Dave Kingsley

Thanks to Susie and Ivanka Talveski, Seven Supreme Court Justices, and Individuals and Organizations Filing Amicus Briefs, the Federal Nursing Home Rights Act Has Been Strongly Reinforced.

    In a decision written by Justice Ketanji Brown Jackson and reported on Thursday, the U.S. Supreme Court held that unambiguous provisions of the Federal Nursing Home Rights Act (FNHRA) are enforceable by private individuals under Section 1983 of the Civil Rights Act of 1871 (H.H.C. of Marion County v. Talveski[1]). This is a big deal because it means that practices such as use of chemical restraints and arbitrary transfer are illegal and a cause for action in federal courts.  Patients and their families cannot be restricted only to medical malpractice suits in state courts and/or to state administrative remedies.

    Susie Talevski, an attorney, initially filed a suit in Federal District Court on behalf of her mother Ivanka after her father Gorgi Talveski was arbitrarily transferred to a facility an hour and a half from their home.  The transfer occurred after the Talveski family consulted with outside physicians and hired a neurologist to evaluate the regimen of drugs administered to Mr. Talveski.  It appeared that his health deteriorated after the drug regimen was initiated and improved after six powerful psychotropic medications were terminated from the regimen.

    In conversations with Susie and her colleagues in Indiana, I’ve learned that it is very difficult to navigate the Indiana tort liability laws and even make it into state courts with a suit against a nursing home.  As in most states, awards for victims of medical malpractice are capped and not more than a hand slap in Indiana.

    Furthermore, as most of us who advocate for nursing home patients know, there is no real remedy at the state level in most states for any type of redress when abuse and neglect occur. Administrative remedies through state agencies tend to end up in the “nothing to see here” file.

    In the final analysis, patients and families have the best chance for redress in federal courts when nursing homes illegally violate rights granted by FNHRA.  I applaud Susie’s courage in fighting this case all the way to Supreme Court.  In agreement with H.H.C. of Marion County’s claim that she didn’t have standing to sue in federal court, the district court threw out her case.  She appealed to the 7th Circuit, which overturned the decision of the district court. H.H.C. of Marion County appealed, and the Supreme Court granted certiorari.

H.H.C. of Marion County v. Taleveski Should not be Below the Radar, but it is.

    On Thursday, the Supreme Court voting rights decision and the indictment of former President Donald Trump grabbed all of the headlines and H.H.C. of Marion County v. Talveski seems to have escaped media notice. I hope this case is discussed widely and in depth by advocates and scholars.  The back story and the legal implications of the case are far more extensive and complicated than I want to deal with in this brief blog post. Protection of the right to be free from chemical restraints and capricious behavior of nursing home providers should not be left to state tort law and/or the whim of state agencies, many of which have a propensity to protect the interests of the industry at the expense of patients and families.  Certainly, Indiana has one of the most anti-consumer torts laws in the U.S. 

    It was shocking to read the argument of the U.S. Solicitor General on behalf of the provider (H.H.C. of Marion County) before the Supreme Court.  She claimed that administrative channels at the state level were sufficient to insure FNHRA rights. This naivete on his part is one more example of how out of touch federal administrative agencies are in assuming that individuals are not in serious jeopardy of having their rights violated or ignored within individual states.

The ”Medicaid Unwinding:” An Orwellian Euphemism for Abject Cruelty & Profound Ignorance

    Fortunately, the Talveski family, the 7th Circuit, and seven Supreme Court justices could see that individual civil rights granted to all U.S. citizens by Congress should be protected in the federal courts under the Civil Rights Act of 1871, Section 1983.  The precedents for this case have pertained mostly to Medicaid rights in general. 

    During COVID, the Federal Matching Percentage (FMAP) for state Medicaid programs was increased by a hefty percentage for the purpose of preventing the administrative burden on Medicaid beneficiaries who are required to reapply each year and prove their eligibility for the program.  As a condition for receiving the FMAP uplift, states could not disenroll individuals from the Medicaid program.  The number of people receiving Medicaid benefits, i.e., had access to medical care, grew at a vast rate.  That program ended on May 1st, and now the so-called unwinding, i.e., kicking people off, has resulted in a precipitous drop in enrollees. 

  With weak state regulation of healthcare providers, it is likely that states will regularly violate the rights of U.S. residents to medical care.  Especially in states with far-right wing legislatures, harassment of poor individuals and families needing medical care and other assistance is ordinary and ongoing.  In Arkansas, a state that tried for a waiver from CMS to force Medicaid enrollees to undergo drug tests, the current governor, Sara Huckabee Sanders, has come up with “Arkansas Renew” as the Orwellian label for her disenrollment program.

