Q: I heard about a recent case in Illinois federal court that allows residents to sue nursing homes for violations of residents’ rights. Should I be concerned about this?
A: On July 27, 2021, the U.S. Court of Appeals for the 7th Circuit decided an important question of law in the case of Talevski v. Health and Hospital Corporation, et al., No. 20-1664.
This decision is cause for concern if you are a skilled nursing operator in Illinois, Indiana or Wisconsin — joining others in a large handful of states where residents can bring claims against skilled nursing facilities for violation of resident’s rights, including improper care and treatment, under Section 1983 of Title 42 of the United States Code.
Section 1983 provides an individual the right to sue government employees and others acting “under color of state law” for civil rights violations. As such, if your facility is in the 7th Circuit’s jurisdiction, this case poses a risk for increased claims, or different claims, to be brought. Previously, plaintiffs alleging violations of residents’ rights were limited to pursuing claims of negligence in state court unless that state had a private cause of action for violation of resident’s rights.
In Talevski, the 7th Circuit joined the 3rd Circuit (PA, NJ, DE, VI) and 9th Circuit (AK, AZ, CA, HI), finding that the section 1983 remedy encompasses violations of federal statutory as well as constitutional law.
The 7th Circuit found the Federal Nursing Home Reform Act not only establishes minimum standards of care to which nursing homes must comply, but it also contains residents’ rights requirements. The court found “a common-sense reading of FNHRA’s provisions leaves no room for disagreement” that facilities “must protect and promote” resident’s rights.
A total of 11 states and territories now allow section 1983 claims against skilled nursing facilities.
From the December 2021 Issue of McKnight's Long-Term Care News
