Amicus Brief — Heintz v. Hillburn

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No. 86-747 OE 5 ix

In The ae

- 2 PANIC

Supreme Court Of Che United States

OCTOBER TERM, 1986

STEPHEN B. HEINTZ, Commissioner of the

Connecticut Department of Income Maintenance,

Petitioner,

Vv.

DALE HILLBURN, by his parents and next friends

Ralph and Eleanor Hillburn, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF OF THE STATES OF INDIANA AND

PENNSYLVANIA AS AMICI CURIAE IN

SUPPORT OF THE GRANT OF CERTIORARI

LINLEY E. PEARSON

Attorney General

WILLIAM E. DAILY

Assistant Attorney General

Counsel of Record

219 State House

Indianapolis, Indiana 46204

(317) 232-6217

LEROY S. ZIMMERMAN

Attorney General

Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

66 Connecticut

East Hartford, CT 06108

526-6029

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT .......... 2

(EM eee eee Tere eer ree aire e 6

TABLE OF AUTHORITIES

Cases: Page(s)

Middlesex County Sewerage Authority v. National

Sea Clammers, 453 U.S.1 (1981) ................. 5

Pennhurst State School and Hospital v. Halderman,

OD Wi oh ok hence des sc ccdasaudenes 4

Rizzo v. Goode, 423 U.S. 362 (1976).................. 4

Statutes and Regulations:

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ee Ge, RID gow ee ccc cc es dan Pe: oT

42 USC. § 1396a(a\(31)...... Seek h oad baa 5 oe 3

42 U.SC. § 139G6alaX33NB) ................... 1, 2, 3, 5

42 U.SC. § 13961 ........ eee - PO

42 U.SC. §1983....... : hyo ete Peer T ee

iets Bt) 8) ere a (4a ee Pee

42 CFR. § 442.105(a) and (b)......... ae) 2

ii

INTEREST OF THE AMICI

Amici are the states of Indiana and Pennsylvania acting

by and through their Attorneys General. Amici, by and

through state public welfare agencies, voluntarily participate

in the Medicaid program and thereby make available publicly

financed health care to their citizens who would not other-

wise be able to afford the cost of medical care, notably includ-

ing nursing facility care. As participants in the Medicaid

program, amici are required to adhere to the conditions of par-

ticipation in the program, including the condition of partici-

pation that requires the state Medicaid ‘‘single state agency”’

to afford program recipients the right to receive covered serv-

ices from the qualified provider of their choice. 42 U.S.C.

§ 1396a(a)(23).

In addition, the amici, by and through separate and dis-

tinct state health inspection agencies, are responsible for

establishing and maintaining health standards for facilities

that participate in the program and for determining whether

or not facilities are qualified to participate in the program.

42 U.SC. § 1396a(a)(33)(B). Amici urge that certiorari be

granted in order for this court to clarify important questions

concerning the quality of care enforcement responsibilities

of the states under the Medicaid program.

REASONS FOR GRANTING THE WRIT

The amici states of Indiana and Pennsylvania urge this

Court to grant a writ of certiorari to the United States Court

of Appeals for the Second Circuit in order to provide plenary

review of the decision below which raises issues of consider-

able importance to the states.

The quality of care provided by nursing facilities that par-

ticipate in the Medicaid program and receive public financ-

ing for the cost of services provided to program beneficiaries

is a matter of substantial public concern. Congress addressed

the quality of care concerns through a program of ‘‘coopera-

tive federalism’’ wherein state health inspection agencies and

the Secretary of the United States Department of Health and

Human Services have shared responsibilities for determining

whether or not facilities are qualified to participate in the pro-

gram. Specifically, the Act requires state health inspection

agencies to establish and maintain standards of care, 42 U.S.C.

§ 1396a(a)(9), and to determine through the “‘survey and cer-

tification’ process whether or not facilities are qualified to

participate in the program. 42 U.S.C. § 1396a(a)(33)(B). The

determinination of whether a facility is qualified requires a

determination by the state health inspection agency of

whether the facility as a whole substantially complies with

the conditions of participation and whether the facility’s plan

to correct any deficiencies is acceptable. 42 C.F.R. 442.105(a)

and (b). An opportunity to contest the certification determi-

nation of the state survey agency must be provided through

state administrative proceedings. 42 C.F.R. § 431.151.

Whenever any facility also participates in the Title XVIII

Medicare program, however, the Secretary of Health and

Human Services is responsible for determining whether or

not the facility is qualified to participate in the Medicaid pro-

gram — which determination is binding upon the states. 42

U.SC. § 1396i. Even if the facility does not participate in Medi-

care, however, the Secretary is authorized to ‘‘look behind”’

the determination of the state health inspection agency as to

whether or not a facility is qualified to participate in the pro-

gram. 42 U.SC. § 1396a(a)(33)(B).

Once a facility has been determined to be qualified to par-

ticipate in the program, recipients of medical assistance are

entitled to receive payment for the cost of services provided.

