SCOTUS Preserves Medicaid Patients’ Right to Sue

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We’d like to welcome you to the weekly State and Local Roundup. There’s plenty from this past week to keep tabs on, with California Gov. Gavin Newsom proposing a 28th Amendment to the U.S. Constitution, a new mayor in Denver, Virginia set to leave a multistate cap-and-trade program, and a $2.5 billion mistake in Massachusetts. But first we’ll start with what the Supreme Court had to say about Medicaid.

The big news on Thursday was the court’s decision to toss out Alabama’s congressional map and rebuke state Republicans for violating the civil rights law when they adopted a map that includes only one—rather than two—districts likely to elect Black representatives. The court’s decision in Allen v. Milligan could have far-reaching impacts, both on party control of the U.S. House and in how future voting rights cases are decided. 

The case gave the conservative-heavy Supreme Court a chance to rewrite its own rules for how to judge voting rights cases, which Alabama urged them to do. But a majority of the court in a 5-4 ruling opted to keep the existing rules.

In a case involving Medicaid recipients, the high court made a similar decision not to rewrite years of precedent and “detonate a grenade” that would have shaken up safety net programs across the country, according to Benjamin Geffen, senior attorney at the Public Interest Law Center. 

The case, Health and Hospital Corporation of Marion County v. Talevski, centered on Gorgi Talevski, who lived at a nursing home to get 24/7 care for his dementia. His family filed a lawsuit against the nursing home in 2019 alleging Talevski was inappropriately subjected to psychotropic drugs and involuntarily transferred in violation of a federal nursing home law. A 1987 federal law governing nursing homes that receive federal funding prohibits nursing homes from using psychotropic drugs for nonmedical reasons. Talevski died in 2021.

In the case, the justices were asked to consider two questions: The first sweeping question was whether the court should reexamine its longstanding position that people who depend on federally funded initiatives—like Medicaid and programs that provide services for nutrition, housing and disabilities—have the right to sue states when their rights are violated. The second, more narrow question was whether nursing home residents have the right to bring civil rights lawsuits against government-owned nursing facilities.

In the 7-2 decision, the court preserved the status quo and declined to limit the right of people on federal assistance programs and in nursing homes to sue.

The Health and Hospital Corporation of Marion County, the public health agency, had wanted the Supreme Court to eliminate a Medicaid patient's ability to bring lawsuits for violating the 1987 law. The corporation argued that Medicaid patients don't have standing because they are third parties in what is essentially a contract between the state and the federal government. 

Justice Ketanji Brown Jackson wrote the majority opinion. She cited a 1870 statute that protects enforcement actions taken by any person deprived of "any rights secured by the Constitution and laws." 

"'Laws' means 'laws,' no less today than in the 1870s, and nothing in petitioners’ appeal to Reconstruction-era contract law shows otherwise," Jackson wrote.

Had the court ruled in the public health agency’s favor, it would have stripped millions of people who rely on federal assistance programs (including Medicaid) of the right to sue government agencies when they do not receive the quality of care ensured by federal law. 

“If the courts had overturned the long-standing precedent that allowed for such action, enforcement of federal Medicaid requirements would be left solely to the federal government [Centers for Medicare & Medicaid Services],” Robin Rudowitz, director of KFF’s Program on Medicaid and the Uninsured, wrote in an email. “CMS can ask states for corrective action plans and ultimately can withhold federal funding—but these mechanisms can be slow and withholding federal funds is a blunt tool that is rarely used.” 

Geffen added, “It is almost unheard of. It’s basically a paper tiger—the federal government’s ability to withhold funding.”

Keep reading as there’s more news to use below, and make sure to come back here for the week’s highlights. If you don’t already and would prefer to get it in your inbox, you can subscribe to this newsletter here. We’ll see you next week.

News to Use

Trends, Common Challenges, Cool Ideas, FYIs, and Notable Events

• 28th Amendment to the U.S. Constitution? California Gov. Gavin Newsom proposed a new constitutional amendment this week to “help end our nation’s gun violence crisis.” The 28th Amendment, according to Newsom, would enshrine four widely supported gun safety freedoms—while leaving the Second Amendment intact. The four are: raising the minimum age to purchase a gun to 21, universal background checks, a “reasonable” waiting period for gun purchases, and banning the civilian purchase of assault weapons.


• A $2.5 billion mistake in Massachusetts. A routine audit uncovered that Massachusetts mistakenly used about $2.5 billion in federal money to fund unemployment benefits during the pandemic—payments that should have been made by the state. Officials did not disclose how the mistake was made, but it dates back to 2020. While the bookkeeping was botched during the previous administration, it falls to Gov. Maura Healey to figure out how to reimburse the federal government. A pivotal question is how much of this cost—if any—will be borne by employers, who pay into the state unemployment trust fund to cover jobless benefits.


