Providers- Marion County agency wants SCOTUS to strip protections for millions of vulnerable Americans


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[MM Curator Summary]: 19 paragraphs and 522 words before we get anything resembling what the issue is actually about. And nothing about some of the reasons the agency may be doing this (other than they are terrible evil bad guy villains as the journo suggests). I guess I’ll just believe the headline whole-cloth and get angry like I am supposed to.


Marion County’s public health agency is asking the U.S. Supreme Court

The Health & Hospital Corp. of Marion County wants the nation’s high court to throw out a lawsuit over poor care at one of its nursing homes in a case that could also bar beneficiaries of safety net programs like Medicaid from suing if their rights are violated. 

The public health agency’s case is setting off alarm bells for beneficiaries and their advocates. They say the case would have a devastating impact on many of the nation’s most vulnerable people. 

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In all, more than a quarter of the U.S. population depends on federal programs that could be affected.

“They just want to get rid of a headache,” said Lucas Waterfill, a Medicaid recipient from Indianapolis who has cerebral palsy. “For us, it’s standing up for our lives.”

The Democrat-led agency has found an ally in Indiana’s Republican attorney general, Todd Rokita. Rokita’s office submitted a court brief earlier this year pleading for SCOTUS to side with Marion County’s public health agency, and even asked the justices to be allowed to participate in oral arguments in Washington, D.C. when they take place on Nov. 8.

But a decision in Health & Hospital’s favor would have repercussions far beyond Indianapolis — or Indiana. It would, according to legal experts, effectively take the “entitlement” out of the nation’s entitlement programs.

“It’s the ability to enforce your rights that makes them rights,” said Sara Rosenbaum, a professor of health law and policy at George Washington University. “Once you lose the right to hold, in this case, public officials accountable, the notion that you have an entitlement just becomes an empty promise.”

She compared the potential consequences to the Supreme Court’s decision in June to overturn abortion rights.

“This case is to Medicaid,” she said, “what Dobbs was to abortion.”

Health & Hospital officials have largely refused to speak publicly about the potential impact of the case, citing the sensitivity of the ongoing litigation. In a brief statement emailed to IndyStar, the agency said all of its actions are guided by its mission to promote health and provide care to those who are underserved.

Millions of Americans could be affected

The case’s impact could be enormous.

States have a long history of trying to deny federal benefits to those entitled to them, especially in the Medicaid program where states share in the cost.

For decades, Americans in need of services have relied on a federal civil rights law to protect their benefits.

The law, passed in the wake of the Civil War to protect the rights of Black Americans, gives citizens broad rights to sue when their federal rights are violated. And past U.S. Supreme Court decisions have found that beneficiaries of public assistance programs can rely on the law to sue when benefits are improperly withheld. 

In Indiana, the law has been used to secure assistance for foster children, hepatitis C patients and children with severe disabilities.

Health & Hospital, however, is arguing that the law doesn’t apply to those beneficiaries. It says lawsuits involving spending programs shouldn’t be allowed unless Congress specifies that right when adopting a law. A decision in its favor would prohibit such lawsuits in the future, making it easier for the state and local governments that partner with the federal government on public assistance programs to deny benefits.

Medicaid is one program that would be affected. More than 82 million Americans rely on the medical safety net, including 1.8 million Hoosiers — most of whom are low-income, elderly or disabled.

But it isn’t the only one.

Health & Hospital wants the U.S. Supreme Court to bar lawsuits from recipients of other federal public assistance spending programs, including Temporary Assistance for Needy Families and the Supplemental Nutrition Assistance Program, formerly known as food stamps. 

“It could be a very, very big deal,” said Nicolas Terry, a health law professor at the Indiana University McKinney School of Law. “And in my opinion, quite a harmful deal for people who rely on government services.”

A monumental decision made in secret

Despite the potentially huge impact of the case, Health & Hospital made the decision to petition the Supreme Court without any public input. In fact, the agency’s board of trustees never even voted on it. 

Health & Hospital has defended its decision-making process, arguing its board has long deferred to executive staff on legal matters.

But the secrecy garnered a sharp rebuke on Friday from Indiana’s public access counselor, who found that Health & Hospital violated the state’s open door law.

“While some executive, operational, and administrative duties will necessarily have to be delegated to staff, the volitional decision and act of pursuing further litigation with our country’s highest court is something else altogether,” wrote Public Access Counselor Luke Britt, who is appointed by the governor to arbitrate disputes over public access to meetings and records.

He said Health & Hospital’s board should have held a public meeting on whether to pursue a Supreme Court appeal. 

“It strains credulity that a board of any organization would not feel it incumbent to weigh in on matters of substantial import such as filing a petition for certiorari with SCOTUS,” Britt wrote.

It’s not clear what the public access counselor’s opinion will mean for the Supreme Court case. Local activists have been lobbying the agency’s board to withdraw its petition, but so far without success.

Morgan Daly, public policy director for the Indiana Statewide Independent Living Council, filed the open door complaint with the public access counselor. She hopes Health & Hospital’s board will hold a public vote on the issue.

“We don’t believe the trustees have been given information about what this case is about and its implications for Hoosiers and people across the country,” she said. “The public would hate this.”

Activists ratchet up pressure

The public agency, whose mission is to “promote and protect the health of everyone in the community and provide health care to those who are underserved,” has spent more than $700,000 on the case so far.

That has angered not just beneficiaries and their advocates, but also liberal political groups that have traditionally identified closely with Health & Hospital’s work. 