    All realms of human rights and civil rights are critically important if we are to retain a semblance of Democracy.  Drugging and disappearing people into out of the way institutions is one of the most chilling and horrifying practices imaginable in any society.  Certainly, it is characteristic of fascist, authoritarian governments.  That it happens on behest of corporations attempting to optimize return for shareholders, executives, and other special interests, doesn’t make it any less odious.

[1] https://www.supremecourt.gov/opinions/22pdf/21-806_2dp3.pdf.

Bioethics:  Institutionalization & the Rights of Humans to Control their Bodies.

By: Dave Kingsley

Involuntary Institutionalization & Human Rights, & Humane Treatment

Individuals institutionalized involuntarily in prisons, nursing homes, immigration detention centers, and juvenile facilities, are vulnerable to abusive, neglectful, and often deadly treatment.  These groups of U.S. residents are overwhelmingly institutionalized under conditions in which authorities, professionals, staffs, and other inmates control their daily routines and other living conditions. They may be subjected to psychotropic drugs, which deprive them of liberty and cause them mental and physical health problems, to violence from other inmates and staff, and medical procedures, which may occur with or without their consent.

In addition to forcible and invasive medical treatment, needed and even preventative medical care is often withheld.  As my previous blog post suggested, leading, establishment bioethicists have theorized – shamefully I might add – that withholding beneficial medical care from the elderly would have a positive effect on the U.S. economy by lowering government budgets. They conclude, therefore, that it is morally justified and medically ethical to intentionally shorten the lives of t elderly and disabled Americans.

The desire of religious and governmental institutions to exercise control over the bodies of human beings under their control has been a threat to human rights throughout history.  Power and control are fundamental principles underpinning forcible sterilization, involuntary psychotropic protocols, denial of birth control/abortion, and torturous incarceration.  Indeed, a woman’s right to terminate a pregnancy or even to use contraceptives such as the “morning after” pill will probably be outlawed in the U.S. within a mere month or two by a Supreme Court, religious extremist, majority.

The elderly, women, ethnic minorities, immigrants, and impoverished classes are a threat to the power and economic interests of white (Euro-American) patriarchal ruling elites.  Therefore, as a ruse in protecting their power and economic domination, establishment elites have devised methods for undermining attempts by the powerless classes to organize and influence change in power relationships.

Criminalizing & Institutionalizing the Poor and Powerless is Profitable

Institutionalization, along with abusive and neglectful treatment of inmates, involve blunt instruments such as drugging, restraining, and hitting.  However, these conditions are facilitated by misfeasance and nonfeasance on the part of government agencies and legislators.  Furthermore, the efficiencies of these management techniques are compatible with privatization. Over the past century, industrialists have recognized opportunities in the commoditization of human bodies in nursing homes, ICE detention centers, prisons, juvenile facilities, and other institutions for the powerless.

Hence the real estate housing inmates and government funds for managing and controlling human bodies within four walls have proven to be quite lucrative.  Investors in prisons, ICE detentions centers, and nursing homes have become fabulously wealthy (or have added an extraordinary amount to their family wealth).  Given the corrupt nature of politics, shameless and blatant purchase of legislators’ approval for the ongoing atrocity of institutionalization for the sake of enriching the already rich, transforming inhumane institutions will be a heavy lift.  We must end them – not mend them through sham recommendations from commissions controlled by the power elite.

House Subcommittee on the Coronavirus Ignores Nursing Home Deaths. That is a Human Rights Violation.


Dave Kingsley

U.S. House Committee Eliminates 141,000 Patient and 2,177 employee Nursing Home Deaths From Reality: Nothing to See There.

According to the Center for Medicare & Medicaid Services (CMS), 141,084 nursing home patients and 2,177 employees have died from the Coronavirus pandemic (https://data.cms.gov/covid-19-nursing-home-data). The House Select Committee on the Coronavirus under the leadership of Congressman James Clyburn – one of the three most powerful Democrats in the House – addressed 249 deaths in meatpacking plants but totally ignored nursing homes.

I have carefully read the Subcommittee’s recently released report More Effective, More Efficient, More Equitable and can find absolutely nothing about the biggest loss of life in an institutionalized population in the history of the United States (see: https://coronavirus.house.gov/news/press-releases/select-subcommittee-s-year-end-staff-report-highlights-oversight-work-releases). Adobe Acrobat PDFs have a search function. Having utilized that function on the report, I can say with certainty that words such as nursing homes, long-term care, skilled nursing, nursing home industry, or any other word that would suggest that elderly and people with disabilities institutionalized in these facilities were of any concern whatsoever to the subcommittee.

