In the late 1980s, an Institute of Medicine study revealed dangerous and demeaning living conditions in nursing facilities across the country. Congress responded by enacting the Nursing Home Reform Act. This law includes specific “residents’ rights” provisions, such as the right of each resident to be free from chemical restraints, and prohibits government-funded nursing facilities from discharging or transferring residents against their will.
The Case of Mr. Talevski
Mr. Talevski has dementia. No longer able to care for him at home, his family entrusted his care to a nearby state-run, Medicaid-funded nursing facility. According to his family, this facility provided Mr. Talevski inadequate care and dosed him with powerful and medically unnecessary drugs to restrain him for purposes of discipline or convenience.
Later, without informing his family, the nursing facility discharged him against his will, so hastily that Mr. Talevski left his dentures behind. His family was forced to place him in a nursing facility 90 minutes away. By the time he got the attention he needed, the staff at the new nursing home were unable to fit new dentures because his gums had receded too far.
In 2019, Mr. Talevski’s family filed a lawsuit on his behalf to enforce his rights the Nursing Home Reform Act and hold the facility accountable for its inhumane and illegal mistreatment. He has yet to see his day in court. While acknowledging that the Nursing Home Reform Act includes many residents’ rights, the defendants argued, and a judge agreed, that Mr. Talevski does not have the right to enforce the law.
Rather, the government is the only enforcer, and its powers are limited to actions such as withholding or terminating federal funding to the Medicaid program—a poison pill solution that neither Mr. Talevski nor most any other Medicaid enrollee would likely seek. The case, Talevski v. Health & Hospital Corporation of Marion County, has been appealed to the Seventh Circuit Court of Appeals.
The access to court issue raised by this case is not new. As it has in more than a dozen previous appellate court cases, the National Health Law Program filed a “friend of the court” brief that explains how we got here and the legislative and judicial history that supports individuals’ rights to enforce provisions of the Medicaid Act.
How did we get here?
So, how did we get to a situation where people, whose rights are described in a law, may not be able to enforce that law against the offender? Here is the short story — for the longer version, read the brief: Congress added Medicaid to the Social Security Act using its spending clause authority. As with other spending clause enactments, states don’t have to participate in Medicaid, but if they do (all do), they must adhere to the requirements outlined in the Medicaid Act to receive federal funding.
Significantly, when it enacted Medicaid in 1965, Congress did not include a provision stating that the program’s enrollees can enforce the law in court when they are being injured. At that time, Congress was passing laws under the assumption (recognizing a “remedial imperative”) that courts would fill the enforcement gaps and, as a result, they didn’t need to include an express “cause of action.”
Yet, to be in court, a plaintiff must have some kind of cause of action. For this, Medicaid recipients relied on another statute, 42 U.S.C. § 1983. Section 1983 provides a cause of action against any person who, under color of state law, deprives another “of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. Medicaid is, of course, a law of the United States and, over the years, thousands of cases have been brought under Section 1983 by individuals to enforce provisions of the Medicaid Act.
In the 1990s, as the Supreme Court became more conservative, it turned away from this remedial imperative, particularly with respect to spending clause enactments—those enactments that by and large establish the federal social safety net programs like Medicaid. The Court created an enforcement test for deciding when Congress intends for an individual to be able to bring a case under Section 1983 to enforce a Spending Clause provision.
Over the years, the test has become more restrictive, culminating in 2002 with Gonzaga University v. Doe, when the court held, as part of the enforcement test, the court must find that Congress “unambiguously” intended the statutory provision in question to benefit the plaintiff.
So here’s where we are: The Court’s stated reason for the enforcement test is to decide whether Congress intended for individuals to be able to enforce the law or whether they wanted that left with the government. But, the test is being applied to statutory provisions that were enacted years before the test was devised by the Supreme Court—with many of the Medicaid provisions dating back to the original 1965 Medicaid Act, which was enacted at a time when Congress assumed the law could be privately enforced.
If that seems a bit out of kilter, add this: Congress passed a law in 1994 that directly addresses private enforcement. Congress was reacting to a Supreme Court decision that seemed to say individuals were not allowed to enforce the Social Security Act to curb states’ violations. When it passed the law, Congress said the purpose of the law is to “restore[ ] the right of individuals to turn to Federal courts when States fail to implement Federal standards under the Social Security Act.” With this law, it seems like congressional intent with respect to private enforcement of the Social Security Act should not be an issue.
However, state attorneys continue to argue that Medicaid enrollees cannot enforce provisions of the Medicaid Act. And as courts turn more conservative, some attorneys are even arguing that there should be no private enforcement at all. Which brings us back to Mr. Talevski. The provisions he seeks to enforce require, for example, that each resident has the right to be free from chemical restraints.
There is nothing ambiguous about Congress’s intent: it does not want nursing facilities chemically restraining residents. Let’s hope that the Seventh Circuit Court of Appeals agrees and allows Mr. Talevski his day in court. The case is currently being briefed and should be argued later this year.
NHeLP was joined on this brief by the National Disability Rights Network, Shriver Center on Poverty Law, Justice in Aging, National Center of Law and Economic Justice, Indiana Disability Rights, Senior Law Project of Indiana Legal Services, Disability Rights Wisconsin, Wisconsin Board for People with Disabilities, Wisconsin Survival Coalition of Statewide Disability Organizations, Equip for Equality (IL), and Legal Council for Health Justice (IL).
