More than Two Dozen “Friend of the Court” Briefs Urge the Supreme Court to Preserve Medicaid as an Enforceable Right

WASHINGTON (Sept. 29, 2022)—On November 8, 2022, the United States Supreme Court will hear oral arguments in Health and Hospital Corp. of Marion County v Talevski, a case that could determine the future of Medicaid’s vital legal guarantees and leave millions of Medicaid beneficiaries without access to health care. Twenty-five friend-of-the-court briefs urge the Court to preserve Medicaid’s legally enforceable rights. Briefs have been filed on behalf of the Talevski family, by current and former Members of Congress, former Department of Health and Human Services (HHS) officials, legal experts, health policy historians, public health experts, and a wide range of organizations and groups representing beneficiaries, as well as healthcare professionals and organizations serving Medicaid beneficiaries.

“Over the years, Medicaid has been highly effective at improving health outcomes for millions of women, children, the elderly, and people with disabilities, among others,” said Lynn R. Goldman, Dean of the George Washington University Milken Institute School of Public Health and one of the public health amici. “If these essential protections are stripped away, millions of Medicaid beneficiaries could lose the care that they depend on to stay healthy.”

The public health amicus brief was submitted to the Supreme Court by 40 Deans, Chairs, Public Health, and Health Policy Scholars along with the American College of Preventive Medicine and the American Public Health Association. The public health scholars who signed the brief did so in their individual capacities. The views expressed are their own and do not represent their affiliated organizations or employers.

“Medicaid successfully provides roughly one in four Americans with a safety net for their health needs. Health is a right that we need to protect for everyone,” Georges C. Benjamin, Executive Director of the American Public Health Association, said. “After 50 years, it’s unfathomable to think that the Court might now severely limit the ability of eligible individuals across the country to receive quality health care.”
 
Medicaid is the nation’s largest federal health program, insuring over 80 million people as of May 2022. States administer Medicaid pursuant to federal requirements and must comply with a series of conditions in order to qualify for federal funding. While some of these conditions entail general operational rules, others establish legal rights that protect eligible people as well as certain types of providers. When states violate Medicaid requirements, the Centers for Medicare and Medicaid Services (CMS) can issue corrective action plans and ultimately can withhold funding if corrective action is not taken. However, the withholding process is long, and fund withholding is virtually never used because it would have an impact far broader than the targeted relief sought in a particular case. Congress has filled the void created by the lack of an efficient federal agency enforcement option through Section 1983. Enacted in 1871, Section 1983 empowers private individuals to seek intervention by the federal courts when state officials interfere with federal rights and cause injury. For over a half century, Section 1983 has served as a foundation on which Medicaid and other state-administered Spending Clause programs, such as child welfare assistance and SNAP, rest. Over decades, the Supreme Court has affirmed the availability of Section 1983 actions to protect against systemic Medicaid violations, and Congress has repeatedly rejected efforts to curtail access to Section 1983 in cases involving Medicaid rights.
State officials now challenge the availability of Section 1983 in Medicaid rights cases. The Talevski case specifically involves the violation of federal Medicaid rights secured by the Federal Nursing Home Reform Act (FNHRA), but public officials claim more broadly that Section 1983 is never available to protect Medicaid rights.

The amicus briefs filed on behalf of the Talevski case argue that FNHRA constitutes exactly the type of Medicaid right enforceable under Section 1983 and, more broadly, that were the Court to reverse a half century of precedent and eliminate access to Section 1983 in cases involving systemic state violations of federal rights secured in Spending Clause programs such as Medicaid, such a decision would leave beneficiaries and providers without a means of protecting themselves against injuries caused by ongoing violation, such as the loss of coverage or payment.

“For the last 40 years, the Supreme Court has recognized that individuals have the right to enforce provisions of the Medicaid Act. Working against this backdrop, Congress has amended the Medicaid Act repeatedly without taking that right away,” said Jane Perkins, Legal Director of the National Health Law Program. “It even passed a law expressly stating that individuals have access to the courts when they are being harmed by state violations of Social Security Act programs like Medicaid. Despite the unequivocal track record, this Court could slam the courthouse doors not only on Medicaid beneficiaries but also those who rely on states to properly implement housing, nutrition, education, disability, and a host of other laws. An adverse decision will have huge implications for government program beneficiaries and for holding governments accountable.”

