GORGI TALEVSKI, by nеxt friend IVANKA TALEVSKI, Plaintiff-Appellant, v. HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, et al., Defendants-Appellees.
No. 20-1664
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 4, 2020 — DECIDED JULY 27, 2021
Before KANNE, WOOD, and SCUDDER, Circuit Judges.
This is a difficult area of law, no doubt, and we appreciate the careful attention that both this district court and several others within our circuit have given to this issue. See Terry v. Health & Hospital Corporation, 2012 U.S. Dist. LEXIS 43702 (S.D. Ind. Mar. 29, 2012); Schwerdtfeger v. Alden Long Grove Rehab. & Health Care Ctr., Inc., No. 13 C 8316, 2014 WL 1884471 (N.D. Ill. May 12, 2014); Fiers v. La Crosse County, 132 F. Supp. 3d 1111 (W.D. Wis. 2015). We conclude, however, in keeping with the views of two of our sister circuits, that the court erred. See Grammer v. John J. Kane Reg‘l Centers-Glen Hazel, 570 F.3d 520 (3d Cir. 2009); Anderson v. Ghaly, 930 F.3d 1066 (9th Cir. 2019); see generally Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (“[T]he [section] 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.“). We therefore reverse and remand for further proceedings.
I
FNHRA establishes the minimum standards of care to which nursing-home facilities must adhere in order to receive federal funds in the Medicaid program,
The Medicaid program “allows states to provide federally subsidized medical assistance to low-income individuals and families.” Bontrager v. Ind. Fam. & Soc. Servs. Admin., 697 F.3d 604, 605 (7th Cir. 2012); see
FNHRA was enacted pursuant to Congress‘s Spending Clause powers as part of the Omnibus Budget Reconciliation Act of 1987, codified at
Ivanka Talevski‘s complaint, brought on behalf of her disabled husband, accused Valparaiso Care of failing to adhere to FNHRA‘s requirements in numerous respects, including the following: failure to provide Gorgi Talevski with adequate medical care; the administration of powerful and unnecessary psychotropic medications for purposes of chemical restraint, the use of which resulted in Gorgi‘s rapid physical and cognitive decline; the discharge and transfer of Gorgi to other facilities in Indiana without the consent of his family or guardian, and without his dentures; the refusal to fulfill an administrative law judge‘s order to readmit him to Valparaiso Care; and the “maint[enance of] a policy, practice, or custom, [sic] that failed to care for Mr. Talevski in such a manner and in such an environment as to promote maintenance or enhancement of the quality of life of each resident.”
On appeal, Ivanka has abandoned all but two of these particulars. Those that remain appear in sections 1395i-3(c) and 1396r(c) of the Act, “Requirements relating to residents’ rights,” known as the “Residents’ Bill of Rights,” H.R. Rep. No. 100–391, pt. 1, at 452. Ivanka alleges that Valparaiso Care violated Gorgi‘s statutory right to be free from chemical restraints by over-prescribing psychotropic drugs to restrain
Section 1396r(c)(1)(A) provides:
A nursing facility must protect and promote the rights of each resident, including each of the following rights:
...
(ii) Free from restraints
The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident‘s medical symptoms. Restraints may only be imposed--
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used (exсept in emergency circumstances specified by the Secretary until such an order could reasonably be obtained).
Section 1396r(c)(2) describes the circumstances in which a facility is permitted to transfer or discharge a resident. Facilities “must permit each resident to remain in the facility and
(i) the transfer or discharge is necessary to meet the resident‘s welfare and the resident‘s welfare cannot be met in the facility;
(ii) the transfer or discharge is appropriate because the resident‘s health has improved sufficiently so the resident no longer needs the services provided by the facility;
(iii) thе safety of individuals in the facility is endangered;
(iv) the health of individuals in the facility would otherwise be endangered;
(v) the resident has failed, after reasonable and appropriate notice, to pay (or to have paid under this subchapter or subchapter XVIII on the resident‘s behalf) for a stay at the facility; or
(vi) the facility ceases to operate.
Like section 1396r(c)(1)(A), this section focuses on the residents’ rights; in substance it creates a right to remain in a facility in the absence of the specified justifications. It dictates pre-transfer and pre-discharge notice requirements and clinical record documentation.
