Keep Calm and Carry On: HHC v. Talevski’s Impact On Nursing Homes Is Probably Narrower Than You Think

Articles & Alerts
June 2023
By Megan Bosak and Michaela Cloutier

In a 7-2 opinion authored by Justice Jackson, the Supreme Court of the United States held that two provisions of the Federal Nursing Home Reform Act (FNHRA)[1] create individual rights that can be enforced in a claim brought pursuant to 42 U.S. Code § 1983 (§ 1983 claims).[2] In reaching this conclusion, the Court clarified that laws enacted by Congress according to its Spending Power are not excluded from enforcement via a § 1983 action. Additionally, the Court concluded that the two provisions of the FNHRA upon which the Plaintiffs had attempted to sue in the lower court “unambiguously conferred” individual rights, making them presumptively enforceable under § 1983, and that the FNHRA’s enforcement scheme was not incompatible with a private remedy under § 1983. Based on this analysis, the Court concluded that private citizens could bring Section 1983 claims for alleged violations of two specific provisions of the FNHRA.

Individuals involved in the business or litigation of skilled nursing facilities may have heard that this case is a bad sign for nursing homes and may open the door to significant future litigation based on new and novel causes of action. However, this decision does not mean that all nursing homes are now subject to private actions for any violations of the FNHRA. There are several critical limitations to the Supreme Court’s holding to keep in mind when evaluating the effect that the Talevski decision might have on long term care litigation, specifically:

The Decision Does Not Apply to All Provisions of the FNHRA

Notably, there were only two provisions of the FNHRA at issue in Talevski:

  1. The right to be free from unnecessary chemical restraints[3]; and
  2. The right to be discharged or transferred only when certain preconditions are met.[4]

The Supreme Court applied the Gonzaga test[5] and concluded that both provisions unambiguously conferred individual rights such that those rights could be enforced in a § 1983 action. Importantly, though, the Supreme Court did not conduct a Gonzaga analysis for any other provisions of the FNHRA. Thus, if a resident or family member attempts to bring a § 1983 action based on any other provision of the FNHRA, they will still be required to prove that the at-issue provision unambiguously conferred an individual right, such that same should be enforceable in a § 1983 action.

While the Talevski decision allows for the possibility of future § 1983 litigation based on these two provisions, it does not necessarily mean that every provision of the FNHRA now gives rise to a § 1983 claim.

1983 Claims Are Limited to Entities “Acting Under Color of State Law” 

While the Federal Nursing Home Reform Act (FNHRA) applies to many nursing homes, including private nursing homes—because it applies to all nursing homes that accept federal funding[6]—42 U.S. Code § 1983 generally only applies to public entities. The nursing home at issue in Talevski, for example, was owned by Marion County, Indiana.[7] Private causes of action under 42 U.S. Code § 1983 can generally only be brought against public entities—with some important exceptions.[8] Most nursing homes in West Virginia are not government-owned, meaning they will not be subject to § 1983 claims as a result of the Talevski decision.

It is still unclear whether the Indiana District Court will Conclude that HHC Violated the FNHRA or what the Remedy for Such a Violation Will Be

Additionally, the Court in Talevski did not interpret the FNHRA’s provisions—it simply determined that the Plaintiff could proceed on the initial claim against HHC under § 1983. Many questions remain for the lower court to decide, including whether HHC violated the FNHRA and, perhaps more importantly, what remedy Plaintiffs will be entitled to for the alleged violations.

Often, § 1983 claims are desirable to Plaintiffs because they afford greater remedies than state law claims, including attorney’s fees and punitive damages (which are not subject to state law limits).[9] Additionally, § 1983 specifically provides that all damages to which Plaintiffs are entitled as a result of a successful § 1983 claim are in addition to any remedy provided by state law.[10] Talevski’s Estate requested punitive damages, and attorney’s fees, in the original District Court action, in addition to compensatory damages.[11] However, the extent to which the scope of available remedies should cause concern for future litigation depends largely on the outcome of the District Court case. The type of relief ultimately obtained, if any, will factor heavily in the extent to which Plaintiffs consider future § 1983 claims against long term care facilities to be worthwhile.

