On Wednesday a petition for certiorari was filed before the Supreme Court of the United States. The petition was filed by the Health and Hospital Corporation of Marion County, Indiana, et al against Gorgi Talevski and Ivanka Talevski. The petition is regarding whether there is (or should be) a private right of enforcement under Section 1983 regarding the Federal Nursing Home Amendments Act of 1987 (FNHRA).
FNHRA imposes certain obligations on state-run nursing facilities in exchange for providing Medicaid funding. These obligations include the right of a resident to be free from physical or chemical restraints except in limited circumstances. The other main right permits a resident to remain in the same facility without being forced to transfer to another facility or be discharged.
The respondents are a former nursing home resident and his next of kin daughter. The resident suffered from dementia and was placed in VCR, a long term care facility run by the petitioner. The petition explained that as the resident’s dementia progressed, he became increasingly violent and sexually aggressive, including threatening the staff with silverware and inappropriate touching of female residents.
According to the petitioners, doctors prescribed certain medications to arrest the mental decline of the patient and ameliorate the inappropriate and dangerous behavior, however the next of kin disapproved and filed a grievance. The medications were tapered, but the inappropriate behavior resumed. VCR and temporarily transferred the patient to an all-male facility. The next of kin objected to this transfer, as well as an offer of a transfer to a different, not all-male facility with larger resources. The resident then sued for damages regarding both the chemical restraints as well as the offer for transfer.
The petitioners argue that no explicit right of enforcement was given to the resident and that the right is solely that of the government in regulating Medicaid and Medicare. The petitioners also argue that these rights have enforcement mechanisms other than those of a Section 1983 suit, including administrative and direct suits in state court. The petitioner argues that permitting 1983 suits in this area interferes with the role of the doctor in treatment as well as the safety of other residents of the facilities and invites a side stepping of the remedies proscribed directly by the statute. The petitioner is represented by Robbins, Russell, Englert, Orseck & Untereiner LLC.
