In the flurry of Supreme Court rulings this month, a somewhat obscure victory for disability rights is easy to miss. The Supreme Court ruled that residents can sue state-run nursing homes for violation of rights protected under a federal Medicare and Medicaid law, the Federal Nursing Home Reform Act of 1987 (FNHRA). In the case, Health & Hospital Corp. of Marion County v. Talevski, a resident’s family challenged the facility’s use of medication to sedate rather than treat the resident, leading to a dramatic deterioration in his cognitive abilities. They also challenged his forced transfer to another nursing home. The Supreme Court said they can sue for these violations.
Chemical Restraint – Illegal Overmedication
While psychiatric drugs provide limited help for some people, especially when prescribed in a careful and voluntary way, using them as forced “chemical restraints” is illegal and dangerous. It is also an all too common practice in nursing homes and other institutions (psychiatric hospitals, jails), a cheaper alternative to hiring enough qualified staff for safe and effective supervision and treatment.
In Mr. Talevski’s case, the Court notes that he could “talk, feed himself, walk, socialize, and recognize his family” when he entered the nursing home. Then, the nursing home placed him on “six powerful psychotropic medications.” His condition deteriorated precipitously. He could not longer feed himself or communicate in English (his native language was Macedonian). The nursing home said this was the normal progression of his dementia, but the Court questioned this claim; Mr. Talevski regained ground after an outside neurologist tapered his medication down.
Transferring or discharging nursing home residents without notice and an opportunity to contest the plan is also a violation of FNHRA. Of course, many nursing home residents want to leave, but transfer or discharge can also be unsafe or take people away from their family. That is what happened for Mr. Talevski—the state transferred him to a nursing home 90 minutes away from his family. This, too, may be a violation.
There is little publicity about the human beings behind this case, but a photo of Gorgi Talevski in 2018, with his daughter Susie Talevski, was published in the New Hampshire Business Review. He died in 2021, and is remembered in his obituary for his “spirit of generosity.”
State-run Nursing Homes Only
The specific ruling in Talevski is limited. It allows people to sue only public, state government-run nursing homes. The decision interprets a civil rights law, 42 U.S.C. § 1983. Congress passed that law in 1871, during Reconstruction. Often called “Section 1983,” it allows lawsuits in federal court against state officials or their agents who deprive federal citizens of rights “secured by the Constitution and laws” of the United States “under color of” state law. In Talevski, seven justices agreed that FNHRA is a law of the United States, and that it that creates federal rights that can be vindicated in Section 1983 lawsuits.
Section 1983 allows both injunctive relief—ordering the nursing home to fix something—and money damages. These remedies make Section 1983 broader than some laws, which limit or prohibit money damages.
The opinion was Justice Jackson’s first major opinion, and Justices Roberts, Gorsuch, Kavanaugh, and Barrett joined the liberal bloc for a seven-justice opinion. Justices Gorsuch and Barrett each wrote concurring opinions—raising doubts for another day. Only Justices Thomas and Alito dissented.
The defendants tried to capitalize on an earlier line of “spending clause” cases that, inter alia, successfully walked back disability rights. The claim is that when Congress legislates under its spending power—setting rules for the programs it funds—its authority is more limited than when it uses other enumerated federal powers, like the power to enforce the 14th Amendment’s guarantee of Equal Protection. The argument is that spending clause laws are like a contract, and a party to a contract would not expect that accepting money from the federal government would subject it to broad civil rights liability. Traditional contract law has narrower remedies; for example, it does not usually allow emotional distress damages.
The defendants in Talevski invited the Court broaden this line of reasoning to reach this case, even though Section 1983 explicitly provides that states can be sued for violations of rights created by federal law, and FNHRA is a federal law that explicitly says it creates rights. Accepting this argument would have meant overruling an earlier decision, but the Supreme Court has overruled precedent to narrow civil rights several times recently. Advocates were concerned—the AARP filed an amicus brief—but eight of the nine justices declined the invitation and stuck to precedent.
The nursing home mistreatment that the Talevski family endured is all too common—and statistically worse for Black Americans. The effect will be indirect for people in privately-run nursing homes, either nonprofit or for-profit. They cannot sue under Section 1983 because it only applies to government officials, and FNHRA itself does not provide for private lawsuits. (Residents of private nursing homes can file administrative complaints.)
Still, the ruling squarely affirms that nursing home residents have federally-protected rights: freedom from overdrugging, harmful discharges, and other rights in FNHRA, like communication and self-determination. We can hope that is a message that resonates broadly.