Supreme Court case examines right to sue regarding nursing home care

A case currently before the U.S. Supreme Court could decide whether Medicaid beneficiaries and their families can obtain relief for some nursing home violations in federal court or be left to filing a complaint with the federal Centers for Medicare and Medicaid Services (CMS).

The case of Health & Hospital Corporation of Marion County (HHC) v. Talevski, considers whether a private right exists to sue in federal court where a government operated Medicaid certified nursing home fails to comply with federal minimum standards of care under the Federal Nursing Home Reform Act (FNHRA). The case was dismissed at the district court level in Indiana but reversed by the Seventh Circuit Court of Appeals. Under one theory of the case, if the court were to overturn the decision of the Seventh Circuit, it could be reversing a decades long precedent that federal statutory rights may be enforced under Section 1983, the federal civil rights law and not just with nursing homes. Oral argument has already been held on the case in November 2022.

Gorgi Talevski had been placed in an Indiana nursing home owned by Health and Hospital Corp. (HHC) of Marion County due to his dementia. Over the protests of his family, he was prescribed psychotropic drugs in response to his aggressive behavior. When the medication disagreement could not be resolved, the nursing home attempted several discharge attempts. Talevski’s family filed a lawsuit against the Health and Hospital Corp. of Marion

County, a municipal corporation and political subdivision of the state that operates nursing facilities, alleging that his nursing facility’s use of psychotropic drugs as chemical restraints, and the involuntary transfers and attempted involuntary discharge to a dementia facility violated the Federal Nursing Home Reform Act. Mr. Talevski since died and his wife was substituted as plaintiff.

The Nursing Home Reform Act (FNHRA) established certain rights in patients. These rights include, among others, freedom from abuse and neglect, freedom from physical and chemical restraints, freedom to make complaints without fear of punishment and several others. The Federal Nursing Home Reform Act established these as federal rights and nursing home residents and their families are notified of these rights. The argument is over how these rights are to be enforced where government may be involved. Notably the question whether these rights were actually violated in this case was not yet been reached since it was initially dismissed on the law.

There is precedent for enforcement of Medicaid provisions by lawsuit in federal court although decisions are inconsistent. A detailed article, “What is at Stake for Medicaid in Supreme Court Case Health & Hospital Corp v. Talevski?” by Robin Rudowitz and Laurie Sobel of the Kaiser Family Foundation (https://www. kff.org/person/robin-rudowitz), reviews examples where the federal right was enforced as in a state’s denial of benefits under a program known as EPSDT or regarding enrollment in certain programs but also in cases where it was not.

The primary concern of the Kaiser Family Foundation authors appears to be not necessarily regarding nursing homes but in related fields involving Medicaid and other government programs and asks the question whether the ability to bring a private

action in federal court could be challenged or denied across the board under Section 1983. This is likely the reason why the article states that 25 amicus briefs had been filed by various organizations in favor of the Talevski’s including AARP and the National Health Law Program (NHelP) as of the end of April.

If the enforcement mechanism to assert a federal right is to file a complaint with U.S. Health and Human Services (HHS) with no right to proceed to enforce rights in federal court, the process is cumbersome and time consuming and the result does not relate to the individual claimant but to modifying an entire system. The process is described as a “blunt” tool rarely used “unlike courts where a decision can result in immediate action.” Id.

All of this discussion also fails to deal with the question of the rights of individuals who are dealing with privately operated nursing homes that

do not fit under the category “under color of state law” which is the provision under Section 1983, the Civil Rights law called into question. There, actions would be under state law.

It is quite possible the Talevski case will take a middle road granting the permission to sue under some circumstances but not in others. Only time will tell.

Janet Colliton, Esq. is a Certified Elder Law Attorney by the National Elder Law Foundation. Her office, Colliton

Elder Law Associates, PC practices elder law, special needs, real estate and estate planning and administration, with offices at 790 East Market St., Ste. 250, West Chester, 610-436-6674, colliton@ collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long term care needs.