Amicus Curiae Brief — Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased

No. 21-806

In the

Supreme Court of the United States

HEALTH AND HOSPITAL CORPORATION OF

MARION COUNTY, ET AL.,

v.

Petitioners,

IVANKA TALEVSKI, PERSONAL REPRESENTATIVE OF

THE ESTATE OF GORGI TALEVSKI, DECEASED,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT OF THE

RESPONDENT

ERIN E. MEYER

*ANJALI SRINIVASAN

MAX ALDERMAN

JULIA L. GREENBERG

*Counsel of Record

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

(415) 391-5400

asrinivasan@keker.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Interest of Amici Curiae .............................................1

Summary of Argument ...............................................3

Argument.....................................................................5

I.

Congress has long relied on this

Court’s tradition of allowing private

suits to enforce Spending Clause

legislation. ........................................................5

A. This Court’s precedent is clear:

Section 1983 permits aggrieved

individuals to vindicate violations of

rights enumerated in Spending

Clause statutes. .........................................5

B. Legislating against this backdrop,

Congress drafted FNHRA with the

expectation that it could be enforced

through Section 1983. ................................9

1. Congress conceived of

FNHRA in the face of

egregious nursing home

abuse. ...............................................9

2. FNHRA preserved Section

1983 remedies for

violations of nursing home

residents’ rights. ............................13

C. Reversing this Court’s longstanding

precedent would impinge on the

separation of powers between

Congress and the Supreme Court. ..........19

ii

II.

Disturbing this established doctrine

would have disastrous consequences. ............22

A. Spending Clause legislation ensures

funding for programs that benefit

millions of Americans. .............................23

B. Congress often relies on private

enforcement to provide oversight to

programs enacted via Spending

Clause legislation. ....................................29

1. Without the availability of

private suits, oversight of

federal-state programs

would be hampered. ......................29

2. Private suits effectively

curtail fraud and

highlight abuse,

complementing federal

and state enforcement

actions. ...........................................33

Conclusion. ................................................................36

Appendix A. ...............................................................1a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Briggs v. Bremby,

792 F.3d 239 (2d Cir. 2015) ...........................28, 34

Ctr. for Spec. Needs Trust Admin., Inc.

v. Olson,

676 F.3d 688 (8th Cir. 2012) ...............................34

In re Estate of Smith,

557 F. Supp. 289 (D. Colo. 1983) .........................11

Gonzaga University v. Doe¸

536 U.S. 273 (2002) ................................................7

Helvering v. Davis,

301 U.S. 619 (1937) ................................................6

Higgins v. Beyer,

293 F.3d 683 (3d. Cir. 2002) ................................33

Mississippi ex rel. Hood v. AU Optronics

Corp.,

571 U.S. 161 (2014) ........................................19, 20

Maine v. Thiboutot,

448 U.S. 1 (1980) ....................................................5

Middlesex County Sewerage Authority

v. Sea Clammers

453 U.S. 1 (1981) ........................................ 6, 15, 16

Nelson v. Heiss,

271 F.3d 891 (9th Cir. 2001)................................33

iv

New York State Citizens’ Coal. for

Children v. Poole,

922 F.3d 69 (2d Cir. 2019) .............................28, 33

Pennhurst State School and Hospital v.

Halderman,

451 U.S. 1 (1981)....................................................6

Planned Parenthood S. Atl. v. Baker,

941 F.3d 687 (4th Cir. 2019) ...............................34

Pullman v. Allen,

466 U.S. 522 (1984) ..........................................8, 20

Smith v. Heckler,

747 F.2d 583 (10th Cir. 1984)...................... passim

Smith v. Robinson,

468 U.S. 992 (1984) ................................................6

South Dakota v. Dole,

483 U.S. 203 (1987) ..............................................27

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) ..............................................20

St. Anthony Hosp. v. Eagleson,

40 F.4th 492 (7th Cir. 2022) ...............................34

Suter v. Artist M.,

503 U.S. 347 (1992) ..........................................8, 20

United States v. Johnson,

481 U.S. 681 (1987) ..............................................20

Wilder v. Va. Hosp. Ass’n,

496 U.S. 498 (1990) .............................................34

v

Wright v. Roanoke Redev. & Hous.

Auth.,

479 U.S. 418 (1987) ..........................................7, 33

Statutes

Tit. XIX, 42 U.S.C. § 1396 et seq.

42 U.S.C. § 1396–1396n. ...............................11, 24

42 U.S.C. § 1396r(b)(1)(A) ...................................27

42 U.S.C. § 1396r(c) .............................................28

42 U.S.C. § 1396r(c)(1)(A) ..............................27, 28

42 U.S.C. § 1396r(c)(1)(A)(ii) ...............................14

42 U.S.C. § 1396r(h)(8) ........................................15

42 U.S.C. § 1396r(x)(C)(2) ...................................14

42 U.S.C. § 1983 ................................................ passim

Other Authorities

141 Cong. Rec. 21836 (1995) ...................................8, 9

Cong. Rsch. Serv., LSB10320, Courts

Split on Whether Private Individuals

Can Sue to Challenge States’

Medicaid Defunding Decisions:

Considerations for Congress (Part I

of II) (2019).............................................................9

Cong. Rsch. Serv., R40638, Federal

Grants to State and Local

Governments: A Historical

Perspective on Contemporary Issues

(2019) ....................................................................23

vi

Cong. Rsch. Serv., R42505,

Supplemental Nutrition Assistance

Program (SNAP): A Primer on

Eligibility and Benefits (2022).............................26

Cong. Rsch. Serv., R44668, The

Temporary Assistance for Needy

Families (TANF) Block Grant: A

Legislative History (2014) ....................................26

Cong. Rsch. Serv., R46986, Federal

Spending on Benefits and Services

for People with Low Income:

FY2008-FY2020 (2021) ..................................23, 24

Cong. Rsch. Serv., RL31569, Section

1983 and the Spending Power:

Enforcement of Federal “Laws”

(2002) ......................................................................9

Ctrs. for Medicare & Medicaid Servs.,

Eligibility & Enrollment Processing

for Medicaid, CHIP, and BHP

During COVID-10 Public Health

Emergency Unwinding Key

Requirements for Compliance (2022) ............30, 31

Ctrs. for Medicare & Medicaid Servs.,

May 2022 Medicaid and CHIP

Enrollment Trends Snapshot (2022) ...................25

Committee on Nursing Home

Regulation, Institute of Medicine,

Improving the Quality of Care in

Nursing Homes (1986) .........................................12

vii

Edward A. Tomlinson & Jerry L.

Mashaw, The Enforcement of

Federal Standards in Grant-in-Aid

Programs: Suggestions for

Beneficiary Involvement, 58 Va. L.

Rev. 600 (1972) ....................................................31

H.R. Rep. 100-391 (1987) .............................. 10, 14, 17

H.R. Rep. No. 100-495 (1987) (Conf.

Rep.) .....................................................................17

H.R. Rep. No. 103-761 (1994) (Conf.

Rep.) .......................................................................8

Implication of Supreme Court Decision

in Suter v. Artist M.: Hearing Before

the Subcomm. on Soc. Sec. and Fam.

Pol’y, of the Comm. on Fin., U.S.

Senate, 102nd Cong. (1992) ...................................8

Kara Clifford Billings, Cong. Rsch.

