The U.S. Supreme Court will consider an Indiana case that could allow nursing home residents and/or their families to bring private rights of action under 42 U.S.C. §1983 for alleged violations of the federal Nursing Home Reform Act (“NHRA”), 42 U.S.C. §1396r et seq. NHRA establishes minimum standards of care to which nursing homes must adhere to receive Medicaid funding. In addition to specifying rules for Medicaid-participating nursing homes, NHRA also includes “requirements relating to residents’ rights.” The Supreme Court’s decision could mean a deluge of lawsuits against nursing homes that fall outside Indiana’s Medical Malpractice Act, and its provisions for initial evaluation by a medical review panel and, more significantly, its cap on damages.
Health & Hosp. Corp. of Marion County, et al. v. Talevski, which has been added to the Supreme Court’s October 2022 term, concerns Gorgi Talevski, formerly a resident of Valparaiso Care & Rehabilitation (“VCR”), a state-run nursing home. Through his wife, Ivanka, Mr. Talevski sued VCR under 42 U.S.C. §1983 for violations of his NHRA rights; specifically, those encompassed in NHRA’s “Residents’ Bill of Rights,” which are intended to avoid substandard care in Medicaid-eligible nursing facilities. The District Court dismissed the action, finding that NHRA does not provide a private right of action that may be redressed under 42 U.S.C. §1983. Talevski appealed to the Seventh Circuit Court of Appeals, which consists of the jurisdictions of Indiana, Illinois, and Wisconsin. Talevski abandoned all but two alleged violations of his rights – to be free from chemical restraints by over-prescribing psychotropic drugs (42 U.S.C. §1396r(c)(1)(A)(ii)), and to timely notice of transfer and discharge procedures (42 U.S.C. §1396r(c)(2)).
In determining whether Talevski could enforce NHRA rights under 42 U.S.C. §1983, the Court filtered the relevant NHRA provisions through the three-part test established by the U.S. Supreme Court in Blessing v. Freestone, 520 U.S. 329 (1997): (1) that Congress intended the provision in question to benefit the plaintiff; (2) that the plaintiff demonstrated that the right allegedly protected by §1983 is clear and unambiguous; and (3) that the statute unambiguously imposes a binding obligation on the states. In other words, “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” (emphasis added) The 7th Circuit found that the rights embodied by NHRA are intended to benefit nursing home residents; unambiguously protect and promote the rights of residents; and are clear obligations that nursing home operators must adhere to.
Finding that Talevski had satisfied the Blessing criteria and that NHRA rights are presumptively enforceable under §1983, the Court rejected VCR’s argument that NHRA precludes §1983 claims because there are other ways to redress nursing home non-compliance with the statute. These include annual surveys by the State, through which a nursing facility found to be non-compliant with NHRA could be subjected to penalties, including termination of the facility’s participation in the Medicaid plan; denial of payment to the facility; civil monetary penalties; the appointment of temporary managers; closure of the facility; transfer of residents; or some combination of these measures. However, the 7th Circuit held that NHRA’s remedies are “in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies,” including those available under common law. Accordingly, the 7th Circuit reversed the District Court and remanded the case for further proceedings. VCR’s appeal to the U.S. Supreme Court followed.
It is difficult to predict how the Supreme Court will rule on Talevski. However, if the Court affirms the 7th Circuit, residents of publicly owned nursing homes would have a private right of action to enforce the rights identified in NHRA. Such a ruling would be particularly significant in Indiana, which does not have a state court cause of action for alleged violations of resident rights, or a law under which plaintiffs can recover attorney fees for enforcing those rights. Most nursing homes in Indiana are owned by public entities that are operated by private companies. A Supreme Court ruling upholding the 7th Circuit would place a sharp and true arrow in the quivers of plaintiff’s attorneys who could target the owners and operators of publicly owned nursing facilities with lawsuits for alleged violations of resident rights that are guaranteed by NHRA. Such suits would not be subject to the limitations and protections afforded by Indiana’s Medical Malpractice Act.
Reminger will continue to monitor this case and will provide updates accordingly. In the meantime, if you have any questions regarding Talevski specifically, or any other questions regarding long term care issues, please feel free to contact any one of Reminger’s Long Term Care Liability Group members.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. THIS IS AN ADVERTISEMENT
Attorneys
Ft. Wayne
Indianapolis
Northwest Indiana
Evansville
Cincinnati
Louisville