The United States Court of Appeals for the Seventh Circuit (“Federal Appeals Courts”) held in its opinion dated July 27, 2021 that the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C. § 1396r et seq., provides a private right of action that may be redressed under 42 U.S.C. § 1983.
Federal Nursing Home Reform Act (FNHRA)
FNHRA was enacted pursuant to Congress’s Spending Clause powers as part of the Omnibus Budget Reconciliation Act of 1987, codified at 42 U.S.C. §§ 1395i-3; 1396r. FNHRA outlines several ways in which government-certified nursing facilities must avoid sub-standard care and provides comprehensive guidance on the regulation and operation of nursing homes.
FNHRA establishes the minimum standards of care to which nursing home facilities must adhere in order to receive federal funds in the Medicaid program, 42 U.S.C. § 1396 et seq. In addition to specifying rules for the facilities, it also includes “[r]equirements relating to residents’ rights.” §§ 1395i-3(c); 1396r(c). The case the Federal Appellate Court was deciding involved two of those rights: the right to be free from chemical restraints imposed for purposes of discipline or convenience rather than treatment, and the right not to be transferred or discharged unless certain criteria are met.
The Federal Appellate Court stated: “We begin with the question whether Congress intended sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) to benefit nursing-home residents. We find that it did. Although other parts of section 1396r address measures that nursing homes must take, section (c) explicitly uses the language of rights … Congress told the facilities to respect the rights it had singled out, just as a facility must respect a person’s right to be free from sex or race discrimination. It is thus of no consequence that section 1396r(c)(1)(A) begins with the phrase “[a] nursing facility must … .” What must it do? “[P]rotect and promote the rights of each resident … .””
“Congress enacted FNHRA as an amendment to the Medicaid statute in response to widespread abuses among government-certified nursing facilities. Nursing facilities have an important role to play in ending that abuse. Contrary to Valparaiso Care’s argument that the acknowledgement of the role of the nursing facilities must mean that the statute only tangentially touches on the rights of residents, however, we find dispositive the fact that Congress spoke of resident rights, not merely steps that the facilities were required to take. This shows an intent to benefit nursing home residents directly.”
The federal Appellate Court held: “we find that sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) unambiguously confer individually enforceable rights on nursing-home residents such as Gorgi Talevski … Valparaiso Care and its fellow defendants have not shown that, despite the express rights-creating language in the statute we are considering, there is no private action here. Were there any lingering doubt, it should be put to rest in the general guidance provided in section 1396r(h)(8): “The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.””
Source Talevski v. Health and Hospital Corporation of Marion County, No. 20-1664.
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