Serv., R46234, School Meals and

Other Child Nutrition

Programs: Background and

Funding (2022) ....................................................25

Medicaid Issues in Family Welfare and

Nursing Home Reform: Hearings

Before the Subcomm. on Health and

the Env. of the Comm. on Energy

and Com., H.R., 100th Cong. (1987) .............18, 19

viii

Medicare & Medicaid Servs., Eligibility

& Enrollment Processing for

Medicaid, CHIP, and BHP During

COVID-10 Public Health Emergency

Unwinding Key Requirements for

Compliance (2022) .........................................30, 31

Nursing Home Care: The Unfinished

Agenda (Volume I): Hearing Before

the Spec. Comm. on Aging, U.S.

Senate, 99th Cong. (1986) ............................ passim

Pamela Doty and Ellen Wahl Sullivan,

Community Involvement in

Computing Abuse, Neglect, and

Mistreatment in Nursing Homes, 61

Milbank Mem’l Fund Q. 222 (1983) ....................10

S. Rep. No. 104-366 (1996) ..........................................8

Sasha Samberg-Champion, How to

Read Gonzaga: Laying the Seeds of a

Coherent Section 1983

Jurisprudence, 103 Colum. L. Rev.

1838 (2003) .......................................................6, 32

Staff of Subcomm. on Long-Term Care

of the Spec. Comm. on Aging, U.S.

Senate, 94th Cong., Drugs in

Nursing Homes: Misuse, High Costs,

and Kickbacks (1975) .....................................10, 11

Subcommittee on Long-Term Care’s

Committee Print, 93rd Congress,

Nursing Home Care in the United

States, Failure in Public Policy

(Comm. Print 1975) .............................................10

ix

“Temporary Assistance for Needy

Families,” Benefits.Gov .................................25, 26

The Supreme Court, 1979 Term Leading Cases, 94 Harv. L. Rev. 223

(1980) .....................................................................6

U.S. Dep’t of Health & Hum. Servs.,

Fiscal Year 2023: Budget in Brief

(2023) ........................................................ 25, 26, 27

U.S. Dept. of Health & Hum. Servs.,

“States’ Accuracy of Reporting

TANF Spending Information,” Office

of Inspector General ............................................26

William N. Eskridge, Jr., Overriding

Supreme Court Statutory

Interpretation Decisions, 101 Yale

L.J. 331 (1991) ...............................................20, 21

1

INTEREST OF AMICI CURIAE1

Amici Speaker Nancy Pelosi, Majority Leader

Steny H. Hoyer, Majority Whip James E. Clyburn,

Senator Sherrod Brown, Senator Robert P. Casey, Jr.,

Senator Dick Durbin, Senator Patty Murray, Senator

Ron Wyden, Representative Jerrold Nadler,

Representative Richard E. Neal, Representative

Frank Pallone, Jr., Representative David Scott,

Representative Robert C. Scott, Representative Mark

Takano, and Representative Maxine Waters are

current Members of Congress who support retaining

Congress’ ability to pass legislation under the

Spending Clause that can be enforced via 42 U.S.C.

1983. Most of these Members serve as the Chairs of

United States Senate or House of Representatives

Committees with jurisdiction over programs

legislated pursuant to Congress’ spending authority,

including, among others, Social Security, Medicaid,

Medicare, the Supplemental Nutrition Assistance

Program, and Temporary Assistance for Needy

Families.2

Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. The parties have filed blanket consents to the filing

of amici curiae briefs in accordance with Supreme Court Rule

37.3.

1

2 Amici’s titles and affiliations are provided in Appendix A.

2

Amici are thus uniquely situated to provide

insight into Congress’ intention and practice that

Section 1983 provides a remedy for deprivations of

rights secured by federal statutes, including Spending

Clause statutes.

Congress has relied on this

presumption for a half century to negotiate and pass

legislation benefiting millions of Americans. Amici

believe that the availability of private suits to enforce

rights granted under Spending Clause legislation is

supported by this Court’s precedent and essential for

efficient administration and oversight of important

federal-state programs.

Amici further support

nursing home residents’ ability to enforce, via Section

1983, the rights codified in the Federal Nursing Home

Reform Act, which is consistent with Congress’ intent

in drafting and passing that legislation.3

Indeed, in 1987, Senator Wyden—then serving as a United

States Representative on the House of Representatives

Committee on Energy and Commerce—voted in favor of both

referring the Federal Nursing Home Reform Act to the House of

Representatives Budget Committee and as part of the Omnibus

Budget Reconciliation Act of 1987.

3

3

SUMMARY OF ARGUMENT

Congress has long passed legislation pursuant

to its Spending Clause powers that permits private

suits brought under 42 U.S.C. § 1983 (“Section 1983”)

to remedy violations of such statutes. This Court

should reject efforts to alter its established, uniform

precedent for two primary reasons.

First, for decades, Congress has legislated

against the backdrop that express rights derived from

federal spending statutes may be enforced through

Section 1983. The Federal Nursing Home Reform Act

(“FNHRA”) is one such piece of legislation. The text,

legislative history, and origins of FNHRA show that

Congress intended to permit individuals to seek

remedies for violations of FNHRA’s “[r]equirements

relating to residents’ rights” under Section 1983.

Alteration of this precedent would undermine the text

and purpose of FNHRA. Were this Court to reverse

the Seventh Circuit’s decision and restrict a nursing

home resident’s ability to sue for certain violations of

FNHRA, this Court would impede Congress’ intention

to provide efficient and effective means of redress for

nursing home quality-of-care violations, impinge on

congressional authority, and imperil the separation of

powers between Congress and the Court.

4

Second, disturbing this Court’s Section 1983

doctrine more broadly—by curtailing Congress’

ability to permit private enforcement of Spending

Clause legislation and the programs established by

that

legislation—would

have

disastrous

consequences. Congress allocates billions of dollars

each year in federal funds to assist the states in

providing services for the nation’s most vulnerable

individuals. Neither federal nor state authorities

have sufficient resources to provide complete

oversight over the funding funneled into state

programs. Instead, their attention must often be

dedicated to remedying systemic abuses, while

preserving the option for aggrieved persons to seek

individual remedies in federal court. Both Congress

and the states depend on private enforcement of

rights encapsulated in these statutes to protect

vulnerable individuals and groups.

Limiting

Congress’ ability to establish such privateenforcement mechanisms will leave federal-state

programs with modest oversight. And individual

violators will effectively be immunized from suit.

Thus, reversal of this Court’s uniform Section 1983

doctrine would leave Spending Clause beneficiaries

with little recourse and would egregiously undermine

Congress’ purpose in enacting these statutes.

5

ARGUMENT

I.

Congress has long relied on this Court’s

tradition of allowing private suits to

enforce Spending Clause legislation.

A. This Court’s precedent is clear:

Section 1983 permits aggrieved

individuals to vindicate violations of

rights enumerated in Spending Clause

statutes.

For over forty years, Congress has legislated

against the backdrop that rights derived from federal

spending statutes may be enforced through Section

1983. This Court squarely addressed this aspect of

Section 1983 in Maine v. Thiboutot, finding that

aggrieved individuals could sue for violations of rights

secured by the Social Security Act—a quintessential

piece of Spending Clause legislation.4 448 U.S. 1, 4

(1980). There was no doubt that, at the time, both the

Court and litigants understood that Thiboutot

grappled with whether Spending Clause legislation

might be enforceable through Section 1983.5 Id. at 25

(Powell, J., dissenting) (noting that “laws under the

Spending and Commerce Clauses” would be

implicated by the majority’s reading of Section 1983).

