Opposition Brief — St. Peter Villa, Inc. v. Linton ex rel. Arnold

No. 95-1182 MAR 22 1996

,

IN THE ee

Supreme Court of the Gnited States

OCTOBER TERM, 1995

ST. PETER VILLA, INC., et al.,

Petitioners,

MILDRED LEA LINTON, et al,

Resp naents

On Petition for a Writ of Certiorari to the

United States Court of Appeals For the Sixth Circuit

BRIEF IN OPPOSITION TO CERTIORARI

ELAINE R. JONES * G. GORDON BONNYMAN, JR

DIRECTOR-COUNSE! Tennessee Justice Cente:

203 2nd Avenue North

NORMAN J. CHACHKIN Nashville, TN 37201

MARIANNE L. ENGELMAN 615) 255-0331

LADO

NAACP Legal Defense & PAM FORD WRIGHT!

Educational Fund, Inc. West Tennessee Legal Services

99 Hudson Street, Suite P. O. Box 2066

1600 Jackson, TN 38301

New York, NY 10013 (901) 423-0616

(212) 219-1900

* Counsel of Record

Attorneys for Respondents LINTON and CARNE)

COUNTER-STATEMENT OF

QUESTION PRESENTED FOR REVIEW

As Respondents demonstrate in this brief, the

Question Presented by Petitioners does not arise in this

case.

Petitioners have framed the "Question Presented"

as though the court below had simply summarily

affirmed the district court’s judgment -- without any

indication whether its holding was based upon one or

the other of the district court’s liability determinations:

i.e., that Tennessee’s Medicaid program, as it was

administered at the time this litigation was brought,

violated the "Medicaid Act" and Title VI of the 1964

Civil Rights Act. However, the court below was

explicit:

Because we find the remedial plan as disputed

on appeal is adequately predicated upon the

district court’s unchallenged finding that

Tennessee’s limited bed policy violated the

Medicaid Act, we need not address whether the

district court erred in finding that the limited

bed policy had a disparate impact on blacks.

23a, 65 F.3d at 520. Since the relief affecting

Petitioners, about which they complained below, was

held to be fully supported by the unchallenged

Medicaid Act violation found by the district court, the

critical factual predicate for the Question Presented in

the Petition is lacking.

“Title XIX of the Social Security Act, 42 U.S.C. §§

1396 et seq.

Table of Contents

Page

TABLE OF AUTHORITIES ................. i

STATEMENT OF THE CASE ............... 1

SUMMARY OF REASONS FOR

a 5

REASONS FOR DENYING THE WRIT ....... 5

ORE es a 9

Table of Authorities

Page

Cases

Linton v. Commissioner of Health & Env't,

65 F.3d 508 (6th Cir. 1995) ......... passim

Linton v. Commissioner of Health & Env't,

973 F.24 1311 (G@y Cir. 1992)... 2 ee. 3,4

Magnum Import Co. v. Spoturno,

Boe Gis AS Ce 0 eh hn ak ES 7

Tennessee Health Care Ass’n v.

Commissioner, Tennessee Dep’t of Health

and Env’t, No. 91-5789 (6th Cir.

Feb. 26, 1992), 1992 WL 36217 .......... 5

Statutes

Medicaid Act, Title XIX of the Social Security Act

42 USL. FH Tee ME. oki ess passim

Medicaid Act, at 42 U.S.C. § 1396r(c)(2)(A) ..... 2

Title VI of the Civil Rights Act of 1964,

42 U.S.C. $§ MUG oem. «ww. ess. passim

Other

ROBERT L. STERN & EUGENE GRESSMAN,

SUPREME COURT PRACTICE (Sth ed. 1979) . 7

Be. CEs BE GRA: 0 bx chee os NOR RS ere Reese 6

BRIEF IN OPPOSITION TO CERTIORARI

Statement of the Case

The Petitioners’ Statement of the Case requires

amplification or clarification as follows (where possible,

Respondents (Plaintiffs below) rely upon the

unchallenged factual findings in this case, as

summarized in the opinion of the court below):

Plaintiffs contested the validity of Tennessee’s

implementation of distinct part certification

under Title XIX of the Social Security Act

[citations and footnote omitted]. Under distinct

part certification, a provider of a skilled nursing

facility (SNF) could certify a distinct part of a

facility (e.g., a wing, one side of a corridor, a

floor) for Medicaid participation, for patients

requiring a different level of care [footnote

omitted]. As part of distinct part certification,

Tennessee allowed skilled nursing facilities, at

their discretion, to "spot" certify beds for

Medicaid participation. This practice allowed

fewer than all beds within a particular wing or

floor to be available for Medicaid recipients

regardless of their required level of care. In

addition, Tennessee allowed facilities to certify

as Medicaid beds fewer than all beds available

for residents residing in intermediate care

facilities.

Linton v. Commission of Health & Env’t ("Linton IIT"),

4a-Sa, 65 F.3d 508, 511 (6th Cir. 1995). These policies

allowed nursing homes to segregate patients receiving

Medicaid benefits within their facilities, and to reduce

the number of Medicaid-certified beds on an ad hoc

basis, causing denial of access to nursing home care for

some Medicaid recipients and the dislocation and

involuntary transfer of others, including the plaintiffs.

