Appellate Alert: United States Supreme Court Decision Allowing Nursing Home Residents to Sue for Deprivation of Rights under 42 U.S.C. § 1983 Unlikely to have a Significant Impact in New York
Published by MCB Appellate Practice Group
Barbara D. Goldberg, Gregory A. Cascino, Richard Wolf
On June 8, 2023, a majority at the United States Supreme Court, in Health and Hospitals Corporation of Marion County v. Talevski, No. 21-806, upheld a determination that nursing home residents may sue government-operated nursing homes under 42 U.S.C. § 1983 for deprivation of rights guaranteed by the Federal Nursing Home Reform Act (FNHRA). Section 1983 provides, in pertinent part, that any person who, acting under color of state law, deprives a person within the jurisdiction of the United States “of any rights, privileges, or immunities secured by the Constitution and laws,” shall be liable to the injured party.
The FNHRA, in turn, was enacted as part of the Omnibus Budget Reconciliation Act of 1987 (OBRA). It provides that long term care facilities seeking Medicaid or Medicare funding must provide services to enable each resident to attain or maintain his or her “highest practicable physical, mental, and psycho-social well-being.” The relevant provisions are 42 U.S.C. §§ 1396r(b)(4) (Medicaid) and 1395i-3(b) (4) (Medicare), together with the 42 CFR 483 regulations promulgated pursuant to these provisions.
This statutory and regulatory framework sets forth a number of rights regarding a resident’s quality of life as well as the quality of care. These include the right to remain in a facility absent non-payment, dangerous behavior, or significant changes in a resident’s medical condition, and the right to be free of unnecessary and inappropriate physical and chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident’s medical symptoms.
The case decided by the Supreme Court involved Gorgi Talevski, a resident at Valparaiso Care and Rehabilitation’s nursing home (VCR), which was owned and operated by the Health and Hospitals Corporation of Marion County, Indiana (HHC). After Mr. Talevski, who suffered from dementia, was admitted to the facility, family members perceived that his mental condition deteriorated significantly. Although VCR’s staff attributed this to the natural progression of his dementia, it was later determined that he was being chemically restrained by the use of several powerful psychotropic medications. His condition improved after the medications were adjusted. In addition, VCR began sending Mr. Talevski to a psychiatric hospital 90 minutes away for several days at a time after he began harassing female residents and staff. Eventually, VCR tried to force his permanent transfer to a dementia facility, without first notifying Mr. Talevski or his family. After subsequent administrative proceedings, that determination was nullified, but VCR ignored the determination and refused readmission. Ultimately, the family decided to leave Mr. Talevski in the new facility because he had acclimated to it.
Subsequently, Mr. Talevski, through his wife, sued VCR and several related entities, including HHC, under § 1983, alleging that the use of chemical restraints and the transfer attempts had violated rights guaranteed him by the FNHRA. The District Court granted HHC’s motion to dismiss, finding that no plaintiff could enforce provisions of the FNHRA under § 1983. The United States Court of Appeals for the Seventh Circuit reversed, holding that under Supreme Court precedent, the FNHRA provisions unambiguously conferred individually enforceable rights on nursing home residents, making those right enforceable via § 1983. The majority at the Supreme Court agreed, holding that the word “laws” in § 1983 should be broadly construed without modifiers, that “[b]y its terms, § 1983 is available to enforce every right that Congress validly and unambiguously creates,” and that the FNHRA secured the rights the Talevskis invoked.
While this decision has been hailed by advocates for nursing home residents as a milestone that will lead to an “explosion” of cases against state and county-operated facilities, we do not anticipate that it will have a significant impact in New York, where most nursing homes are privately owned and operated. Because § 1983 creates a cause of action for deprivation of rights against a person acting under color of state law, we do not believe that the decision applies to private facilities even though most private facilities receive payments from Medicaid and Medicare. Moreover, even with respect to nursing homes operated by county or municipal corporations, we do not believe that a cause of action via § 1983 would provide any advantage to plaintiffs over and above the damages that can already be recovered under New York law.
Specifically, Public Health Law (PHL) § 2801-d, entitled “Private Actions by Patients of Residential Health Care Facilities,” provides in sweeping terms that “[a]ny residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation, except as hereinafter provided.” A “right or benefit” is defined as “any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation . . . .” The damages recoverable “shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than twenty-five percent of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists.” Punitive damages may also be recovered if the deprivation or a right or benefit “is found to have been willful or in reckless disregard of the lawful rights of the patient. . . .”
PHL §2803-c, in turn, sets forth a broad list of rights for residents of nursing homes and other residential health care facilities, including the right to “be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency” -- one of the same rights at issue in Talevski. PHL §2803-c (3) (h).
Detailed regulations pertaining to “minimum standards” for nursing home residents are set forth in 10 NYCRR Part 415. On the federal level, as noted above, requirements for states and long-term care facilities are contained in 42 CFR 483. Frequently, plaintiffs in actions brought against nursing homes in New York state courts allege violations of both sets of regulations, as well as the applicable provisions of the Public Health Law. Thus, under New York law, nursing home residents are already assured a broad panoply of rights, even without resort to the FNHRA. It is for this reason that we do not expect the Talevski decision to alter the landscape of nursing home litigation in New York to any significant degree.
Legislative Alert is published by the Appellate Practice Group of Martin Clearwater & Bell LLP to inform clients about significant legal developments. This publication is intended for general information only and should not be used for specific action without obtaining legal advice. If you would like further information about the services of Martin Clearwater & Bell LLP, please contact Barbara D. Goldberg, Head of the Appellate Practice Group, at (212) 916-0989 or firstname.lastname@example.org, or Gregory A. Cascino, Partner, at (516) 712-3146 or email@example.com, or Richard Wolf, Associate, at (212) 916-0963 or firstname.lastname@example.org