Added Rachel Gonzales-Hanson, Interim President and CEO of the National Association of Community Health Centers, “Unlike any other health care providers, Federally Qualified Health Center (FQHC) services are a mandatory Medicaid benefit which requires states to fully reimburse them under the Medicaid statute.” Gonzales-Hanson went on to say, “For decades, health centers have used Section 1983 to hold states accountable in ensuring adequate and timely reimbursement. It is critical for the Supreme Court to recognize the intent of Congress to ensure that health centers’ Medicaid payment rights are enforceable under Section 1983. Without this protection, our 30 million health center patients—nearly half of whom depend on Medicaid for their care—could lose access to affordable and comprehensive care located right in their community.”

Groups representing providers of pediatric health care are also calling on the Supreme Court to affirm Section 1983. 

“Children’s hospitals care for the most medically complex children in the country, most of whom rely on Medicaid. When their rights are restricted under Medicaid, their health outcomes are put at risk,” said Mark Wietecha, CEO of the Children’s Hospital Association. “Congress has long supported families’ ability to seek recourse for their children under Section 1983 and we urge the Court to acknowledge this intent.”

HIGHLIGHTS FROM SELECT AMICUS BRIEFS FILED WITH THE COURT

The entire collection of amicus briefs supporting the Talevski family can be found here. The briefs selected here present the overwhelming history of the Supreme Court’s rulings regarding the use of 1983 to enforce rights contained in Spending Clause statutes, including Medicaid specifically. The briefs also present extensive evidence regarding the extent to which beneficiaries and providers—and indeed, the health care system generally—rely on the courts’ ability to protect federal Medicaid rights.

Members of Congress

Drafted by counsel at Keker, Van Nest and Peters, the Members of Congress brief explains that, for decades, Congress has enacted Spending Clause legislation “against the backdrop that express rights derived from federal spending statutes may be enforced through Section 1983” and that these rights include FNHRA. Were the Court to withdraw this right, it would “impede Congress’s intention to provide efficient and effective means of redress for nursing home quality-of-care violations, impinge on congressional authority, and imperil the separation of powers between Congress and the Court.” Furthermore, “disturbing this Court’s Section 1983 doctrine more broadly—by curtailing Congress’s ability to permit private enforcement of Spending Clause legislation and the programs established by that legislation—would have disastrous consequences.” This is because “[n]either federal nor state authorities have sufficient resources to provide complete oversight over the funding funneled into state programs” and must instead focus their attention to “remedying systemic abuses, while preserving the option for aggrieved persons to seek individual remedies in federal court.” Were the Court to reverse its “uniform Section 1983 doctrine,” Spending Clause beneficiaries would be left with “little recourse” and Congressional intent would be “egregiously undermine[d].”

Former Members of Congress

Drafted by counsel at Dowd Scheffel, the brief for bipartisan former Members of Congress, including Members who led the effort to enact the Nursing Home Reform Act, explains that over decades, Congress has relied on 1983 as available under Spending Clause statutes. Were the Court to “step back” from its own precedents, it “would put at risk the ability of millions of Americans who rely on § 1983 to protect themselves when state officials violate their federal rights.” Furthermore, “the text, context, and purpose of FNHRA demonstrate that the individual rights against chemical restraint and wrongful discharge and transfer are federal rights that should be protected by § 1983.”

Former Senior HHS Officials

Drafted by counsel at Jenner and Block, the brief for a bipartisan group of former senior HHS officials argues that “[f]or decades, this Court, Congress, states, and beneficiaries have understood that the substantive provisions of Spending Clause programs, including Medicaid, are rights-conferring, enabling private parties to remedy violations of these rights using the cause of action provided by 42 U.S.C. § 1983.” FHNRA and HHS enforcement efforts more generally “rely on” private enforcement. To overturn this reliance would “undermine the foundations of the cooperative framework underpinning Medicaid and like programs, creating widespread under-enforcement.” HHS has “struggled to enforce” the rights guaranteed by the FNHRA “due to practical constraints, most principally a lack of funding for enforcement actions.” Furthermore, HHS cannot “depend on states to enforce the FNHRA because “states themselves own and lease the very nursing homes that, under the Medicaid statute, they are supposed to regulate.”

Health Policy Historians

Drafted by Covington and Burling, the brief, submitted by 23 experts, explains that, by maintaining the Medicaid entitlement over more than 50 years, Congress has legislated against the backdrop of decisions in which the Court and lower federal courts have affirmed the availability of a federal court forum for Medicaid beneficiaries who allege that a State has violated their congressionally-conferred rights. The historical record confirms that Congress has
protected and enhanced beneficiaries’ ability to bring such suits and that private enforcement under Section 1983 has become an integral part of Medicaid’s structure. 

