On the surface, the lawsuit appears pretty straightforward: An Indiana family trying to hold a nursing home accountable for alleged poor care and retaliation after they complained.
But a key underlying legal issue is not so simple. And it is not specific to only this one case or Indiana. That’s why a dispute that started in 2016 at a Valparaiso nursing home could end up at the U.S. Supreme Court.
The stakes are potentially huge.
The request for the Supreme Court to intervene came from Health and Hospital Corp. of Marion County, which owns the nursing home that’s targeted in the lawsuit. The public agency, which operates Eskenazi Hospital, also is the state’s largest nursing home owner. And it wants the nation’s highest court to overturn a federal appeals court order allowing the Valparaiso lawsuit to proceed.
Briefs in support of HHC’s request have been filed by a pair of nursing home trade groups — the American Health Care Association/National Center for Assisted Living and the Indiana Health Care Association — along with Indiana Attorney General Todd Rokita and Republican attorneys general from 16 other states. It is an indication of just how big the ramifications of the case could be.
The dispute essentially comes down to a single question, and one that has nothing to do with the care of the nursing home patient behind the lawsuit.
Instead, it’s about whether the man from Valparaiso — or any other citizen — has the right to sue a government-owned nursing home for violating care standards set out in the Federal Nursing Home Reform Act.
Such lawsuits are not common. They are filed under a section of U.S. code that allows individuals to seek damages from government entities for civil rights violations. The lawsuits allow for substantial financial awards, including attorney fees, and provide another option beyond state malpractice claims for holding nursing homes accountable.
The issue is of particular interest in Indiana, which has about half of the 1,007 government-owned nursing homes in the United States.
More than 90% of Indiana’s roughly 500 nursing homes are owned by county hospitals. Because they are government owned, those nursing homes rake in hundreds of millions of dollars each year in supplemental federal nursing home funds — payments significantly higher than privately-owned nursing homes receive. And yet, an IndyStar investigation found care in those public nursing homes didn’t reflect the high level of funding.
If the Supreme Court lets the appellate ruling stand, Indiana’s nursing homes and the public hospitals that own them could face a new level of financial exposure from federal lawsuits in the future.
A spokesman for HHC said the agency doesn’t comment on pending litigation.
In a joint statement to IndyStar, the nursing home groups said they want the Supreme Court to clarify that residents of publicly-owned nursing homes do not have a federal right to sue for civil rights violations.
Andrew T. Tutt, an attorney with the Washington law firm Arnold & Porter, now represents the Indiana family that filed the original lawsuit. Tutt said the ruling by the U.S. Court of Appeals for the Seventh Circuit affirmed patients have that right. Two other federal appellate courts have come to the same conclusion in recent years.
“We think,” Tutt said, “that the Supreme Court would agree.”
How this case got to the front door of the Supreme Court is a story nearly as complicated as the tangle of federal regulations and legal issues at its heart. But it started with a dispute between the family of Gorgi Talevski, who immigrated to Indiana in 1970 from what was then Yugoslavia, and staff at Valparaiso Care and Rehabilitation.
The interests of Talevski and HHC first intersected in 2016 when the retired steelworker, then 79 and suffering from dementia, entered the Porter County nursing home. The family chose the facility, one of 78 owned by HHC, because it had a dementia unit and was close to home.
Valparaiso Care and Rehabilitation’s website proclaims “caring people make the difference … They are here to help you and your family find answers, solutions and peace of mind.” Talevski’s family, however, soon formed a different opinion of the 164-bed nursing home.
What happened after Talevski entered the dementia unit — and, more importantly, why — is at the center of the lawsuit his family filed in 2019 in U.S. District Court for the Northern District of Indiana.
The family claims the nursing home used excessive amounts of psychotropic medications to “chemically restrain” Talevski. When the family filed a complaint, the nursing home retaliated by moving Talevski to another facility about 50 miles away, the lawsuit claims. Both actions, the lawsuit said, violate care standards set out in the Federal Nursing Home Reform Act.
Attorneys for HHC denied the family’s allegations in court documents. A federal district judge dismissed the lawsuit in 2020, ruling the family did not have a right to sue.
But in July, a three-judge panel with the Seventh Circuit ruled the dismissal was improper, and ordered the district court to take back the case for a resolution on its merits at a trial.
In response, attorneys for HHC asked for a review by the full slate of judges at the Seventh Circuit. The request was denied in August.
Poor staffing, missed reforms:How Indiana failed nursing home residents
That’s how the case ended on the doorstep of the nation’s highest court. After the denial, HHC asked the Supreme Court to weigh in on the family’s right to pursue a federal civil rights claim.
A final decision, either way, will come too late for Gorgi Talevski.
The Yugoslav Navy veteran, who worked as an agronomist specializing in tobacco production before moving to America more than 50 years ago in search of a better life, died in October. He was 85.
