BU Today: Let’s dive right into the law. What are the statutes and parts of US code at play in this case?

Huberfeld: Section 1983 is a part of federal civil rights law that creates a civil action for deprivation of rights. And that can mean constitutional rights or statutory rights. 

So, in this case, what happened is the Talevski family was trying to enforce the Medicaid Act—which provides what is essentially a patient’s bill of rights—through the vehicle of Section 1983. They were trying to get the nursing home to abide by the terms of federal Medicaid law. The reason that the family is relying on Section 1983 is that the Medicaid Act does not have a specific federal right of action written into it. However, for decades, courts have upheld the ability of both healthcare providers and patients to use Section 1983 to get into federal court to enforce their statutory entitlements in Medicaid and other social programs. Not every aspect of Medicaid is enforceable through Section 1983, but some are.

BU Today: How do the courts decide which parts of Medicaid are enforceable?

Huberfeld: What courts have held over time is that through two cases—one called Gonzaga and one called Blessing—that there’s a test to decide whether a particular statutory provision is enforceable through Section 1983. It’s known as the Blessing test.

The way that that test works is [that] basically courts will look at three questions: whether the particular federal law in question is intended to benefit that party, whether it’s a healthcare provider or a patient; whether the provision is specific enough that a court can figure out how to go about enforcement; and whether that provision creates a binding obligation on the state as opposed to just sort of a general expectation. And so, if the answer is yes to those three questions, then that part of the Medicaid Act is enforceable through Section 1983. 

Some parts of the Medicaid Act are a pretty clear fit for that. For example, EPSDT [Early and Periodic Screening, Diagnostic, and Treatment] is a set of very specific benefits for children enrolled in Medicaid. Those benefits are so specific as to say, for example, a child gets a well visit every year, unclothed, so that a physician actually has to look at the child and make sure that they’re healthy according to medical practice standards.
So, some Medicaid elements are very specific, and some are broader. 

One provision that has been a source of debate over time is a provision that is sometimes referred to as “30A.” [Section] 30A requires sufficient payment to Medicaid providers, and courts have sort of been divided as to whether the sufficient payment requirement was specific enough to be enforced through Section 1983, because it basically just says that states have to pay Medicaid providers enough that beneficiaries can see the same kinds of providers that are available in the geographic region in which they live.

BU Today: Are these types of federal cases common? How do states react?

Huberfeld: Generally speaking, states don’t want to be hauled into federal court. So, states fight these cases. But sometimes they’re really violating the Medicaid Act and the only way the Department of Health and Human Services [HHS] can know that is for providers or beneficiaries to bring these causes of action in federal court. 

The remedies tend to be pretty specific. So in other words, if the provider wins or the patient wins, what happens next is usually the court will issue an injunction telling the state that they have to change the thing they’re doing to comply with Medicaid law. Now, that’s important, because, again, under the actual language of the Medicaid Act, HHS doesn’t have a lot of options for enforcement.

You may remember the arguments over Medicaid expansion under the Affordable Care Act—this was part of that conversation as well. “What is it that HHS can do if the state’s not abiding by the terms of the Medicaid?” They can withhold funding. And the problem with withholding funding is that it harms the patient and it harms the state, because states rely on federal funding to balance their budgets. So the funny thing about states not wanting [cases] to be held in federal court is that typically, the remedy that is provided in these cases is much narrower and more specific than the one tool of withholding funding. 

BU Today: So, if these cases are usually narrowly decided, why did the Supreme Court agree to hear this one?

Huberfeld: It was a surprise that the Supreme Court took this case. There was no reason for the Court to take it. This wasn’t a provision that had been controversial in the past, and not a circuit split [in the lower courts]. There’s no reason for the Supreme Court to grant the petition for certiorari in this case. And so that’s why people are feeling alarmed. Because even with a history of enforcing Medicaid provisions through Section 1983, largely what has occurred is that courts have found a way to navigate the Blessing test, and they figure out which provisions of Medicaid are enforceable in federal court and which are not. And there isn’t really a lot of disagreement amongst courts. 

BU Today: Strange. What does it signal that the Court decided to take this, then?

Huberfeld: What’s happening here, writ large, is the state litigants see an opening—they see that Chief Justice Roberts has long disfavored Section 1983 rites of action in federal statutes. He doesn’t think that that right of action should be implied. 

This is something that he pursued before he was a justice on the Supreme Court, when he was a deputy solicitor general. This is something that was important to him. So his presence on the Court has meaning, but he’s been on the Court for a long time. The difference is that the Supreme Court is engaged in a larger federalism project now. That is making it so that the Court is much more open to listening to a perspective that one might, in shorthand, call the states rights perspective. And so, largely, what’s being argued here is that states can’t be subjected to Section 1983 rights of action.

The question presented is: is Section 1983 available for any Spending Clause legislation? And so that means any social program administered by states, which includes things like the Supplemental Nutrition Assistance Program (SNAP), Women, Infants, and Children Nutrition Program (WIC), Temporary Assistance for Needy Families (TANF), or what people still think of as welfare, all of our major social programs, with the exception of basically Medicare, fit within this umbrella. And so the bigger project here is trying to shut down access to federal courts to try to ensure that states are abiding by federal law and social programs. 

BU Today: Without access to Section 1983, how would these state-administered federal programs be enforced?

Huberfeld: The argument is that it’s the responsibility of the federal government to enforce its own laws. Now, the federal government relies heavily on states to implement a lot of our big social programs, but also to implement things like public health emergency response. So, you know, it is quite common throughout our social programs to have the federal government offer money and guidance, and states have some flexibility in implementing these programs.

So, what states are looking for here is, frankly, less federal oversight, and no ability to be hauled into federal court unless Congress specifically writes into federal law that private rights of action are available to enforce that federal law.

BU Today: How do you think the Court will rule on this one?

Huberfeld: I think there are enough justices on the Court who are interested in protecting states rights, in the name of federalism, that there’s a real chance that Section 1983 cause of action [the ability to sue under Section 1983] will be shut down. 

However, there is a narrower possibility here. One quirk of this case is that the alleged nursing home abuse occurred in a government-run nursing home. And so even though most nursing homes in the United States are privately run, half of the government-run nursing homes happen to be in Indiana, and this is one of those. So, it’s possible the Court could say Section 1983 rights of action are not available when the defendant is a state or government entity rather than something like a private nursing home. 

Another possibility is that rather than pursuing the broader question of whether Section 1983 rights of action are ever available in spending programs, the justices could consider whether they’re available for this particular feature of the Medicaid Act. So, can the Federal Nursing Home Reform Act of 1983 amendments, i.e., the nursing home Bill of Rights, be enforced through Section 1983? These are narrower ways to decide the case.

BU Today: Based on the Court’s holding in the Dobbs case—that is, to overturn Roe v. Wade—it doesn’t seem to me that this Court is particularly interested in narrow holdings. But what do you think?

Huberfeld: I think that’s right. I think what we’re seeing is a real shift in a number of the big questions that the country faces regularly. 

I think it’s hard for people to focus on this particular question, because it feels distant—it doesn’t feel like it would be important for people to be able to enforce their rights in federal spending programs. But the reality is that states often run afoul of federal law. And it’s hard for federal agencies to know that unless someone like a healthcare provider or patient raises a flag over the state’s choices. It would take a significant ramping up of federal personnel for the federal government to perform the oversight function that is currently in many ways performed by the Section 1983 rights of action. 

Without either, states could get away with violating federal law more, and not abiding by their promises to perform as they say they will in these federal programs that deliver a lot of money and help states keep balanced budgets.