Another significant nursing home litigation case has gone up to a state Supreme Court, this time in Connecticut. And this time, there are somewhat novel and complicated legal issues of sovereign immunity. Interestingly, this case surrounds a private nursing home providing care to mental patients and state parolees. The nursing home facility is owned by iCare Management LLC as well as two subsidiaries called SecureCare Realty LLC and SecureCare Options LLC. These owners argue that they have what is called sovereign immunity which exempts them from zoning restrictions as well as property taxes.
The concept of sovereign immunity goes way back in the history of our modern laws. It is a legal theory and practice in which the state itself is immune from prosecution or lawsuits in criminal and civil courts. It is a concept that goes back as far as the old monarchies of Europe where a king or queen would basically exempt the crown from being subject to the jurisdiction and decisions of the courts. Today, states governments can assert sovereign immunity under the Eleventh Amendment of the U.S. Constitution, meaning specifically that states generally cannot be sued in federal courts without the states’ own respective consent to being a defendant (and thus leaving it up to a state’s laws and its own courts to deal with such matters). The federal government furthermore can only itself be sued in certain circumstances such as under the Federal Tort Claims Act. Otherwise, without any consent by statute or otherwise, the federal government cannot be sued.
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In this particular case, as reported by the Hartford Courant, the nursing home in question has sought to operate in a particular area without paying taxes or obeying local zoning rules. Some of those rules are particularly serious, as the nursing home has tried to operate in a neighborhood with single-family homes and apartments in spite of the fact that several individual employees of the nursing home are listed on the state’s sex offender registry for the commission of sex crimes. In this instant the zoning rules are meant to protect families and children from being close to sex offenders. The case was filed by the local town against the nursing home to prevent it from operating in this neighborhood, and although dismissed originally, has been resurrected on appeal.
The nursing home originally came into operation under state law. By rule long-term care provided by fully state-run facilities cannot receive reimbursements through the federal Medicaid program for the care of parolees and mental patients. Thus the commissioners of the corrections department, social services, and the mental health and addiction services arranged to farm out the work through a services contract to a private entity – in this case the above-mentioned companies that own the facility in question.
Through such an arrangement Connecticut could get back 50% of the costs of the facility through Medicaid, which obviously is more than nothing. Based on this arrangement, the private facility has argued that due to its partnership with the state under state law to manage the nursing home intended for the public benefit, it should enjoy the benefit of immunity from zoning laws that the state itself would. However, on the other side of this is the argument that the nursing home’s assets are privately owned and thus not truly state property, meaning that it would not meet the requirements to legitimately claim sovereign immunity. This is a fascinating question for those interested in legal precedent, and moreover has significant implications for the future of private-public arrangements when it comes to nursing homes or long-term care facilities.
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