And this Court answered in the affirmative, finding

that Section 1983 permitted private lawsuits to

vindicate rights conferred via Spending Clause

legislation.

6

In the 1980s and 1990s, this Court cabined

Thiboutot’s reach in certain ways but repeatedly

confirmed its essential holding: legislation, including

Spending Clause legislation, that confers individual

rights can be enforced through Section 1983 suits.

For example, in Pennhurst State School and Hospital

v. Halderman, the Court directed Congress to make

the individual rights at issue clear and express, such

that the legislation would “unambiguously” signal to

the States a congressional intent to “impose a

condition on the grant of federal moneys.” 451 U.S. 1,

17 (1981). Likewise, in Middlesex County Sewerage

Authority v. National Sea Clammers Association, the

Court required Congress to demonstrate in the

statute’s language and structure that it intended to

preserve recourse through a Section 1983 action. 453

U.S. 1, 20 (1981); see also Smith v. Robinson, 468 U.S.

992 (1984). Neither the Pennhurst nor Sea Clammers

decisions cabined the reach of Section 1983 to only

certain federal laws. Thus, Congress understood, as

4 See, e.g., Helvering v. Davis, 301 U.S. 619, 640 (1937) (affirming

the constitutionality of the Social Security Act as a proper

exercise of Congress authority to “spend money in aid of the

‘general welfare’”).

5 See also The Supreme Court, 1979 Term - Leading Cases, 94

Harv. L. Rev. 223, 227 (1980) (“The paradigmatic statutory 1983

suit arises out of a jointly funded entitlements program in which

federal officials formulate guidelines that state and local

administrators must implement.”); see also Sasha SambergChampion, How to Read Gonzaga: Laying the Seeds of a

Coherent Section 1983 Jurisprudence, 103 Colum. L. Rev. 1838,

1845 (2003) (“To argue that Thiboutot somehow leaves open the

treatment of Spending Clause programs is to seriously misread

its holding as contemporaries understood it.”).

7

this Court affirmed in Wright v. City of Roanoke

Redevelopment and Housing Authority, that it

remained well-established that “if there is a state

deprivation of a ‘right’ secured by a federal statute,

[Section] 1983 provides a remedial cause of action

unless . . . Congress intended to foreclose such private

enforcement.” 479 U.S. 418, 423 (1987).

This Court’s 2002 decision in Gonzaga University

v. Doe¸ 536 U.S. 273 (2002) altered, but did not rift,

this landscape. As in Thiboutot, Pennhurst, Sea

Clammers, and Wright, the Court affirmed that

Section 1983 may be used to vindicate the violation of

rights guaranteed by Spending Clause statutes.

Gonzaga, 536 U.S. at 284 (“Plaintiffs suing under

[Section] 1983 do not have the burden of showing an

intent to create a private remedy because [Section]

1983 generally supplies a remedy for the vindication

of rights secured by federal statutes.”). Gonzaga

merely underscored that, “if Congress wishes to

create new rights enforceable under [Section] 1983, it

must do so in clear and unambiguous terms—no less

and no more than what is required for Congress to

create new rights enforceable under an implied

private right of action.” Id. at 290. But Gonzaga did

not deviate from or reverse the central holding in

Thiboutot, and it continued to affirm that Section

1983 is available as a means of redress for individual

rights guaranteed by certain Spending Clause

legislation. Id. at 289–90.

8

Congress has heeded the Court at each turn,

considering the Court’s directives while affirming its

authority to draft Spending Clause legislation that

guarantees certain individual rights enforceable

through Section 1983 suits. Three examples make

this clear. First, when this Court determined, in

Suter v. Artist M., 503 U.S. 347, 356 (1992), that Title

IV-E of the Social Security Act’s “reasonable efforts”

clause regarding foster-care placements lacked an

enforceable right, Congress amended Section 1320a-2

to permit the private enforcement of certain portions

of that statute. In the Conference Report for the

underlying bill, Congress noted that the amendment

“overturn[ed] any such grounds applied in Suter v.

Artist M.” H.R. Rep. No. 103-761, at 926 (1994) (Conf.

Rep.). This language was consistent with other,

earlier efforts to counteract Suter’s sweep considered

by the Senate Subcommittee on Social Security and

Family Policy, which had sought to develop ideas for

similar language that would clearly protect citizens’

right to seek redress for certain state violations of

Spending Clause statutes.

See Implication of

Supreme Court Decision in Suter v. Artist M.: Hearing

Before the Subcomm. on Soc. Sec. and Fam. Pol’y, of

the Comm. on Fin., U.S. Senate, 102nd Cong. 18–20

(1992). Second, after this Court limited immunity

protections for state court judges in Pullman v. Allen,

466 U.S. 522, 541–43 (1984), Congress amended the

text of Section 1983 to “restore[] the doctrine of

judicial immunity to the status it occupied prior to

Pullman.” S. Rep. No. 104-366, at 36–37 (1996); 141

9

Cong. Rec. 21836 (1995).6 And third, Congress

frequently considers and invokes this Court’s Section

1983 doctrine to frame its legislation.7

At no point has Congress understood that it lacks

authority to permit private enforcement of Spending

Clause legislation through Section 1983. Indeed, this

Court has continuously and repeatedly affirmed the

opposite, and Congress has relied on those decisions

when legislating pursuant to its Spending Clause

powers.

B. Legislating against this backdrop,

Congress drafted FNHRA with the

expectation that it could be enforced

through Section 1983.

1. Congress conceived of FNHRA in the

face of egregious nursing home

abuse.

Congress enacted the Omnibus Budget

Reconciliation Act of 1987 (“OBRA”) and its attendant

nursing home reforms, captured in FNHRA, to

improve the quality of care for nursing home

6 This report accompanied the Federal Courts Improvement Act

(FCIA), Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853.

7 See, e.g., Cong. Rsch. Serv., RL31569, Section 1983 and the

Spending Power: Enforcement of Federal “Laws” (2002); Cong.

Rsch. Serv., LSB10320, Courts Split on Whether Private

Individuals Can Sue to Challenge States’ Medicaid Defunding

Decisions: Considerations for Congress (Part I of II) (2019).

10

residents and improve state oversight of those homes

that receive federal funding through Medicaid. In

1987, Congress was “deeply troubled by persistent

reports that, despite th[e] massive commitment of

Federal resources, many nursing homes receiving

Medicaid funds [were] providing poor quality care to

elderly and disabled beneficiaries.” H.R. Rep. No.

100-391, at 73 (1987).

But the crisis of care in the nation’s nursing

homes was hardly news. Both state and federal

officials had received reports for decades about poor

quality of care, serious violations of patients’ rights,

and fraud in the nation’s state-run and federally

funded nursing homes.8 From 1969 through 1974, the

Senate Special Committee on Aging held 22 hearings

on elder care, culminating in the multi-part

Subcommittee on Long-Term Care’s Committee Print,

93rd Congress, Nursing Home Care in the United

States, Failure in Public Policy, (Comm. Print 1975).

