Recognizing its profound significance on Medicaid rights and court access, NoHLA and hundreds of health law advocates around the country gathered to debrief the oral arguments heard by the Supreme Court in HHC v. Talevski on November 8th, sponsored by the National Health Law Program (NHeLP). 

NHeLP’s Executive Director Elizabeth G. Taylor said Talevski “has tremendous implications for access to court for low-income people,” and introduced the speakers – Legal and Litigation Director Jane Perkins and Managing Director of NHeLP’s North Carolina office Sarah Somers – as “leaders in the effort to keep the courthouse doors open for enforcement of health rights.” They are both veteran civil rights litigators who have been actively involved in the case, including filing a friend of the court (amicus) brief on behalf of NoHLA and 40 other health advocacy organizations, supporting Talevski in the Supreme Court.

Brought by the family of Gorgi Talevski, a nursing facility resident in Indiana, the lawsuit charged that the facility’s overmedication and unauthorized transfer of Talevski to another facility violated the Federal Nursing Home Reform Act (FNHRA). The lawsuit against the facility was brought under the authority of 42 USC section 1983 – a part of the Enforcement Act of 1871 (“Ku Klux Klan Act”). This act provides a right for individuals to sue the government (in this case, the publicly-operated facility). The District Court dismissed the petition, but the Court of Appeals for the 7th Circuit reversed, saying the family had a right to sue.

One of the two issues before the Court is whether the Medicaid Act allows individuals to bring suits to enforce their rights. The nursing facility and the State of Indiana argue that it does not, because Medicaid was enacted under the Spending Clause of the Constitution. But most of the major social safety net programs are Spending Clause programs, such as housing, nutrition, foster care, heating assistance, education, and disability programs, and the Court for years has interpreted section 1983 to allow individuals to enforce their rights under these programs. For this reason, Jane Perkins called Indiana’s interpretation “the existential threat” that could jeopardize individual enforcement of rights in much of the social safety net.

Arguments before the Supreme Court focused on whether the Court should abandon its longstanding interpretation that individuals can sue under section 1983 to enforce their rights under these programs, in light of the laws limiting enforcement of contracts by “third party beneficiaries” in 1871 when the section was enacted.  A highlight of the argument for us was Justice Ketanji Brown Jackson’s questioning of the Indiana attorney, where she made the point: “When you look at the actual history of 1983 . . . it was a part of the Ku Klux Klan Act where Congress had looked at the situation of states not giving forum, not giving a cause of action to people who were being terrorized . . . in fact, Congress created the right in order to allow people to go to court.”

Questions and comments from the justices did not indicate much interest in accepting the argument to limit section 1983. Many expressed skepticism and focused on another question that the petitioner raised as to whether Congress meant the remedies in FNHRA to replace the need for enforcement through section 1983. 

Although there is cause for optimism on the Spending Clause enforcement question, there are options if the Supreme Court holds there is no private right of action. These include a potential congressional fix and the use of state court actions against state agencies to enforce the constitution and federal laws. Regardless of the outcome, Perkins said there is likely to be “a lot of fallout” from the decision, as states and advocates try to figure out its implications.

You can:

• read a description of the oral argument here;
• listen to the Supreme Court argument or read the transcript; 
• read the amicus brief filed by NHeLP on behalf of NoHLA, and 40 other health advocacy organizations and NHeLP’s analysis of other amicus briefs filed in the case; and
• review the HHC v. Talevski court filings.