A case to determine if state-owned nursing homes are shielded from federal lawsuits – to be heard by the U.S. Supreme Court in November – received more than 20 amicus briefs last week.

The flood of briefs filed in September are in support of Ivanka Talevski, wife of former nursing home resident Gorgi Talevski, suing Indiana-based Valparaiso Care and Rehabilitation. The Health and Hospital Corp. of Marion County in Indianapolis owns Valparaiso; American Senior Communities LLC serves as operator for the property.

Groups in support of Talevski argue that a nursing home victory would make it harder for recipients of government programs to enforce their rights in court, according to a Reuters report. They also believe the case could reach beyond the sector to restrict lawsuits over other government programs, if it is not upheld.

The lawsuit alleged that the Valparaiso nursing home violated an array of resident “rights” under the Federal Nursing Home Reform Act, and the Civil Rights Act of 1871 provided a venue to enforce those rights.

Specifically, Talevski’s family argued that he was given psychotropic drugs to “chemically restrain” him. The family also contends that once the lawsuit was filed, he was moved to another facility about 50 miles away.

A judge for the U.S. District Court for the Northern District of Indiana dismissed the lawsuit in 2020 and Talevski appealed.

The 7th U.S. Circuit Court of Appeals reversed the federal judge’s decision, finding that two rights referenced in the case — to be free from certain chemical restraints and to remain in a facility without being transferred except in certain circumstances — were implied in the text of the Nursing Home Reform Act.

Marion County and American Senior Communities filed a petition asking the Supreme Court to take a second look at the lower court’s decision; SCOTUS decided to review the case in May.

Marion is Indiana’s largest nursing home owner with more than 90% of nursing homes owned by county hospitals.

Among those in support of Talevski are senior advocacy group AARP, the American Public Health Association and American College of Preventive Medicine.

The American Health Care Association (AHCA) in July filed another amici curiae, along with its Indiana, Illinois and Wisconsin affiliates, in support of the county.

Marion County also won partial support in July from U.S. Solicitor General Elizabeth Prelogar, who urged the court to dismiss the lawsuit on narrow grounds, according to Reuters.

AHCA argued that the 7th Circuit’s reversal was based on a “misunderstanding of congressional intent,” and that Section 1983 of the U.S. Code can’t be used to enforce rights created as a condition of receiving federal funds.

The organization said the decision “creates an imbalance where only publicly operated nursing facilities would be subject to such claims,” in its initial amici curiae in January, and that the federal appeal’s court decision – if left intact – would hinder an industry still attempting to recover from the pandemic.

AHCA said much the same in July, contending that public participants in both the Medicare and Medicaid programs would be at greater risk of litigation than their private counterparts for allegedly violating the same participation requirements.

“Federalizing” malpractice law for public nursing homes would override state laws that often cap damages and fees, Reuters noted, citing arguments from HHC and Valparaiso.

Some litigators believe the Supreme Court’s decision to hear the case could dissuade state-owned entities from owning nursing homes in the future.

Of the 15,560 Medicare-participating SNFs in the nation, 1,007 — amounting to roughly 7.1% — are owned by a government entity, according to data from the Centers for Medicare & Medicaid Services (CMS).

According to a Medicaid and CHIP Payment and Access Commission (MACPAC) review of Medicaid state plans in place as of July 2019, 25 states reported some type of supplemental payment to nursing facilities.

Total Medicaid spending on nursing facility supplemental payments amounted to $3.4 billion in fiscal year 2019, MACPAC noted in its November 2021 brief.