Health and Hospital Corporation v. Talevski is the single greatest threat to America’s social safety net since Paul Ryan.
On Tuesday, as millions of Americans cast their ballots in the 2022 midterms, the Supreme Court will hear oral arguments in what could be one of the most consequential health care cases in its history. The defendants in Health and Hospital Corporation of Marion County v. Talevski are asking the justices to fundamentally rework the Medicaid program, which provides health care to over 76 million low-income Americans.
Should the defendants prevail, these tens of millions of patients could effectively be stripped of legal safeguards intended to guarantee them a certain quality of care. In some cases, individual patients may lose their health coverage altogether due to Talevski.
Medicaid is a “conditional grant” program. The federal government offers a truly enormous amount of money to each state — in 2020, total federal Medicaid spending was more than $670 billion — but only if the state agrees to use this money to provide health care to eligible recipients, and to comply with certain other conditions.
These conditions range from broad requirements that state Medicaid programs must cover certain individuals, such as low-income pregnant patients and children, to granular rules governing how Medicaid-funded facilities must operate. The plaintiffs in Talevski, for example, accuse the defendants (an Indiana health system operated by local government officials, and a private company that manages nursing homes) of violating several provisions of federal law governing nursing homes, including one that prohibits those facilities from using psychotropic drugs “for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.”
Currently, at least some of these legal requirements can be enforced through private lawsuits — meaning that a patient who believes their rights under federal Medicaid law have been violated can sue the alleged violator. Rather than litigating whether they did or didn’t violate the laws protecting nursing home patients, the defendant is asking the Supreme Court to strip Medicaid patients of their ability to bring such lawsuits entirely.
As a practical matter, that could render much of federal Medicaid law almost entirely unenforceable — including, potentially, the legal requirement that certain patients must receive coverage.
If private Medicaid suits are forbidden, the federal government would still technically have some tools at its disposal that it could use to discipline noncompliant states and providers, but these tools are unlikely to be effective. For one thing, the federal government has limited resources to investigate Medicaid violations.
Even when it discovers a violation, the primary remedy the federal government may use against a noncompliant state is to cut off some or all of its Medicaid funds. That means that if a state refuses to meet its legal obligation to low-income patients, the consequence will be that the state will receive less money to provide health care to those very same individuals — essentially punishing the patients for the state’s misconduct.
And that’s assuming that the federal government even wants to enforce Medicaid laws. In a post-Talevski world, a Republican administration could potentially stop enforcing Medicaid law and there would be no recourse.
The defendants’ legal arguments are weak, and would require the Court to overrule a half-century of precedents. But the Court’s Republican-appointed majority often decides cases in ways that are out of step with existing law and longstanding legal principles, so there is at least some possibility that the defendants’ most aggressive claims will prevail.
And if they do prevail, by next summer, tens of millions of the most vulnerable Americans could be essentially powerless against abuse from health providers or their state’s health officials.
The Talevski defendants’ legal arguments are very bad
Arguably the most important civil rights law in American history is a statute lawyers refer to as “Section 1983.” This is the law that permits state officials — and, in certain circumstances, private individuals implementing state programs — to be sued in federal court if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.”
The Supreme Court has long held that Section 1983 permits private lawsuits seeking to enforce Medicaid law. As the Court said in Edelman v. Jordan (1974), “suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States.” (Nearly a decade earlier, the Social Security Amendments of 1965 had expanded the Social Security Act to include two federal health care programs: Medicare and Medicaid.)
The argument that Section 1983 permits private lawsuits to enforce Medicaid law is extraordinarily straightforward. Section 1983 permits lawsuits against certain individuals who violate rights “secured by the Constitution and laws.” Medicaid laws are laws, even if they only apply to people who take federal Medicaid funding.
As the Supreme Court held in Maine v. Thiboutot (1980), “given that Congress attached no modifiers to the phrase [“and laws”], the plain language of the statute undoubtedly embraces respondents’ claim that petitioners violated the Social Security Act.”
