On July 27, 2021, the 7th Circuit decided an important question of law in the case of Talevski v. Health and Hospital Corporation, et al., No. 20-1664. This decision is cause for concern that Plaintiffs will now bring claims against nursing home facilities for improper care and treatment under section 1983 for violations of residents' rights. Section 1983 of Title 42 of the United States Code provides an individual the right to sue government employees and others acting "under color of state law" for civil rights violations.
On January 10, 2019, Plaintiff Gorgi Talevski, filed a complaint and demand for jury trial in the Northern District of Indiana against The Health and Hospital Corporation of Marion County ("HHC"), American Senior Communities, LLC ("ASC"), and Valparaiso Care and Rehabilitation ("VCR") for violations of 42 U.S. § 1983, specifically alleging violations of the Federal Nursing Home Reform Act ("FNHRA"). The complaint alleged that Mr. Talevski, a former resident of VCR, was being chemically restrained due to being prescribed 6 psychotropic medications. The family filed a complaint with the ISDH for the over-prescribing of psychiatric drugs to chemically retrain Mr. Talevski. In addition, due to allegations of Mr. Talevski being inappropriate towards female residents and staff, the complaint alleged that VCR refused to accept him back after a stay at NeuroPsych and tried to force his transfer to an all-male dementia facility.
Defendant moved to dismiss Plaintiff's Complaint under Rule 12(b)(6) arguing that the FNHRA does not create a private right of action to support the 1983 claim, that the claim was time-barred, and that Defendant is not a state actor. In granting the Defendant's motion to dismiss, the district court found dispositive that section 1983 may not serve as a vehicle for a private right of action for a violation of the FNHRA. Plaintiff appealed to the 7th Circuit Court of Appeals.
The 7th Circuit reversed the district court's decision and remanded for further proceedings. The 7th Circuit officially joined two of its sister circuits, the 3rd Circuit and 9th Circuit, finding that the section 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.
The 7th Circuit found that the FNHRA not only establishes minimum standards of care to which nursing homes must comply, but it also contains requirements about residents' rights - sections 1395i-3(c) and 1396r(c) of the FNHRA, known as the "Residents' Bill of Rights" - which was key to Plaintiff's argument that focused on the right to be free from chemical restraints and the right to not be transferred or discharged except under certain circumstances. 42 U.S.C. § 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A). In relying on the three factors of Blessing v. Freestone, 520 U.S. 329 (1997), the Court determined 1) Congress intended the FNHRA to benefit nursing home residents, 2) the FNHRA's requirements are "not so vague and amorphous that its enforcement would strain judicial competence", and 3) "the provision giving rise to the asserted right is couched in mandatory rather than precatory terms", finding that "a common-sense reading of its provisions leaves no room for disagreement" that facilities "must protect and promote the right against chemical restraints, must allow residents to remain in the facility, must not transfer, and must not discharge the resident; these are unambiguous obligations". The Court , in rejecting VCR's argument that the FNHRA forecloses section 1983 claims because there are other mechanisms for recourse, found that section 1396r(h)(8) expressly states that "[t]he remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.". As such, the 7th Circuit held that it was error for the district court to dismiss the case.
As mentioned above, this decision poses a risk that Plaintiffs bringing suit against nursing home facilities for improper care and treatment will now bring claims under section 1983 in federal court for violations of residents' rights, among other concerns. Look for the next blog addressing the impact of this decision on the Indiana Medical Malpractice Act.
Originally published 6 August 2021
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