On June 8, 2023, the United States Supreme Court granted long-term care residents the right to sue state-run facilities under federal laws. This opinion creates a new line of litigation against state long-term care facilities.
Gorgi Talevski resided in a county-operated Indiana nursing home where he claims to have been chemically restrained and forced to transfer to another facility without notification. As a Medicaid recipient, Mr. Talevski’s care was covered by the Federal Nursing Home Reform Act, 42 U.S.C. § 1396r. The Act defines the requirements for nursing facilities, including a list of resident rights. 42 U.S.C. § 1396r(c). Among those resident rights are the right to be free from chemical restraints and to be notified and have a family member notified of transfer or discharge and the reasons therefor. 42 U.S.C. § 1396r(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(2)(B).
Any long-term care provider is aware of resident rights enforced through the Centers for Medicare and Medicaid Services either by the U.S. Department of Health and Human Services or by a state Medicaid agency. The traditional enforcement mechanism has been through surveys, remediation plans, denial of Medicaid payments, revocation of Medicaid participation, monetary penalties, temporary management, and facility closure. All these corrective measures occur between the government and the facility.
The Act also clarifies that its enforcement mechanism as “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.” 42 U.S.C. § 1396r(h)(8).
In Health and Hospital Corp. of Marion County, et al. v. Talevski, 596 U.S. ___ (2023), the Court held that Mr. Talevski could sue the Indiana nursing home for violation of his resident rights because those rights are enforceable under 42 U.S.C. § 1983. Section 1983 provides that when a state actor deprives another person of rights established in the Constitution or federal laws, the person so deprived may sue for violation of those rights. In this case, the state actor was the county-operated nursing home. The nursing home allegedly violated Mr. Talevski’s rights to be free from chemical restraints and to advance notice of transfer, established as individual rights in the Federal Nursing Home Reform Act. The remedies available under 42 U.S.C. § 1983 are compensatory damages, attorney fees and punitive damages for intentional acts or acts that are reckless and with callous disregard for the resident’s rights.
In sum, government-run long term care facilities can now be sued by residents for violations of the variety of resident rights set forth in the Federal Nursing Home Reform Act, including rights to privacy, to manage one’s finances, to possess personal belongings, to refuse treatment, and to choose activities.