Nevertheless, the Talevski defendants claim that they have uncovered a secret history of Section 1983 that the Court somehow ignored in a long line of precedents stretching back to before Edelman. And they ask the justices to rewrite the bargain Congress established in 1965 when it created the Medicaid program.
Much of these defendants’ arguments rests on a single line in the Supreme Court’s opinion in Pennhurst State School and Hospital v. Halderman (1981), which described conditional grant programs as “much in the nature of a contract” because states agree to comply with certain conditions in return for federal money.
The Talevski defendants argue that, at the time Section 1983 was enacted — it was originally part of the Ku Klux Klan Act of 1871, a Reconstruction-era law that, as the name implies, was intended to halt vigilantism and other attacks on civil rights — contract law strictly limited who was allowed to sue in order to enforce a contract. Specifically, they claim that 19th-century contract law did not allow third parties who were not signatories to the original contract to bring such a lawsuit.
In support of this argument, they cite a hodgepodge of 19th-century legal sources, including an 1881 speech by future Justice Oliver Wendell Holmes, a list of contract cases decided by state courts in the 1800s, and an 1880 book by Harvard Law School dean Christopher Columbus Langdell, which says that “a person for whose benefit a promise was made, if not related to the promisee, could not sue upon the promise.”
In response to this historical evidence, both the Talevski plaintiffs and the Justice Department cite their own list of sources indicating that third parties were, in fact, allowed to sue to enforce contracts around the time when Section 1983 became law. They quote their own mix of 19th-century legal treatises. And they argue that many of the historical quotes that the defendants rely upon were taken out of context.
The plaintiffs and the Justice Department also cite one particularly devastating piece of evidence: an 1876 Supreme Court decision that disagrees with the defendants’ historical claims. In Hendrick v. Lindsay (1876), the Supreme Court said that “the right of a party to maintain assumpsit,” an antiquated term for breach of contract lawsuits, “on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country.“
At most, in other words, the historical record shows that some 19th-century legal authorities believed that third-party suits were not allowed, while other authorities — including the Supreme Court of the United States — believed that permitting third-party suits was the “prevailing rule in this country.” That sort of record hardly justifies overruling a half-century of precedent and rendering federal Medicaid law largely unenforceable.
There are numerous other problems with the Talevski defendants’ arguments — so many that it would be tedious to list them all here.
But suffice it to say the Talevski defendants’ legal arguments are a mess. They mangle the text of Section 1983. They rely on dubious historical evidence that the plaintiffs and the Justice Department easily rebut. They place a simply astounding amount of weight on a metaphorical statement in Pennhurst, demanding that the Court read that metaphor hyperliterally. They insist that the Court must overrule a long line of precedents stretching back to shortly after Medicaid was enacted. And they seek an outcome that could destroy much of Medicaid’s ability to function.
No reasonable judge could possibly take these arguments seriously.
Some members of the Supreme Court have already endorsed the Talevski defendants’ arguments
The one Supreme Court opinion that should keep every Medicaid beneficiary up at night is the late Justice Antonin Scalia’s concurring opinion in Blessing v. Freestone (1997). There, Scalia suggested that Section 1983 cannot be used to enforce conditions imposed on federal grants because “until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it.” He based this argument largely on a citation to one of the 19th-century treatises that the Talevski plaintiffs rely upon.
Ominously, this opinion was joined by now-retired Justice Anthony Kennedy, a relatively moderate conservative who is well to the left of every single one of the current Supreme Court’s six Republican appointees.
Even more alarmingly for Medicaid beneficiaries, three current justices — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — joined Scalia’s opinion in Armstrong v. Exceptional Child Center (2015), which argued that “the modern jurisprudence permitting [Medicaid] beneficiaries to sue does not generally apply to contracts between a private party and the government.”
