CONTRACTUAL CONUNDRUM: HOW HEALTH AND HOSPITAL CORPORATION V. TALEVSKI HAS THE POTENTIAL TO GUT FEDERAL SAFETY NET LEGISLATION

By: Grace Worcester, Volume 107 Staff Member

The Supreme Court recently heard oral arguments in Health and Hospital Corporation of Marion County v. Talevski,[1] a case with the potential to strip over eighty million Americans[2] of the ability to seek recourse in the federal courts for state civil rights violations. Talevski originated when the family of a deceased nursing home resident brought action against an Indiana state-run nursing home, alleging violations of the Federal Nursing Home Reform Act (FNHRA),[3] a statute outlining standards of care that nursing homes must maintain to receive Medicaid funding.[4] What began as an attempt to seek redress in a case of alleged elder abuse has spiraled into a much larger question of whether individuals can enforce Spending Clause legislation under 42 U.S.C. § 1983.[5] Not only does this debate call into question the enforceability of the FNHRA, but it could render unenforceable individual rights granted under other federal safety net legislation such as Medicaid, Supplemental Nutrition Assistance Programs (SNAP), Temporary Assistance for Needy Families (TANF),[6] foster care and adoption assistance,[7] and others. This means that individuals may not be able to enforce the many protections these statutes include, such as rights to ensure access to necessities like food,[8] medical services,[9] and housing,[10] as well as protections from abuse and mistreatment.[11]

I. BACKGROUND: § 1983, SUPREME COURT PRECEDENT, AND THE TALEVSKI ARGUMENTS

As originally enacted, § 1983 only provided an enforcement mechanism for constitutional rights. However, Congress later expanded its reach by bringing statutory rights within its ambit.[12] The modern text of § 1983 reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .[13]

While the Supreme Court has thrice ruled that legislation enacted pursuant to Congress’s spending power is enforceable under § 1983,[14] the most recent of these cases is more than thirty years old.[15] Since then, the Court has incrementally worked to narrow the scope of § 1983, promulgating irreconcilable standards which have left circuit courts guessing as to when § 1983 may be invoked.[16] Most notably, in Blessing v. Freestone,[17] the Supreme Court set forth three factors which “determine whether a statute creates a personal right,” a necessary finding to hold that a right is enforceable under § 1983.[18] However, just five years after Blessing, in Gonzaga University v. Doe,[19] the Court announced a new two-part test to determine if the statute at issue contains sufficient “rights-creating language.”[20] The circuit courts have struggled to reconcile Blessing and Gonzaga, resulting in a variety of approaches. For example, some circuits have acknowledged Gonzaga but continued to apply the Blessing factors, some have completely replaced the Blessing factors with the Gonzaga test, and still other courts have created permutations of nearly everything in-between.[21]

In Talevski, the Health and Hospital Corporation of Marion County (Hospital Corporation) capitalized on the Supreme Court’s inconsistencies and—drawing upon Justices Thomas and Scalia’s concurrences in previous cases[22]—has asked the Court to step outside of the “framework” set forth by Blessing and Gonzaga, to create a bright line rule stating that all Spending Clause legislation is beyond the reach of § 1983.[23] The Hospital Corporation argues that Spending Clause legislation “represents a contract” between the federal and state governments and that common-law contract principles must be applied.[24] Hospital Corporation contends that under the common law, third-party beneficiaries to a contract generally could not sue under the contract.[25] Thus, because individuals are third-party beneficiaries to Spending Clause legislation, which is a contract between the federal and state governments, individuals have no right to sue states for violations of the contract under § 1983.[26] Ultimately, the Hospital Corporation argues, it is the federal government, not the individual beneficiary, who bears the responsibility to ensure state compliance with Spending Clause statutes.[27]

In response, Talevski argues that Congress clearly intends that § 1983 be available as an enforcement mechanism for Spending Clause legislation. Talevski first points out that the plain text of § 1983 encompasses laws enacted pursuant to the spending power.[28] Talveski then details legislative history which shows that in 1980, Congress considered overruling a Supreme Court decision holding that § 1983 applies to Spending Clause legislation, but ultimately decided against it.[29] In later years, Congress repeatedly ratified the Supreme Court’s decisions interpreting § 1983 to cover Spending Clause legislation. For example, in 1994, Congress amended § 1983 to overrule part of a Supreme Court decision which would have hampered enforcement of certain Spending Clause legislation.[30] There have also been two other instances in which, following Supreme Court rulings that § 1983 applied to Spending Clause statutes, Congress amended § 1983 in a way that left those decisions undisturbed.[31] Thus, congressional actions appear to show a clear intent that § 1983 reach Spending Clause legislation.

The bottom line is this: If the Court’s goal is to decrease § 1983’s impact as much as possible, Talevski provides an optimal opportunity to do so, but it would require a significant departure from precedent and disregard for congressional intent.

II. THE POTENTIAL CONSEQUENCES OF TALEVSKI

If the Supreme Court determines that all Spending Clause legislation is beyond the scope of § 1983, the effects cannot be overstated. Not only would this divest vulnerable nursing home residents of the ability enforce their rights, but it would strip the beneficiaries of many other welfare programs of the same. And still, the damage runs deeper. If individuals are unable to enforce their own rights against the state, enforcement responsibility falls to the federal government. But because federal authorities are unequipped to enforce such individual rights, a ruling that Spending Clause statutes are beyond the scope of § 1983 would render many rights granted by federal welfare programs unenforceable at all, because there would be no one to hold states accountable for violations of their “contract” with the federal government.

