Supreme Court To Hear Case Regarding Section 1983 Enforcement of FNHRA Violations

The Supreme Court, on May 2, 2022, granted certiorari to consider whether certain provisions in the Federal Nursing Home Reform Act (“FNHRA”) create rights that are federally enforceable by nursing home residents under 42 U.S.C. § 1983 (“Section 1983”).

The petition for a Writ of Certiorari came in response to a decision by the U.S. Court of Appeals for the Seventh Circuit (“Seventh Circuit”) in Talevski vs. Health and Hospital Corporation of Marion County, 6 F.4th 713 (7th Cir. 2021). Talevski concerned a resident of a state-run nursing facility in Indiana. The resident suffered from dementia. Through his wife, the resident sued the facility under Section 1983 for violations of two provisions of FNHRA—-one pertaining to the right to be free from chemical restraints imposed for purposes of discipline or convenience rather than treatment; the other relating to the right not to be transferred or discharged unless certain criteria are met.

A three-judge panel reversed a lower court decision and held that the FNHRA provisions at issue unambiguously confer individually enforceable rights on nursing home residents. These rights are presumptively enforceable in federal court under Section 1983. The court noted that the Supreme Court previously has found that a statutory scheme had implicitly foreclosed Section 1983 enforcement claims in only three instances, none of which were present in the Talevski case. Accordingly, the Seventh Circuit, siding with the Third Circuit¹ and the Ninth Circuit², found that FNHRA confers such individually enforceable rights.

The nursing facility and related petitioners submitted a Petition for Writ of Certiorari (“Petition”). In that Petition, the petitioners urged the Court to revisit its previous establishment of a multi-factor test for determining whether Spending Clause legislation such as FNHRA gives rise to rights enforceable by individuals under Section 1983 in favor of a bright line test based on history and common law tradition that third party beneficiaries cannot generally enforce such legislation. Further, the petitioners argued that the mere inclusion of the word “rights” in a statute is not dispositive when determining whether an implied private right of action exists and stated that the Seventh Circuit essentially “federalized medical malpractice law for patients in nursing facilities throughout its jurisdiction, sweeping aside carefully chosen state policies in favor of a one-size-fits-all resort to Section 1983.”

A decision by the Court to recognize Section 1983 enforcement of FNHRA rights violations, even if limited to state-run nursing facilities and the two FNHRA provisions at issue in Talevski, will undoubtedly increase facilities’ liability insurance premiums, which in many states have been kept relatively stable through various tort reform measures. For a sector that has struggled during the COVID-19 pandemic and now during the workforce crisis, a liability insurance crisis could further strain budgets and affect providers’ efforts to provide quality care.

[1] Grammer v. John J. Kane Reg’l Centers-Glen Hazel. 570 F.3d 520 (3d Cir. 2009).

[2] Anderson v. Ghaly, 930 F.3d 1066 (9^th Cir. 2019).