How can 141,000 patient and 2,177 employee deaths in one institutionalized population – which constitutes about one percent of the U.S. population in any one year but nearly 20 percent of the COVID-19 deaths since the pandemic appeared in 2020 – be erased from reality? Whose interests are being served by these types of hearings in Congress? Indeed, there has, in fact, been no real serious investigation by the U.S. Congress or any state legislature into the nursing home coronavirus tragedy (at least none that I have found).

The Nursing Home COVID Tragedy Was Avoidable. Therefore, It Is an Atrocity and a Human Rights Violation.

Elderly and disabled Americans were allowed to die because an industry failed to spend the money necessary to save them. The U.S. government has turned over the care of frail and disabled people to an industry well paid to care for them. It is well known and scientifically proven that the industry charged with responsibility for patients in nursing homes has consistently placed shareholder value above medical care. That fact has been demonstrated repeatedly and consistently for the past 70 years that federal and states funds have supported a privatized long-term care and skilled nursing system.

Here are the facts:

Epidemiologists and other scientists renowned in the field of emerging diseases have warned for decades that pandemics like we have experienced in the 2000s would become worse (e.g. See Laurie Garrett, The Coming Plague).

SARS taught the world a lesson about pandemics and the vulnerability of nursing home patients. Hong Kong and other Asian countries took steps to counter future pandemics. The Hong Kong Guidelines were well known throughout the world and yet the U.S. nursing home industry and government regulatory agencies ignored those guidelines while the industry created sophisticated legal and financial structures to drain ever more tax and reimbursement dollars out of the system for the benefit of executives and shareholders (See: https://www.cmaj.ca/content/192/19/ES11; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7899229; https://www.ncbi.nlm.gov/pmc/articles/PMC723424/; https://www.theguardian.com/world/2020/may/19/mps-hear-why-hong-kong-had-no-covid-19-care-home-deaths.)

Political contributions suggest that the nursing home industry has tremendous sway over congressional and agency oversight. For instance, of the top 100 2019-2020 contributions to Congressman Clyburn – which total over $1 million dollars – approximately half came from corporations and lobbying groups with a vested interest in nursing home finance.

The American Health Care Association – the nursing home corporation lobbying organization – contributed $10,000 to Congressman Clyburn in the 2019-2020 cycle, but it is important to recognize that the nursing home industry is primarily a finance-insurance-real estate as well as a medical industrial complex with interlocking interests between real estate, finance, and medical sectors of the economy. Therefore, consider the following donations to Chairman Clyburn in 2019-2020:

American Healthcare Association (nursing home corporation Lobby): $10,000

National Association of REITs: $10,000

National Bankers Association: $10,000

American Hospital Association: $10,000

National Association of Realtors: $10,000

Johnson & Johnson: $10,000

KMPG: $10,000

Investment Corporation Institute: $10,000

USAA: $10,000

CVS Health: $10,000

Capital Financial: $10,000

Deloitte: $10,000

Abbot Lab: $10,000

Eli Lilly: $10,000

Bank of America: $10,000

Pfizer: $10,000

Pensare Acquisition Group: $10,000

Prudential: $19,000

AFLAC: $34,925

Government & Industry Abuse of An Institutionalized Population is A Human Rights Violation Causing A Massive Number of Fatalities. Government Officials Must Be Held Accountable. But there is No Organized Political Movement to Force that to Happen.

The U.S. government has a long history of looking the other way while widespread abuse and neglect continues pervasively throughout a privatized nursing home system funded with taxpayers’ hard earned dollars. Furthermore, over that 70-year history, an aging enterprise has been spawned by the Older Americans Act and do-gooder contributions to 501C3 organizations. We have Area Agencies on Aging, all sorts of aging-related professional organizations, gerontology professional groups, advocacy groups, the AARP, and countless other special interest organizations have settled into a comfortable relationship with government agencies responsible for regulating nursing homes and the industry itself, which has a high powered PR machine. An ongoing game of rope-a-dope between the industry and advocates over minor tweaks to a system that should be ended not mended takes place ad nauseum, ad infinitum in legislatures across the land.

Nursing home neglect and abuse continues on a regular basis while shareholders and executives get fabulously rich from Medicaid and Medicare funded commercial real estate. It appears, however, that a coalition of so-called senior advocacy organizations cannot mobilize to force congress to take a hard look at the COVID-19 nursing home tragedy that didn’t have to happen.