Every year, the United States Supreme Court hears blockbuster cases with massive societal implications that are evident to the public. But often, cases whose impact can be just as far-reaching fly under the radar. Health & Hospital Corp. of Marion County. v. Talevski is one such case. On its face, it seems to address only the narrow issue of nursing home care rights. In fact, its impact may undermine our system of providing access to social support program benefits for those in need.
Gorgi Talevski lived at a public nursing facility, Valparaiso Care and Rehabilitation, to receive full time care for dementia.[1] Despite this extensive care, he experienced rapid cognitive and physical decline.[2] Although the nursing facility asserted that Mr. Talevski was experiencing natural deterioration, his family discovered that he had suddenly been put on ten medications, six of which were “powerful psychotropic drugs.”[3] After a private neurologist changed his prescriptions (which included removing him from chemical restraints),[4] Valparaiso Care and Rehabilitation transferred him to a neuropsychiatric hospital. This marked the beginning of Mr. Talevski’s three months of boomeranging between the hospital and nursing facility.[5] Eventually, the nursing facility refused to readmit Mr. Talevski and attempted to transfer him to a dementia facility more than two hours away.[6] The Talevski family sought review of the attempted transfer with the Indiana State Department of Health.[7] Although the administrative law judge rejected the transfer efforts, Mr. Talevski was never readmitted.[8]
Mrs. Talevski then brought a § 1983 suit in federal district court on behalf of her husband against the nursing facility alleging violations of the Federal Nursing Home Reform Act (FNHRA).[9] 42 U.S.C. § 1983 provides that “[e]very person who . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”[10] The Supreme Court has interpreted “and laws” to include all federal laws, given that Congress did not qualify the phrase.[11] But this interpretation only applies if the statute at issue creates enforceable rights, privileges, or immunities and Congress has not foreclosed § 1983 enforcement.[12] Therefore, plaintiffs suing under § 1983 must be able to point to a violation of a federal right; asserting a violation of federal law alone is insufficient.[13] In fact, the Supreme Court has emphasized that “rights-creating language . . . is critical” to the assessment of whether an individual can bring a § 1983 suit.[14]
In her suit on behalf of her husband, Mrs. Talevski asserted that two provisions of the FNHRA include the necessary rights-creating language for a § 1983 suit.[15] First, the FNHRA provides that “[a] nursing facility must protect and promote the rights of each resident,”[16] which includes the right to be free from chemical restraint in most instances.[17] Second, the FNHRA provides that a resident has the general right not to be discharged or transferred unless certain conditions are met.[18]
The district court held against Mr. Talevski because it found that the FNHRA provisions granting residents the right to be free from improper chemical restraint[19] and discharge[20] did not create rights under § 1983.[21] The Seventh Circuit reversed,[22] however, relying on Blessing v. Freestone.[23] In Blessing, the Supreme Court had articulated three factors that
determine whether a statutory provision creates a privately enforceable right: (1) whether the plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff’s asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation on the State.[24]
Applying the Blessing factors, the Seventh Circuit concluded that (1) Mr. Talevski was an intended beneficiary of the statute because he was a resident of the nursing home, (2) his interest was not vague because the statute explicitly provided the right to be free from improper chemical restraints and transfer, and (3) the FNHRA imposed binding obligations on the nursing facility by using the word “must.”[25]
On May 2, 2022, the Supreme Court granted the Health and Hospital Corporation of Marion County’s petition for a writ of certiorari,[26] and on November 8, 2022, the Court heard oral arguments.[27] The petitioner asserted that Medicaid, as legislation enacted under the Spending Clause, is a contract between only two parties (the state and federal governments) and therefore no one else (including beneficiaries and providers) has the right to enforce any Medicaid provisions or seek remedies for Medicaid violations.[28] If the Court were to accept this argument, the Talevskis would be stripped of the ability to bring the present suit. If the Court were to deny this argument, the Court could still hold that, although some Spending Clause legislation creates rights enforceable through § 1983, the FNHRA does not, and therefore the Talevskis would be stripped of the ability to sue. As a result, the more general question for the Supreme Court to answer is whether any Spending Clause legislation creates rights enforceable through § 1983. If so, it must then address the more specific question of whether the two FNHRA provisions create § 1983 rights.[29]
During oral arguments, Lawrence S. Robbins argued on behalf of the petitioners that, in considering whether to accept Spending Clause funding, states must receive clear notice in the statute that they are subject to § 1983 liability, given the massive amount of potential damages that comes with it.[30] Director of South Carolina Department of Health and Human Services Robert M. Kerr filed an amicus brief that emphasized there is “no knowing acceptance” of Medicaid funding if a state is not fully aware of all conditions and liabilities attached.[31] Mr. Robbins argued accordingly that the FNHRA does not contain an express statement of § 1983 liability, and therefore states that accept federal funding under the FNHRA should not be liable under § 1983.[32]
