7th Circuit revives case against Indiana nursing home, finding federal law allows for private right of action

In considering the plight of a northern Indiana man whose health worsened when he was a resident of Valparaiso Care and Rehabilitation, a state-run nursing facility, the 7th Circuit Court of Appeals has aligned with the 3rd and 9th Circuits in finding patients can enforce the rights offered under the Federal Nursing Home Reform Act.

Gorgi Talevski, through his wife, Ivanka, sued Valparaiso Care, the Health and Hospital Corporation of Marion County and American Senior Communities alleging violations of the FNHRA. But the Northern Indiana District Court dismissed the complaint, ruling the plaintiffs had failed to state a claim on which relief could be granted because FNHRA does not provide a private right of action that may be remedied under 42 U.S.C. § 1983.

The family appealed, and the 7th Circuit reversed Tuesday in Gorgi Talevski, by next friend Ivanka Talevski v. Health and Hospital Corporation of Marion County, et al., 20-1664.

On appeal, Ivanka Talevski narrowed her arguments to two provisions in the FNHRA section commonly referred to as the Residents’ Bill of Rights. She alleged Valparaiso Care violated Gorgi’s statutory right to be free from chemical restraints by overprescribing psychotropic drugs to restrain him chemically. Also, she asserted the facility violated his rights related to residential-transfer and discharge procedures because he was not allowed to remain at Valparaiso Care and did not receive timely notice of his transfer.

The 7th Circuit relied on Blessing v. Freestone, 520 U.S. 329 (1997), which identified three factors to help determine whether a federal statute creates a private right enforceable under § 1983.

In part, the appellate court found that the language of the federal statute was clear that Congress intended sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) to benefit nursing home residents.

“Valparaiso Care argues that Ivanka cannot show the necessary individual focus because the protections at issue serve only as directives to nursing facilities and physicians, and FNHRA as a whole is addressed to states that receive federal Medicaid funding,” Judge Diane Wood wrote for the court. “But it is ignoring the language Congress chose in the sections on which Ivanka is relying.

“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,” Wood continued. “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 … .’”

Also, the 7th Circuit found the plaintiffs met the second and third Blessing factors — the right protected by the statute is not so vague that its enforcement would strain judicial competence, and the provision giving rise to the right is couched in mandatory rather than precatory terms.

Finally, the Chicago-based court ruled the right was enforceable under Section 1983.

“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,” Wood wrote. “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.’

“Defendants read this clause to protect only existing state law, but the text has no such limitation, and in fact specifically mentions federal law. That means all federal law; there is nothing that supports carving out section 1983, and we will not rewrite the statute to create any such exception.”

The case was remanded for further proceedings.

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