The Talevski Case

Over the past couple of weeks, several people have contacted me asking that I comment on an Indiana lawsuit that is currently on appeal to the Supreme Court, which will hear it this coming session unless the parties settle and pull it from consideration. The case is Health and Hospital Corporation v. Talevski. 

There is a (well-founded) fear that the current, retrograde Supreme Court majority will use this case to eliminate the use of Section 1983 by Medicaid beneficiaries.

Section 1983 is a 150-year-old provision of federal law that permits citizens to sue when government is violating their rights. If such a suit is successful, a companion provision requires that government pay the lawyer who handled the successful case. (Needless to say, without some prospect of being paid, very few lawyers will be willing to accept such cases–and in the case of Medicaid, plaintiffs by definition lack the resources to make such payments.)

I’ve been reluctant to address the case, because it is very technical and it’s been a long time since I was a practicing lawyer. It’s one thing to pontificate about the Constitution, which I’ve been teaching for the past 20+ years, and quite another to do a “deep dive” into an area of the law with which I am no longer familiar. For that matter, my own background with Section 1983 focused on its use to sue government  when someone who is acting “under color of state law” deprives citizens of their civil rights; I was far less familiar with its use under the Spending Clause, which Talevski threatens.

Because several of the people expressing concern are people I highly respect, I did a bit of research. That research included consulting Indiana’s ACLU, which very kindly provided me with a letter the office had previously issued on the subject. Here is the opening paragraph of that letter:

To Whom It May Concern:

As you are undoubtedly aware, in Health and Hospital Corporation v. Talevski, the U.S. Supreme Court has agreed to address the issue of whether spending-clause legislation may be enforced through an action brought pursuant to 42 U.S.C. § 1983.  It is, of course, impossible to predict how the Court will resolve this issue, or how narrow or broad its holding might be.  However, our office has a lengthy history of relying on § 1983 to remedy violations of spending-clause legislation that is designed to protect the neediest Hoosiers.  An unfavorable decision in Talevski could serve as an absolute bar to similar litigation in the future.

I try to keep these posts relatively brief, but given the stakes of this litigation and the concerns it raises, I am going to end this post by pasting in the rest of the ACLU’s letter. Before I do so, however, I want to confirm my agreement with the assertion that eliminating use of Section 1983 would effectively eliminate the rights of literally millions of Americans who rely on Medicaid.

A right without a remedy for its violation is not a right at all. And given the current composition of the Supreme Court, the threat that important rights will be “on the chopping block” is not an idle one.

Below is the portion of the letter from ACLU lawyer Gavin Rose describing just how important Section 1983 has been in enforcing the rights of Hoosiers and all American citizens.


In Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), our office filed a lawsuit challenging a recently enacted Indiana statute prohibiting state agencies from paying state or federal funds to any entity that performs abortions.  Although we raised a constitutional claim, the primary claim—and the claim on which the statute was ultimately invalidated by the Seventh Circuit—was that, by denying Medicaid recipients the ability to receive family-planning services through Planned Parenthood, the statute violated the free-choice-of-provider provision of federal Medicaid law, 42 U.S.C. § 1396a(a)(23).  Federal Medicaid law, like the entirety of the Social Security Act, was enacted pursuant to Congress’s spending-clause authority.

In addition to allowing recipients to select the providers from whom they wish to receive services, federal Medicaid law establishes that participating states must provide certain enumerated services to Medicaid-enrolled individuals and that they may elect to provide additional services.  See 42 U.S.C. § 1396a(a)(10)(A).  However, once a state provides a certain service, whether the provision of that service is required or optional, the state must pay for that service whenever it is “medically necessary” for a Medicaid recipient.  With overwhelming success, our office has routinely relied on § 1983 to bring litigation when Indiana has failed to provide for the receipt of medically necessary services by children, persons with severe disabilities, or other vulnerable Hoosiers:

Ø  In Selner v. Secretary of the Indiana Family & Social Services Administration, No. 1:15-cv-01874-SEB-MPB (S.D. Ind.), we filed a class action lawsuit challenging Indiana’s refusal, in contravention of virtually unanimous medical opinions, to provide Medicaid coverage for the ground-breaking Hepatitis C drugs unless a patient had already experienced substantial liver damage.  The lawsuit resulted in a settlement agreement whereby Indiana agreed to cover the medications without regard to the severity of an individual’s disease.

