WASHINGTON — A Medicaid case now being considered by the Supreme Court has the potential to erode the authority of the program, but one legal observer said that doesn’t appear to be the most likely outcome, based on oral arguments earlier this week.
“It seemed like the justices understood” the implications of ruling for the plaintiffs — “probably because of all the amicus briefs filed in the case describing who would be affected by the decision to take [Section] 1983 rights away from Medicaid recipients,” Timothy Jost, JD, emeritus professor of law at Washington and Lee University in Lexington, Virginia, said in a phone interview.
Jost was referring to a U.S. Reconstruction-era law that says if a state or county official violates U.S. laws or the Constitution, that person can sue. “It seemed pretty clear that the court is not going to go there, and at most, it might impose qualifications on the ability of nursing home residents to sue in federal court,” he noted.
The case, known as Health and Hospital Corporation of Marion County v. Talevski, revolves around a nursing home resident who had been allegedly illegally transferred and over-medicated in a nursing home, explained Jost, who filed an amicus brief in the case along with several dozen other health policy scholars. “Since it was a public nursing home run by a county, the patient’s estate sued under [Section 1983 of U.S. Code chapter 42] in federal court. The case was thrown out in district court, but then the circuit court reinstated the case.”
The high court heard oral arguments in the case on Tuesday from four different attorneys: one representing the nursing home; one representing the state of Indiana, where the alleged maltreatment occurred; one representing the U.S. solicitor general; and one representing the patient’s family.
“The state and the nursing home argued that rights under federal spending programs can never be enforced under Section 1983, and that argument is, I find, a little bizarre; I think some justices did too,” Jost said. They argued “that spending programs operate through contracts between federal and state governments — the state government agrees to follow certain conditions, and the federal government gives them hundreds of billions of dollars. They argued that beneficiaries are not parties to that contract and therefore in 1870 they wouldn’t have been able to sue on the contract.”
The justices didn’t seem to be convinced by this argument, Jost noted. “If the court would have bought that argument, none of the rights under the Medicaid program and programs like it would be enforceable in federal court … the only justice who seems to have bought that argument was [Clarence] Thomas; [Justice Samuel] Alito didn’t say a word.”
Meanwhile, he continued, Justice Sonia Sotomayor “basically said that she wasn’t convinced they were right about what the law was in 1870” and asked about an amicus brief filed by historians that said third-party beneficiaries could sue. “When she posed that question, the lawyer for the nursing home started stammering around and throwing out cases from the 19th century that didn’t seem well put together,” he added.
Gail Wilensky, PhD, who headed what is now the Centers for Medicare & Medicaid Services during the George H.W. Bush administration and is now a senior fellow at Project HOPE, said she didn’t think that lawsuits were the best way for beneficiaries to seek redress if a facility had wronged them. “I always thought it was more effective to have the family — if they did not think something was done appropriately — contact the state and request survey of the nursing home; that seemed a better way than having the right to sue,” she said in a phone interview.
With a lawsuit, “there is too much potential for being arbitrary and capricious. I liked having the patient or the patient’s family being able to have involvement by calling in the heavy arm of state enforcement as the better strategy,” she added.
Rather than being a lengthy procedure, “there is some kind of classification of immediate jeopardy that a state can impose on a nursing home that can stop it in its tracks from being able to bill for Medicaid patients until they get a [remedy],” continued Wilensky. “I think that’s a much better procedure to follow than the right to sue … It induces very quick behavior change.”
Georges Benjamin, MD, executive director of the American Public Health Association, disagreed. “It’s about accountability and oversight,” said Benjamin, whose organization filed an amicus brief in the case. “Section 1983 has been recognized for years as being the accountability mechanism which allows patients to sue when they are not receiving care they feel they should have. The danger is [if] only the government can provide oversight and control. We feel strongly you have to have both.”
The courts can sometimes act much more quickly than the government can, he added. If only the state can discipline a public facility, “you’ve got a ‘fox looking at the henhouse’ situation.”