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Public Nursing Home Resident’s Rights Suit Gets SCOTUS Review

May 2, 2022, 1:37 PM

The U.S. Supreme Court granted review Monday in a case asking if public nursing home residents can sue facilities for violating rights set out in the Federal Nursing Home Reform Amendments.

This isn’t the first time the nation’s top court has been asked to decide if the FNHRA gives residents of public nursing homes a private right to sue them. It has previously denied review, though some justices had said they’re interested in looking at the issue.

According to a November petition filed by Health and Hospital Corp. of Marion County, Ind., the U.S. Court of Appeals for the Seventh Circuit improperly allowed a suit brought on behalf of Gorgi Talevski to proceed.

Talevski, while a resident of Valparaiso Care & Rehabilitation, allegedly was given unnecessary psychotropic drugs for purposes of chemical restraint. The facility also tried to discharge and transfer Talevski to another facility without consent, according to the suit.

These actions violated residents’ rights set out in FNHRA, the suit brought under 42 U.S.C. §1983 said.

FNHRA’s remedies don’t include private lawsuits, the nursing facility said. It requires states to impose certain rules on facilities and empowers governmental entities to enforce them, it said.

But the law lists specific rights, including the right to be free from chemical or physical restraints in most circumstances, and the right to allow residents to remain in a facility unless conditions for discharge or transfer are met, the Seventh Circuit said.

The Third and Ninth circuits also have held that residents can sue under Section 1983 for violations of those rights.

Talevski’s person representative told the court there’s no reason to grant review, as there is no circuit split on the issue. Additionally, the question doesn’t arise often, as evidenced by the lack of case law on the subject, she said.

Two long-term care industry trade groups urged the court to take the case in a friend of the court brief. The Seventh Circuit’s ruling treats public facilities differently from private facilities that aren’t subject to Section 1983 suits, they said.

Seventeen states joined a friend of the court brief asking the court to accept review to clarify the private right of action doctrine.

Robbins, Russell, Englert, Orseck & Untereiner LLP represent the facility. Arnold & Porter Kaye Scholer LLP, Employment & Civil Rights Legal Services PC, and Susie Talevski of Valparaiso, Ind., represent Talevski’s family.

The case is Health & Hosp. Corp. of Marion Cty., Ind. v. Talevski, U.S., No. 21-806, review granted 5/2/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com