Ø  In Bontrager v. Indiana Family and Social Services Administration, 697 F.3d 604 (7th Cir. 2012), our office represented a Medicaid recipient in need of significant dental services who challenged Indiana’s $1,000 annual “cap” on such services.  After concluding that this “cap” excluded medically necessary services and therefore violated federal Medicaid law, the Seventh Circuit affirmed the issuance of a preliminary injunction in favor of our client.

Ø  In A.M.T. v. Gargano, 781 F. Supp. 2d 798 (S.D. Ind. 2011), we represented a class of children with severe disabilities (such as cerebral palsy or other muscular disorders) that had been prohibited from receiving physical or occupational therapy because Indiana determined that the therapy would not result in further functional progression, even though the children would experience significant regression in absence of therapy.  The district court entered summary judgment in our client’s favor, enjoining Indiana from enforcing its prohibition on so-called “maintenance therapy.”

Ø  In Chadwell v. Indiana Family & Social Services Administration, No. 11D01-0808-PL-373 (Clay Cnty. Superior Court), we represented a class of severely disabled Medicaid recipients who relied on so-called “attendant care services”—which are utilized to assist persons in performing their activities of daily living—to allow them to live in the community rather than in an institutional setting.  After Indiana restricted persons from receiving more than 40 hours a week in these services, we filed suit.  The court issued first a preliminary injunction and then summary judgment in our clients’ favor.

Ø  In McArty v. Roob, No. 49D04-0606-PL-24259 (Marion Cnty. Superior Court), we represented a class of Medicaid recipients in need of dentures or related repairs in challenging Indiana’s refusal to cover these services for persons who had received similar services within the past six years.  After we filed suit, Indiana entered into a consent decree in which it agreed to provide coverage for medically necessary services without regard to its six-year restriction.

Ø  And in Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003), we successfully represented a class of mentally ill children in challenging Indiana’s failure to provide Medicaid coverage for long-term residential treatment in certain residential facilities.

On top of all this, in order to ensure that persons in need are not forced to wait indefinitely while states contemplate their eligibility for public benefits, federal law frequently establishes specific time limits that states must meet to process applications or appeals.  In the past, our office has relied on § 1983 to file class-action litigation seeking to enforce federal-law time limits to issue decisions on Medicaid applications (Thornton v. Murphy, No. 1:08-cv-01853-LJM-DML – S.D. Ind.), to resolve unemployment appeals (Gorman v. Commissioner of the Indiana Dep’t of Workforce Development, No. 49D06-1006-PL-26087 – Marion Cnty. Superior Court), to resolve Medicaid appeals (Murray v. Roob, No. 49D12-0505-PL-16671 – Marion County Superior Court), and to resolve Food Stamp appeals (Nickels v. Roob, No. 49D01-0701-PL-4025 – Marion Cnty. Superior Court).  We have also relied on federal Medicaid law to file a lawsuit challenging Indiana’s failure to obtain and evaluate required medical evidence before deciding that an applicant is not disabled and therefore ineligible for benefits (Bailey v. Sullivan, No. 1:94-cv-00089-SEB-JMS – S.D. Ind.).  Each of these cases was resolved through a favorable settlement agreement or consent decree.

Finally, Title IV-E of the Social Security Act, among other things, requires participating states to cover certain costs for children in foster care and to provide payments on behalf of adoptive children with special needs.  In C.H. v. Payne, 683 F. Supp. 2d 865 (S.D. Ind. 2010), our office represented several classes of foster children and adoptive children with special needs, and their parents, in an action to challenge Indiana’s reduction in the payments made on behalf of children to a level insufficient to meet their most basic needs.  A private law firm representing the Indiana Association of Residential Child Care Agencies, Inc. filed a similar lawsuit (which was consolidated with the C.H. case) addressing payments to certain providers.  After hearing evidence, the district court issued a preliminary injunction against the payment reductions on the same day as the hearing and memorialized its conclusions in a written decision less than a week later.

*                       *                       *
The cases that I have identified represent a partial list of actions alleging violations of spending-clause legislation brought by a single law office.  Frequently on behalf of persons in dire need, other attorneys have initiated countless similar cases both in Indiana and across the nation.  As indicated, I cannot predict how the Supreme Court will ultimately resolve Talevski.  However, any holding that spending-clause legislation may not be enforced through § 1983 would undoubtedly jeopardize the ability to bring similar cases in the future.