There are reasons to believe, after reading the well-argued briefs filed by the Talevski plaintiffs and the Justice Department, that at least some members of the Court’s conservative bloc will have second thoughts about dropping a bomb on Medicaid. Scalia’s Blessing opinion is only three paragraphs long, and it is possible he reached the conclusion he did because he was unaware of the historical evidence that rebuts his argument. Armstrong, meanwhile, was not a Section 1983 case. So it’s unclear if the justices who joined Scalia’s opinion in Armstrong intended to cut off suits filed under the Reconstruction-era law.
Should five justices ultimately embrace Scalia’s approach in Blessing, however, the result would be catastrophic for Medicaid and for millions of Americans who depend on the program.
Here’s an example of how bad things could get: Imagine that Florida Gov. Ron DeSantis (R) announces that Florida’s Medicaid program will no longer provide coverage to transgender people, and that any Medicaid beneficiary who openly identifies as transgender will immediately lose their health benefits. Such a policy would violate federal law, which mandates that state Medicaid programs must cover a long list of groups who qualify based on their income, age, disability, or family circumstances.
But if no one who loses benefits because of DeSantis’s new policy can sue to reinstate their benefits, then it is far from clear that they will have any recourse. As a group of former high-level federal health officials explain in an amicus brief, the federal government “lacks the statutory authority to pursue tailored judicial remedies.” To the contrary, its authority “is largely limited … to ‘wield[ing] only the blunt and politically dangerous club of withholding federal funding.’”
Of course, the Biden administration could threaten to cut off some or all Medicaid funding to Florida, but that approach is likely to make the situation even worse. If Florida has less Medicaid funding, it will most likely have to kick even more people off of its Medicaid rolls or diminish the services it provides to beneficiaries. And if President Joe Biden is succeeded by a Republican, the new administration could simply announce that it will do nothing to sanction Florida for its actions.
It’s worth noting that there is an off-ramp that the Supreme Court could take that would effectively shut down this particular lawsuit, but without doing extensive violence to Medicaid as a whole.
The plaintiffs allege that Gorgi Talevski, a dementia patient, was abused by a nursing home in violation of Medicaid law. This includes allegations that his caregivers unlawfully kept him docile using psychotropic drugs. The Justice Department’s brief argues, however, that federal Medicaid law sets up an alternative dispute resolution process — including a process for filing grievances and a process for filing complaints with their state government— that nursing home patients must rely on in lieu of a Section 1983 suit.
If the Justice Department’s argument prevails, that would result in a narrow loss for the Talevski plaintiffs, but it would also allow the Court to stay away from the broader questions of whether Section 1983 suits may ever be filed to enforce Medicaid law.
For the sake of everyone who depends on Medicaid, here’s hoping the Court’s current majority, which has shown little interest in judicial restraint, chooses to exercise some here.
Human challenge trials have changed the fight against malaria and cholera. Next up: tuberculosis.
You probably don’t think about tuberculosis much. Growing up, I only read about it in history books, where it was often referred to as consumption and where it shortened the lives of such famous people as the poet John Keats, the playwright Anton Chekhov, and all the Brontë siblings. It’s a bacterial disease that lives mostly in the lungs, though if untreated it can spread throughout the body.
As recently as the turn of the 19th century, an estimated 7 million people a year died from tuberculosis. Even today, without modern medicine like antibiotics, it kills about half of people affected.
With access to modern medicine, though, tuberculosis is entirely treatable. But we haven’t yet succeeded at consigning it to the history books. It still kills more than a million people a year, mostly in Southeast Asia, Africa, and the Western Pacific. In 2020, it took 1.5 million lives as the second deadliest infectious disease behind Covid-19, and, after years of general decline, during the past year tuberculosis deaths started rising.
What could we do to change that? There is a tuberculosis vaccine, which reduces susceptibility to an active case of the disease by about 60 percent. Relentless campaigns have ensured it’s one of the most administered shots in the world, while the Directly Observed Therapy (DOT) protocol for drugs is a highly effective treatment for the sick.