It concluded that current nursing care “standards are

so vague as to defy enforcement,” leaving state

enforcement best characterized as “scandalous,

ineffective, and, in some cases, nonexistent.” See

Staff of Subcomm. on Long-Term Care of the Spec.

Comm. on Aging, U.S. Senate, 94th Cong., Drugs in

Nursing Homes: Misuse, High Costs, and Kickbacks

8 See, e.g., Pamela Doty and Ellen Wahl Sullivan, Community

Involvement in Computing Abuse, Neglect, and Mistreatment in

Nursing Homes, 61 Milbank Mem’l Fund Q. 222, 224 (1983)

(noting rampant violations of nursing home residents’ rights in

the 1970s).

11

XIII (1975).

This multi-part Committee Print

provided detailed analyses of untrained or unlicensed

personnel, poor integration of vulnerable and

minority communities, financial fraud, and drug

abuse. See id.

Public outcry over perceived government inaction

and continued abuse came to a head in a spate of

Colorado lawsuits, culminating in the Tenth Circuit’s

1984 decision in Smith v. Heckler, 747 F.2d 583, 589

(10th Cir. 1984).

There, Medicaid recipients

successfully sued the Secretary of Health and Human

Services under Section 1983 for failing to properly

enforce Title XIX (the “Medicaid Act”) of the Social

Security Act, 42 U.S.C. §§ 1396–1396n. The district

court, despite noting that nursing homes “provide so

little service that they could be characterized as

orphanages for the aged,” had declined to find that

plaintiffs could adequately seek a Section 1983

remedy for violations of the Medicaid Act, and it held

that the federal government was limited to denying

funding to non-compliant state nursing home

providers. In re Estate of Smith, 557 F. Supp. 289,

293, 296–97 (D. Colo. 1983). The Tenth Circuit

reversed that decision, holding that the federal

government had failed to uphold its duty and develop

a system that adequately enforced Medicaid

regulations in state-run nursing home facilities.

Smith, 747 F.2d at 589. And it directed the Secretary

to “establish a system to adequately inform herself as

to whether the facilities receiving federal money are

satisfying the requirements of the Act, including

providing high quality patient care.” Id.

12

In response to Heckler, Congress and the Health

Care Financing Administration (“HCFA”), acting

through the Committee on Nursing Home Regulation,

renewed its interest in these issues, and requested

that the Institute of Medicine (“IoM”) articulate

requirements and outcomes for Medicaid- and

Medicare-certified nursing homes that could be

translated into federal law. The IoM’s 415-page

report to Congress recommended comprehensive

reforms to improve the quality of nursing home care.

Committee on Nursing Home Regulation, IoM,

Improving the Quality of Care in Nursing Homes

(1986). The IoM outlined the need to ensure that

nursing home residents “receive appropriate care”

and “enjoy continued civil and legal rights,” as

nursing home residents in some “governmentcertified nursing homes” receive “shockingly deficient

care,” and “are likely to have their rights ignored or

violated.” Id. at 2. It recommended that, in any

federal law regulating or otherwise certifying nursing

homes, “[r]esidents’ rights should be raised from a

standard to a condition of participation,” that is, that

residents’ rights should be a condition for receipt of

federal funds. Id. at 27. And it advised a rigorous

enforcement scheme. Id.

As of 1986, Congress’ task appeared clear: the

legislature, in coordination with the administration,

needed legislation codifying nursing home residents’

rights and making them individually enforceable. See

Nursing Home Care: The Unfinished Agenda (Volume

I): Hearing Before the Spec. Comm. on Aging, U.S.

Senate, 99th Cong. 11 (1986). Expressing hope that

13

Congress could “strengthen[] federal patients’ rights”

and “improve the federal enforcement system,”

Senator John Glenn urged his colleagues in the

Senate’s Special Committee on Aging to adopt

regulations and laws that would protect nursing

home residents. Id. at 4. Similarly, Senator William

S. Cohen referenced his repeated attempts to

establish a “nursing home patients’ bill of rights”

while he was a member of the House, and his desire

to remedy the “crux of the problem we are facing

today,” namely, that these rights “have not been very

effectively enforced.” Id. at 15. Numerous health

advocates agreed. See, e.g., id. at 109, 161 (statement

of Toby Edelman, staff attorney, Nat’l Senior Citizens

L. Ctr.) (statement of Sandra K. Casper, president,

Rehabilitation Care Consultants).

2. FNHRA preserved Section 1983

remedies for violations of nursing

home residents’ rights.

FNHRA’s drafters took seriously the history of

these legislative and regulatory efforts, the IoM’s

recommendations, and the Section 1983 lawsuits

culminating in the Tenth Circuit’s decision in Heckler.

FNHRA was designed to imbue nursing home

residents with individual rights enforceable through

Section 1983 lawsuits.

14

a. Congress emphasized nursing

home residents’ rights in

FNHRA.

FNHRA’s emphasis on preserving nursing home

residents’ express and enforceable individual rights

has remained a consistent and central aspect of the

legislation. The text makes this clear. As signed into

law on December 22, 1987, its “Requirements

Relating to Residents’ Rights,” provides that nursing

home residents had, among other things, a number of

“specified rights,” including (1) “[t]he right to be free

from physical or mental abuse, corporal punishment,

involuntary seclusion, and any physical or chemical

restraints imposed for purposes of discipline or

convenience” and (2) non-transfer rights, like the

right “to remain in the facility,” subject to certain

conditions. 42 U.S.C. § 1396(c)(1)(A)(ii), (x)(C)(2), as

added and amended Pub. L. 100-203, Dec. 22, 1987,

101 Stat 1330. In its recommendations to the House

of Representatives, the Committee on Energy and

Commerce explained that this language explicitly tied

the articulation of express nursing home residents’

rights to those rights’ enforcement. See generally

H.R. Rep. 100-391(I) (1987). The Committee noted

that the proposed FNHRA’s Bill of Rights “would, for

purposes of compliance and enforcement, elevate

residents’ rights to the same level as staffing and

other requirements” for nursing home care. Id. at 82–

83. It further stated that these rights should be

“vigorously enforced.” Id.

15

b. Congress also preserved private

enforcement remedies in

FNHRA.

Petitioner contends that “the remedial scheme for

the two rights Respondent asserts is so extensive that

Congress cannot have intended to permit

supplementation under Section 1983.” Pets. Br. at 39.

Not so. Congress intentionally preserved the right to

seek a remedy for violation of its patient rights

provisions under other laws, including pursuant to

Section 1983. Again, the text makes this clear.

FNHRA expressly provides that “[t]he remedies

provided under [FNHRA] are in addition to those

otherwise available under State or Federal law and

shall not be construed as limiting such other

remedies, including any remedy available at common

law.” 42 U.S.C. § 1396r(h)(8).

Congress’ use of “remedy” in FNHRA’s Savings

Clause was deliberate. Congress was undoubtedly

aware of this Court’s decisions restricting Section

1983 suits when the underlying statute contains a

comprehensive enforcement scheme and the statute’s

Savings Clause failed to demonstrate Congress’

intention to preserve the availability of Section 1983

suits. Take, for example, this Court’s decision in

Middlesex County Sewerage Authority v. Sea

Clammers, issued only a few years prior to the

passage of FNHRA. 53 U.S. 1, 20 (1981). Sea

Clammers found that an environmental statute failed

to preserve Section 1983 lawsuits because its Savings

Clause—which provided that “[n]othing is this section

16

shall restrict any right to which any person . . . may

have under any statute or common law or to seek . . .

any other relief”—merely demonstrated Congress’

intention “to allow further enforcement” of standards

“arising under other statutes or state common law.”

