Talevski ex rel. Talevski v. Health & Hosp. Corp. of Marion Cnty.

6 F.4th 713

Gorgi TALEVSKI, BY NEXT FRIEND Ivanka TALEVSKI, Plaintiff-Appellant,

v.HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, et al., Defendants-Appellees.

No. 20-1664

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2020

Decided July 27, 2021

Susie Talevski, Attorney, Susie Talevski, Attorney At Law, Valparaiso, IN, Andrew Tutt, Attorney, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Plaintiff-Appellant.

Lawrence Saul Robbins, Alan E. Untereiner, Attorneys, Robbins, Russell, Englert, Orseck & Untereiner LLP, Washington, DC, for Defendants-Appellees.

Maame Gyamfi, William Alvarado Rivera, Attorneys, AARP Foundation Litigation, Washington, DC, for Amici Curiae American Association of Retired Persons, AARP Foundation, California Advocates for Nursing Home Reform, Center for Medicare Advocacy, National Consumer Voice for Quality Long-Term Care, and Long-Term Care Community Coalition.

Martha Jane Perkins, Attorney, National Health Law Program, Chapel Hill, NC, for Amicus Curiae National Health Law Program.

Douglas Koff, Attorney, Schulte, Roth & Zabel LLP, New York, NY, for Amicus Curiae Law Professors.

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Attorneys, Office of the Attorney General, Indianapolis, IN, for Amici Curiae State of Indiana, State of Alabama, State of Alaska, State of Kentucky, State of Mississippi, and State of Nebraska.

Randall R. Fearnow, Attorney, Quarles & Brady LLP, Chicago, IL, for Amici Curiae Indiana Health Care Association, Illinois Health Care Association, and Wisconsin Health Care Association, Inc.

Before Kanne, Wood, and Scudder, Circuit Judges.

Wood, Circuit Judge.

For Gorgi Talevski, living with dementia went from difficult to worse during his stay at Valparaiso Care and Rehabilitation, a state-run nursing facility near his family home in Indiana. Through his wife, Ivanka Talevski, he sued Valparaiso Care, the Health and Hospital Corporation of Marion County (HHC), and American Senior Communities, LLC (ASC) under 42 U.S.C. § 1983 for violations of the Federal Nursing Home Reform Act (FNHRA), see 42 U.S.C. § 1396r et seq . (We refer to the defendants collectively as Valparaiso Care unless the context requires otherwise.) The district court dismissed the action for failure to state a claim on which relief can be granted, based on its finding that FNHRA does not provide a private right of action that may be redressed under 42 U.S.C. § 1983.

This is a difficult area of law, no doubt, and we appreciate the careful attention that both this district court and several others within our circuit have given to this issue. See Terry v. Health & Hospital Corporation , 2012 U.S. Dist. LEXIS 43702 (S.D. Ind. Mar. 29, 2012); Schwerdtfeger v. Alden Long Grove Rehab. & Health Care Ctr., Inc. , No. 13 C 8316, 2014 WL 1884471 (N.D. Ill. May 12, 2014) ; Fiers v. La Crosse County , 132 F. Supp. 3d 1111 (W.D. Wis. 2015). We conclude, however, in keeping with the views of two of our sister circuits, that the court erred. See Grammer v. John J. Kane Reg'l Centers-Glen Hazel , 570 F.3d 520 (3d Cir. 2009) ; Anderson v. Ghaly , 930 F.3d 1066 (9th Cir. 2019) ; see generally Maine v. Thiboutot , 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) ("[T]he [ section] 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law."). We therefore reverse and remand for further proceedings.

I

FNHRA establishes the minimum standards of care to which nursing-home facilities must adhere in order to receive federal funds in the Medicaid program, 42 U.S.C. § 1396 et seq . In addition to specifying rules for the facilities, it also includes "[r]equirements relating to residents’ rights." Id. §§ 1395i-3(c); 1396r(c). This case involves two of those rights: the right to be free from chemical restraints imposed for purposes of discipline or convenience rather than treatment, see id. §§ 1395i-3(c)(1)(A)(ii); 1396r(c)(1)(A)(ii); and the right not to be transferred or discharged unless certain criteria are met, see id. §§ 1395i-3(c)(2)(A), 1396r(c)(2)(A).