But that doesn’t mean our work is done; 1.5 million deaths is still way too many, and as long as tuberculosis circulates, it raises the chance of the disease developing multi-drug resistances that make it harder to treat with medication.
A better vaccine
One thing that would make a huge difference for the fight against tuberculosis would be a better infant vaccine — and there are some candidates in the works. Recently, I heard from 1Day Africa, the African division of the nonprofit 1DaySooner, which works toward developing vaccines faster and ensuring everyone in the world can access them, about efforts in Malawi to get a human challenge trial of a promising new TB vaccine underway.
The logic of human challenge trials goes like this: Normally, vaccines are tested by vaccinating lots of people, and then waiting until some of them naturally get exposed to the disease. But that can mean the trials last for years, with millions of people dying in the meantime. For some vaccines, then, it makes more sense to test directly: A few weeks after volunteers are vaccinated, they are exposed to the infectious disease and monitored to see if they get sick (and make sure they get the medical treatments needed to recover if they do).
Challenge trials have been used for diseases like malaria and cholera. But they aren’t usually conducted for tuberculosis, partly because the long latency and long required course of treatment for the disease make such trials tricky. In particular, it’s hard to know for sure that a case of tuberculosis is gone and therefore hard to know that there’s no risk of innocent people being infected.
For years, though, tuberculosis researchers have been arguing that the human challenge model could significantly accelerate research on and development of a better TB vaccine. “The alternatives to a human challenge trial are very very expensive,” Josh Morrison, president of 1Day Sooner, told me. And since the people affected by TB are mostly poor, the unfathomable sums of money needed aren’t likely to be put up by pharmaceutical companies or rich-country governments.
Human challenge trials are faster, in many cases more informative, and more affordable. That’s why many researchers have argued that the benefits outweigh the risks.
“The human challenge model could change the field of TB vaccine development as the malaria human challenge model did for malaria vaccines,” one 2014 paper argued. A 2022 preprint attempted to estimate the scale of those benefits, and found that they’re massive: “[C]hallenge models with even scant probabilities of expediting TB vaccine authorization have enormous expected humanitarian value, saving between 33,000 and 1,375,000 lives over the next ten years.”
A Malawi-Liverpool collaboration
There’s yet to be a tuberculosis human challenge trial, with a lot of institutional signoffs needed before it can go ahead. But Zacharia Kafuko, the director of 1Day Africa, told me there’s finally been progress on changing that. It has come from the Malawi-Liverpool Wellcome Trust Clinical Research Programme (MLW), which is based in Blantyre, Malawi.
MLW is a world-class research hospital that hosts a lot of work I’m excited about, from malaria vaccines to schistosomiasis treatments to research on antibiotic resistance and drug-resistant disease. Every few years, the Royal College of London distributes a prize — endowed back in 1895 — to a leading tuberculosis researcher. The 2022 winner was Dr. Henry Mwandumba, interim director of MLW.
MLW has done challenge trials for other vaccines in Blantyre before, and Kafuko said that the local community in Blantyre is enthusiastic about taking part — and, if anything, annoyed that the approvals for this research are taking so long.
“They’re actually wondering why it takes this long, why it has to be approved by researchers in the UK,” Kafuko told me. “They feel this research should be pioneered in Africa. The people who have to benefit from vaccines are here.”
In a 2020 paper, researchers at MLW working on a human challenge trial for a pneumococcal vaccine conducted focus groups with researchers and local residents in Blantyre, and found that local residents were broadly in favor and excited about research happening near them instead of far away in Europe. “It’s indeed right to conduct the research […] the drugs we have here were developed in Europe and maybe because of differences in climate and our bodies; those drugs don’t work here,” one village chief said.