National Health Law Program and Forty-Two Other Nonprofit Organizations 

Drafted by counsel from Munger, Tolles, and Olson, the brief of the National Health Law Program and 42 other organizations representing low-income populations argues that Section 1983 is “unambiguous” and that the statute provides “a means to vindicate ‘any rights’ not just some rights secured by federal law.” Furthermore, “[f]undamental principles of statutory interpretation prevent the judicial branch from rewriting the statute” as public officials desire. Amici “urge the Court not to undo four decades of settled statutory meaning in favor of an undertheorized and anachronistic alternative reading” of Section 1983.

Public Citizen

Drafted by the Public Citizen Litigation Group, the Public Citizen brief argues that 1983 creates an express right of action for the deprivation of any rights secured by federal law and that so long as a Spending Clause statute confers a right, Section 1983 is available. Therefore, it is irrelevant that Spending Clause statutes also may contain other provisions that are not enforceable through Section 1983 but are exclusively matters between the federal and state governments. Because Section 1983 unambiguously creates a right of action when statutory legal rights are violated, states cannot argue that they were not on notice from the time of Medicaid’s enactment that Section 1983 is available when state officials violate statutory rights. 

Constitutional Accountability Center, American Civil Liberties Union, and ACLU of Indiana 

Drafted by counsel at the three organizations, the joint brief argues that there is no basis for barring people whose legal rights are part of Spending Clause statutes from access to Section 1983—a “landmark” law—in order to enforce their rights. The plain language of Section 1983 contains no exceptions. The Court has rejected numerous other efforts to narrow Section 1983 and exclude other federal rights. Furthermore, the history of 1983 undermines any effort to create an “atextual” carve-out for Spending Clause rights, because the purpose of Section 1983 was to protect all rights from unlawful state action. Furthermore, the principles of statutory interpretation relied on by the public officials in this case are irrelevant because they come into play only when a statute is unclear; Section 1983 is unambiguous.

Contract Law and Legal History Professors

Drafted by counsel at Wilmer, Cutler, and Pickering, the brief of contract law and legal history professors argues that to the extent that contract law analogy even applies in this case, the Court should reject historical arguments made by public officials that people who are “third party beneficiaries” of a contract between two parties (which in this case would be the federal/state Medicaid agreement) lack the right to directly enforce their protections. The
history of contract enforcement shows that when Section 1983 was enacted in 1871, a clear majority of American courts did indeed recognize enforcement rights when demanded by equity and justice.

Statutory Interpretation Professors

Drafted by counsel at Public Justice, the brief of the statutory interpretation professors argues that for more than 40 years, the Court has “squarely” held that that Section 1983 can be used to enforce Spending Clause statutes, and that principles of stare decisis “compel this Court to continue to adhere to that longstanding interpretation of Section 1983.” It is Congress’s job, not the job of the Court, to change a statute and to change its meaning would usurp Congressional powers. Furthermore, Congress has relied on the Court’s settled interpretation of 1983 for decades when it comes to enforcement of federal Medicaid rights such as FNHRA, and has repeatedly ratified the availability of Section 1983 in Spending Clause cases involving federal rights.

American Public Health Association, American College of Preventive Medicine, and 40 Public Health and Health Policy Deans, Chairs and Scholars

Drafted by counsel at Ropes and Gray, the public health brief presents evidence regarding Medicaid’s role in the American health care system as the “indispensable” insurer of the nation’s most vulnerable populations and its especially important role for people of color. The brief reviews Medicaid’s “three interlocking rights” and its impact on coverage, access to health care, and health outcomes, in particular outcomes related to pregnancy and childbirth, pediatric health, preventive care, and care for children and adults with severe disabilities. The brief explains the vital nature of Section 1983 enforcement rights to the proper functioning of Medicaid as revealed by “decades of litigation” aimed at protecting people from the unlawful deprivation of coverage and care. Using actual examples from past cases, the brief also presents empirical research regarding the potential impact of withdrawing enforcement rights, including arbitrary limits on enrollment and the elimination of required benefits for children.