“How much of our health care dollars that are supposed to be helping people is now going to a lawsuit, a petition, that is going to hurt people?” said Mike Oles III, a field director for Our Revolution, a progressive political action group, during a recent City-County Council committee meeting. “I would be ashamed if I was on this city council.”

Health & Hospital’s seven-member board is appointed by the Indianapolis mayor, City-County Council and Marion County Board of County Commissioners — all offices controlled by Democrats. The agency’s president and CEO, Paul Babcock, previously served as Mayor Joe Hogsett’s director of health and public safety.

Babcock declined an interview about the case. But in an emailed statement, he said the agency is guided by its mission in “every action.”

“Our divisions, including the Marion County Public Health Department and Eskenazi Health, serve the needs of traditionally underserved populations, and they do so with great success,” he said.

He also reiterated one of the main arguments his legal team is making in court: that the Federal Nursing Home Reform Act doesn’t include a “private right of action to sue nursing homes or nursing home operators.”

He did not mention in his statement anything about the broader question his agency wants the U.S. Supreme Court to consider, which is whether beneficiaries of federal safety net programs across the country can sue in court to protect themselves.

In response to questioning from city-county councilors during a Sept. 22 committee meeting, Babcock argued that nursing home patients had other avenues to keep facilities accountable, such as filing a complaint with the Indiana Department of Health.

“I do not believe that rights will be lost,” he said.

‘None of those remedies really do anything’

In court filings, Health & Hospital points to what it calls “an extensive set of remedies intended to ensure that states and nursing facilities live up to their statutory obligations.” Those remedies include denying nursing homes access to Medicaid funds and replacing their managers. 

But Emily Munson, public policy director for Indiana Disability Rights, a federally mandated advocacy group, said other enforcement mechanisms fail to effectively protect beneficiaries. 

Withholding reimbursements can cause more problems for residents who aren’t getting proper care, since it is Medicaid that pays for that care. As for a change in management, IndyStar searched 12 years of federal data and could not find a single time when that enforcement measure was used in Indiana.

“None of those remedies really do anything,” Munson said, “to help the person who has been harmed.

Nursing home residents also could sue under state medical malpractice law, but Indiana has one of the lowest caps on total damages in the nation. The malpractice law also requires plaintiffs to first take their case to a medical review committee of doctors or nurses — a process that can take years and cost tens of thousands of dollars, all before setting foot in a courthouse.

“Indiana nursing homes want the financial benefit of receiving additional federal funds because of county hospital ownership, but they don’t want Indiana families to receive the benefit of additional federal legal remedies when neglect occurs to their loved ones,” said George Gray, an attorney who represents nursing home residents.

Dementia patient’s family claims illegal drugging

Health & Hospital’s case began when the family of the late Gorgi Talevski, a Valparaiso nursing home resident, sued the agency in federal court in 2019 for violating the 80-year-old dementia patient’s rights under the Federal Nursing Home Reform Act.

Talevski’s nursing home, Valparaiso Care and Rehabilitation, is one of 78 that Health & Hospital has acquired so that it can collect extra Medicaid funds available to government-owned nursing homes. Over the last two decades, the Marion County government agency has quietly become the state’s largest nursing home operator and raked in $1.8 billion in added Medicaid payments.

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Talevski’s family claims the nursing home drugged him with unnecessary medications and improperly transferred him to a facility an hour-and-a-half away. Those alleged practices, known as chemical restraint and patient dumping, are prohibited under the 1987 federal nursing home law.

Health & Hospital has denied any wrongdoing. It claims its facility took those actions because Talevski was being violent and sexually aggressive toward staff and other residents. 

Regardless of the issues surrounding Talevski’s care, Health & Hospital says lawsuits like his have no place in federal court.

The appeal to the Supreme Court seemed like a longshot. The justices only accept 1% to 2% of the cases they are asked to review. 

But Health & Hospital’s sweeping request caught the court’s attention, and in May the justices agreed to review it. In a month, the case will reach a climax when attorneys for Marion County’s health agency and Talevski’s family head to D.C. to argue their sides in front of the court’s conservative majority. 

‘This means life or death’

For many people, what’s at stake transcends the walls of a Valparaiso nursing home. It’s about their ability to advocate for themselves. 

“My life depends on Medicaid,” said Waterfill, the Medicaid user from Indianapolis. 

He receives care 12 hours a day, he said, most of it funded by Medicaid.

“That’s the difference between me being stuck in bed or me having a job or me having a life,” said Waterfill, who is a standup comic. “For a lot of people, this means life or death.”

Without the threat of lawsuits by beneficiaries, he fears states may try to cut benefits for people like him. It’s not an unfounded fear. Indiana Disability Rights highlighted in court documents seven cases in Indiana over the past 15 years where Medicaid recipients had to sue to protect their benefits.

Waterfill said he can imagine any number of scenarios in which the state might try to withhold benefits he desperately needs.

“I think this case just adds another layer of red tape to an individual’s ability to stand up against the state to keep their Medicaid,” Waterfill said. “It really targets the most vulnerable people in our society and in our state. I just think it’s unnecessary. I think they are trying to slip this in the side door.”

Contact IndyStar reporter Tony Cook at 317-444-6081 or Follow him on Twitter: @IndyStarTony.

Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at Follow him on Twitter: @IndyStarJohnny.

This article originally appeared on Indianapolis Star: Marion County agency wants SCOTUS to strip protections for millions of vulnerable Americans

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