Id. at 20 n.31 (emphasis and alteration in original).

In partial dissent, Justice Stevens reasoned that this

Savings Clause preserved Section 1983 suits because

the legislative history indicated that “‘the section

would specifically preserve any rights or remedies

under any other law.’” Id. at 29 (Stevens, J.)

(concurring in part and dissenting in part) (quoting S.

Rep. No. 92–414, at 81 (1971), U.S. Code Cong. &

Admin. News 1972, at 3746). But the majority

dismissed his position, noting that the Savings Clause

failed to use language “expressly preserv[ing Section]

1983 remedies for violations.”

Id. at 20 n.31

(emphasis added).

Congress thus drafted FNHRA’s Savings Clause

carefully. It avoided the language at issue in Sea

Clammers, which preserved the “right” to seek

remedies for violations of other statutes, in favor of

language preserving a “remedy” under statutes like

Section 1983 for violations of FNHRA itself.

FNHRA’s Savings Clause thus permits individual

enforcement of its requirements, ensuring that its

regulatory enforcement regime would not be the sole

form of relief for nursing home residents deprived of

their rights. In essence, Congress made sure that

aggrieved beneficiaries could seek additional

“remedies” for any violations of FNHRA rights

17

committed in federally funded nursing facilities,

following this Court’s guidance.

Nor was Congress silent about its intention to

preserve private remedies for violations of FNHRA.

Of the three bills that came to form the final FNHRA,

each specified different enforcement mechanisms.

H.R. 2770 and 2270, later combined into H.R. 3545,

proposed public and private enforcement, and

preserved the right of beneficiaries to seek Section

1983 remedies. As the Committee of Energy and

Commerce “emphasize[d]” in its House Report on

H.R. 3545 and the proposed Medicare and Medicaid

Amendments, which contributed to the final FNHRA,

“the remedies specified under [FNHRA] are not

exclusive, and should not be construed to limit the use

of other remedies that may be available” to either

state or federal actors, or private parties, “including

remedies available to residents at common law,

including private rights of action to enforce

compliance with requirements for nursing facilities.”

H.R. Rep. No. 100-391(I), at 97 (1987). The Senate’s

bill, S. 1108, took a slightly different tack, proposing

severe penalties for noncompliance with FNHRA,

while staying silent on private enforcement. The final

FNHRA declined to limit available remedies, broadly

adopting the enforcement language proposed by both

the House and Senate bills. H.R. Rep. No. 100-495, at

724 (1987) (Conf. Rep.), 4 U.S. Code Cong. & Ad.

News, 2313-1412, 100th Cong., 1st Sess. 1987, at

2313-1470.

18

Floor debates and congressional hearings

regarding FNHRA confirmed the need for private

enforcement of its rights, and they centered on private

lawsuits brought to remedy violations of care.

Legislators knew that Section 1983 lawsuits over

inadequate care in state-funded nursing homes had

presaged the IoM’s report and the court-ordered

reevaluation of federal nursing-home-monitoring

standards.

And Congress solicited considerable

testimony from those who had sought court remedies

for ineffective or inadequate nursing care, including

those who expressly advocated for better or more

effective private remedies.9

Congress was also well aware that state and

federal enforcement would be insufficient, on its own,

to remedy individual violations of specific residents’

rights. One health advocate cautioned that without

“more resources,” it would be impossible for the state

to “examin[e] each resident on each inspection.”

Medicaid Issues in Family Welfare and Nursing Home

Reform: Hearings Before the Subcomm. on Health and

the Env. of the Comm. on Energy and Com., H.R.,

100th Cong. 271 (1987) (statement of Anthony

9 See, e.g., Nursing Home Care: The Unfinished Agenda (Volume

I): Hearing Before the Spec. Comm. on Aging, U.S. Senate, 99th

Cong. 6 (1986) (statement of John Glenn, Senator) (“Today, we

will hear about Smith v. Heckler – the most important nursing

home litigation to date.”); Medicaid Issues in Family Welfare and

Nursing Home Reform: Hearings Before the Subcomm. on Health

and the Env. of the Comm. on Energy and Com., H.R., 100th

Cong. 261 (1987) (statement of Sue Mettel, president, Oxford

Lane Fam. Council); id. at 195 (statement of Mary Fitzpatrick).

19

Robbins, professor, Bos. Univ.)

Likewise, the

American Association of Retired Persons testified

that any final bill should preserve the ability for

beneficiaries to pursue private legal action, because

they are “most knowledgeable about conditions

within the nursing home” and “are most likely to

suffer personal injury as a result of substandard

care.” Id. at 501–02 (“[A] beneficiary private right of

action could be an extremely effective remedy for

use.”) These concerns echoed those of Senator Cohen

in 1986, who had long stressed the need for private

rights of action to enforce nursing home residents’

rights. Nursing Home Care: The Unfinished Agenda

(Volume I): Hearing Before the Spec. Comm. on Aging,

U.S. Senate, 99th Cong. 15 (1986) (remarking that

enforcement could not merely be “shut[ting] down a

nursing home that is in violation” or “allowing the

home to continue with the existing abuses”).

Congress thus enacted FNHRA with a clear

intention to provide a private remedy for violations of

its newly enumerated, federally protected rights.

C. Reversing this Court’s longstanding

precedent would impinge on the

separation of powers between

Congress and the Supreme Court.

This Court has long recognized that, when

Congress legislates, it does so with an understanding

of the law. See, e.g., Mississippi ex rel. Hood v. AU

Optronics Corp., 571 U.S. 161, 169 (2014) (“[W]e

20

presume that Congress is aware of existing law when

it passes legislation.”) (internal quotations omitted);

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

351 (1998) (“[W]e assume that Congress is aware of

existing law when it passes legislation.”) (internal

quotations omitted). As evidenced by Congress’

response to this Court’s holding in Suter v. Artist M.

and Pullman v. Allen, among others, Congress also

legislates with an understanding of the Supreme

Court’s precedent and the doctrine that will govern

the interpretation of legislation it enacts. See Section

I.A; see also William N. Eskridge, Jr., Overriding

Supreme Court Statutory Interpretation Decisions,

101 Yale L.J. 331, 398 (1991) (“Congress is aware of

the Court’s statutory decisions and actively considers

almost half of them in legislative hearings.”); see, e.g.,

United States v. Johnson, 481 U.S. 681, 686 (1987)

(recognizing congressional support for a judicial

interpretation where Congress has not “changed this

standard in the close to 40 years since it was

articulated” even though Congress “possesses a ready

remedy to alter a misinterpretation of its intent”

(internal quotations omitted)).

For more than 40 years, Congress understood

that Section 1983 provides a private enforcement

mechanism for certain Spending Clause legislation.

And, despite the Supreme Court’s repeated review of

the doctrine, Congress’ understanding of the law has

not changed: Section 1983 can apply to Spending

Clause legislation. In fact, as described above and

supported by the United States, Congress expressly

ratified the applicability of Section 1983 to Spending

21

Clause programs as part of the Social Security Act.

