United States: Supreme Court Holds Some Provisions Of Federal Nursing Home Reform Act Are Privately Enforceable Under 42 U.S.C. §1983

Last month, the U.S. Supreme Court issued its decision in Health and Hospital Corporation of Marion County v. Talevski, holding that certain provisions of the Federal Nursing Home Reform Act (FNHRA) confer rights that are enforceable by individuals under 42 U.S.C. §1983. The case arises over HHC's alleged treatment of a resident, Gorgi Talevski. Mr. Talevski's family filed suit against HHC claiming that HHC's treatment of Mr. Talevski violated certain rights guaranteed to him under the FNHRA, specifically the right to be free from unnecessary chemical restraints and certain discharge rights. The question before the Court was whether these FNHRA provisions conferred individual rights which may be privately enforced under §1983, or whether the fact that the FNHRA was enacted pursuant to Congress's spending power precluded such action.

The Court affirmed the Seventh Circuit's ruling holding that the unnecessary restraint and predischarge-notice provisions of the FNHRA create individual rights and are enforceable under §1983. Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. _____ (2023). The Court rejected HHC's argument that Talevski could not invoke §1983 because Congress enacted the FNHRA pursuant to its spending power. HHC argued that the FNHRA is essentially a contract between the federal government and state governments and Talevski should not be able to interfere as a third-party beneficiary. Id. at 8. The majority disagreed, holding that HHC's assertion that third-party beneficiaries cannot sue to enforce contractual obligations is not a "firmly rooted" common law principle and causes of action under §1983 have always been considered tort claims. Id. at 9.

Concluding that the FNHRA can create §1983-enforceable rights, the Court went on to consider whether the FNHRA provisions at issue actually do confer such rights. For federal statutes to create §1983-enforceable rights, the statute must "unambiguously confer individual federal rights." Id. at 11. To satisfy the corresponding test, it must be determined that 'Congress intended to create a federal right' for the identified class, not merely that the plaintiffs fall 'within the general zone of interest that the statute intended to protect.'" Id. at 14. (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 280, 122 S.Ct. 2268, 153 L.Ed.2d 3090). The Court found the unnecessary-restraint and predischarge-notice provisions of the FNHRA satisfy this condition. Both provisions fall under "[r]equirements relating to residents' rights" in the Act. 42 U.S.C.A. § 1396r(c). Additionally, the unnecessary restraint provision "requires nursing facilities to 'protect and promote' residents' 'right to be free from ... any physical or chemical restrains imposed for purposes of discipline or convenience,'" while the predischarge-notice provision "tells nursing facilities that they 'must not transfer or discharge [a] resident' unless certain enumerated preconditions ... are met." §§ 1396r(c) (1-2). The Court concluded that these provisions confer rights on individual nursing home residents and are therefore presumptively enforceable under §1983.

Even though these FNHRA provisions secure patient rights, the §1983 presumption can be defeated by establishing that Congress did not intend for §1983 to be used to enforce those rights, which can be shown expressly in the statute or by an enforcement scheme in the statute that is incompatible with individual enforcement under §1983. Id. at 17. The Court found that the FNHRA contains no indication that Congress intended to preclude enforcement under §1983. Id. Additionally, the Court held that the regulatory scheme created by the FNHRA is not incompatible with individual enforcement, as the Act "lacks a private judicial right of action, a private federal administrative remedy, or any 'carefu[l]' congressional 'tailor[ing]' that §1983 would 'distort'" Id. at 18 (quoting Fitzgerald v. Barnstable School Comm., 555 U.S. 246, 255, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009); Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316). Finally, the Court rejected HHC's argument that, because most nursing homes were privately owned at the time the FNHRA was passed, Congress must have intended its remedial measures to be sufficient. Id. at 21. The overall message of the opinion is that the FNHRA, at least with respect to some of its provisions, provides individual rights that are enforceable under §1983.

Concurring opinions were filed by Justice Gorsuch and Justice Barrett, who both joined in the majority opinion. Justice Gorsuch noted that there are additional questions surrounding the issue of "whether legal rights provided for in spending power legislation like the act are 'secured' as against States in particular and whether they may be so secured consistent with the Constitution's anti-commandeering principle." Justice Barrett (joined by Chief Justice Roberts) wanted to further address these questions in resolving the FNHRA dispute. She stated that, "courts must carefully consider whether individual rights established by the Spending Clause statute are enforceable through 42 U.S.C. §1983 - in the FNHRA's case, they are."

In his dissent, Justice Alito agreed with the majority that the FNHRA creates individual rights. However, he felt that allowing §1983 suits would disrupt the balance between federal and state enforcement channels created by the Act's remedial scheme. Justice Thomas joined Justice Alito's dissent but also issued his own to add an additional reason why he believes the FNHRA cannot be enforced under §1983. In his dissent, Justice Thomas expressed his view that "legislation enacted pursuant to Congress' spending power, like the FNHRA, does not "secure" rights by "law," and, therefore, §1983 does not provide a cause of action.

While the Talevski case focuses on specific provisions of the FNHRA, it may have broader implications. For example, even though the Medicaid program has no specific private right of action, Talevski appears to protect beneficiaries' ability to bring lawsuits under §1983 in certain circumstances. Future cases will likely refine the scope of beneficiary enforceable rights under Medicaid.

Special thanks to Hanna Ross, Squire Patton Boggs (US) LLP 2023 Summer Associate, for her contribution to this post.

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