Mr. Robbins argued further that when § 1983 was enacted, there was no third-party beneficiary right to sue under contract common law.[33] During oral arguments, however, Justice Jackson responded to this assertion by emphasizing that § 1983 was enacted as part of the Ku Klux Klan Act.[34] The precise purpose of this enactment was to eliminate the common law’s lack of a forum for the vindication of rights by establishing a direct means of enforcing statutorily-created rights in court.[35] Therefore, Justice Jackson maintained that Congress’s explicit creation of this right when enacting § 1983 overrode any existing common law doctrine opposing the right to enforce statutorily-created rights in court.[36]
As amici to Talevski, former senior officials of the Department of Health and Human Services (HHS) emphasized the difficulties and obstacles of enforcing Spending Clause legislation, in part because states have “become adversaries” rather than partners in enforcement.[37] Insufficient funding generally hinders the federal agency’s ability to pursue enforcement actions.[38] Additionally, while HHS can urge states to remedy issues, it does not have the power to seek specific judicial remedies, unlike individuals pursuing § 1983 actions.[39] The federal government is also very reluctant to withdraw federal funding because it is politically treacherous.[40] In addition, such decisions can hurt beneficiaries even more than the original violation by weakening or terminating programs on which they relied.[41] That concern is exacerbated by the fact that decisions to withdraw funding can be prolonged if a state exercises its right to appeal.[42]
Thus, the implications of the Talevski decision go far beyond enforcement of the FNHRA. § 1983 actions are the means of addressing a state’s violation of the rights created by Spending Clause legislation, except when the statute provides for a private right of action. Talevski puts this option in serious jeopardy.
The Supreme Court’s ruling on Talevski is at most only a few months away. Despite extensive attention to this case within the health law community, Professor Sara Rosenbaum suggests the Supreme Court might quietly issue this decision as one of its less publicized opinions prior to June 2023.[43]
When the Court does rule, there are many potential holdings. First, the Court might uphold the ample precedent that reinforces § 1983 as a means of providing for private enforcement of federal law, including Spending Clause legislation like the FNHRA.[44] The second possibility is a narrower decision in which the Court holds that, although most federal law provides rights that can be enforced through a § 1983 suit, Spending Clause legislation does not. [45] The Talevskis would therefore be thwarted in pursuing private enforcement of the nursing facility’s FNHRA violations, because the FNHRA would not afford Mr. Talevski the necessary rights. A third possibility is that the Court disregards the “and laws” language in 42 U.S.C. § 1983 and holds that there is no right to private enforcement of any federal law violations through § 1983 suits when the law establishes other remedies.[46] Instead, plaintiffs would be limited to the remedies explicitly described in the federal laws.[47]
If the Supreme Court decides to deprive individuals of the § 1983 avenue of enforcing rights, regardless of whether the Court chooses the second or third approach, the disproportionate impact of the decision will be felt by low-income individuals whose already limited access to the judicial system will be even more restricted.[48] And its reach will be vast, because many social safety net programs have their constitutional basis in the Spending Clause, including “housing, nutrition, foster care, heating assistance, education, and disability programs.”[49] Not only is there immense reliance on these programs, but also there is immense reliance on the ability to go to court to enforce the rights created and implicated by them.[50]
If the Court holds that no § 1983 claims can be brought for rights granted by Spending Clause legislation or when other remedies are specified, it would not be the first time this Supreme Court’s conservative majority uproots decades of precedent and reliance.[51] And it would not be the first time that overturning prior rulings disproportionately harms the most vulnerable among us.
[1] See Brief in Opposition at 2, Health & Hosp. Corp. of Marion Cnty. v. Talevski, (filed Mar. 11, 2022) (No. 21-806), 2022 WL 798919 at *2.
[2] See id. at 2–3.
[3] Id. at 3.
[4] See id.
[5] See id.
[6] See id.
[7] See id. at 3–4.
[8] See id. at 4.
[9] See id.
[10] 42 U.S.C. § 1983 (emphasis added).
[11] See Maine v. Thiboutot, 448 U.S. 1, 4 (1980).
[12] See Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423 (1987). In Wilder v. Va. Hosp. Ass’n, the Supreme Court explicitly recognized that § 1983 actions can be brought in response to Medicaid violations. See 496 U.S. 498, 520–22 (1990).
[13] See Blessing v. Firestone, 520 U.S. 329, 329 (1997) (citing Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989).
[14] Gonzaga Univ. v. Doe, 536 U.S. 273, 274 (2002).
[15] See Brief in Opposition, supra note 1, at 4.
[16] 42 U.S.C. § 1396r(c)(1)(A) (emphasis added).
