Nursing home patient, family seek to enforce rights as to care

A case pending before the 7th Circuit Court of Appeals brought on behalf of a northwest Indiana man suffering from dementia asks whether a patient in a long-term care facility can enforce rights under the Federal Nursing Home Reform Act.

Passed in 1987, FNHRA contains a laundry list of rights, but only within about the last 10 years have two federal appellate courts — the 3rd and 9th circuits — found patients themselves can enforce those rights. Now the family of Gorgi Talevski is hoping the 7th Circuit makes a similar ruling.

The plaintiffs and their pro bono attorney, Andrew Tutt, senior associate at Arnold & Porter in Washington, D.C., believe a favorable decision from the Chicago-based appellate court will lead to improved patient care not only for their relative but for other families’ relatives who live in nursing homes throughout the jurisdiction.

“Once it becomes clear that what happened to Mr. Talevski will result in a lawsuit, I hope we won’t see it anymore,” Tutt said.

The family has targeted powerful defendants. Valparaiso Care and Rehabilitation, where Talevski was a patient, has been named as a defendant along with the Health and Hospital Corporation of Marion County, which owns the facility and American Senior Communities, which manages the facility.

Also, the family has to persuade the 7th Circuit. The plaintiffs argued that patients can enforce the Residents’ Bill of Rights in FNHRA under 42 U.S.C. section 1983, a statute passed in in 1871 to protect newly freed slaves.

In essence, the Talevski family asserted FNHRA creates the rights and Section 1983 says those rights can be enforced. Tutt reinforced the argument by underscoring the use of the word “right” in the nursing home statute.

“The word ‘right’ is special term that carries special consequences,” he said. “Congress doesn’t throw it around lightly.”

The Health and Hospital Corp. and its attorney, Lawrence Robbins of Robbins Russell Englert Orseck Untereiner & Sauber LLP in Washington, D.C., declined to comment on the pending litigation. However, in their brief filed with the 7th Circuit, the defendants countered that FNHRA is directed toward states and nursing homes and does not grant rights to individuals.

In their brief, the defendants maintained FNHRA does not offer a private right of action, in part, because the “structure and subject matter” of the statute show the target of the regulation is the state that accepts the federal Medicaid funds.

FNHRA, they asserted, tells states how to regulate nursing homes in order to receive Medicaid dollars. Then the state instructs nursing homes how their doctors should provide care to theindividual patients.

“What FNHRA provides are terms of the states’ contract with the federal government,” the defendants argued to the 7th Circuit. “Understanding that structure makes clear that the focus on the statutes is three levels removed — first states, then nursing facilities, then doctors — from individuals like Talevski.”

Going to court

In their unsuccessful complaint filed in the U.S. District Court for the Northern District of Indiana, the Talevski family contended the defendants violated multiple provisions in the FNHRA. Their appeal to the 7th Circuit narrowed the focus to two violations. The plaintiffs argued Talevski was being chemically restrained solely for discipline and the convenience of the staff. Also, they asserted he was involuntarily transferred to another care facility.

They were seeking actual, compensatory and punitive damages along with attorney fees.

The defendants countered Talevski’s dementia was making him violent and sexually aggressive toward female residents and staff. In their brief to the 7th Circuit, they claimed they attempted to address his behavior first through medications then by recommending his transfer to an all-male facility.

After a review of the situation, an administrative law judge for the Indiana State Department of Health did not affirm the nursing home’s decision to transfer Talevski. But the family said when they tried to readmit him, Valparaiso Care and Rehabilitation refused to take him back.

Although the facility began making plans to accept Talevski following a subsequent review by the state health department, the family chose to keep him in a Bremen nursing home

Talevski’s daughter, Susie Talevski, an attorney in Valparaiso, acknowledged that similar cases invoking FNHRA rights have failed to gain traction in the district courts within the 7th Circuit, including Terry v. Health & Hosp. Corp. of Marion Cty., 1:10-cv-000607, slip op (S.D. Ind. Mar. 29, 2012). Still, she wanted to file the lawsuit and see what a Northern Indiana federal judge would say.

“I knew in my heart that no matter what the decision was going to be, whether we lost or won, that it was a case that I really wanted to see appealed to the 7th Circuit because it’s time the 7th Circuit gives an answer to this question,” she said.

Yet, after the district court dismissed the case in an eight-page order, Susie Talevski thought the case was finished because she did not have the resources for an appeal. Then, she received a message from Tutt.

Regularly reading federal court decisions as part of his law practice, Tutt said the Talevski case did not look right. He dug deeper into the docket and eventually concluded the case was a good candidate for a 7th Circuit review, where it would have a good chance of being overturned.

“I don’t go out each day looking for lawsuits to bring,” Tutt said. “But there are things in this world that I have the skills and ability to fix and one is incorrect federal district court opinions.”

‘Short circuiting’

The appeal — Gorgi Talevski, by next friend Ivanka Talevski v. Health and Hospital Corporation of Marion County, et al., 20-1664 — was filed, and on Dec. 4, the 7th Circuit heard remote oral arguments.

As Tutt progressed in his argument to detailing the treatment Talevski received, the panel remined him the case had not survived a motion to dismiss, so the family’s assertions at this point have not been scrutinized by a court.

“This is serious misconduct, what occurred in this case,” Tutt said. “Mr. Talevski was the victim of intentional actions: the use of drugs off-label to restrain him for the convenience of the nursing home.”

Judge Diane Wood interjected, “Let me just say, ‘allegedly.’ We’re at a very early stage here and if this were to move forward, it may well be that the home could show that had not happened. I just don’t want to go too far.”

Robbins spent much of his time arguing Talevski’s complaint was barred by the statute of limitations. However, the appellate panel seemed skeptical.

Wood pointed to Talevski’s theory that a new violation occurred each time he was administered medications to allegedly restrain him. That, she said, was the kind of theory that the plaintiff and the defendants would have explored through fact finding and motions for summary judgment at the district court.

“This case strikes me as a bad candidate for simply short circuiting all of that process,” Wood said.

Wood also queried Tutt about the defendants’ contention that FNHRA has a comprehensive enforcement scheme, so overlaying a private right of action under Section 1983 is unnecessary.

In their brief, the defendants held the enforcement mechanism includes unannounced inspections of nursing homes and the potential to deny Medicaid funds if the facility is found to be out of compliance. Also, individuals have remedies through grievance procedures and administrative hearings.

Tutt rejected the defendants’ contention. He argued that while the statute does not give the individuals the right to access federal court, Section 1983 does. He cited caselaw such as Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009), in which the U.S. Supreme Court unanimously established that a private right of action exists via Section 1983 in a Title IX sexual discrimination case against a school that received federal funding.

“The text of the law is important. If one statute says it creates a ‘right’ and another statute says you can enforce any right, there’s a claim there,” Tutt said in an interview. “That’s all we argued in our appeal. The word ‘right’ is special term that carries special consequences.”•