HHC sued for Open Door violation in Talevski case

IL file photo

A lawsuit has been filed against the members of the Health & Hospital Corporation of Marion County Board of Trustees for violating Indiana’s Open Door Law in appealing a nursing home dispute to the U.S. Supreme Court.

Morgan Daly of the Indiana Statewide Independent Living Council is the plaintiff in the complaint filed Monday in Marion Superior Court. The civil suit — Morgan Galloway Daly v. Gregory S. Fehribach, Carl L. Drummer, Robert W. Lazard, Dr. Geet Karnik Mantravadi, Monica Crain, Thomas Hanify, and Beverly Mukes-Gaither, as members of its Board of Trustees; and the Health & Hospital Corp. of Marion County — is asking the trial court to declare HHC violated Indiana’s Open Door Law by petitioning SCOTUS without the board’s approval at a public meeting and to impose a civil penalty against the board members.

In a September opinion, Indiana Public Access Counselor Luke Britt found HHC should have been more public in its plan for handling the lawsuit filed by the family of the late Gorgi Talevski, Talevski v. HHC, et al.

The family alleged HHC violated the Federal Nursing Home Reform Act by not properly caring for Talevski when he was a resident of an HHC facility. After the U.S. District Court for the Northern District of Indiana dismissed the case, the 7th Circuit Court of Appeals reversed and HHC petitioned the Supreme Court.

At issue in the case is whether private citizens can sue to enforce spending clause statutes when the language of the law does not explicitly say individuals have a private right of action.

The Supreme Court accepted the Talevski case and oral arguments are scheduled for Nov. 8. Under Supreme Court Rule 46, HHC could file to withdraw its petition any time until the justices issue an opinion in the case.

HHC has argued to the public access counselor that the Open Door Law did not apply. The corporation asserted the SCOTUS petition was part of its ongoing litigation of the case that, similar to roughly 3,000 other litigation matters, did not require the board’s approval.

However, the counselor determined that by not seeking the board’s authorization for an “act as momentous” as petitioning the Supreme Court, HHC ran afoul of both the spirit of the Open Door Law and the intent of the Legislature.

Daly’s complaint states Indiana’s Open Door Law permits a complaint to be filed to obtain a declaratory judgment; enjoin continuing or future violations; declare void any final action taken at any meeting that should have been public; and impose a civil penalty.

In addition to fining the board members, the lawsuit requests that the court expedite the matter and award Daly reasonable attorney fees and costs.

William Groth of Vlink Law Firm in Indianapolis is representing Daly. The Health & Hospital Corp. did not respond to a request for comment by IL deadline.

For more on the Talevski case, pick up the Oct. 26 issue of Indiana Lawyer.

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