, which is antagonistic to Medicaid, other public programs, and the use of section 1983 to enforce rights, will buy this extreme argument.
If this happens, the results would be catastrophic. Many Medicaid requirements would effectively go unenforced. Individuals would be unable to enforce them. Only HHS would be able to enforce compliance and HHS lacks the bandwidth (and sometimes the inclination) to monitor and enforce the rights of tens of millions of Medicaid beneficiaries across all 50 states. Medicaid enrollees would not get what they are entitled to – they’d get whatever the states were willing to provide. As my colleague Andy Schneider notes, the impacts for children and families would be dreadful and important stakeholders have filed 25 amicus briefs with the Supreme Court pointing out the potential harms to Medicaid enrollees.
To be clear, this would not impact the ability of individuals to file for Medicaid Fair Hearings when a state denies them a specific requested benefit. However, it would end all enforcement through section 1983, which is the major vehicle for enforcing many Medicaid requirements and is the basis for many class actions to stop broad and unlawful state actions and omissions. It would be the height of irony if the courts, the Constitutional enforcers of rights, decided that Medicaid beneficiaries, disproportionately people of color, could no longer use a federal Civil Rights statute to enforce their federal rights against states in federal court.
In his analysis of Constitutional rights in Federalist 78, Alexander Hamilton wrote that without courts of justice, “all the reservations of particular rights or privileges would amount to nothing.” On November 8, the Supreme Court will hear arguments in the case, and a decision could come in late spring. Just as the flowers finish blooming, will Medicaid rights wither to nothing on the vine?