Private Contractors for Public Services Held Accountable in Indiana
As states privatize portions of their public benefits programs in an effort to save money, more and more Americans are getting lost in the shuffle. Recently in Indiana, a federal district court examined the privatization process in the context of one man’s application for Medicaid benefits. In Novak v. Indiana Family and Social Services, 1:10-cv-0677-RLY-DML, 2011 U.S. Dist. Lexis 34249 (S.D. Ind. March 30, 2011), the court found that private companies performing functions traditionally held by state governments can become state actors and thus be held responsible for losing or delaying citizens’ applications for benefits.
The Novak case began in October 2008 when a law firm representing Raymond Novak applied for Medicaid benefits on his behalf. Unfortunately for Mr. Novak and his wife, in December 2006 the State of Indiana had contracted with IBM to modernize the way Indiana’s Family and Social Services Administration (FSSA) processed Medicaid claims and applications. IBM quickly took over most of the Medicaid-related work in Indiana.
As the Novak court wrote, “the effort to modernize resulted in significant delays and other problems that left the Medicaid benefits procurement process in Indiana with a backlog of unprocessed or incorrectly processed Medicaid applications.” In fact, although the contract was supposed to run for ten years, Indiana cancelled it after less than three because of IBM’s unsatisfactory performance. (The State of Indiana and IBM are currently embroiled in a highly publicized lawsuit regarding the state’s decision to terminate the contract.)
Mr. Novak and his wife, Rosemarie, were victims of IBM’s substandard performance. Not only did the service center responsible for Mr. Novak’s application lose it (and neglect to contact Mr. Novak’s lawyers to let them know the application had been lost), the center denied his application without providing any information about how to correct it. Mr. Novak’s lawyers appealed, and again the service center did not respond. Once again, the lawyers learned that the appeal had not been processed and that no hearing date had been set. The lawyers then sent Mr. Novak’s paperwork directly to FSSA’s appeals division. When an administrative law judge reviewed the case, although she denied Mr. Novak’s appeal, she explained her reasoning in detail so that Mr. Novak’s lawyers could correct the application.
Mr. Novak was later found eligible for Medicaid benefits, but the Novaks still sued FSSA and IBM, claiming not only that FSSA’s denial of benefits was unlawful, but asking for damages in a civil rights claim under 42 U.S.C. § 1983. The Novaks alleged that the FSSA’s application system was prejudicial to them because it delayed Mr. Novak’s eventual receipt of benefits and forced the couple to incur unnecessary legal fees.
While the court dismissed some of the Novaks’ claims, it allowed the section 1983 claim against IBM to stand. To bring a section 1983 claim against a defendant who is not a government official, the plaintiff must show that the defendant was a state actor. Analyzing the Novaks’ description of IBM’s actions, the court found that, because “the State entrusted to IBM its obligation to accept, promptly review and process a Medicaid application in accordance with the federal Medicaid statutes and regulations,” IBM was a state actor. This acknowledgment sends an important message to other states as well as to private contractors who consider entering into contracts to handle welfare work. After Novak, it is clear that corporations who contract with states to process Medicaid claims or other public benefits can be found responsible if they do not meet the requirements of federal law.
The Novaks’ situation is not an anomaly. Texas has also contracted out its eligibility determination for public benefits, and more and more states are considering privatization as a way to save money. Advocates agree that privatization of public benefits is fraught with peril for low-income clients. In a recent issue of Clearinghouse Review, Professor Wendy Bach of the University of Tennessee Law School asserted that privatization not only makes it more difficult for applicants to receive benefits, privatization also reduces government accountability, making it difficult for community members and advocates to challenge inequities in the welfare system. The National Center for Law and Economic Justice notes that advocates for low-income people need “to ensure that privatization and modernization initiatives are implemented in an effective and accountable manner, guaranteeing low income individuals and families the benefits, services, and opportunities for which they are legally entitled and that they need to achieve economic independence.” In 2002, Clearinghouse Review’s annual special issue was devoted to privatization, and the Review will continue to follow this important topic in future issues.
