Upcoming in November before USSC: Do Residents have Private Rights of Action for Violations of Federal Nursing Home Reform Act?

For those teaching Elder Law, Health Law, and Disability Law Courses this semester, there is a unique opportunity for students to hear relevant oral arguments before the United States Supreme Court.  One of the important federal laws that arguably changed -- for the better -- the standards for care in nursing homes was the Federal Nursing Home Reform Amendment of 1987 (FNHRA, adopted as part of OBRA '87).  But a long-festering central issue for the provisions known as the "Residents' Bill of Rights" is whether the law provides residents a privately enforceable right of action for alleged violations of the standards.  On November 8, 2022, the United States Supreme Court is scheduled to hear oral argument on two key concerns:

1. Whether in light of historical cases to the contrary, the Court should reexamine its holding that Spending Clause-related legislation confers a implied right to privately enforceable rights under 42 U.S.C. Section 1983; and
2. Whether, assuming Spending Clause statutes ever give rise to enforceable private rights under Section 1983, there are private rights of action for alleged violations of the Federal Nursing Home Reform Act's transfer and medication rules.

The case in question is Health & Hospital Corp. v. Talevski, originally filed in the United States District Court (Northern District) of Indiana.  Mr. Talevski, who has dementia, through his wife, alleges that while living in a nursing facility, he was prescribed powerful medications despite his family's objections, which functioned as prohibited "chemical restraints imposed for purposes of discipline or convenience rather than treatment." Further, he alleges he was improperly transferred over their objections away from the local care facility to a different, more distant facility.  Federal spending laws are at issue because the state's long-term care facilities are eligible for federal dollars and the state receives federal funding, including Medicaid funding, for such nursing care.  In this case, the District Court held that there was no private right of action. 

The U.S. Court of Appeals for the 7th Circuit reversed, at 6 F.4th 713 on July 27, 2021, finding that in the Act, "Congress spoke of resident rights, not merely steps the facilities were required to take.  This shows an intent to benefit nursing home residents directly." (emphasis in the original).  In reaching this decision, the 7th Circuit joined rulings by the 9th (2019) and 3rd (2009) Circuits directly confirming private rights of action under FNHRA. 

The Petitioner Nursing Facility seems to be playing to the newest justices on the Court, arguing that a long line of Spending Clause cases willing to recognize a cause of action under Section 1983, including Blessing  v. Freestone, 520 U.S. 329 (1997), are incorrectly decided or too generous in their willingness to recognize or infer fact-specific, private rights of action.  The Petitioner's argument is supported by an amicus brief, including one submitted on behalf of twenty-two states, resisting the financial implications of accountability asserted by individual patients.   The United States has submitted an amicus brief that expresses general support for individual actions, but argues against such a cause of action for nursing home residents. 

But, as one legal studies student observed in 2013 about what happens when minimum standards are not adequately enforced by authorities: 

Even though conditions in nursing homes have improved since the passing of the Federal Nursing Home Reform Amendment of 1987, the existence of substandard care in nursing homes, which Congress attempted to correct with the statute, still exists today. . . . [A case such as Grammer v. John J. Kane Reg'l Ctrs-Glen Hazel, 570 F.3d 520 (3d Cir. 2009) recognizing the right of residents to bring private actions under 1983] does open the door for state-run nursing homes to be held accountable for abuse and substandard care. . . . Considering that most of us at some point in our future will live the nursing-home experience first-hand, we should keep this topic on our radar.

Susan J. Kennedy, "Conflict in the Courts: The Federal Nursing Home Reform Amendment and Section 1983 Causes of Action,"  3 Law Journal for Social Justice 195, 209 (2013).  Some ten years later, the resident's case before the Supreme Court appears to have strong amici support, with amici briefs due in mid-September, arguing that without residents' ability to enforce their legal rights, "they will lose a powerful weapon for their protection.  This puts them at risk of harm and even death, as abuse, neglect and poor care are rampant in many facilities." Id.