The 7th Circuit Court of Appeals has rejected a petition for a rehearing filed by the Health and Hospital Corporation of Marion County, letting stand a decision that found patients can enforce the rights outlined in the Federal Nursing Home Reform Act.
A single order issued Wednesday indicated the petition to rehear the lawsuit filed by the family of Gorgi Talevski did not gain any traction at the appellate court. The order stated none of the judges requested a vote on the petition for a rehearing en banc and all members of the original plan voted to deny a panel rehearing.
In the lawsuit, the family alleged Valparaiso Care, the Health and Hospital Corporation of Marion County and American Senior Communities chemically restrained Talveski and transferred him to another facility in violation of the FNHRA.
The U.S. District Court for the Northern District of Indiana granted the defendants’ motion to dismiss after determining the FNHRA provides no federal private right of action. However, the unanimous 7th Circuit panel disagreed, overturning the dismissal and remanding the case for further proceedings.
“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,” Judge Diane Wood wrote for the court. “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 … .’”
In the petition for rehearing, the HHC and the other petitioners were represented by Robbins Russell Englert Orseck & Untereiner LLP in Washington, D.C.
Talevski was represented, pro bono, by Andrew Tutt of Arnold & Porter in Washington, D.C.