  1. “A right without a remedy for its violation is not a right at all.”

    Am I totally in error comparing the recent decision by the Trump appointed judge to allow accusations of FBI “planting” information that Trump does not have to provide proof of his accusations? It is, of course, ass-backwards in this case with the Trump appointed judge making the decision in his favor which is denying American citizens the right to provide evidence to prove an ex-president guilty of seditious and treasonous acts by allowing Trump the right NOT to have to provide proof of his claimed defense? I confused myself with that statement; hope someone understands what I am trying to say. Trump is blatantly guilty of violating all rights and powers he has taken to violate the rights of the American public. His stand against Medicaid is well known; no matter who is responsible for legal defense of those aided by Medicaid. Trump got his wish for the appointment of a third-party investigating the evidence investigated by the FBI taken from Mar-A-Lago and is now back in Executive power by not having to prove his claims.

    Section 1983 is a contingency case; “to the victor go the spoils” with the government footing the bill either way it goes.

    Trump’s “Big Lie” is the foundation of many Republican candidates in the upcoming election; the “Bigger Lie” is that no one is above the law.

  2. I can’t imagine that the ACLU doesn’t already know how this will go with the Supreme Court. I imagine everyone on this blog can predict the outcome of the corrupt SCOTUS.

    The scales of justice have tipped so far into the hands of the oligarchs, there are no consequences for their poor behavior and no justice for the ordinary citizen.

    Projecting an external cause for the collapse of our democracy by the oligarch-owned media is laughable. Telling Americans that China and Russia are our enemies is laughable.

    Our oligarchy has been/is destroying the USA from within. It’s Neo-Fascism, which looks like the fascism spreading across the entire Atlantic (western countries).

    For those who have the stomach, you need to read Chris Hedges’ recent article and compare it to Ken Burns’s documentary, episode 1:

    “The press has bifurcated into antagonistic tribes where lies and truth are indistinguishable, and opposing sides are demonized. There is little dialogue or compromise, the twin pillars of a democratic system.

    The two ruling parties slavishly serve the dictates of the war industry, global corporations and the oligarchy, to which it has given huge tax cuts. It has established the most pervasive and intrusive system of government surveillance in human history. It runs the largest prison system in the world. It has militarized the police.”

    The Left has been beaten down in all countries run by the US oligarchy. This has been intentional; you can see it in Europe with few exceptions. After this winter with no energy, it will be more evident as the uprisings begin.

    And the US/UK took out Europe’s natural gas pipeline, so if European leaders changed their minds over Ukraine, Russia still can’t turn on the gas.

  3. Calling something a “right” is meaningless if that right has no teeth. Justices Alito or Thomas will probably write a decision saying that Medicaid claims did not exist in the 19th century, so this right to sue cannot be supported.

  4. I am one of the people Sheila mentions as having been in touch with her asking her to address this case. I wish the fact that Health and Hospital Corporation of Marion County is a munipal owned corporation within a Democratic controlled County and most of important Democrats are hiding from the fact that HHC could remedy the entire issue by withdrawing the appeal and thereby eliminating the entire case from her article. When Democrats stand by and allow the rights of our most vulnerable citizens to be eliminated one has to eventually ask what the party really stands for.

  5. Robert Deppert, do you mean the rank and file Democrats should be calling or writing letters? Can the “important Democrats” be moved to action? I”m trying to understand.

  6. Easy call. Place your bets on the SCOTUS to deny yet another benefit to the poorest people in the land who depend on government assistance for their very lives. The Republican-appointed judges and justices clearly have not a single whit of interest in those citizens. Their consistently right-wing decisions show how much they scorn “the other”.

    Our legal system is in tatters thanks to dark money and wretches like the Koch family. Lewis Powell wrote a manifesto that instructed big money how to overthrow democracy by buying the legal system, the colleges and the politicians. It’s all about the money and the money controls the “law”makers.

  7. I had to look up this case to understand what it is about. The brief summary is that a woman placed her husband into a nursing home due to his dementia. He repeatedly assaulted staff and other residents both physically and sexually. For the safety of staff and other residents his doctor prescribed medication that would prevent/restrain this behavior. His wife did not want him to receive the medication so the nursing facility chose to transfer him to another facility. His wife did not want him to be transferred either so she filed a lawsuit against the facility owner (HHC).

