United States: U.S. Supreme Court Finds Private Right Of Action Under Federal Nursing Home Reform Act And Civil Rights Act Of 1871

On June 8, 2023, the Supreme Court of the United States held in Health and Hospital Corporation of Marion County et al. v. Talevski that the Federal Nursing Home Reform Act (FNHRA) provides rights to victims of nursing home abuse, which in turn gives such victims a private right of action pursuant to 42 U.S.C. § 1983. Although this right of action is limited to state- or locality-owned nursing homes, it nonetheless creates a new path for liability and litigation in the context of nursing home abuse. Further, this holding reaffirms the Court's stance that spending clause statutes can qualify for private rights of action under Section 1983.

In 2016, plaintiff Gorgi Talevski was placed in a nursing home due to dementia. When his condition rapidly deteriorated unexpectedly, his family discovered that the nursing home had been chemically restraining him, a violation of the FNHRA. The nursing home then began repeatedly transferring him without notifying his family, another violation of that law. In 2019, his family sued the nursing home on his behalf for those violations, arguing that 42 U.S.C. § 1983 gave them a private right of action to enforce those two provisions of the FNHRA.

Part of the Civil Rights Act of 1871, Section 1983 gives a private right of action to any individual who suffers a "deprivation of any rights ... secured by the Constitution and laws" at the hands of someone acting "under color of any statute." The Supreme Court has long read the unmodified use of the word "laws" to mean just that: any laws that secure a right. The Court has developed a test to determine whether a given law secures a right, and over the years, many laws have failed that test and since 1981, only two spending clause statutes have passed it. Nonetheless, the Court affirmed in this opinion that despite those failures, the Court has "not previously doubted that any federal law can [secure rights for Section 1983 purposes]."

This case presented the Court with two questions: First, whether it should narrow Section 1983's scope to exclude spending clause legislation, such as the FNHRA; and second, if not, whether the FNHRA provides the plaintiff with any rights for Section 1983 purposes.

The nursing home argued that spending clause statutes like the FNHRA do not count as "laws" for Section 1983 purposes because a violation of a federal-state spending program is more akin to a breach of contract than a violation of a law, and Section 1983 does not allow third-party beneficiaries (i.e., beneficiaries of rights created in such statutes) to sue to enforce contract obligations. The Court disputed the nursing home's historical justification for its premises and reaffirmed its own longstanding rule: that the word "laws," without any modifiers, includes all laws, and since Section 1983 includes no modifiers, all laws are eligible for the Court's Section 1983 test.

The Court then applied that test and found that the two provisions in the FNHRA cited by the plaintiff do indeed establish rights for Section 1983 purposes. To qualify for a private right of action under Section 1983, a statute must unambiguously confer a right. The Court's test from Gonzaga University v. Doe for unambiguous conferral asks whether the provision is phrased in terms of the persons benefited, contains rights-creating, individual-centric language and focuses on the individual above the class. The Court found that both provisions of the FNHRA pass that bar: Among other passages, the unnecessary-restraint provision concerns "[t]he right to be free from ... any physical or chemical restraints ... not required to treat the resident's medical symptoms"; the transfer-notice subsection is entitled, "Transfer and discharge rights" and concerns rules surrounding the moving of residents; and both fall under a statutory section entitled, "Requirements relating to residents' rights." Further, the Court found no evidence that Congress did not intend for Section 1983 to apply to the FNHRA.

This ruling both finds a private right of action for nursing home negligence and reaffirms that although the bar is high and the outcome unlikely, spending clause statutes can qualify for private rights of action under Section 1983. Because Section 1983 applies only to wrongs committed "under color of" state law, and the FNHRA applies only to nursing homes accepting Medicaid and licensed by state or local governments, this private right of action applies only against state- or locality-owned nursing homes. Nonetheless, since this Supreme Court recognition of a private right of action under the FNHRA exposes such nursing homes to a new avenue of liability, they should prepare for the possibility of an increase in lawsuits and should be aware of the specific rights and obligations established by the FNHRA. Further, this case marks the third spending clause statute since 1981 to pass the Court's Section 1983 test, so this case may signal how the Court will rule on similar statutes in the future.

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