Unfortunately, many of the medical devices used for the study are from the UK, where permission has been harder to secure and ethical reviews are likely to take a long time. UK researchers also have expertise on conducting human challenge trials that is essential for moving forward, and access to attenuated strains of tuberculosis that might be preferred for a human challenge trial. Furthermore, Kafuko told me, many African medical ethics boards feel it’s their duty to only approve research if it’s also been approved in rich countries: “They’ve been conditioned to think they can only approve things that have been approved elsewhere.” As a result, not much can happen until Western ethics reviews are finished.
The 1DayAfrica and MLW representatives I talked to sounded more than a bit frustrated about that — as I think they should. It’s in Malawi that people are watching their loved ones die of tuberculosis. It’s in Malawi that people have stepped forward to volunteer to help test a vaccine that could change that. It’s in Malawi that doctors and nurses are ready to run this trial.
There’s still a lot to figure out. Which strain of TB should be used? We might learn less from attenuated strains, but they’re safer for participants and potentially for bystanders. Should the study happen in Liverpool or in Malawi? “These options are knotty and complicated, but the Western decisions about these options have made it really hard to pursue a trial and people affected seem to want to move forward,” Morrison told me.
It ought to be possible to balance these concerns better and to treat tuberculosis research with the urgency it deserves. For a start, ethics review in the UK should be expedited in light of the enormous ethical costs — 1.5 million people dead every year! — of failing to address TB. If the team in Blantyre is ready to go, I think the UK should make sure to do its own review process in a way that does not end up delaying critical research their colleagues at MLW are ready to conduct.
And as a bigger-picture matter, I think that rich countries should think about the implications of setting the standards (through not approving funding, sharing expertise, and sending medical equipment needed for research until our own ethics reviews are complete) by which people in other countries who directly face infectious diseases can organize to conduct critical scientific research to combat them.
I don’t know what it’s like to watch the people I love die of TB. So if the people who do know say they’re ready to accelerate vaccine development with human challenge trials, I think our job is to ask them how we can best be of assistance.
A version of this story was initially published in the Future Perfect newsletter. Sign up here to subscribe!
Economists say lawmakers could pass housing, health care, employment, and antitrust legislation to help Americans cope with rising prices.
As inflation continues to climb, making it harder for Americans to afford things like rent or food at the grocery store, much of the focus has been on the Federal Reserve.
That’s because the central bank is tasked with keeping prices stable. For months, the Fed has been trying to bring inflation under control by aggressively raising interest rates, which effectively makes borrowing money more expensive. By doing so, the Fed is trying to reduce consumer demand, which should eventually lead to slower price growth.
The Fed’s policy is the main and most influential factor, but economists say there are ways that Congress can help tackle inflation, which is up 8.2 percent from a year ago. Lawmakers have already passed the Inflation Reduction Act, which includes provisions that would cut the cost of prescription drugs, provide tax credits to encourage the use of renewable energy, and impose a 15 percent minimum tax on the profits of large corporations. Congress also passed the CHIPS Act, which President Joe Biden has said would help alleviate rising costs by boosting the country’s ability to manufacture semiconductors and strengthening the domestic supply chain.
With the economy top of mind for many voters ahead of the midterm elections next week, there will be pressure on incoming lawmakers to help Americans cope with rising prices. But economists say most fiscal policies that Congress could pass would be longer-term solutions, meaning that lawmakers probably can’t do much about inflation in the next few months. And Democrats and Republicans have diverged in their proposals for taming inflation, making it unlikely that many would gain bipartisan support.
“I don’t know that Congress has a huge arsenal of tools to deal with inflation over a six-month horizon,” said Michael Madowitz, the director of macroeconomic policy at the left-leaning Washington Center for Equitable Growth. “But Congress has a lot they can do about longer-term inflation. In fact, probably more than the Fed can do.”
Here are some ways that Congress could address inflation.
Housing
Rising housing costs have been a major contributor to overall inflation. Shelter prices make up about 30 percent of the Consumer Price Index, a key measure of inflation. Housing prices soared earlier in the pandemic as more people shifted to working from home and record-low mortgage rates led to potential buyers flooding the market.