See Section I.A; see also Amicus Curiae United States

Br. at 13 (“In addition to being repeatedly recognized

by this Court, Section 1983’s applicability to rights

created by Spending Clause laws has also been

expressly ratified by Congress.”). Any change in the

current presumption would create a significant and

costly administrative burden. Congress would need

to revisit—and potentially renegotiate, rewrite,

reenact, and reimplement—its past legislation

addressing various programs from nursing home

reforms to healthcare programs to childhood nutrition

funding.

Instead, the Court should defer to Congress’ longtime reliance on and affirmance of this doctrine. See

Eskridge, supra, at 400 (“Specifically, the Court often

gives special deference to an interpretation that

Congress has left in place notwithstanding legislative

hearings on the issue, reenactment of the underlying

statue, and proposals in committee or on the floor to

reject that interpretation.”). In fact, “[t]he Supreme

Court has long held that statutory precedents are

entitled to greater stare decisis effect than either

constitutional or common law precedents, in part

because Congress and not the Court should have the

primary responsibility for overriding statutory

precedents.” Id. at 397.

Here too the Court should recognize that

Congress—not the Court—has responsibility for

legislating the enforcement and oversight of Spending

22

Clause statutes. In drafting and passing FNHRA,

Congress investigated the facts related to an

important issue, namely, the state of federally funded

nursing homes; commissioned reports; conducted

hearings; drafted legislation; negotiated the specifics

of that legislation; and, after that hard-fought

process, voted to enact the legislation. This process

culminated in a statute that reflects congressional

intent, will, and authority. To dismiss the text,

process, and history of FNHRA, without due

consideration of that hard-fought process, would

violate the separation of powers and impinge on

Congress’ legislative role.

II.

Disturbing this established doctrine

would have disastrous consequences.

Congress provides funding to states for programs

that benefit millions of vulnerable Americans through

Spending Clause legislation. The availability of

private enforcement mechanisms, where Congress

has authorized them, provides much-needed

oversight for these programs.

Without private

enforcement, oversight of programs that receive

federal funding would be limited, contravening

congressional authority and intent for the proper and

efficient administration of these programs.

23

A.

Spending Clause legislation

ensures funding for programs that

benefit millions of Americans.

Pursuant to the Spending Clause, Congress

allocates billions of dollars each year to federal-state

programs for the purpose of ensuring that America’s

most vulnerable are protected. See Cong. Rsch. Serv.,

R40638, Federal Grants to State and Local

Governments:

A Historical Perspective on

Contemporary Issues 1–2 (2019).

This funding

accounts for “more than half of state government

funding for health care and public assistance,”

including programs such as Medicaid, the

Supplemental

Nutrition Assistance Program,

Temporary Assistance for Needy Families. Id. at 1.10

These programs are directly designed to benefit tens

of millions of people and, in particular, low-income

and vulnerable communities. See generally Cong.

10 “Medicaid, with $418.7 billion in expected federal outlays in

FY2019, has, by far, the largest budget of any federal grant-inaid program.” Cong. Rsch. Serv., R40638, Federal Grants to

State and Local Governments: A Historical Perspective on

Contemporary Issues 6 (2019). “Ten other federal grants to state

and local governments are expected to have federal outlays in

excess of $10 billion in FY2019: Federal Aid Highways ($43.9

billion), Child Nutrition ($23.9 billion), Tenant Based Rental

Assistance-Section 8 vouchers ($22.3 billion), the Children’s

Health Insurance Fund ($18.4 billion), Accelerating

Achievement and Ensuring Equity (Education for the

Disadvantaged—$17.4 billion), Temporary Assistance for Needy

Families ($16.5 billion), Special Education ($13.2 billion), State

Children and Families Services Programs ($10.9 billion), Urban

Mass Transportation Grants ($10.3 billion), and the Disaster

Relief Fund ($10.2 billion).” Id.

24

Rsch. Serv., R46986, Federal Spending on Benefits

and Services for People with Low Income: FY2008FY2020 3–4 (2021).

Petitioners dismiss this fact, arguing that

Spending Clause legislation is contractual in nature,

and that any “individual benefits” from such

legislation, like FNHRA, “are merely incidental.”

Pets. Br. at 19. They hope to avoid the result that

Spending Clause legislation might permit Section

1983 lawsuits, arguing that only the state or federal

government, as the contracting parties, can enforce

the legislation. Id. Petitioners are wrong. Congress

could not be clearer that it intended to benefit nursing

home residents in enacting FNHRA. To ignore this

intent and hold that FNHRA is merely a contract

between Congress and the states would undermine

Congress’ authority and distort the very purpose of

FNHRA. As another example, Section 1901 of the

Social Security Act makes clear that Congress

established Medicaid “[f]or the purpose of enabling

each [s]tate . . . to furnish medical assistance on

behalf of families with dependent children and of

aged, blind, or disable individuals . . . .” Sec. 1901 (42

U.S.C. § 1396). Such Spending Clause legislation is

hardly purely “contractual in nature.” Pets. Br. at 11.

Where legislation states that it provides a benefit to a

particular group of individuals, it is unequivocal that

Congress intended those individuals to be the

ultimate beneficiaries of Spending Clause funding,

not the states or the public at large.

25

Indeed, there can be no question that Congress

intends many of its programs to benefit Americans.

Programs like Medicaid, for example, provide critical

health coverage to 82 million Americans, primarily

helping low-income children, pregnant adults,

seniors, and individuals with disabilities. See Ctrs.

for Medicare & Medicaid Servs., May 2022 Medicaid

and CHIP Enrollment Trends Snapshot 3 (2022); see

U.S. Dep’t of Health & Hum. Servs., Fiscal Year 2023:

Budget in Brief 87 (2023) (“HHS Budget in Brief”). In

fiscal year 2020, “children comprised 39 percent of

total Medicaid enrollment, and persons with

disabilities comprised 37 percent of expenditures.”

HHS Budget in Brief, supra, at 87.

The federal government also provides funds to

states specifically to help children and families. For

example, federal funding subsidizes school meals “for

nearly 30 million children in approximately 95,000

elementary and secondary schools in a typical school

year.” See Kara Clifford Billings, Cong. Rsch. Serv.,

R46234, School Meals and Other Child Nutrition

Programs: Background and Funding ii (2022). “Most

of the funding is provided in the form of per-meal cash

reimbursements that states distribute to schools and

institutions.” Id. In fiscal year 2022, federal funding

allocated for child nutritional programs totaled

roughly $27 billion. Id.

Similarly, the Temporary Assistance for Needy

Families (“TANF”) program “provides funds to states

and territories [for] families with financial assistance

26

and related support services,” including stateadministered programs like “childcare assistance, job

preparation, and work assistance.”

“Temporary

Assistance for Needy Families,” Benefits.Gov,

https://www.benefits.gov/benefit/613; see also Cong.

Rsch. Serv., R44668, The Temporary Assistance for

Needy Families (TANF) Block Grant: A Legislative

History (2014). Congress provides a basic block grant

of $16.5 billion to the states each year. See U.S. Dept.

of Health & Hum. Servs., “States’ Accuracy of

Reporting TANF Spending Information,” office of

Inspector General, https://oig.hhs.gov/reports-andpublications/workplan/summary/wp-summary0000001.asp#.