42 U.SC. § 1396a(a)(23).

In addition to the survey and certification responsibili-

ties of the state health inspection agency, the Act requires that

inspections be conducted of the adequacy of health care

provided to each Title XI X-assisted individual by participat-

ing skilled nursing facilities. 42 U.S.C. § 1396a(a)(31). Except

for the requirement that inspections be conducted, and reports

of findings be forwarded to the state health inspection agency,

there is no indication in the Act of the regulatory authority,

or responsibility, of the single state agency to take action based

upon findings of deficiencies with respect to individual

patients. The Court below, however, upheld a requirement that

the Connecticut Department of Income Maintenance ter-

minate the provider agreement of certified facilities, based

upon individual deficiencies, which order requires the Con-

necticut single state agency to contravene the statutory rights

of every Title XI X-assisted patient in the facility to receive

assistance for the cost of services provided by the qualified

(certified) provider of their choice.

The holding of the court below raises issues of consider-

able importance to the states that warrant review by this

Court, notably including the appropriateness of an order that

requires a state to violate the statutory rights of its citizens

to receive covered services from qualified providers. The

appropriateness of any order that has the effect of requiring

the forced relocation of elderly and infirm citizens from a quali-

fied facility because of individual deficiencies in the care

provided to other patients raises issues of obvious concern

and importance.

In addition, however, amici are most concerned about the

confusion in the roles of the state health inspection agency

and the single state agency evidenced by the Court below. It

is basic that state agencies may only act within the scope of

their authority and responsibility. Furthermore, it is a fun-

damental principle of § 1983 litigation that relief against a

public official may only be based upon personal responsibil-

ity and accountability. Rizzo v. Goode, 423 U.S. 362 (1976).

The decision of the court below, however, misconceives the

scope of responsibilities of the single state agency for qual-

ity of care enforcement and requires the head of the Connec-

ticut single state agency to take action that is beyond the

scope of his statutory responsibility. As amici demonstrated,

supra, the clear focus of quality of care enforcement is on the

state health inspection agency and not on the single state

agency for purposes of administration. Certiorari should issue

to clarify the respective responsibilities of the single state

agency and the state health inspection agency for purpose

of quality of care enforcement.

Furthermore, the Act contemplates that quality of care

will be enforced through state administrative mechanisms

undertaken by the state health inspection agency. The Court

below allows private litigants and the federal courts to sup-

plant the administrative mechanisms provided for in the Act.

In this action, private § 1983 litigation resulted in the entry

of remedial relief against the single state agency, notwith-

standing the absence from this litigation of the entities who

are most directly responsible for ensuring quality care — the

nursing facilities themselves and the state health inspection

agency. Certiorari should therefore issue to clarify that the

administrative mechanisms provided for in the Act may not

be bypassed by § 1983 litigation.

Finally, the importance of the case transcends the need

of the states for <iarification of the quality of care enforce-

ment responsibilities under the Medicaid Act. This Court has

repeatedly held that public officials may only be required to

adhere to clearly stated, mandatory conditions of participa-

tion in programs enacted pursuant to Congress’ spending

authority. Pennhurst State School v. Halderman, 451 U.S.1

(1981); Middlesex County Sewerage Authority v. National Sea

Clammers, 453 U.S.1 (1981). The Court below, however, upheld

the judgment of the District Court based only upon its con-

clusion that the relief ordered by the District Court, includ-

ing the requirement of termination of provider agreements,

was ‘‘not precluded” by the Act. Certiorari should issue in

order for this Court to review whether a court may appropri-

ately enjoin public officials to take action which is not autho-

rized, or required, by the Act based solely upon notions of the

appropriate exercise of judicial discretion. The Court below

in effect created a remedy for individual deficiencies (termi-

nation of provider agreements) and enjoined the Connecticut

single state agency to take such action when other remedial

steps (beyond the control of the single state agency) fail to

remedy the situation in the absence of any legislative direc-

tion authorizing such relief. Furthermore, the remedy created

by the Courts below squarely conflicts with explicit statutory

provisions linking a facility’s participation to its certification.

42 U.S.C. § 1396a(a)(33)(B); 42 U.S.C. § 1396i.

Legislative clarification of the enforcement role of patient

review team findings concerning individual patients may be

indicated. However, the amici states are confident that Con-

gress would provide a remedy that is tailored to the individual

violation. The Court below, however, improperly usurped legis-

lative functions by creating a remedy for individual deficien-

cies. Furthermore, the remedy created by the Courts below

is clearly inconsistent with the survey and certification metho-

dology provided for in the Act to make the determination of

whether or not a facility is qualified to participate in the

program.

CONCLUSION

For the foregoing reasons, the amici states urge that this

court grant the petition for a writ of certiorari.

Respectfully Submitted

LINLEY E. PEARSON

Attorney General

of Indiana

WILLIAM E. DAILY

Assistant Attorney General

Counsel of Record

LEROY S. ZIMMERMAN

Attorney General

of Pennsylvania