    While I don’t know the legal ramifications of this lawsuit, I do have first hand knowledge of how other residents and staff suffer when there is a violent resident in a facility. My daughter-in-law worked at a nursing home and was daily punched, spit on and sexually assaulted by demented residents. If I recall correctly the facility was not legally able to restrain the violent resident(s) and the only remedy was to transfer them to another facility if they could find one that would accept them. My mother was a resident at another facility and she was assaulted by demented residents a couple times and was not able to defend herself. There may have been even more times that I had not been made aware of.

    While I don’t believe residents should be medicated out of convenience for being short-staffed, I do believe that facilities should have the right to medicate residents that cause danger to staff and the other residents that aren’t able to defend themselves. Why should everyone else have to suffer just because a family doesn’t want their demented and dangerous loved one medicated in order to stop their dangerous behavior? In my opinion that is about as selfish as you can be.

  8. What Mr Turner suggests is only partly true. The lawsuit could have been resolved short of going to SCOTUS, but once SCOTUS accepts the case, the decision of outcome is largely in the hands of the Court. While any “case in controversy” has disappeared, because a matter is of sufficient importance, the Court can move ahead with briefing and oral argument. The first part of Roe v Wade discusses how Roe’s pregnancy no longer was an issue, but the issue would keep rising.

  9. Nancy, thank you for sharing details of the context of the case. Often reading and understanding without more history does not tell the fuller story. Seems there are often extenuating details which need to be considered when considering or applying the law.

  10. Institutions should be allowed to use any medications and have access to any forms of force against those transcending the bounds of safety within the confines of their venue. Hopefully this selfish woman will lose. This court will make the correct choice. This is why it’s good for Republicans to develop the court instead of Democrats.Democrats invariably and incessantly embrace the criminal element.

    It will not be the fault of the court. The fault will lie with Mrs. Talevski. For some reason,she believes her husband is entitled to hurt others. She should suffer bankruptcy. Or,perhaps her husband should be forced to live with her in perpetuity? The same options given landlords should be given to nursing homes.

  11. Seems like the Health & Hospital Corp. has some explaining to do. Diverting federal Medicaid funds appropriated to the care of nursing home patients to their building projects seems reckless. When the bare bones support of Medicaid dollars is diverted from patient care, the resulting care is greatly diminished, and miserable inadequate conditions are allowed to exist. It was reported recently that Indianapolis Star has sued for Health & Hospital Corp’s financial records after HHC refused to provide them. Indpls Star asserts those are public records and we deserve to know where that money is going. Revoking 1983 would result in HHC having more public funds to decide where they wanted the money to go?

  12. There’s a nationwide movement of “1st Amendment Auditors” with very strong representation on YouTube. They stand around public buildings, and go inside, with obvious cameras, and refuse to stop recording because the 1st Amendment has been interpreted by the courts to include “citizen free press” rights to record in public, from public spaces under “plain view” or “If I can see it, I can record it.”
    Police are usually called, and while some cops realize that the auditors have that right, others threaten arrest.
    The riposte is to call on 1983 to shield against such a civil rights violation, which can also remove Qualified Immunity, which protects cops and their departments from criminal lawsuit.
    I’m not a lawyer, but the police, and thus the rightwing SCOTUS, may be wanting to reinforce police harassment powers by dumping 1983.

  13. Politicising the Senate appointment of Supreme Court Justices, of course, was intended to make SCOTUS decisions more favorable to one side of the political spectrum. In this case, the favored side prefers more justice for some rather than for all. More justice for white, Christian, heterosexual, armed, rural, wealthy people than for legally needy people.

    Why do people on that end of the spectrum believe in such justice? They are afraid, to a degree due both to who they are and to a degree in response to political advertising, that different others are taking over the country that from the beginning favored wealth. They want to stop the successful progress toward what the Constitution was written aspiring to.

    Their problem is that stopping progress also stops adaptation to a changing world. Evolutionary progress is what created human beings and what always kept humans at the top of life’s pyramid.

    Their success can only lead to human failure.

  14. Someone made this crack: “This is why it’s good for Republicans to develop the court instead of Democrats. Democrats invariably and incessantly embrace the criminal element.”
    This is the sort of incorrect and unsubstantiated crack that has spawned the “press” that we all have up with to put.

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