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Update on Talevski v. Health and Hospital Corporation of Marion County

In our August 26, 2022, News Roundup, we reported that Talevski v. Health and Hospital Corporation of Marion County (HHC) was headed to the Supreme Court. The case concerns the rights of nursing home residents. The Plaintiff argued the nursing home violated his rights under the Federal Nursing Home Reform Act (FNHRA). The nursing home responded, arguing there is o private right of action under FNHRA. Now, the Citizens Action Coalition is urging Indianaplois and Marion County officials to demand that HHC drop it’s petition.

The questions presented in the Petition for a Writ of Certiorari, which was granted, are:

  1. Whether, in light of compelling historical evidence to the contrary, the Court should reexamine its holding that Spending Clause legislation gives rise to privately enforceable rights under Section 1983.
  2. Whether, assuming Spending Clause statutes ever give rise to private rights enforceable via Section 1983, FNHRA’s transfer and medication rules do so.

Although, as an advocate for elder rights, it would be nice to see a direct right to enforce FNHRA rights, this issue has circulated at least since Brogdon v. NHC, 103 F.Supp2d 1322 (N.D. Ga. 2000) was decided. There, the Plaintiffs argued residents of nursing homes may sue to enforce compliance with federal standards imposed under the Medicare and Medicaid Acts. However, the District Court found FNHRA does not expressly authorize private causes of action to enforce their provisions and held there was no implied private cause of action. Nonethless, the FNHRA may be relevant in determining whether a nursing home breached the standard of care under State malpractice law. Count five of Plaintiff’s complaint alleged a claim for professional malpractice, and the Court previously held “Georgia law thus recognizes a professional malpractice cause of action for breach of the minimum standards of care by members of the nursing profession. Thurman, 212 Ga. App. at 768, 442 S.E.2d 849. Participation requirements under Medicare and Medicaid are relevant, of course, only to the extent that they relate to the degree of care and skill required of nurses in malpractice cases in Georgia.” The nursing home sought reconsideration, arguing that incorporating the federal standard into the State’s standard of care violated principles of federalism. The Brogdon Court denied the motion for reconsideration, holding:

The Legislature and courts of the State of Georgia are empowered to determine applicable professional standards of care within this State. If these standards of care reflect or incorporate federal Medicaid and Medicare participation requirements — or even the standard of care applied in a foreign country — neither the principle of federalism nor the principle that foreign governments cannot legislate for the citizens of the State of Georgia are offended. In other words, the content of the applicable standard of care is simply a matter of state law. The fact that Congress may not have the power to legislate in this area is irrelevant. Further, if Congress has no enumerated power by which to legislate in this area, as Defendants argue, federal compliance standards under the Medicare and Medicaid programs could not preempt state laws. In sum, the Court rejects the idea that any valid state law could contravene restrictions on the federal power to legislate.

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