Legal experts say the request to get the Supreme Court involved is like a game of chicken: Both sides are pushing for a conclusion that will likely result in one big winner and one big loser.
A definitive ruling will either slam the door on future nursing home lawsuits based on civil rights claims or open a clear and new path to more. Even more, the impact could extend beyond just nursing home cases to other issues involving government entities and alleged civil rights violations.
Of course, at this point, there is no guarantee the Supreme Court will even take up the case. The court receives 7,000 or more petitions — called a writ of certiorari — each term, but accepts only 100 to 150 of those cases.
Over the next few months, one of three things is likely to happen: The court can expressly deny the request or it can simply ignore it, both of which would leave the Seventh Circuit opinion in place; or it can accept the case if at least four of the nine justices agree. Only then would the court consider the issues and make a ruling that sets a clear precedent by either affirming or overturning the opinion from the Seventh Circuit.
The case doesn’t appear to fit the typical criteria for taking cases, said Toby S. Edelman, senior policy attorney with the Center for Medicare Advocacy, a non-profit law organization that advocates for older and disabled Americans. The organization was among several advocacy groups, including AARP and National Consumer Voice for Quality Long-Term Care, that filed briefs in support of Talevski’s appeal to the Seventh Circuit.
Edelman said the Supreme Court is typically more likely to step in when federal appellate courts have reached conflicting opinions or a case involves an important federal question with broad ramifications.
“But you know, ” she said, “the Supreme Court can do what it wants.”
Edelman and other advocates view the Seventh Circuit ruling as an important tool for nursing home residents. “It just says that there’s a right to pursue a case,” she said. “When they go back and have a trial, that’s when you find out if there is any compensation. So this is just a question of whether the person had the right to file a lawsuit.”
Briefs submitted by HHC and the attorneys general call for the court to clear up confusion from a 1990 ruling that tacitly allowed lawsuits such as the one from Talevski’s family. They contend those lawsuits are a burden to states, and that lower courts remain confused as to whether such claims are appropriate under the civil rights law.
The nursing home trade groups argue the Seventh Circuit’s ruling “creates an imbalance where only publicly operated nursing facilities would be subject to such claims.” They also contend adequate avenues for nursing home litigation already exist in state court.
In Indiana, about the only other option is to file a claim under the state’s medical malpractice law, which has been criticized for heavily favoring health care providers over patients. Indiana has one of the lowest caps on total damages in the nation and malpractice claims must first go before a medical review panel of nurses or doctors, a process that takes about three years on average.
The brief filed by Rokita and Indiana Solicitor General Thomas M. Fisher says three Supreme Court justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — voted unsuccessfully in 2018 to take up a similar case. At the time, the brief notes, Thomas acknowledged the court had created the confusion and said “we should clear it up.”
“Unsurprisingly, in the intervening three years, the lower-court muddle has only worsened,” the brief says. “At long last, this case presents an ideal opportunity to resolve it.”
Indiana nursing homes have a lot at stake in the case — in terms of both accountability and financial liability.
An IndyStar investigation in 2020, titled “Careless,” revealed public hospitals have quietly taken ownership — at least on paper — of more than 90% of the state’s nursing homes since 2000 to gain access to special nursing home funds. The Indiana facilities qualify for those extra funds because of an arcane program that provides enhanced Medicaid payments to nursing homes owned by local government agencies.
More than 20 public hospitals across the state participate in the program pioneered by HHC, even though most of the nursing homes are still run by their prior owners or other private operators.
Much of the nursing home windfall, however, never makes it to resident care.
IndyStar found state and federal officials have allowed the hospitals to redirect much of the added nursing home payments to other purposes such as hospital construction. Together, the hospitals divert hundreds of millions of dollars every year from their nursing homes.
The practice has raised concerns even before the pandemic. Despite Indiana’s status as the nation’s largest recipient of extra Medicaid funds for nursing homes, the state ranked 48th in the nation for total nurse staffing hours after adjusting for the needs of patients. That includes highly trained nurses as well as nursing assistants who provide much of the hands-on labor in nursing homes. Staffing is widely considered a top indicator of quality.
The dismal staffing levels left many of the state’s nursing homes woefully unprepared for the coronavirus pandemic. Since March 2020, nursing home residents have paid an inordinately high toll. While nursing home residents account for about 1% of the state’s population, the 6,986 residents who had died from the virus as of Jan. 10 represent more than 35% of all COVID-19 deaths in Indiana.
But there are few options to hold nursing homes accountable for those deaths, or other harm from negligent care. That’s why Susie Talevski, an attorney who initiated her family’s lawsuit, is still pushing forward after her father’s death.
“I have to keep fighting,” she said. “This case was not just for my dad when I started it. It was also for the people of Indiana, the nursing home patients.”
IndyStar reporter Tony Cook contributed to this story.
Contact Tim Evans at 317-444-6204 or [email protected]. Follow him on Twitter: @starwatchtim.
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