A
Several decisions of the Supreme Court provide the starting point for our analysis. In Blessing v. Freestone, 520 U.S. 329 (1997), and Gonzaga University v. Doe, 536 U.S. 273 (2002), the Supreme Court emphasized that plaintiffs seeking redress for an alleged violation of a statute through a section 1983 action “must assert the violation of a federal right, not merely a violation of federal law.” Blessing, 520 U.S. at 340 (emphasis in original). “Three factors help determine whether a federal statute creates private rights enforceable under § 1983.” Planned Parenthood of Ind., Inc. v. Comm‘r of Indiana State Dep‘t Health, 699 F.3d 962, 972 (7th Cir. 2012).
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.
Blessing, 520 U.S. at 340–41 (cleaned up). Gonzaga clarified that it is not enough for plaintiffs to fall “within the general zone of interest that the statute is intended to protect;” nothing “short of an unambiguously conferred right ... phrased in terms of the persons benefited” can support a section 1983 action. 536 U.S. at 283–84. See also Cannon v. Univ. of Chi., 441 U.S. 677, 692, n.13 (1979). Gonzaga further explained that courts must “determine whether Congress intended to create a
B
We begin with the question whether Congress intended sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) to benefit nursing-home residents. We find that it did. Although other parts of section 1396r address measures that nursing homes must take, section (c) explicitly uses the language of rights. We do not know how Congress could have been any clearer. After the heading, the statute says “[a] skilled nursing facility must protect and promote the rights of each resident, including each of the following rights.”
Valparaiso Care argues that Ivanka cannot show the necessary individual focus because the protections at issue serve only as directives to nursing faсilities and physicians, and FNHRA as a whole is addressed to states that receive federal Medicaid funding. But it is ignoring the language Congress chose in the sections on which Ivanka is relying. Congress told the facilities to respect the rights it had singled out, just as a facility must respect a person‘s right to be free from sex or race discrimination. It is thus of no consequence that section 1396r(c)(1)(A) begins with the phrase “[a] nursing facility must ... .” What must it do? “[P]rotect and promote the rights of each resident ... .”
Faced with similar language in Anderson v. Ghaly, the Ninth Circuit found an unambiguous conferral of individual rights. 930 F.3d 1066, 1074–75 (9th Cir. 2019). The statute it was evaluating,
Congress enacted FNHRA as an amendment to the Medicaid statute in response to widespread abuses among
Blessing‘s second factor requires the plaintiff to demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) do not suffer from those flaws. The rights they protect “fall[] comfortably within the judiciary‘s core interpretive competence.” Planned Parenthood of Ind., Inc., 699 F.3d at 974. Facilities “must not” do exactly what Ivanka alleged has occurred: subject residents to chemical restraints for purposes of discipline or convenience and involuntarily transfer or discharge any resident absent one of several allowable justifications and notice. It does not take a medical review board to determine whether these rights have been violated.
Finally, there is no dispute that plaintiffs meet Blessing‘s third factor, which asks whether the provision giving rise to the asserted right is couched in mandatory rather than precatory terms. Facilities must protect and promote the right against chemical restraints, must allow residents to remain in the facility, must not transfer, and must not discharge the resident; these are unambiguous obligations. Ivanka points to this language to show that “the meaning of the statute‘s terms is plain” and our job is over. See Bostock v. Clayton County, 140 S. Ct. 1731, 1749 (2020). We аgree with her that a common-sense reading of its provisions leaves no room for disagreement.
In sum, we find that sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) unambiguously confer individually enforceable rights on nursing-home residents such as Gorgi Talevski.
Once a plaintiff satisfies the Blessing criteria, the right is presumptively enforceable under section 1983. A defendant may rebut this presumption only by “showing that Congress specifically foreclosed a remedy under § 1983 ... expressly, through specific evidence from the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983[.]” Gonzaga, 536 U.S. at 284 n.4 (cleaned up). The express route is not available here, as FNHRA does not contain any such language. We thus confine ourselves to rebuttal by implication.