National Association of Community Health Centers and Thirty-One Primary Care Associations

Drafted by counsel at Feldesman Tucker Leifer Fidell, the brief explains the role of community health centers in the American health care system, the services they furnish and the health care obligations they undertake. The brief presents evidence regarding the carefully constructed approach taken by Congress to financing health center operations; this financing approach takes the form of both direct federal grants and a right to cost-related Medicaid payments for covered services furnished to millions of beneficiaries. The brief explains the ongoing role of Section 1983 in making it possible for health centers to enforce their payment rights and the unanimity of lower court rulings regarding the existence of rights enforceable under Section 1983. The brief also presents the Court with empirical evidence regarding the potential impact of ending access to Section 1983, including the loss of billions of dollars in Medicaid payments that in turn would trigger a major loss in staffing and care capacity nationwide.

Children’s Health Care Providers and Advocates

Drafted by counsel at Manatt, Phelps, and Phillips, the brief presents evidence regarding the extent to which children historically have relied on Section 1983 to enforce their federal Medicaid rights, including the special rights accorded to children. These rights include not only the right to comprehensive coverage, but also the right to timely access to care as part of Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit. “Time after time,” beneficiaries, families and health care providers have “grappled with impermissible restrictions” on access to lifesaving care and equipment and have discovered that state administrative remedies alone are inadequate. Were the Court to withdraw Section 1983, the risk of inadequate access would grow, with results that could “diminish a child’s odds of surviving a serious illness, successfully managing a chronic condition, or achieving
independence despite a congenital disability.” 

Bazelon Center for Mental Health Law, the ARC of the United States, American Association of People with Disabilities, Disability Rights Education and Defense Fund, Center for Public Representation, and Compassion and Choices

Drafted by counsel at Kellogg, Hansen, Todd, Figel, and Frederick, the brief presents evidence on Medicaid’s vital role in helping end the historic discrimination and exclusion that has characterized the relationship between American society and people with mental illness. In this role, Medicaid today “is a crucial part of Congress’s anti-discrimination protections for people with disabilities.” Furthermore, that the ability to enforce violation of federal Medicaid rights through Section 1983 is integral to the achievement of rights under the Rehabilitation Act and the Americans with Disabilities Act, rights long recognized by the Court. Indeed, the expansion of Medicaid rights to include long-term services and supports in community settings is integral to the rights secured by the ADA and the Rehabilitation Act. As such, for the Court to “abandon its longstanding holding that Spending Clause legislation can give rise to a private right of action under Section 1983 would undermine Congress’s scheme for enforcing disability rights.”

The American Cancer Society, the American Cancer Society Cancer Action Network, the American Diabetes Association, The AIDS Institute, the Cystic Fibrosis Foundation, the Epilepsy Foundation, the Hemophilia Federation of America, the Leukemia & Lymphoma Society, the National Multiple Sclerosis Society, the National Patient Advocate Foundation, the National Organization for Rare Disorders, and WomenHeart

Drafted by counsel at Eversheds Sutherland and the American Cancer Society Cancer Action Network, the brief presents evidence regarding Medicaid’s importance in “improving health outcomes and to reducing the financial burdens accompanying medical treatment.” Medicaid has “dramatically increased” access to health care among individuals with lower incomes. Medicaid “improves health outcomes, particularly for persons with serious, life-threatening diseases, in many cases by providing specific rights to certain types of care.” The program is essential in “managing chronic diseases, including cancer, cardiovascular disease, diabetes, and other conditions.” Research shows that Medicaid coverage “reduces socioeconomic disparities in health.” Eliminating Section 1983 actions would “gut Medicaid enforcement and drastically reduce access to care.” Because Section 1983 is so “well established” in law, [a]ny decision to abruptly jettison the availability of Section 1983 to enforce Medicaid rights should be left to Congress.”

AARP, AARP Foundation, California Advocates For Nursing Home Reform, The Center for Medicare Advocacy, Justice in Aging, Long Term Care Community Coalition, and The National Consumer Voice for Quality Long-Term Care

Drafted by counsel at the AARP Foundation, the brief argues that the FNHRA rights should remain enforceable under Section 1983. They explain that “FNHRA changed the federal government’s approach to protecting residents and improving their care” by mandating minimum standards of care that nursing facilities must meet and defining and guaranteeing the Residents’ Bill of Rights, a comprehensive set of resident rights that nursing facilities must
protect and promote.” Amici argue that “[r]egulatory enforcement alone cannot do the job. Regulatory enforcement determines facilities’ compliance with standards. It does not vindicate a resident’s individual entitlement to quality care or violations of their rights. In addition, regulatory enforcement has failed to stop many pervasive harms, including illegal discharges and chemical restraints.”

-GW-