Citing confusion in circuit courts, Health and Hospital Corp. urges SCOTUS to take appeal over nursing home resident rights of action

The Health and Hospital Corp. of Marion County is asking the U.S. Supreme Court to stop a lawsuit brought on behalf of an Indiana nursing home resident that raises the question of whether the Federal Nursing Home Reform Act allows residents to bring claims regarding their care and treatment.

A petition for a writ of certiorari has been filed with the Supreme Court in Health and Hospital Corporation of Marion County, et al., v Gorgi Talevski, by his Next Friend Ivanka Talevski.

The HHC is arguing the case presents the Supreme Court with the opportunity for “clearing away the underbrush, restoring predictability and fairness” to the array of appellate court decisions that have “implied new private rights of action” under spending clause statutes.

“(Talevski’s) fundamental complaint was that (Valparaiso Care and Rehabilitation) administered a medicine that his daughter disliked and then transferred him to a different facility when, in the professional judgment of his physicians and facility administrators, his aggressive behavior became a threat to himself and others,” HHC states in its petition. “Under the (7th Circuit Court of Appeals’ decision), such garden-variety medical disputes now give rise to a federal civil rights lawsuit, based on little more than unelaborated reference to ‘rights’ in FNHRA.”

Ivanka Talevski filed the lawsuit in the Northern District of Indiana on behalf of her husband, Gorgi, who suffers from dementia. He was placed in Valparaiso Care, which is owned by the Health and Hospital Corp.

According to court documents, Gorgi’s condition deteriorated and his behavior became increasingly aggressive, with him allegedly touching female residents inappropriately and trying to stab staff members with knives and forks. After the family was successful in getting the nursing home to reduce the medication Gorgi had been prescribed to control his behavior, Valparaiso Care transferred him to an all-male facility because of his behavior.

Eventually, Ivanka filed a lawsuit, claiming Valparaiso Care violated Gorgi’s rights under the FNHRA, and that 42 U.S.C. § 1983 provided him a means of enforcing those rights.

The U.S. District Court for the Northern District of Indiana dismissed the lawsuit, but the 7th Circuit Court of Appeals reversed.

“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,” Judge Diane Wood wrote for the appellate panel in July. “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 and Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.’”

HHC is arguing to the Supreme Court that the Talevski lawsuit presents a recurring question that the justices have not resolved: “Whether, under the original understanding of 42 U.S.C. § 1983, a third-party beneficiary may enforce federal Spending Clause legislation that imposes conditions on a State’s receipt of federal funds.”

In its petition, HHC highlighted a handful of rulings, including Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), in which the Supreme Court allowed Section 1983 suits brought by private parties to enforce rights contained in federal spending clause legislation.

However, HHC asserted that in the decades since Wilder, the Supreme Court has declined to find any new implied rights of action, but plaintiffs have continued to bring Section 1983 complaints.

“As a consequence, state and local governments have been burdened by litigation costs and hefty damages — arising from unpredictable and shifting multi-factor balancing tests — that they never anticipated when they agreed to accept federal funding,” HHC states in its petition. “Spending Clause legislation, as this Court has noted, derives its legitimacy from an agreement between the states and the federal government. It is doubtful that third-party enforcement actions, with sky’s-the-limit damages, are among the commitments that contracting states elected to shoulder.”

HHC is arguing that the Supreme Court should take the Talevski case to establish that third-party beneficiaries do not have private rights of action to enforce spending clause legislation like the FNHRA.

In part, HHC asserts the Supreme Court’s spending clause jurisprudence has created confusion, which has led to inconsistent application in the lower courts. The HHC pointed to the multifactor balancing test that the 7th Circuit relied upon in its reversal to illustrate the disarray in the federal courts.

While the Chicago-based court used the balancing test as outlined in Blessing v. Freestone, 520 U.S. 329 (1997), to reach its decision in Talevski, another panel in a separate case rejected Blessing and held that the Supreme Court’s post-Wilder decision discourages the recognition of any new spending clause rights.

The confusion extends beyond the 7th Circuit, HHC argued. In Planned Parenthood S. Atl. v. Baker, 941 F.3d 687, 709 (4th Cir. 2019), one judge asked, “are Wilder specifically, and the Blessing factors, generally, still good law?”

HHC also pointed to the dissent in Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 409 (2018). There, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch concluded the Supreme Court has “made a mess of the issue.”

“By returning to first principles, and permitting third parties to sue under Spending Clause statutes only when Congress has expressly so authorized,” HHC argues in its petition, “this Court would put an end to this fruitless inquiry, dispel the confusion in the lower courts, and resolve in one fell swoop several circuit conflicts involving other Spending Clause statutes.”

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