Economists say that easing local regulations could help increase the supply of available homes, by allowing more spaces to be converted into residential properties or by making it easier for builders to construct new homes. That could in turn lead to lower prices as supply is better able to meet demand.
Dean Baker, a senior economist and co-founder of the liberal-leaning Center for Economic and Policy Research, said that Congress could offer grants to local governments to encourage the conversion of empty office spaces into residential homes, which would require relaxing some regulatory codes at the local level. Baker said that officials could relax some regulations while still keeping properties safe, such as by requiring fewer windows in certain units.
“There are a lot of land use regulations really everywhere that are overly restrictive,” Baker said.
Michigan Democratic Sens. Debbie Stabenow and Gary Peters have previously introduced legislation that would create a 20 percent tax credit for expenses to convert office buildings into residential or commercial properties. Sens. Amy Klobuchar (D-MN), Rob Portman (R-OH), and Tim Kaine (D-VA) have also proposed legislation that would provide funding to localities to develop plans to build more homes and remove local barriers to housing development.
Health care
Steeper medical care costs have also been a significant driver of overall inflation. In addition to cutting the cost of prescription drugs, the Inflation Reduction Act also includes provisions that would lower the cost of health insurance.
Lawmakers could further address rising health care costs by regulating the price of medical equipment or encouraging the easing of professional licensing regulations among health care workers, Baker said. Some lawmakers have proposed legislation that would remove barriers in the Medicare and Medicaid programs that limit the services that advanced practice nurses are trained to provide, for instance.
“There are a lot of situations where you could have a professional who could do more work than they’re allowed to do now, and that certainly could lower costs,” Baker said.
Employment and savings
Economists say that policies aimed at expanding the labor force could help tamp down inflation. Many companies have struggled to deal with worker shortages during the pandemic, which has led to higher labor costs and made it harder to supply goods and services.
Shai Akabas, director of economic policy at the Bipartisan Policy Center, said Congress could, for instance, eliminate the retirement earnings test, which temporarily withholds some Social Security benefits if an individual earns an income over a certain threshold and claims benefits before the full retirement age. Eliminating the test could encourage older workers to stay in the workforce for longer if their benefits weren’t withheld, Akabas said.
Congress could also pass legislation that would encourage people to save more money, which could lower consumer demand and spending, Akabas said. Lawmakers are already considering expanding the saver’s tax credit, which can be claimed by low- and moderate-income taxpayers who contribute to a retirement account, he said.
Sens. Ron Wyden (D-OR) and Mike Crapo (R-ID) have introduced the Enhancing American Retirement Now Act, which would include several upgrades to the saver’s tax credit. The legislation would make the tax credit refundable and deposit it directly into a worker’s IRA or 401(k) account rather than lump it into a tax refund, which could increase the interest and earnings accumulated.
“Since many of them don’t owe any net taxes anyway, they’re not eligible to receive a credit because they don’t have any tax liability,” Akabas said. “Making that credit refundable or otherwise expanding the credit in terms of the amount that is available would give more of an incentive to moderate and sub-middle income people to put aside more money in their savings.”
Antitrust and corporate profits
Policies aimed at breaking up concentrated industries could also lead to lower prices. Lindsay Owens, executive director of the progressive Groundwork Collaborative, said Congress could pass legislation that would boost competition among industries such as food and consumer goods. Those companies tend to have few competitors and make essential goods, meaning that they have more pricing power than other industries, Owens said.
Congress could pass policies that would block certain mergers and acquisitions, prevent loopholes for collusion, or crack down on price gouging, she said. Rep. Katie Porter (D-CA) recently proposed legislation that would close loopholes in antitrust laws and better hold large corporations accountable if they engaged in “coordinated price hikes.”
Owens also said lawmakers could disincentivize price markups, such as by imposing an excess profits tax on oil and gas companies.
“These companies are really bringing in truly windfall profits,” Owens said. “Tax that back and maybe ship it out in the form of rebates.”