Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Editor’s note: This article has been updated.
The Federal Nursing Home Reform Act creates individually enforceable rights, the U.S. Supreme Court ruled Thursday, meaning a lawsuit brought by the family of a Valparaiso man against the Health & Hospital Corporation of Marion County can continue.
But while the family of Gorgi Talevski may have prevailed in their case, multiple justices said questions still remain as to citizens’ ability to sue under 42 U.S.C. § 1983 to enforce spending clause statutes. Those statutes underpin a myriad of public benefit programs like Medicaid, Medicare and the Supplemental Nutrition Assistance Program.
Thursday’s 7-2 decision in Health and Hospital Corporation of Marion County, et al. v. Talevski, 21-806, came after Talevski was placed in the Valparaiso Care and Rehabilitation nursing home in 2016. The Talevski family filed suit after Gorgi was allegedly chemically restrained solely for discipline and convenience, then was involuntarily transferred to another care facility.
The Indiana Northern District Court granted a motion to dismiss filed by the defendants, including HHC, which owns the Medicaid-funded Valparaiso nursing home.
But the 7th Circuit Court of Appeals reinstated the lawsuit, finding the two rights under FNHRA that the Talevski family invoked — the right to be free from unnecessary chemical restraints and the right to be discharged or transferred only when certain conditions are met — “unambiguously confer individually enforceable rights on nursing home residents,” which means those rights are presumptively enforceable under Section 1983.
In an opinion written by Justice Ketanji Brown Jackson, the high court majority agreed with the 7th Circuit, holding, “The FNHRA provisions at issue unambiguously create § 1983-enforceable rights, and the Court discerns no incompatibility between private enforcement under § 1983 and the remedial scheme that Congress devised.”
Justices heard arguments in the Talevski case in November on a cert petition filed by HHC.
The health care corporation presented two main issues: whether private citizens can sue under Section 1983 to enforce spending clause statutes, and whether the FNHRA rights against chemical restraint and involuntary discharge and transfer are enforceable under Section 1983.
The key to the case, Section 1983 provides that a person acting under “statute, ordinance, regulation, custom, or usage” who deprives a citizen of any constitutional rights, privileges or immunities “shall be liable to the third party injured in an action at law, suit in equity, or other proper proceeding for redress … .”
Lawrence Robbins, a partner at Friedman Kaplan Seiler & Adelman in New York, represented HHC before the high court. He argued that when Congress wrote Section 1983 in the 1870s, it would have understood the provision as limiting third parties’ ability to sue to enforce government contracts.
Indiana Solicitor General Thomas M. Fisher also argued before the high court for the state as amicus. Fisher urged the high court to provide clarity by finding for HHC.
Specifically, Fisher said the court should finish what was started in Gonzaga University v. Doe, 536 U.S. 273 (2002), and hold that private citizens cannot enforce federal spending conditions unless Congress gives express permission to do so.
But Andrew Tutt, a senior associate at Arnold & Porter in Washington, D.C., who argued on behalf of the Talevski family, told the justices that state-level administrative remedies for the family were minimal, and the state regulator was not required to even respond.
“Your Honor, there may be a process for getting to the Health and Human Services secretary to actually get enforcement for rights violations by nursing homes,” Tutt said in response to a question from Justice Brett Kavanaugh about pursuing a remedy at the federal level. “If there was, I promise you this family would have pursued it. But as far as I know, there was no process available.”
Ruling in favor of the Talevskis, Jackson wrote, “By its terms, §1983 is available to enforce every right that Congress validly and unambiguously creates; we will not impose a categorical font-of-power condition that the Reconstruction Congress did not. And here, the test that our precedents establish lead 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.”
In a statement emailed to Indiana Lawyer on Thursday, HHC said it “brought this case because it has a fiduciary duty to focus its scarce public resources on the health care needs of historically underserved populations. HHC’s goal was to understand from the Supreme Court the status of the governing law on the availability of federal claims regarding its nursing home operations. With the Court’s definitive answer today that Medicaid-supported nursing home residents have both administrative and federal court remedies for alleged violations, HHC will continue to work to manage those operations safely and effectively and analyze the impact of the decision on those public resources.”
In his own statement, Indiana Solicitor General Fisher said confusion still lingers.
“While the decision provides an answer as to the enforceability of FNHRA, it does very little to clear up confusion over whether dozens of other federal spending statutes — within Medicaid and beyond — confer privately enforceable rights,” Fisher said. “One unfortunate result is that states will not know when they accept federal grants whether they are also risking private lawsuits to enforce grant conditions.”
Tutt did not respond to a request for comment on behalf of the Talevski family by Indiana Lawyer deadline.
Picking up on the spending clause questions, Justice Neil Gorsuch wrote in a concurrence that “there are other issues lurking here that petitioners failed to develop fully — whether legal rights provided for in spending power legislation like the Act are ‘secured’ as against States in particular and whether they may be so secured consistent with the Constitution’s anti-commandeering principle. … As I see it, those are questions for another day.”
Likewise, in a separate concurrence joined by Chief Justice John Roberts, Justice Amy Coney Barrett wrote, “Courts must tread carefully before concluding that Spending Clause statutes may be enforced through §1983.”
“In this case, however, the Seventh Circuit correctly allowed Talevski’s §1983 suit to proceed,” Barrett wrote.
In a dissent joined by Justice Clarence Thomas, Justice Samuel Alito wrote, “In my view, while respondent has established that the Federal Nursing Home Reform Act … creates individual rights, petitioners have established that relief for the violation of those rights under §1983 is foreclosed by the remedial scheme in the Act.”
Thomas also penned his own dissent, “writ(ing) separately to highlight another and more fundamental reason why FNHRA cannot be enforced under §1983. Section 1983 provides a cause of action to redress only ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.’ But legislation enacted pursuant to Congress’ spending power, like FNHRA, does not ‘secure’ rights by ‘law.’”
HHC’s decision to take the case to the high court created consternation within the Marion County community, with advocates claiming the nonprofit health care corporation violated the Open Door Law by not getting approval from its board of trustees before filing the cert petition. The Indiana public access counselor determined HHC had, in fact, violated the Open Door Law.
Advocates also raised concerns that HHC’s position would prompt the high court to rule that private citizens cannot use Section 1983 to enforce the requirements of federal benefits programs, endangering the elderly, the disabled and the very young. Activists, city-county councilors and even Indianapolis Mayor Joe Hogsett to call on the corporation to drop the case.
But HHC pressed forward, prompting the filing of a complaint under the Open Door Law.
Picking up on the public benefits issue, Indiana Congressman Andre Carson, a Democrat from Indianapolis, celebrated the Supreme Court’s ruling.
“I’m encouraged by today’s Supreme Court decision and what it means for the countless Americans who rely on social safety net programs to survive,” Carson said. “Today’s decision … makes clear our Congressional intent was to provide a remedy and a legal right of action when individuals have been mistreated.
“This case originated in my district in Indianapolis, but its effects are far-reaching for low-income families across the United States,” Carson continued. “I will soon be introducing the Safety Net Protection Act to codify today’s outcome and ensure those who benefit from lifesaving programs like Medicare, SNAP, TANF, and other federal programs have the same rights as every other American. If families have been mistreated or denied services they were promised, they deserve the opportunity to defend their rights and to be treated appropriately without being subjected to unfair, burdensome, and bureaucratic hurdles.”
Please enable JavaScript to view this content.