[17] See id. § 1396r(c)(1)(A)(ii)(I)–(II) (providing that residents have the right to be free from chemical restraints unless they are necessary to guarantee physical safety and are the result of a physician’s order that clarifies the “duration and circumstance” of the restraint).
[18] See id. § 1396r(c)(2)(A)(i)–(vi) (providing that residents must be permitted to stay in the nursing home facility and can only be transferred or discharged unless it is necessary to ensure the resident’s welfare, which cannot be provided by the current facility; the resident no longer needs the facility due to health improvements; the safety and health of other residents are compromised; the resident has not paid; or the facility closes).
[19] See id. § 1396r(c)(1)(A)(ii).
[20] See id. § 1396r(c)(2)(A).
[21] See Talevski ex rel. Talevski v. Health & Hosp. Corp. of Marion Cnty., No. 2:19 CV 13, 2020 WL 1472132, at *1 (N.D. Ind. Mar. 26, 2020), rev’d, 6 F.4th 713 (7th Cir. 2021).
[22] See Talevski ex rel. Talevski v. Health & Hosp. Corp. of Marion Cnty., 6 F.4th 713, 715 (7th Cir. 2021), cert. granted sub nom. Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (May 2, 2022) (No. 21-806).
[23] 520 U.S. 329 (1997).
[24] Id. at 329–30 (citing Wilder v. Va. Hosp. Ass’n., 496 U.S. 498, 509 (1990)).
[25] See Talevski ex rel. Talevski v. Health & Hosp. Corp. of Marion Cnty., 6 F.4th 713, 717–20 (7th Cir. 2021), cert. granted sub nom. Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (May 2, 2022) (No. 21-806).
[26] See id.
[27] See Oral Argument, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806), https://www.supremecourt.gov/oral_arguments/audio/2022/21-806.
[28] Timothy S. Jost and Sara Rosenbaum, Supreme Court Could Strip Protections from Millions of Federal Program Beneficiaries, The Commonwealth Fund: To the Point (May 31, 2022), https://www.commonwealthfund.org/blog/2022/supreme-court-could-strip-protections-millions-federal-program-beneficiaries.
[29] See Brief in Opposition, supra note 1, at i.
[30] See Oral Argument at 01:04, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806), https://www.supremecourt.gov/oral_arguments/audio/2022/21-806 (citing Barnes v. Gorman, 536 U.S. 181 (2002)).
[31] Brief for Robert M. Kerr, Director of South Carolina Department of Health and Human Services, as Amicus Curiae Supporting Petitioners at 2, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
[32] See Oral Argument at 01:48, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806), https://www.supremecourt.gov/oral_arguments/audio/2022/21-806.
[33] See id. at 01:16.
[34] See id. at 34:37.
[35] See id.; see also 42 U.S.C § 1983 (providing that “every person who” deprives “any citizen . . . of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress” unless the action falls into a specific category of actions being brought against a judicial officer). Given that Congress included an exception for judicial officers and did not include any other exceptions, in conjunction with the use of the words “every” and “any,” Congress unequivocally created a direct means of enforcing statutorily created rights in court. Id.
[36] See Oral Argument at 35:18, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806), https://www.supremecourt.gov/oral_arguments/audio/2022/21-806.
[37] Brief for Former Senior Officials of the Department of Health and Human Services et al. as Amici Curiae Supporting Respondent at 4, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 142 S. Ct. 2673 (2022) (No. 21-806).
[38] See id.
[39] See id. at 8.
[40] See id. at 8.
[41] See id. at 9 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 52 (1981) (White, J., dissenting)).
[42] See Sara Rosenbaum, An Upcoming Supreme Court Case Could Strip Medicaid Beneficiaries and Safety-Net Providers of Crucial Civil Rights, The Commonwealth Fund: To the Point (Oct. 19, 2022), https://www.commonwealthfund.org/blog/2022/upcoming-supreme-court-case-could-strip-medicaid-beneficiaries-crucial-rights.
[43] See id.
[44] See discussion supra notes 11–14.
[45] See Rosenbaum, supra note 42.
[46] See Elise Aguilar, U.S. Supreme Court Hears Oral Arguments in Talevski Case, ANCOR: Capitol Correspondence (Nov. 5, 2022), https://www.ancor.org/capitol-correspondence/u-s-supreme-court-hears-oral-arguments-in-talevski-case/.
[47] See id.
[48] See Debriefing the Oral Arguments in Talevski, the “Existential” Medicaid Case, NoHLA: News from NoHLA Blog (Nov. 17, 2022), https://nohla.org/debriefing-the-oral-arguments-in-talevski-the-existential-medicaid-case/.
[49] Id.
[50] See id.
[51] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
Chelsea Pardes
Chelsea is a 3L GW Law student and a Kahan Health/FDA Law Fellow.