The Medicaid program "allows states to provide federally subsidized medical assistance to low-income individuals and families." Bontrager v. Ind. Fam. & Soc. Servs. Admin. , 697 F.3d 604, 605 (7th Cir. 2012) ; see 42 U.S.C. § 1396-1. Among other services, "medical assistance" includes treatment at nursing-home facilities. 42 U.S.C. § 1396d(a). In return for federal funding, participating states must comply with the program's statutory and regulatory requirements, including FNHRA. Bontrager , 697 F.3d at 606.

FNHRA was enacted pursuant to Congress's Spending Clause powers as part of the Omnibus Budget Reconciliation Act of 1987, codified at 42 U.S.C. §§ 1395i-3 ; 1396r. (The two sections are identical, and so from this point we will cite only to section 1396r.) It outlines several ways in which government-certified nursing facilities must avoid sub-standard care. The Act provides comprehensive guidance on the regulation and operation of nursing homes. Committee on Nursing Home Regulation, Institute of Medicine, Improving the Quality of Care in Nursing Homes , 2-3 (1986). See, e.g. , 42 U.S.C. § 1396r(a) (defining nursing facility); 42 U.S.C. § 1396r(b) (provision of services, performance reviews, and training expectations); 42 U.S.C. § 1396r(c) (requirements related to residents’ rights, including a list of specified rights and accompanying notice requirements); 42 U.S.C. § 1396r(d) (requirements related to the administration of nursing home facilities); 42 U.S.C. § 1396r(e) (requirements for states related to nursing facility requirements, including a state appeals process for resident transfers and discharges); 42 U.S.C. § 1396r(f) (responsibilities of the Secretary of Health and Human Services related to nursing facility requirements); 42 U.S.C. § 1396r(g) (instructions for states to conduct annual compliance surveys and associated certification processes); 42 U.S.C. § 1396r(h) (an enforcement scheme that authorizes states and the Secretary to take several remedial steps for noncompliant facilities); 42 U.S.C. § 1396r(i) (instructions to the Secretary for maintenance of a "Nursing Home Compare" website for Medicare beneficiaries).

Ivanka Talevski's complaint, brought on behalf of her disabled husband, accused Valparaiso Care of failing to adhere to FNHRA's requirements in numerous respects, including the following: failure to provide Gorgi Talevski with adequate medical care; the administration of powerful and unnecessary psychotropic medications for purposes of chemical restraint, the use of which resulted in Gorgi's rapid physical and cognitive decline; the discharge and transfer of Gorgi to other facilities in Indiana without the consent of his family or guardian, and without his dentures; the refusal to fulfill an administrative law judge's order to readmit him to Valparaiso Care; and the "maint[enance of] a policy, practice, or custom, [sic ] that failed to care for Mr. Talevski in such a manner and in such an environment as to promote maintenance or enhancement of the quality of life of each resident."

On appeal, Ivanka has abandoned all but two of these particulars. Those that remain appear in sections 1395i-3(c) and 1396r(c) of the Act, "Requirements relating to residents’ rights," known as the "Residents’ Bill of Rights," H.R. Rep. No. 100–391, pt. 1, at 452. Ivanka alleges that Valparaiso Care violated Gorgi's statutory right to be free from chemical restraints by over-prescribing psychotropic drugs to restrain him chemically for purposes of discipline or convenience, 42 U.S.C. § 1396r(c)(1)(A)(ii), and his rights related to resident-transfer and discharge procedures, insofar as he was deprived of his rights to remain at Valparaiso Care and to receive timely notice of a transfer or discharge, 42 U.S.C. § 1396r(c)(2). We thus limit our inquiry to those two provisions.

Section 1396r(c)(1)(A) provides:

A nursing facility must protect and promote the rights of each resident, including each of the following rights : ...

(ii) Free from restraints

The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms. 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 (except in emergency circumstances specified by the Secretary until such an order could reasonably be obtained).

42 U.S.C. § 1396r(c)(1)(A)(ii) (emphasis added).

Section 1396r(c)(2) describes the circumstances in which a facility is permitted to transfer or discharge a resident. Facilities "must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless[:]"

(i) the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility;

(ii) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(iii) the safety of individuals in the facility is endangered;

(iv) the health of individuals in the facility would otherwise be endangered;

(v) the resident has failed, after reasonable and appropriate notice, to pay (or to have paid under this subchapter or subchapter XVIII on the resident's behalf) for a stay at the facility; or

(vi) the facility ceases to operate.

Like section 1396r(c)(1)(A), this section focuses on the residents’ rights; in substance it creates a right to remain in a facility in the absence of the specified justifications. It dictates pre-transfer and pre-discharge notice requirements and clinical record documentation. 42 U.S.C. § 1396r(c)(2)(A). As we...