To illustrate, an amicus brief filed by former officials from the Department of Health and Human Services (HHS)—which houses the agency responsible for overseeing Medicaid, the Centers for Medicare and Medicaid Services (CMS)—states that HHS enforcement mechanisms are incapable of providing enforcement of individual rights.[32] “HHS lacks the statutory authority to pursue tailored judicial remedies” as HHS’s authority to enforce Medicaid is largely limited to withholding federal funding from the states.[33] This is because CMS is only built “to address widespread, systemic failures.”[34] The brief goes on to explain that HHS is hesitant to utilize this enforcement mechanism as withholding funding would ultimately only pose further injury to Medicaid beneficiaries.[35] Further, even if HHS had the authority and appropriate enforcement mechanisms to effectively monitor and address individual rights violations, the reality is that it simply lacks the resources and personnel that would be required to do so.[36]

Ultimately, if all Spending Clause legislation is found beyond the reach of § 1983, many of “the most vulnerable and economically insecure”[37] will be left without any way to enforce their statutory rights under vital legislation. The Court’s opinion in Talevski has the potential not only to strip beneficiaries of the ability to enforce their rights, but to render such rights unenforceable by anyone. While the Hospital Corporation seems to suggest that the “contract” between the federal and state government allows the federal government to remedy state violations of individual rights, federal officials have made clear they have no way of doing so.

 

[1] No. 21-806 (U.S. argued Nov. 8, 2022).

[2] Brief of Indiana Disability Rights as Amici Curiae in Support of Respondent at 2, Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806 (U.S. argued Sept. 23, 2022).

[3] Talevski by next friend Talevski v. Health & Hosp. Corp. of Marion Cnty., 6 F.4th 713, 715 (7th Cir. 2021), cert. granted sub nom. Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022).

[4] Id. at 715.

[5] See Brief for Respondent at 16–18, Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806 (U.S. argued Sept. 16, 2022) (detailing the facts alleging Petitioner’s non-compliance with the FNHRA and arguing that Spending Clause legislation is enforceable under § 1983).

[6] See Brief of Members of Congress as Amici Curiae in Support of the Respondent at 23, 23 n.10, Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806 (U.S. argued Sept. 23, 2022) [hereinafter Brief of Members of Congress] (listing some of the many federal programs enacted pursuant to the Spending Clause).

[7] Brief for the National Center for Youth Law, the Youth Law Center, the National Center for Law & Economic Justice, et al. as Amici Curiae Supporting Respondent at 23–25, Health & Hosp. Corp. of Marion County v. Talevski, No. 21-806 (U.S. argued Sept. 23, 2022) (describing a scheme of Spending Clause legislation surrounding foster care and adoption services).

[8] See id. at 29–30 (discussing the SNAP program which requires states to provide timely benefits to eligible households so that beneficiaries can afford food).

[9] See id. at 31–32 (detailing the children’s Medicaid benefit which requires that states provide all “necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions” (quoting 42 U.S.C. § 1396d(r)(5)).

[10] See Amanda B. Hurst, Gonzaga’s Ghosts, 86 Tenn. L. Rev. 289, 301 (2019) (citing and discussing Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987)).

[11] For example, the FNRHA provides the right “to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints.” Brief of Members of Congress, supra note 6, at 14 (quoting 42 U.S.C. § 1395i-3(c)(1)(A)(ii)).

[12] See Michelle Ghaznavi Collins, Note, Opening Doors to Fair Housing: Enforcing the Affirmatively Further Provision of the Fair Housing Act Through 42 U.S.C. § 1983, 110 Colum. L. Rev. 2135, 2154 (2010) (discussing the history of § 1983).

[13] 42 U.S.C. § 1983 (emphasis added).

[14] See Hurst, supra note 10, at 301 (citing Maine v. Thiboutot, 448, U.S. 1 (1980); and then citing Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987); and then citing Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990)).

[15] See Wilder, 496 U.S. 498 (1990)).

[16] See Hurst, supra note 10, at 293 (describing confusion among the federal courts in trying to apply the Supreme Court’s test used in Gonzaga University v. Doe, 536 U.S. 273, 287–89 (2002) in light of its earlier factors promulgated in Blessing v. Freestone, 520 U.S. 329, 340–41 (1997)).

[17] 520 U.S. 329 (1997).

[18] Hurst, supra note 10, at 307.

[19] 536 U.S. 273 (2002).

[20] Hurst, supra note 10, at 312.

[21] Id. at 323–32.

[22] See Brief for the Petitioners at 10, Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806 (U.S. argued July 18, 2022) (quoting Blessing, 520 U.S. 329, 349 (1997) (Scalia, J., concurring); then quoting Pharm. Rsch. & Mfg. of Am. v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring)).

[23] Id. at 9.

[24] Id. at 11–12.

[25] Id. at 13.

[26] Id. at 13, 17–18.

[27] Id. at 23.

[28] Brief for Respondents, supra note 5, at 21.

[29] Id. at 23–24 (describing congressional discussion following Maine v. Thiboutot, 448 U.S. 1 (1980)).

[30] Id. at 22.

[31] Id. at 23.

[32] Brief of Former Senior Officials of the Department of Health and Human Services as Amici Curiae in Support of Respondent at 7, Health & Hosp. Corp. of Marion Cnty. v. Talevski, No. 21-806 (U.S. argued Sept. 23, 2022) [hereinafter Brief of Former Senior Officials].

[33] Id. at 8.

[34] Brief of Members of Congress, supra note 6, at 31.

[35] Brief of Former Senior Officials, supra note 32, at 8–9.

[36] Id. at 10.

[37] Brief of Members of Congress, supra note 6, at 29.