Valparaiso Care argues that FNHRA impliedly forecloses section 1983 claims because it provides federal and state enforcement schemes in addition to individualized mechanisms for recourse other than section 1983. In support, it cites section 1396r(g)(2)(A), which is entitled “Annual standard survey.” Under that provision, each nursing facility is subject to an annual, unannounced survey conducted by the state. If the survey reveals that a nursing facility is out of compliance with the rest of the statute, including the residents’ bill of rights, the state has several options. It can terminate the facility‘s participation in the state‘s Mediсaid plan; deny payment to the facility; assess a civil monetary penalty; appoint temporary managers; close the facility; transfer residents; or take some combination of these measures. See
This is not the type of comprehensive enforcement scheme, incompatible with individual enforcement, that we are looking for. “The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983.” Planned Parenthood of Ind., Inc., 699 F.3d at 975 (quoting City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005)). Valparaiso Care has not identified anything close to the type of “unusually elaborate, carefully tailored, and restrictive enforcement schemes” that section 1983 claims wоuld frustrate. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009) (cleaned up). Nursing-home residents are free to file a complaint or grievance with the nursing facility and state survey and certification agents. But regulatory surveys and any accompanying enforcement processes are designed only to ensure facilities’ compliance with FNHRA‘s various standards. They do not address, and thus do not protect, individual entitlements to be free from chemical restraints or involuntary transfer or discharge. The administrative appeals process for involuntary transfers does not indicate a comprehensive enforcement scheme either. “[A] plaintiff‘s ability to invoke § 1983 cannot be defeated simply by ‘the avаilability of administrative mechanisms to protect the plaintiff‘s interests.‘” Blessing, 520 U.S. at 347 (quoting Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989)).
Valparaiso Care and its fellow defendants have not shown that, despite the express rights-creating language in the statute we are considering, there is no private action here. Were there any lingering doubt, it should be put to rest in the general guidance provided in section 1396r(h)(8): “The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law.” Defendants read this clause to protect only existing state law, but the text has no such limitation, and in fact specifically mentions federal law. That means all federal law; there is nothing that supports carving out section 1983, and we will not rewrite the statutе to create any such exception.
III
Valparaiso Care makes an additional argument that the district court did not reach in favor of dismissal: it contends that both of Ivanka‘s claims are too late. It is worth recalling, in this connection, that the proper way to raise a limitations
Section 1983 claims do not have a built-in statute of limitations; instead, they borrow state statutes of limitations and tolling rules for general personal injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1985); see Dixon v. Chrans, 986 F.2d 201, 203–04 (7th Cir. 1993). In Indiana, the pertinent statute of limitations is two years. See Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013);
Gorgi began his stint at Valparaiso Care in January 2016. Around August of that same year, his daughter observed the rapid deterioration of her father‘s cognitive and physical abilities; he could no longer feed himself and lost the ability to speak English, though he could still speak his mother tоngue, Macedonian. Skeptical of Valparaiso Care‘s insistence that any change in her father‘s condition could be traced to the natural advancement of dementia, Talevski‘s daughter requested a list of her father‘s medications in September 2016. The list she received showed ten medications, six of which
At this point, Valparaiso Care tried to discharge Talevski involuntarily to an all-male dementia facility two-and-a-half hours away in Indianapolis. The Talevskis filed a petition for review of the transfer decision with the ISDH while Talevski moved to yet another facility an hour away. See
Valparaiso Care argues that Talevski‘s chemical-restraint claim accrued in September 2016 when the Talevski family received a list of medications that confirmed the use of chemical restraints. The complaint does not specify when the facility stopped using the medications. But Valparaiso Care reasons that the claim most likely accrued in September 2016, or perhaps as late as November 23, 2016, when Valparaiso Care began the transfer process. At the very latest, it contends, the claim accrued on December 30, 2016, the lаst time Gorgi was at the facility and more than two years before the filing of the
Ivanka responds that Gorgi‘s claims are not time barred because the statute of limitations was tolled as a result of his legal disability. Indiana law states that “[a] person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.”
Looking to Dixon v. Chrans, 986 F.2d 201 (7th Cir. 1993), Valparaiso Care contends that tolling should not take place here. Dixon dealt with Illinois‘s legal disability tolling provision. That law differentiated among various types of disabilities: for suits brought by incarcerated persons under section 1983 against officials or employees of the Illinois Department of Corrections, there was no tolling; suits against other defendants were tolled. The plaintiff in that case was incarcerated and sued IDOC officials under section 1983. He did not get the benefit of tolling. We concluded that absent a “tolling rule designed specifically for general personal injury claims ... the process of deciding which state tolling rule to apply involves the straightforward application of the rules as written.” Id. at 204 (emphasis in original).
A claim, whether in contract or tort, may not be brought against a health care provider basеd upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect[.]
The problem with this argument is that a section 1983 action is not a medical malpractice action. It is analogous to a personal-injury claim. It is well established that “the characterization of civil rights statutes for limitations purposes is a federal question.” Allen v. Hinchman, 20 N.E.3d 863, 873 (Ind. Ct. App. 2014). The Supreme Court has spoken, and section 1983 claims are “best characterized as personal injury actions.” Dixon, 986 F.3d at 203 (citing Wilson v. Garcia, supra, 471 U.S. 261).
