Federal laws that protect and defend the rights of people who are most powerless are all well and good. But the problem is that if you try to actually use these laws you may end up making things worse.
After all, judges can be quite fickle. Even the most well-intentioned strategy can backfire when a ruling comes down that extracts the teeth from the law.
For example, while a lot of us were voting on November 8, the U.S. Supreme Court was hearing oral arguments in the case of Talevski v. Health and Hospital Corporation of Marion County. In 2019, Ivanka Talevski filed a federal lawsuit against Valparaiso Care and Rehabilitation, a nursing home in Indiana where her deceased father, Gorgi, had been a resident. The suit charged that the facility violated Gorgi Talevski’s rights under the Federal Nursing Home Reform Act because the staff at the facility who were supposed to take care of him neglected him by using chemical restraints and by medicating him to sleep rather than treating his dementia.
Health and Hospital Corporation (HHC) owns and operates Valparaiso Care and Rehabilitation and many other nursing homes in Indiana, and the lawyers representing the corporation in the case went for the legal jugular. They tried to get the case dismissed by challenging the right of Talevski or anybody else to take legal action under that law.
This precedent could be used to similarly cut off access to the courts for beneficiaries of other federally-funded programs, such as Medicare and Medicaid.
Lower courts rejected that argument but HHC appealed to the U.S. Supreme Court. If the Court sides with them, it could mean that only the government could take action against nursing homes that violate the rights of their residents.
The Bazelon Center for Mental Health Law warns that this precedent could be used to similarly cut off access to the courts for beneficiaries of other federally-funded programs, such as Medicare, Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families.
As a Bazelon fact sheet on the case notes,“If people are not able to sue state and local governments to enforce these rights, state and local governments will have little to no accountability if they fail to deliver these important protections and services, or if they fail to deliver them in a nondiscriminatory manner. Only the federal government will be able to investigate wrongdoing . . . .”
Similarly, an analysis of the case in Health Affairs highlights that “foreclosure of access to the courts in these situations would essentially end these programs as legal entitlements, bringing us back decades to the time when public benefits were considered a privilege rather than a right. It would leave beneficiaries and providers at the mercy of state legislatures and public officials, who often embrace federal funding but resist the concept of beneficiary rights.”
So let’s hope that Ivanka Talevski doesn’t accidentally gut the Federal Nursing Home Reform Act because she had the nerve to try to actually enforce it.