So too with the Supplemental Nutrition

Assistance Program (SNAP), another quintessential

piece of Spending Clause legislation, which “is

designed primarily to increase the food purchasing

power of eligible low-income households to help them

buy a nutritionally adequate low-cost diet.” Cong.

Rsch. Serv., R42505, Supplemental Nutrition

Assistance Program (SNAP): A Primer on Eligibility

and Benefits 1 (2022). In fiscal year 2021, “an average

of 41.6 million individuals in 21.6 million households

participated in SNAP each month.” Id. The program

is “100% federally funded” and administered by the

U.S. Department of Agriculture’s Food and Nutrition

Service.

Id.

But “[s]tates are responsible for

certifying household eligibility and issuing benefits.”

Id.

27

These federal-state cooperative programs provide

federal funds to states to administer a variety of

assistance programs. Congress drafts enabling

legislation for these programs to carefully balance

federal and state responsibilities. In the context of

Medicaid, for example, states often “design,

implement, and administer” their own programs

based on federal guidelines. HHS Budget in Brief,

supra, at 87. But, ultimately, when a state or local

entity agrees to accept federal funds, it is obligated to

use those funds in the manner required by any

conditions imposed by Congress. See South Dakota v.

Dole, 483 U.S. 203, 206 (1987) (“Congress may attach

conditions on the receipt of federal funds, and has

repeatedly employed the power to further broad policy

objectives by conditioning receipt of federal moneys

upon compliance by the recipient with federal

statutory and administrative directives.” (internal

quotations omitted)). Such conditions may include

requirements

for

program

administration,

implementation, or state oversight to benefit certain

beneficiaries.

FNHRA is one such piece of Spending Clause

legislation, and it emphasizes that the beneficiaries of

FNHRA are the nursing home residents. See 42

U.S.C. § 1396r(b)(1)(A) (“A nursing facility must care

for its residents in such a manner and in such an

environment as will promote maintenance or

enhancement of the quality of life of each

resident.”). It also incorporates rights-emphasizing

language. In a section titled “Requirements Relating

to Residents’ Rights,” FNHRA states “[a] nursing

28

home facility must protect and promote the rights of

each resident.” Id. at § 1396r(c)(1)(A). It then

provides specific rights and notice requirements. See

id. at § 1396r(c); see also Section I.B.2.a–b.

This is hardly the only Spending Clause

legislation where Congress has emphasized the

importance and centrality of beneficiaries in the text

of the legislation. For example, the text of the

Adoption Assistance and Child Welfare Act of 1980

“focuse[s] on the needs of individual foster children”

and designates “foster parents as the intended

recipients of payments” for “basic life essentials” for

the children. New York State Citizens’ Coal. for

Children v. Poole, 922 F.3d 69, 80–82 (2d Cir. 2019).

Similarly, the text of the Food Stamp Act’s “time

limits are drafted in a way that focuses on the needs

of individual beneficiaries,” such as calibrating need

in relation to household income. Briggs v. Bremby,

792 F.3d 239, 241, 245–46 (2d Cir. 2015). Again,

respectively, foster parents and households receiving

benefits like SNAP, not the states or the public, are

the intended beneficiaries of such legislation. See also

Section II.B.2 (collecting cases).

When Congress speaks, it does so with an

understanding of the law. It also says what it means.

This Court should not alter its precedent based on

analogies

to

contracts,

blatantly

ignoring

congressional language and intent regarding who the

ultimate beneficiaries are in Spending Clause

legislation.

29

B. Congress often relies on private

enforcement to provide oversight to

programs enacted via Spending

Clause legislation.

A reversal of this Court’s longstanding precedent

would have a staggering and disastrous impact on

federal-state cooperative programs. This Court

should not contravene congressional authority and

intent where Congress contemplated the availability

of private suits. The federal government cannot

monitor the implementation and administration of

every program for each individual beneficiary.

Private suits provide essential complementary

oversight of federal-state programs consistent with

congressional authority and intent.

1. Without the availability of private

suits, oversight of federal-state

programs would be hampered.

The federal government and state authorities

allocate considerable resources to provide oversight of

federally cooperative programs directed to the most

vulnerable and economically insecure, and to ensure

that those programs’ requirements are enforced. But

these regulatory regimes are, by design, intended to

tackle systemic problems that broadly affect those

programs’ ability to provide benefits to millions.

Recognizing this limitation, Congress sometimes

enhances state and federal enforcement mechanisms

by providing beneficiaries the option to pursue a

private remedy to vindicate their rights.

30

For Medicaid, for example, the sheer size and

complexity of the program makes it nearly impossible

for the federal government to address anything other

than major program violations. For example, nearly

90 million beneficiaries have been enrolled in

Medicaid, the Children’s Health Insurance Program

(“CHIP”), and Basic Health Program (“BHP”) since

the beginning of the COVID-19 public health

emergency. See Ctrs. for Medicare & Medicaid Servs.,

Eligibility & Enrollment Processing for Medicaid,

CHIP, and BHP During COVID-10 Public Health

Emergency Unwinding Key Requirements for

Compliance 2 (2022). “When the [public health

emergency] ends, states will be tasked with

addressing a significant volume of pending renewals,

redeterminations, and other eligibility actions across

Medicaid, CHIP, and BHP.” Id. “The volume of

pending actions is expected to place a heavy burden

on state workforce and operations, and states will

need to take steps to minimize the risk of

inappropriate terminations of eligible individuals.”

Id.

Evaluating whether individuals qualify for

Medicaid, CHIP, and BHP is a significant

undertaking. And the Centers for Medicare &

Medicaid Services (“CMS”) has issued guidance to

states indicating that “[s]tates that do not . . . comply

with federal requirements” under Medicaid, such as

following the governing eligibility determinations,

“may be required to develop a corrective action plan.”

Id. at 3. Moreover, “[i]f at any point CMS determines

that the state is not meeting the requirements

31

outlined in an established [corrective action plan],

CMS may initiate formal compliance proceedings”

and funding may be at risk. Id. But CMS will only

be able to address widespread, systemic failures or to

coax cooperation from states.11 CMS does not have

the resources to provide recourse for every individual

who is denied a renewal, even if he meets eligibility

requirements. Even in instances where CMS does

take compliance action on behalf of individuals, there

may be lengthy litigation with multiple rounds of

appeals. The litigation expenses for the federal

government would be extraordinary if CMS were

burdened with pursuing compliance actions for every

violation, overwhelming CMS’s ability to actually

ensure quality care and treatment.

Moreover, the federal government may not be

aware of the requirements of every state Medicaid

program. Certain items and services may be covered

under broad federal categories but may not be

specified in any documents readily available to CMS.

For example, some states may cover durable medical

equipment (“DME”) under the “home health” benefit;

but CMS may not be aware of what specific items of

DME are covered. Private enforcement empowers

individuals who are aware of the specific

See, e.g., Edward A. Tomlinson & Jerry L. Mashaw, The

Enforcement of Federal Standards in Grant-in-Aid Programs:

Suggestions for Beneficiary Involvement, 58 Va. L. Rev. 600,

619–20 (1972) (explaining that federal agencies tend not to

enforce spending programs they oversee against the states––

instead, they attempt to coax cooperation).

