What Does the Talevski Decision Really Mean?

In 2019, the family of a nursing home resident sued Health and Hospital Corporation of Marion County (HHC) alleging that HHC’s treatment of the resident violated rights that the federal Nursing Home Reform Act (FNHRA) guaranteed him. The District Court granted HHC’s motion to dismiss, holding that no plaintiff can enforce provisions of the FNHRA via §1983. The Court of Appeals for the Seventh Circuit reversed the initial ruling. HHC then filed a petition for certiorari, and on June 8, 2023, the U.S. Supreme Court affirmed the Seventh Circuit decision.

Most civil cases brought against nursing homes involve state laws. Section 1983 is a federal law that allows a person to sue in federal court on an allegation that another has violated a federally recognized right. The FNHRA is the law that sets out Requirements of Participation for nursing homes to participate in Medicare and/or Medicaid programs. Nursing homes know FNHRA as the regulations that surveyors check and enforce, citing F-tag deficiencies for noncompliance. 

In HHC v. Talevski, the nursing home contested the resident’s lawsuit by arguing that FNHRA applies to the government Medicare and Medicaid programs and the participating nursing homes only, but not the residents of the nursing homes. The U.S. Supreme Court disagreed and decided that a nursing home resident can sue the nursing home, in federal court, under §1983, based on the resident rights conferred by FNHRA.  

In light of the June 8, 2023 decision, plaintiffs may now file claims in Indiana (in either state or federal court) against nursing homes alleging violations of residents’ rights under the FNHRA. This is a new claim in Indiana that was not available to plaintiffs previously. Such a claim may be brought for alleged violations of residents’ rights under FNHRA. Those rights are found in 42 CFR §483.10 and require a facility to care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. These rights include the right to privacy, the right to self-determination, the right to be free from abuse and neglect, and more. In addition, FNHRA specifically sets forth care standards owed to residents.

While this decision creates a new claim in Indiana, it will not serve as a complete substitute for medical malpractice/negligence actions entirely. However, it will not be difficult for plaintiff’s attorneys to bring such claims citing violations of the aforementioned rights. In other words, not every bad outcome will be actionable under §1983. 

Why do nursing home plaintiffs want to sue in federal court rather than state court? Tort reform in Indiana has put limitations on plaintiffs’ cases under state law such as damage caps, no attorney fees awards, and a provider-friendly venue before the Indiana Department of Insurance which requires a panel of medical providers to first provide an expert opinion on liability and damages before the claim can proceed in state court. Damage caps will not apply to these FNHRA claims and attorney fees will now be recoverable. This is the largest concern for nursing homes.

What should Indiana nursing homes do to prepare for possibility of federal lawsuits? Re-evaluate coverage with your carrier or broker and enhance coverage beyond the damage caps set by Indiana state law given the likely increase in demands and verdicts for FNHRA claims, re-emphasize risk management and compliance efforts, and in-service on resident’s rights, documentation, quality care, medication changes, and more. 

Overall, Indiana nursing homes will have to adapt to a new litigation environment. But the new environment (which sidesteps Indiana state tort reform protections) is similar to what nursing homes—private, non-profit, and government-owned—in other states live with already. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.