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.
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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.
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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.