11

32

requirements of their care and that care’s

shortcomings. Without it, many claims affecting the

most vulnerable will ultimately go unheard.

Furthermore, as a general matter, Congress and

federal agencies, like CMS, are reluctant to issue

broadscale sanctions like funding disallowances,

because curtailing funds ultimately injures

beneficiaries—the very people Congress is seeking to

help. See Sasha Samberg-Champion, How to Read

Gonzaga: Laying the Seeds of a Coherent Section 1983

Jurisprudence, 103 Colum. L. Rev. 1838, 1839 (2003)

(“Program beneficiaries desiring compliance with

federal requirements could only ask the federal

government to further cripple the program––not a

result they are likely to seek.”).

Absent the

independent check of private suits, the federal

government might need to consider taking away

money from states failing to comply with required

conditions, which would only exacerbate rights

violations against beneficiaries. Instead, private

suits allow individuals to pursue the redress they

seek without imperiling entire assistance programs

and derailing important services that affect many

beneficiaries.

33

2.

Private suits effectively curtail fraud

and highlight abuse, complementing

federal and state enforcement actions.

While the federal government seeks to uncover

systematic abuses, individual suits, brought by

beneficiaries harmed by implementation of federally

funded programs, highlight and remedy individual

and immediate harms. Congress has long permitted

individual litigants to bring suit to protect their

rights. The importance of adhering to this Court’s

precedent is crucial because millions of Americans

rely on Section 1983 to ensure that their rights under

Spending Clause statues are protected.

FNHRA is hardly the first Spending Clause

statute permitting Section 1983 lawsuits over certain

rights abuses. Litigants have brought suit under

Section 1983 to guarantee foster parents’ rights to

payments for food, clothing, and shelter under the

Adoption Assistance and Child Welfare Act of 1980.

See New York State Citizens’ Coal. for Children, 922

F.3d at 69, 73–74, 80–81 (finding that Adoption

Assistance and Child Welfare Act of 1980, which

directs specific payments to identified beneficiaries,

creates a right enforceable under Section 1983).

They’ve also brought suit under Section 1983 to

protect veterans’ rights guaranteed by 38 U.S.C.

§ 5301(a). See, e.g., Nelson v. Heiss, 271 F.3d 891, 896

(9th Cir. 2001); Higgins v. Beyer, 293 F.3d 683, 685,

689–90 (3d. Cir. 2002). Private suits have also been

used to protect low-income tenants from utility overbilling under the Brooke Amendment to the Housing

Act of 1937. See Wright, 479 U.S. at 419, 430–31.

34

Similarly, individual SNAP beneficiaries have

successfully sued for redress when states failed to

properly implement the program. See Briggs, 792

F.3d at 241, 245–46 (holding benefits provided in food

stamp legislation “are privately enforceable under

[Section] 1983”).

Moreover, Section 1983 has been used

consistently to enforce the guarantees of the Medicaid

Act. See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 509,

524 (1990) (upholding use of Section 1983 for health

care providers—“the intended beneficiaries”—to

challenge the methods used by a state for

reimbursement under the Medicaid Act); Ctr. for

Spec. Needs Trust Admin., Inc. v. Olson, 676 F.3d 688,

700 (8th Cir. 2012) (permitting Section 1983 suit for

trustee of pooled special-needs trust, challenging

state demand reimbursement of Medicaid benefits

provided to beneficiary); St. Anthony Hosp. v.

Eagleson, 40 F.4th 492, 512 (7th Cir. 2022)

(permitting Section 1983 suit to proceed premised on

the state’s duty, under the Medicaid Act, to ensure

that managed care organizations made timely

payments); Planned Parenthood S. Atl. v. Baker, 941

F.3d 687, 690, 696–97 (4th Cir. 2019) (permitting

Section 1983 suit premised on compliance with

Medicaid Act’s free-choice-of-provider provision). The

ability of a program beneficiary to sue states in

federal court is one of the few enforcement tools

available to address Medicaid problems that affect

individuals.

35

Additionally, individual suits under Section 1983

are a critical tool for identifying patterns of abuse,

fraud, or misconduct, and can give rise to

congressional action to allocate funds to address

certain issues. For example, the very congressional

hearings and legislation that ultimately led to

FNHRA itself initially arose from a Section 1983

lawsuit brought by Medicaid recipients against the

Secretary of Health and Human Services. See Section

I.B.1 (describing Smith v. Heckler, 747 F.2d 583 (10th

Cir. 1984)). Without private actors identifying and

elevating government failures, Congress will lose an

important avenue for collecting information and

addressing systemic issues that arise out of Spending

Clause legislation.

Overruling this Court’s longstanding precedent

would mean states, localities, and local institutions

may be largely unaccountable for their actions,

particularly for rights violations of the most

vulnerable citizens. Any decision altering the status

quo would dramatically impede, if not decimate, the

complementary oversight of these programs provided

by private suits and potentially curtail future

legislation that seeks to improve the lives of millions

of Americans affected by federal-state cooperative

programs. This is contrary to Congress’ intent in

legislation, like FNHRA, that specifically provides for

private suits to protect the most vulnerable

beneficiaries.

36

CONCLUSION

For the reasons set forth above, this Court should

affirm the decision of the Seventh Circuit.

Respectfully submitted,

ERIN E. MEYER

*ANJALI SRINIVASAN

MAX ALDERMAN

JULIA L. GREENBERG

*Counsel of Record

KEKER, VAN NEST & PETERS, LLP

633 Battery Street

San Francisco, CA 94111

Telephone: (415) 391-5400

Facsimile: (415) 397-7188

asrinivasan@keker.com

Counsel for

Amici Curiae

September 23, 2022

APPENDIX

1a

APPENDIX A

LIST OF AMICI CURIAE12

Congresswoman Nancy Pelosi is the Speaker

of the United States House of Representatives.

Congressman Steny H. Hoyer is the Majority

Leader

of

the

United

States

House

of

Representatives.

Congressman James E. Clyburn is the

Majority Whip of the United States House of

Representatives.

Senator Sherrod Brown is the Chairman of the

United States Senate Committee on Banking,

Housing, and Urban Affairs.

Senator Robert P. Casey, Jr. is the Chairman

of the United States Senate Special Committee on

Aging.

12 Amici curiae appear in their individual capacities; affiliations

are listed for identification purposes only.

2a

Senator Dick Durbin is the Chairman of the

United States Senate Committee on the Judiciary.

Senator Patty Murray is the Chair of the

United States Senate Committee on Health,

Education, Labor, and Pensions.

Senator Ron Wyden is the Chairman of the

United States Senate Committee on Finance.

Representative Jerrold Nadler is the

Chairman of the United States House of

Representatives Committee on the Judiciary.

Representative Richard E. Neal is the

Chairman of the United States House of

Representatives Ways and Means Committee.

Representative Frank Pallone, Jr. is the

Chairman of the United States House of

Representatives Committee on Energy and

Commerce.

Representative David Scott is the Chairman of

the United States House of Representatives

Committee on Agriculture.

3a

Representative Robert C. Scott is the

Chairman of the United States House of

Representatives Committee on Education and Labor.

Representative Mark Takano is the Chairman

of the United States House of Representatives

Committee on Veterans Affairs.

Representative Maxine Waters is the Chair of

the United States House of Representatives

Committee on Financial Services.