Federal Court Finds New Way For Nursing Homes To Be Sued For Violation Of Residents' Rights

• Published date: 18 August 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Katz Korin Cunningham
• Author: Norris Cunningham, Kathryn 'Katie' Cordell and Angela Rinehart

On July 27, 2021, the 7^th Circuit decided an important question of law in the case of Talevski v. Health and Hospital Corporation, et al., No. 20-1664. This decision is cause for concern that Plaintiffs will now bring claims against nursing home facilities for improper care and treatment under section 1983 for violations of residents' rights. Section 1983 of Title 42 of the United States Code provides an individual the right to sue government employees and others acting "under color of state law" for civil rights violations.

On January 10, 2019, Plaintiff Gorgi Talevski, filed a complaint and demand for jury trial in the Northern District of Indiana against The Health and Hospital Corporation of Marion County ("HHC"), American Senior Communities, LLC ("ASC"), and Valparaiso Care and Rehabilitation ("VCR") for violations of 42 U.S. ' 1983, specifically alleging violations of the Federal Nursing Home Reform Act ("FNHRA"). The complaint alleged that Mr. Talevski, a former resident of VCR, was being chemically restrained due to being prescribed 6 psychotropic medications. The family filed a complaint with the ISDH for the over-prescribing of psychiatric drugs to chemically retrain Mr. Talevski. In addition, due to allegations of Mr. Talevski being inappropriate towards female residents and staff, the complaint alleged that VCR refused to accept him back after a stay at NeuroPsych and tried to force his transfer to an all-male dementia facility.

Defendant moved to dismiss Plaintiff's Complaint under Rule 12(b)(6) arguing that the FNHRA does not create a private right of action to support the 1983 claim, that the claim was time-barred, and that Defendant is not a state actor. In granting the Defendant's motion to dismiss, the district court found dispositive that section 1983 may not serve as a vehicle for a private right of action for a violation of the FNHRA. Plaintiff appealed to the 7^th Circuit Court of Appeals.

The 7^th Circuit reversed the district court's decision and remanded for further proceedings. The 7^th Circuit officially joined two of its sister circuits, the 3^rd Circuit and 9^th Circuit, finding that the section 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.

The 7^th Circuit found that the FNHRA not only establishes minimum standards of care to which nursing homes must comply, but it also contains requirements about residents' rights - sections 1395i-3(c) and...