Mildred Lea Linton, the original plaintiff in this

action when it was filed on December 19, 1987,

receive[d] Medicaid assistance and [wa]s severely

disabled from rheumatoid arthritis. . . . [The

nursing home in which she resided] informed

Linton that it intended to decertify her Medicaid

bed . . . [which] would force Linton to leave the

nursing home where she had lived for four years

and which was located close to her family, with

no assurance that a Medicaid bed would be

available for her elsewhere.’

Plaintiff-intervenor, Belle Carney, age 89

at the time this suit was filed, sufferjed] from

Alzheimer’s disease. In 1987, she was

hospitalized for two weeks and was to be

discharged to a nursing home. Carney, who

[wa]s eligible for Medicaid and is black, had

—

'The nursing home took this action after Linton’s

medical care needs were reviewed and modified from

Skilled to Intermediate nursing care. Linton III, 5a, 65

F.3d at 511. Effective October 1, 1990, nursing homes

participating in the Medicaid program may not take

such actions, both because the distinctions among levels

of care have been eliminated and because Congress

added statutory guarantees against the involuntary

discharge of residents requiring any level of care

provided by a facility. 42 U.S.C. § 1396r (c)(2)(A),

added by P.L. 100-203, § 4211, 101 Stat. 1330-182,

quoted in Petition at 5-6 n.1.

-2-

difficulty finding a Medicaid bed. In the interim,

she was shunted among a series of inadequate

and unlicensed facilities.

Id. at 6a, 65 F.3d at 511. Plaintiffs asserted that

Tennessee Medicaid policies permitting these actions

violated a number of provisions of Title XIX of the

Social Security Act (hereafter "the Medicaid Act"), 42

U.S.C. §§ 1396 et seg., and resulted in racially disparate

denial, termination, or provision of nursing home

services in violation of Title VI of the Civil Rights Act

of 1964, 42 U.S.C. $§ 2000d et seg.

On January 5, 1988 the matter was referred to a

Magistrate Judge. On October 14, 1988 the district

court adopted the Magistrate Judge’s Report and

Recommendation in part, certifying the suit as a class

action on behalf of present and future Medicaid-eligible

individuals seeking nursing home services from a facility

certified as eligible to participate in the Tennessee

Medicaid program. The court also denied plaintiffs’

request for a preliminary injunction. Linton III, 4a n.2,

65 F.3d 511 n.2; id. at 7a, 65 F.3d at 512: Linton v.

Commissioner of Health & Env’t ("Linton I"), 973 F.2d

1311, 1314-15 (6th Cir. 1992).

On April 23, 1990, the district court ruled that

the Tennessee Medicaid policies at issue violated

various provisions of the Medicaid Act and

implementing regulations. 114a-117a, 120a-122a. The

court separately ruled that, because of its disparate

adverse impact on African-American Medicaid patients,

the policies also violated the Title VI statute and

regulations. 119a-120a. The court directed the

defendant Commissioner to submit a remedial plan to

xe

bring Tennessee’s Medicaid program into compliance

with the law. 123a.

On June 1, 1990, Tennessee filed a proposed

remedial plan containing a series of modified policies to

govern nursing home participation in the State’s

Medicaid program. Plaintiffs, who had negotiated with

the State about acceptable remedies, endorsed the plan,

which was approved by the district court and

incorporated into its final order on July 5, 1990.2 The

plan was subsequently approved by the federal

government as consistent with the Medicaid Act.’

*When it submitted the plan, the State reserved the

right to appeal the district court’s liability rulings if the

plan were modified or disapproved in part. Linton I,

973 F.2d at 1316 n.9.

°On October 22, 1990, the Tennessee Health Care

Association (of which Petitioners are members, see

Linton I, 973 F.2d at 1315) filed suit against the

defendant Commissioner seeking to compel Tennessee

formally to submit the plan to the federal Health Care

Financing Administration (HCFA), which oversees the

Medicaid program within the Department of Health &

Human Services, for its approval. While that case was

pending, the Association

received a letter from George Holland, Regional

Administrator of HCFA Region IV. As

Regional Administrator, Holland has _ the

authority pursuant to 42 C.F.R. § 430.15 to

approve Medicaid state plan amendments.

Holland’s letter stated that HCFA had reviewed

ay

SUMMARY OF REASONS FOR DENYING THE

WRIT

The question sought to be presented by

Petitioners, whether the Court of Appeals erred in

affirming the District Court’s remedial plan, does not

merit this Court’s review. The decision of the Court of

Appeals presents neither a conflict among the Circuit

Courts of Appeals, nor a conflict with the decision of

any state’s highest court. Moreover, the case raises no

important question of federal law. The Court of

Appeals followed, rather than departed from, the

accepted and usual course of judicial proceedings in

approving a remedial order that it found to be

supported by undisputed violations of the Medicaid

Act, without deciding other questions the resolution of

which would not alter its affirmance of the district

court’s judgment.

