Seventh Circuit Court of Appeals Holds Nursing Home Resident Placed in Chemical Restraints Stated Claim under Federal Civil Rights Law for Alleged Violation of Federal Nursing Home Reform Act

The Seventh Circuit Court of Appeals recently addressed whether a federal district court improperly dismissed a 42 U.S.C. § 1983 (Section 1983) claim premised upon a skilled nursing home resident’s complaint that he was chemically restrained and later transferred and discharged without timely notice in violation of the Federal Nursing Home Reform Act (FNHRA). In Talevski v. Health and Hospital Corporation of Marion County (HHC) et al, Gorgi Talevski, through his wife Ivanka, sued HHC, Valparaiso Care, and American Senior Communities, LLC under Section 1983 for violations of FNHRA, 42 U.S.C. § 1396 et seq.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

In analyzing the propriety of the dismissal of Talevski’s FHRNA-premised Section 1983 claims, the Court examined the legal framework for a valid Section 1983 claim. Section 1983 requires an allegation that a federal right was violated, not just a federal law. To make this distinction, the United State Supreme Court has set forth three factors for examination, which can be summarized as: 1) Did Congress intend the law in question to benefit the claimant? 2) Has the plaintiff demonstrated the statute is clear enough that it would not make it difficult for courts to enforce?, and 3) Does the law clearly impose a mandate on the States? Assuming these three factors are met, the right is presumptively enforceable under Section 1983. The only way, then, there can be no claim is if the claim has been otherwise expressly or impliedly foreclosed by Congress.

The Court made quick work of the first question of whether the law was intended to benefit residents like Talevski, stating “We do not know how Congress could have been any clearer. After the heading, the statute says ‘[a] skilled nursing facility must protect and promote the rights of each resident, including each of the following rights.’” 42 U.S.C. § 1396r(c)(1)(A). Although Valparaiso Care argued Talevski could not show the statute was intended to apply to an individual, the Court emphasized the plain language of the law: “What must it do? ‘[P]rotect and promote the rights of each resident…” The Court noted FHRNA was enacted to curb widespread abuses within government-certified nursing facilities. It found “dispositive the fact that Congress spoke of resident rights, not merely steps that the facilities were required to take.”

As for the second question of whether Talevski had demonstrated the law was clear and easily enforceable by courts, the Court noted that facilities “must not” do exactly what Talevski was complaining had occurred. Observing that Talevski’s allegations were not so complex that they would require input from a medical review panel, as might be required in an ordinary medical malpractice or nursing home claim in Indiana. Inquiries such as whether a patient was chemically restrained or transferred or discharged “are focused, straightforward inquires that agencies and courts are well equipped to resolve.”

For the final question of whether the law clearly imposes a mandate upon the States, the Court found “there is no dispute” and agreed with Talevski that “a common sense reading of its provisions leaves no room for disagreement.”

Having determined a right had been established, the Court finished its analysis by examining whether a private right of action premised upon Section 1983 had been expressly or impliedly foreclosed by Congress. The Court found no express foreclosure of such a claim. Valparaiso Care argued that the right had been impliedly foreclosed, because Congress otherwise requires annual nursing home surveys to enforce nursing home adherence to laws and regulations. The Court noted, however, “[t]his is not the type of comprehensive enforcement scheme, incompatible with individual enforcement, that we are looking for.” While such surveys and enforcement actions might measure compliance with FHRNA, “[t]hey do not address, and thus do not protect, individual entitlements to be free from chemical restraints or involuntary transfer or discharge.” The Court also rejected the argument that the administrative appeals process Tavleski had gone through constituted any kind of comprehensive enforcement scheme, noting the Supreme Court had rejected similar arguments in the past. The Court concluded with a nail in the coffin of Valparaiso Care’s argument:

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…there is nothing that support carving out section 1983, and we will not rewrite the statute to create any such exception.

The Court noted in passing that Valparaiso Care also argued Talevski’s claim was barred by the two-year statute of limitations applicable to Section 1983 claims brought in Indiana. However, given Talevski’s mental condition and wife’s guardianship over him, this was a mixed question of law and fact left for the district court to determine his capacity to bring such a claim, as the statute of limitations only runs on an incapacitated person’s claim under Indiana law when “the disability is removed.”

You can read the Tavleski opinion in full here.