In sum, Talevski does not necessarily open all long-term care facilities to the possibility of endless private actions based on the FNHRA. But the extent of Talevski's impact will depend heavily on the District Court's rulings and the verdict if the case goes to trial. Individuals interested in the likelihood of future private-right litigation against nursing homes—and anyone who deals with nursing home regulation and compliance[12]—should keep a close watch on the outcome.

If you are an administrator, owner, or manager of a nursing home or other skilled nursing facility and wonder whether the Talevski decision will affect your organization, don't hesitate to contact our team.

[1]  42 U.S.C. §1395i-3

[2]  Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444 (2023). In regard to § 1983 claims, the Supreme Court explained that 42 U.S. Code § 1983 “provide[s] an express cause of action to any person deprived (by someone acting under color of state law) of ‘any rights . . . secured by the Constitution and laws.’” Id. It is frequently used to bring claims for violation of the Constitution and various federal statutes by government entities.

[3] 42 U.S. Code § 1396r (c)(1)(A)(ii).

[4] 42 U.S. Code §§1396r(c)(2)(A)–(B).

[5] The Gonzaga test is applied to determine whether Congress intended to create a federal right for a specific identified class, as opposed to a situation wherein a plaintiff falls within a “general zone of interest,” and thus “unambiguously conferred” a right. See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, 1447 (2023).

[6] Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444 (2023) (Thomas, J., dissenting) (“FNHRA conditions the receipt of federal Medicaid funding by States and nursing facilities on compliance with a broad range of requirements.”).

[7] See Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, n.2 (2023).

[8] Courts have established many exceptions to the requirement that § 1983 claims may only be brought against government-owned entities. These include situations wherein the activities of the entity at issue constitute a “privatization of government functions”  or “an exclusively public or governmental function,” where a non-government-owned entity acts jointly, conspires, or is “entangled” with a government entity, and where Plaintiffs use a § 1983 claim to attack the legitimacy of a government procedure, as applied by a non-governmental entity. Jack M. Beermann, Why Do Plaintiffs Sue Private Parties under Section 1983 , in 26 Cardozo Law Review 9, 20-33 (2004). The extent to which these exceptions will render nursing homes subject to suit under § 1983 in the wake of HHC v. Talevski remains to be seen.

[9] Jack M. Beermann, Why Do Plaintiffs Sue Private Parties under Section 1983 , in 26 Cardozo Law Review 9, 14-15, 22-23 (2004). Plaintiffs also find § 1983 claims beneficial because there is little likelihood they will have punitive damages awarded against them. See id. at 14 “Despite its neutral language, the Supreme Court has read the statute to mean that prevailing plaintiffs have a virtual entitlement to attorney's fees, while prevailing defendants are entitled to an award only in extreme cases of claims brought wholly without merit.”).

[10]  Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, 1451 (2023) (quoting Owens v. Okure, 488 U. S. 235, 248 (1989), “To guarantee the protection of federal rights, ‘the §1983 remedy . . . is, in all events, supplementary to any remedy any State might have.’”)

[11] See Complaint at 8–9, Talevski by Next Friend Talevski v. Health & Hosp. Corp. of Marion Cnty., No. 2:19 CV 13, 2020 WL 1472132 (N.D. Ind. Mar. 26, 2020).

[12] The outcome of the Northern District of Indiana case may also affect interpretation of the FNHRA more generally. There is currently no West Virginia or federal case law addressing the interaction between the MPLA and the FNHRA, or West Virginia case law applying the FNHRA. The Northern District of Indiana’s ultimate determination of whether HHC violated the FNHRA provisions at issue may set the stage for an increase in lawsuits based on the FNHRA, potentially resulting in a more robust body of law on the interpretation of FNHRA provisions, and increased clarity. Because of the possibility that state law claims and FNHRA-based § 1983 claims may be brought in the same action, it may also lead to an increase in jurisprudence regarding the extent to which following state law practices is sufficient to meet the requirements of the FNHRA.

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