• Meet Denver’s new mayor. Former state Sen. Mike Johnston won a decisive victory Tuesday over Kelly Brough, the former CEO of the Denver Metro Chamber of Commerce, in the city’s runoff election. Fresh off his victory, Johnston laid out his priorities in an interview on Colorado Public Radio. They include erecting tiny homes throughout the city as an alternative to homeless encampments and ensuring people have access to wraparound services. He also wants to expand the city’s stable of first responders, a mix of police, social workers, paramedics, EMTs and mental health professionals.


• Virginia moves closer to leaving RGGI. Virginia regulators voted on Wednesday to advance Gov. Glenn Youngkin’s plan to withdraw from a multistate carbon cap-and-trade program that he says has functioned as a tax on electricity users with no environmental benefit. Virginia spent years under Democratic administrations moving toward participation in the Regional Greenhouse Gas Initiative, which environmental advocates say is a proven tool to help reduce pollution and address climate change. The final 4-3 vote by the state Air Pollution Control Board advanced the governor’s proposal over a key hurdle in the administrative process, though his plan is ultimately expected to face a legal challenge. Meanwhile, Washington state held its second quarterly auction for its cap-and-trade program. The pollution allowances sold will likely bring in more than $557 million, a higher-than-expected jump in revenue that the state can put toward programs to reduce greenhouse gas emissions and fight climate change.


• Anti-drag law unconstitutional. In a significant win for LGBTQ+ advocates, a federal judge has tossed out Tennessee's controversial law restricting drag performances, after hearings in which the law's necessity and broad language were questioned. Judge Thomas Parker wrote that, "the court finds that—despite Tennessee’s compelling interest in protecting the psychological and physical wellbeing of children—the Adult Entertainment Act (‘AEA’) is an UNCONSTITUTIONAL restriction on the freedom of speech."


• Aid-in-dying? Not in Nevada. Nevada Gov. Joe Lombardo became the first governor in the nation to veto a contentious medical-aid-in-dying bill. It would have allowed mentally competent and terminally ill adults with six months or less to live the option to end their life on their own terms. Ten other states, plus Washington, D.C., have similar legislation. This is the fifth time a "Right to Die" bill has been introduced in Nevada and the first time it's made its way to the governor's office.


• ‘Hold the line’ on textbook censorship. As lawmakers nationwide push to limit the types of books that can be found in schools, 10 Democratic governors have called on nine major textbook publishers to “hold the line” and refuse to water down their educational materials at the behest of Republican lawmakers and conservative parents. The letter was spearheaded by New Jersey Gov. Phil Murphy, head of the Democratic Governors Association. “Sanitizing our educational texts for the mercurial comfort of a few today ultimately limits the next generation’s ability to make informed decisions for themselves,” the governors wrote in the letter. According to the American Library Association, more than 1,268 library books and resources were challenged in 2022, the highest since data collection began 20 years ago.


• Harm-reduction vending machines spread. New York City installed the first of four harm-reduction vending machines this week. In addition to fentanyl test strips and naloxone, which can reverse opioid overdoses, the machine will stock hygiene kits, maxi pads, Vitamin C, first aid kits, wound care kits, Covid-19 tests, and supplies to smoke, snort and inject drugs more safely. It won’t include syringes. Oklahoma also recently deployed the machines at 40 sites across the state. In April, Route Fifty wrote about Milwaukee County’s adoption of the machines.


• Results are in on automatic voter registration. Georgia’s voter registration rate has boomed since the state launched automatic voter registration seven years ago, jumping from 78% to a high of 98% of the eligible population signed up to vote, according to a study released Wednesday. The report by the Center for Election Innovation & Research said automatic registration has boosted both registration rates and accuracy, with almost all voters verified by both a driver’s license and Social Security number.

Picture of the Week

The White House on Tuesday launched a website to map and track roughly 32,000 infrastructure projects and private manufacturing investments, an effort by the administration to show the positive impact of its policies on the U.S. economy to a skeptical public. The site, Invest.gov, documents the projects and more than $470 billion worth of investments in the production of electric vehicles, batteries, computer chips, biotech, clean energy and other sectors. President Joe Biden is seeking reelection in 2024 by trying to show how his policies are reshaping the U.S. economy to address climate change and compete with rivals such as China.

Government in Numbers

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The number anti-transgender bills introduced by legislators in nearly every state—more than in the past eight years combined. Nearly 30 such bills have been introduced in Congress. The onslaught includes limits on health care access, removing LGBTQ+ materials from schools and banning trans athletes from sports teams. Seventy-two measures are now law. Citing these bills and political rhetoric, the Human Rights Campaign, for the first time in its four-decade history, declared on Tuesday a national state of emergency for members of the LGBTQ+ community.

ICYMI

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