HHC found to have violated Open Door Law in petitioning SCOTUS

The U.S. Supreme Court in Washington, D.C. (IL file photo)

As the Health and Hospital Corp. of Marion County prepares for oral arguments at the U.S. Supreme Court in a case that has attracted national attention, the organization is now having to defend its decision to seek a ruling from the nine justices.

The case — Health and Hospital Corp. of Marion County, et al. v. Ivanka Talevski, 21-806 — focuses on the question of whether an individual can bring a private right of action for violations of the Federal Nursing Home Reform Act.

HHC warned the Supreme Court that enabling private citizens to file lawsuits under FNHRA would create a “free-wheeling approach.” Such a move would federalize much medical malpractice litigation, thereby nullifying state medical malpractice laws.

Talevski countered that the enactment of the FNHRA shows Congress wanted another way besides federal regulations to protect nursing home residents.

The issue has brought a flood of amici curiae briefs both supporting and opposing HHC’s arguments. Indiana Disability Rights, the Indiana Trial Lawyers Association and the state of Indiana are among the entities that have filed briefs.

However, a little more than a month before the parties will appear at the Supreme Court, Indiana Public Access Counselor Luke Britt has found HHC violated Indiana’s Open Door Law. The nonprofit should have gotten approval from its board of trustees then filed a petition for certiorari.

Britt acknowledged the complainant, Morgan Daly of the Indiana Statewide Independent Living Council, has limited options for enforcing the open door law at this point.

Even so, Daly is not ready to quit. She told Indiana Lawyer she is “looking at all potential legal remedies.”

Asked whether it would seek to comply with the counselor’s opinion, HHC did not directly answer the question. The organization pointed to the response it filed with the counselor, saying it “still feels strongly about the analysis and the arguments” made in that document.

Daly filed a formal complaint with the public access counselor in August. She asserted the HHC was required by the Open Door Law to notify the public about petitioning the Supreme Court. A review of the meeting agendas and minutes as far back as 2015 did not find any documented votes on the petition.

In its response, HHC maintained it did not have to get the board’s approval. The organization claimed that under Indiana Code § 16-22-8-34(s)(1), the executive staff has the duty to defend the corporation in litigation and it has acted upon that authority in the thousands of litigation matters each year.

“It would not be practical, feasible, or in the Corporation’s or the public’s best interest for the Corporation’s governing body to attempt or have to make litigation decisions in each of these matters, as to which they have no day-to-day oversight, involvement, or knowledge, which is why they long ago delegated this authority to the Corporations’ executive staff,” HHC argued in its response.

Britt was not persuaded in the advisory opinion his issued in Morgan Daly v. Health & Hospital Corp. of Marion County, 22-FC-125.

The public access counselor agreed every motion or pleading does not require the board’s ratification. He held petitioning the Supreme Court is a higher level of legal action.

“While delegation as a matter of course is certainly understandable for enforcement actions, administrative litigation, and routine negotiations, it strains credulity that a board of any organization would not feel it incumbent to weigh in on matters of substantial import such as filing a petition for certiorari with SCOTUS,” Britt wrote.

The Talevski lawsuit was filed to challenge the treatment of the now-deceased Gorgi Talevski by Valparaiso Care and Rehabilitation. After the U.S. District Court for the Northern District of Indiana dismissed the case, finding the FNHRA did not allow for private rights of action, the Washington, D.C. law firm of Arnold & Porter stepped in to represent Talevski pro bono.

Andrew Tutt of Arnold & Porter won a reversal at the 7th Circuit Court of Appeals in July 2021. HHC filed a petition for a rehearing, but after the 7th Circuit denied the request, HHC turned to the Supreme Court.

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