This makes sense. The choice of a limitations period cannot depend on the facts of a plaintiff‘s specific circumstances. See Allen, 20 N.E.3d at 873 (quoting Garcia, 471 U.S. at 274) (“[I]f the choice of the statute of limitations were to depend upon the particular fact or the precise legal theory of each claim, counsel would almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim[.]“). Moreover, assuming for present
IV
In a last-ditch effort to circumvent Blessing, Valparaiso Care argues that our recent decision in Nasello v. Eagleson, 977 F.3d 599 (7th Cir. 2020), indicates an unwillingness to find enforceable private rights in statutes passed pursuant to Congress‘s powers under the Spending Clause. There we found that a provision of the Medicaid Act that requires states to count earlier medical expenses not covered by third parties when calculating a “medically needy” persons’ income “sets conditions on states’ participation in a program, rather than create direct private rights” and that plaintiffs’ other claim fell outside of the scope of the provision they invoked. Id. at 601–02. We also observed that since Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), the Supreme Court has “repeatedly declined to create private rights of action under statutes that set conditions on federal funding of state programs,” Nasello, 977 F.3d at 601.
It has indeed been more than 30 years since Wilder, and we realize that the Supreme Court itself has not recognized new Spending Clause-based private rights of action during that period. But it is just as true that the Court has never disapproved Wilder. As a careful look at its decisions shows, it has instead insisted on a high bar for these private rights of action,
Astra USA, Inc. v. Santa Clara County, 563 U.S. 110 (2011), illustrates this point well. It dealt with section 340B of the Public Health Services Act,
Another case that touches on this issue is Sossamon v. Texas, 563 U.S. 277 (2011). It relies on the uncontroversial rule that it is ultimately Congress that controls whether a private right of action should be recognized in legislation that rests to some extent on the Spending Clause. In fact, the centrаl issue in Sossamon was tangential to our inquiry. The question was whether a state, by accepting federal funds, automatically
It would be bizarre to create an “unequivocal statement” rule and then find that every Spending Clause enactment, no matter what its text, satisfies that rule because it includes unexpressed, implied remedies against the States. The requirement of a clear statement in the text of the statute ensures that Congress has specifically considered state sovereign immunity and has intentionally legislated on the matter.
The third case in this line is Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015). Its facts are closer to our case than those of the other two, insofar as it involved an effort to enforce certain aspects of the Medicaid program. The Court put the question presented succinctly, as “whether Medicaid providers can sue to enforce § (30)(A) of the Medicaid Act.” Id. at 322. That section requires a state plan to include the
The Supreme Court held that the premise of the suit was wrong—the Supremacy Clause does not support a private right of action whenever someone asserts that state law conflicts with a federal mandate. The Court then addressed the question whether the providers could base their right of action directly in section 30(A) of the Act. It also answered this in the negative. Critically, it found that section 30(A)‘s text was “judicially unadministrable,” id. at 328, and that by providing an express administrative remedy, the Act precluded private enforcement. Finally, the Court rejected the idea that the Medicaid Act itself provided a private right of action to the providers, because “[s]ection 30(A) lacks the sort of rights-creating language needed to imply a рrivate right of action.” id. at 331. It is phrased, the Court pointed out, as a directive to the federal agency, “not as a conferral of the right to sue upon the beneficiaries of the State‘s decision to participate in Medicaid.” Id.
Armstrong thus confirms the inquiry we must make to see if a different part of the Medicaid Act, in a suit brought by different parties, can support a private right of action: do we have the necessary rights-creating language to support a private right of action? The Court could have saved itself a great deal of time if it had wanted to establish an unbending rule that Spending Clause legislation never supports a private action. It did not do so in Armstrong, and it did not even hint
Our sister courts have agreed that FNHRA confers such rights. See Grammer v. John J. Kane Reg‘l Centers-Glen Hazel, 570 F.3d 520, 524–25, 527 (3d Cir. 2009); Anderson v. Ghaly, 930 F.3d 1066, 1074 (9th Cir. 2019); cf. Concourse Rehabilitation & Nursing Center Inc. v. Whalen, 249 F.3d 136 (2d Cir. 2001) (section 1396r(b)(4)(A) “is obviously intended to benefit Medicaid beneficiaries” and thus does not entitle health care providers to bring suit under section 1983). Nasello reflects the caution with which we approach finding an enforceable private right of action, but, as Armstrong clarified, the position of providers is different from that of recipients, and it is critical in our case that the statute itself contains the necessary rights-creating language for the recipients.
We therefore hold that it was error to dismiss this case for failure to state a claim. The judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.