From Krause Financial Services — By Scott Engstrom, J.D. —
On June 8, 2023, the United States Supreme Court issued a decision enshrining the ability of nursing home residents to assert and protect certain statutory rights. In Health and Hospital Corporation of Marion City v. Talevski, Justice Ketanji Brown Jackson delivered the Court’s opinion upholding the Respondent’s right to sue for violations of the Federal Nursing Home Reform Act (FNHRA) as a § 1983 violation. The Court held:
And, here, the test that our precedents establish leads inexorably to the conclusion that the FNHRA secures the particular rights that Talevski invokes, without otherwise signaling that enforcement of those rights via § 1983 is precluded as incompatible with the FNHRA’s remedial scheme.
The Court reached its decision after evaluating the legislative history of the relevant statutory provisions, analyzing its past precedent, and rejecting the Petitioner’s arguments grounded in principles of contract law related to the spending power of Congress. Before addressing the Court’s reasoning, let’s briefly revisit the case facts.
In 2016, Gorgi Talevski’s dementia progressed, and his family placed him in the Petitioner’s nursing home. As explained by the Court, Mr. Talevski entered the facility with the ability to “talk, feed himself, walk, socialize, and recognize his family.” However, in late 2016, Mr. Talevski’s condition deteriorated. While nursing home staff claimed Mr. Talevski’s deterioration was due to the natural progression of his dementia, outside physicians examined him and found he was being chemically restrained using six psychotropic medications.
Beyond Mr. Talevski’s deterioration, the nursing facility claimed that he had begun harassing female residents and staff. As a result, the nursing home sent Mr. Talevski to a psychiatric hospital 90 minutes away from their facility, only to readmit him twice. The third time Mr. Talevski was sent out, the facility sought to force his permanent transfer to the psychiatric facility, without notice to him or his family.
After a series of complaints and administrative proceedings, the nursing facility’s parent company attempted to reengage Mr. Talevski’s family about potential readmission. The family declined readmission for fear of retribution by the facility and its staff. Mr. Talevski initiated legal action against the nursing home and parent company in 2019 under § 1983, alleging that the nursing home violated the FNHRA by using chemical restraints and transferring him to a psychiatric facility without notice.
The Federal District Court granted the Petitioner’s motion to dismiss, indicating that Mr. Talevski could not enforce provisions of the FNHRA via § 1983. The 7th Circuit reversed the District Court, holding that the FNHRA conferred rights upon nursing home residents that could be enforced through § 1983. The Supreme Court granted the Petitioner’s certiorari petition.
The question in Talevski is whether the FNHRA confers individual rights upon nursing home residents that can be enforced through § 1983. The Petitioner argued that because the FNHRA was enacted through the spending power of Congress there was no private cause of action for nursing home residents under § 1983 for alleged violations of the Act. The Petitioner based this argument on the Supreme Court’s spending clause precedent, which noted that “federal legislation premised on [the spending power] is ‘much in the nature of a contract,’ because, ‘in return for federal funds, the States agree to comply with federally imposed conditions.’”
The Petitioner argued that in following Supreme Court spending clause precedent, if nursing home residents were allowed to enforce FNHRA violations through § 1983 that would be akin to allowing third-party beneficiaries to sue to enforce common law contractual obligations. The Petitioner further argued that because third-party beneficiaries would not have been able to enforce such contractual rights at the time the FNHRA was adopted by Congress, Mr. Talevski should not be permitted to enforce alleged FNHRA violations via § 1983.
In a 7-2 decision, the Supreme Court rejected the Petitioner’s argument and affirmed the 7th Circuit’s ruling. In rendering its decision, the majority rejected the Petitioner’s common law contract argument, noting the Petitioner’s assertion that third-party beneficiaries could not sue to enforce obligations during the time period around the FNHRA’s enactment was “at a minimum, contestable.” Additionally, the Court noted that § 1983 has historically been viewed as an avenue for tort claims, not contract enforcement actions.
While the Court’s decision addresses the Petitioner’s common law contract argument, it dispensed with it quickly, moving on to whether the FNHRA created rights of the type enforceable through § 1983. From there, the Court shifted to an evaluation of legislative history as to the FNHRA and rights enforceable through § 1983.
In rendering the Court’s Opinion, Justice Jackson noted that while federal statutes “have the potential to create § 1983-enforceable rights, they do not do so as a matter of course.” The Court’s analysis necessarily turned to the question of “whether the unnecessary-restraint and predischarge-notice provisions of the FNHRA” confer individual rights enforceable through § 1983. In determining that the FNHRA did confer such rights, the Court reviewed its legal test from Gonzaga v. Doe, 536 U.S. 273 (2002): is the provision at issue “phrased in terms of the persons benefited” and does it contain “rights-creating” language that is individual-centric?
In Talevski, the Court held that the unnecessary-restraint and predischarge-notice provisions satisfied the test set forth in Gonzaga. In so holding, the Court focused this portion of its analysis on the express language of the FNHRA, which concerned “requirements relating to residents’ rights.” Specifically, the Court noted provisions discussing a nursing home resident’s right to be free from physical or chemical restraints and similar language in the predischarge-notice provision and distinguished these provisions from those at issue in Gonzaga, which failed the Supreme Court’s test.
While the Court determined that the FNHRA did confer individual rights, the Petition could still overcome this challenge by proving that Congress created an enforcement scheme incompatible with individual enforcement through § 1983. A party can rebut the presumption that a right is enforceable under § 1983 by evaluating whether Congress intended the remedial scheme set forth in the rights-conferring statute to be the exclusive avenue for potential plaintiffs. The Court synthesized this point:
In all events, the question is whether the design of the enforcement scheme in the rights-conferring statute is inconsistent with enforcement under § 1983, such that a court must infer that “Congress did not intend” to make available “[§ 1983] remedy for [these] newly created right[s].”
In analyzing the relevant statutory provisions, the Supreme Court noted that the FNHRA “lack[ed] any indicia of congressional intent to preclude § 1983 enforcement….” The Court further expressed that not only was there no express rejection of § 1983 as an enforcement vehicle, but there was no implied rejection either.
With this analysis as its basis, the Supreme Court concluded: “The FNHRA secures the particular rights that Talevski invokes, without otherwise signaling that enforcement of those rights via § 1983 is precluded as incompatible with the FNHRA’s remedial scheme.”
News and editorial commentary surrounding Talevski suggested that the Supreme Court was poised to strike down the rights of nursing home residents. One need not conduct an expansive search to find grave headlines portending the restriction of nursing home resident rights. However, this death knell never came to pass. Instead, nursing home residents, their families, and elder law attorneys gained clarity on the standards applicable in determining whether a statute affords or excludes a remedy under § 1983, and an affirmation that the FNHRA can be used to enforce resident rights through § 1983.
Armed with this ruling, elder law attorneys will be better able to protect their clients and their families when a loved one has to be placed in a nursing home. While the nursing home placement process is often difficult for families, the Talevski case puts nursing homes on notice that they will be held to account for FNHRA violations. Hopefully, this can serve as some measure of comfort to families as their loved one transitions to a residential care setting.
Scott Engstrom is Corporate Counsel and Chief Operating Officer of Krause Financial Services.
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