REASONS FOR DENYING THE WRIT

Pursuant to Rule 10, review on certiorari is a

matter of discretion and may only be granted when

the Linton plan and concluded that no formal

state plan amendment was required and that the

Linton plan was consistent with federal

requirements.

The Association thereafter dismissed its lawsuit with

prejudice. Tennessee Health Care Assn vy.

Commissioner, Tennessee Dep’t of Health and Env’t, No.

91-5789 (6th Cir. Feb. 26, 1992), 1992 WL 36217, at *1;

Linton ITI, 10a, 65 F.3d at 513.

a

there are "special and important reasons therefor."

Sup. Ct. Rule 10.1 The Petition does not satisfy any of

the criteria for issuance of the Writ.

Petitioners cannot and do not assert that the

decision below creates a conflict among the Courts of

Appeals. Neither does the case conflict with a decision

of any state’s highest court. Hence, review of this case

would not serve a principal purpose for the exercise of

certioran jurisdiction.

As grounds for issuing the writ, Petitioners argue

only that the ruling below involves a purported error

that the Court should correct in an exercise of its

supervisory powers. The alleged error is the Court of

Appeals’ failure to pass on the trial court’s finding of

Title VI liability. The Court of Appeals found it

unnecessary to reach that question based on its

conclusion that "the remedial plan as disputed on

appeal is adequately predicated upon the district court’s

unchallenged finding that Tennessee’s limited bed

policy violated the Medicaid Act," Linton III, 23a, 65

F.3d at 520, so that the district court’s judgment

approving the plan would be unaffected by any ruling

on Title VI issues.

Petitioners’ contention has no significance

beyond the immediate litigation and addresses no

important question of federal law.* As Chief Justice

*By comparison, a petition raising a claim that a

remedial order in a suit such as this in fact conflicted

with federal Medicaid law might have, for example,

be

Taft stated in Magnum Import Co. v. Spoturno, 262 U.S.

159, 163 (1923), this Court’s jurisdiction was not

conferred "merely to give the defeated party in the

circuit court of appeals another hearing." See also

ROBERT L. STERN & EUGENE GRESSMAN, SUPREME

COURT PRACTICE 257-68, 297-300 (Sth ed. 1979).

In addition, Petitioners’ representation that the

discrete provisions of the remedial decree about which

they complain were predicated upon findings of

violation of Title VI rather than the Medicaid Act is

not correct. The components of the Linton plan that

Petitioners specifically challenge, ie., first come, first

serve admissions and the "lock-in" and "lock-out"

provisions, were all contained in Section III of the

remedial plan, which, according to the terms of the

plan, "addresses distinct part certification, including

prophylactic measures to prevent or mitigate provider

attrition." 29a. The Title VI remedies, on the other

hand, were contained in Section IV of the plan, which

"redresses the finding of disparate impact upon minority

Medicaid patients’ access to nursing home care." Jd.

As the Sixth Circuit found,

[A]ll of the remedies challenged on appeal

appear in Part III of the plan. None of these

involved a significant issue concerning the construction

and application of Acts of Congress or federal

administrative regulations. Petitioners do not, however,

present such a question and have not challenged

HCFA’s finding that the Linton plan is consistent with

federal Medicaid law.

ye.

remedies are predicated on a finding of a Title

VI violation alone. At most, they are all

incorporated by reference within Part IV, which

incorporates by reference Part III of the Plan.

Linton III, 10a, 65 F.3d at 514.°

‘In sum, the present Petition for Certiorar

amounts to a request that this Court review an

appellate court’s decision based upon a wholly illusory

claim that determination of the Title VI issue was

necessary if the district court’s judgment -were to be

upheld. Review is therefore completely unwarranted.

°The opinion of the Sixth Circuit thoroughly

considered the merits of Petitioners’ challenges to the

remedy, each of which concerned elements of Section

III of the plan. Linton III, 11a-23a, 65 F.3d at 514-20.

Petitioners apparently seek in this Court to raise new

questions about remedial provisions found in Part IV of

the plan, such as monitoring and compliance standards.

See Pet. at 15-16. These questions are not properly

presented because they were neither raised before nor

addressed by the Court of Appeals.

ia

CONCLUSION

For the reasons set forth above, the Petition

should be denied.

Respectfully submitted:

ELAINE R. JONES * G. GORDON BONNYMAN, Jr.

DIRECTOR-COUNSEL Tennessee Justice Center

203 2nd Avenue North

NORMAN J. CHACHKIN Nashville, TN 37201

MARIANNE L. ENGELMAN 615) 255-0331

LADO

NAACP Legal Defense & PAM FORD WRIGHT

Educational Fund, Inc. West Tennessee Legal Services

99 Hudson Street, Suite P. O. Box 2066

1600 Jackson, TN 38301

_ New York, NY 10013 (901) 423-0616

(212) 219-1900

* Counsel of Record

Attorneys for Respondents LINTON and CARNEY

March 22, 1996