High v. Kemp Petition for Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit

    No. 95-1182

In toe

Supreme Court of ttje Mntteb States:
October Term , 1995

ST. PETER VILLA, INC., el ai,
Petitioners,

MILDRED LEA LINTON, el al.,
Respondents.

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 
D irector-Counsel

Norman J. Chachkin 
Marianne L. Engelman 

Lado
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 

1600
New York, NY 10013 
(212) 219-1900

G. Gordon Bonnyman, Jr . 
Tennessee Justice Center 
203 2nd Avenue North 
Nashville, I  N 37201 
615) 255-0331

Pam Ford Wright
West Tennessee Legal Services
P. O. Box 2066
Jackson, TN 38301
(901) 423-0616

Counsel of Record

Attorneys for Respondents LINTON and CARNEY



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

Paze

TABLE OF AUTHORITIES.....................................ii

STATEMENT OF THE C A S E .............................- 1

SUMMARY OF REASONS FOR
DENYING THE WRIT .........................................   5

REASONS FOR DENYING THE W R IT ................5

CONCLUSION ........................     9

i



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.2d 1311 (6th Cir. 1992) ....................... 3,4

Magnum Import Co. v. Spotumo,
262 U.S. 159 (1923).............................. . . . .  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 U.S.C. §§ 1396 et seq. . . . . . . . . . . .  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. §§ 2000d et seq........... .............passim

Other

R o b e r t  L. St e r n  & E u g e n e  G r e ssm a n ,
Su p r e m e  C o u r t  P r a c t ic e  (5th ed. 1979) . 7

Sup. Ct. Rule 10.1 ...................... ................. 6

li



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-5a, 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.1

Plaintiff-intervenor, Belle Carney, age 89 
at the time this suit was filed, sufferfed] 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

1The 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.l.

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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 seq., 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 seq.

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 F), 913 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

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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.3

2When 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.

3On 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

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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 Ass’n v. 
Commissioner, Tennessee Dep’t of Health and Env’t, No. 
91-5789 (6th Cir. Feb. 26, 1992), 1992 WL 36217, at *1; 
Linton III, 10a, 65 F.3d at 513.

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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 
certiorari 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.4 As Chief Justice

4By 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,

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Taft stated in Magnum Import Co. v. Spotumo, 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 
R o b e r t  L. St e r n  & E u g e n e  G r essm a n , Su p r e m e  
C o u r t  P r a c t ic e  257-68, 297-300 (5th 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, i.e., 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." Id. 
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.

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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 514.5

In sum, the present Petition for Certiorari 
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.

5The 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, lla-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.

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CONCLUSION

For the reasons set forth above, the Petition 
should be denied.

Respectfully submitted:

Elaine R. J ones 
Director- Counsel

Norman J. Chachkin 
Marianne L. Engelman 

Lado
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, Suite 

1600
New York, NY 10013 
(212) 219-1900

G. Gordon Bonnyman, Jr . 
Tennessee Justice Center 
203 2nd Avenue North 
Nashville, TN 37201 
615) 255-0331

Pam Ford Wright
West Tennessee Legal Services
P. O. Box 2066
Jackson, TN 38301
(901) 423-0616

Counsel of Record

Attorneys for Respondents LINTON and CARNEY 

March 22, 1996

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