Grammer v. John J. Kane Regional Centers-Glen Hazel

Cabrera, 246 A.D.2d 668 N.Y.S.2d 1998), Dep’t (N.Y.App. Div.2d because

that constructive eviction terminates the

lease, Sears, see Roebuck & Co. 9 Ave.- Corp., St. 274 N.Y. at 20. N.E.2d if

Accordingly, Depot Home was construc evicted,

tively the lease was terminated Depot

and Home was relieved of obli

gation pay “rents” under the “hell

high water” clause of the Recognition

Agreement.

CONCLUSION above,

For the judg- reasons stated

ment of the district court is VACATED proceed-

AND REMANDED for further

ings accordance with this opinion. GRAMMER,

Sarah as Administratrix Daniels,

of the Estate of Melvinteen

Deceased, Appellant

JOHN J. KANE REGIONAL

CENTERS-GLEN

HAZEL.

No. 07-2358. Appeals,

United States Court of

Third Circuit.

Argued May

Filed June proper avenue relief because the

Appellee has failed to demonstrate by adopt that option foreclosed another, comprehensive more enforce ment scheme. See 284, 122 U.S. at S.Ct. 2268.

I. Rihn, D. Aaron Esq. (Argued), Robert mother, Daniels, Appellant’s Melviteen Daley, Esq., F. Robert Peirce & Associ- was a Region- resident of the John J. Kane ates, PA, Pittsburgh, Appellant. for Hazel, al Pittsburgh, Center Glen Lettrich, (Argued), R. Esq. Michael Pennsylvania. The Kane Center is a resi- Meyer, Buckler, Eck, Darragh, Bebenek & dential skilled care and rehabilita- PA, Pittsburgh, for Appellee. tion center for long- short-term and/or needs, operated by term Allegheny and is NYGAARD, Before: SMITH and County. Appellant that, The maintains Judges, STAFFORD,* Circuit District a result of Kane Center’s failure to Judge. care, proрer developed her mother decubi- ulcers, OPINION OF THE COURT tus became malnourished and even- tually developed sepsis, from which she NYGAARD, Judge. Circuit died. appeal asked to deter- mine an whether action will lie under Grammer sued Kane bringing Center § challenge U.S.C. the treatment claims under 42 wrong- 1983 for (or Appellant’s decedent received did not (Count I) (Count II). ful death and survival receive) at Appellee nursing home— alleged Grammer the Kane Center argues treatment Appellant violated the deprived Mrs. Daniels of rights by her civil Nursing Federal Home Reform Amend- breaching duty to quality ensure (FNRA), ments seq. 1396r et under the Budget Omnibus Reconciliation question We answer that in the affirmative (OBRA) and, Act of specifically, more will reverse and remand the cause to the FNHRA thereto. Thе Kane Center the District Court. dismiss, filed a motion arguing holding, In so we conclude that the lan- neither the OBRA nor the FNHRA pro- guage of FNHRA sufficiently rights- is vide a is enforceable creating and that Kane Center maintained that various “vague neither merely requirements statutes set forth amorphous” nor impose upon states a a nursing facility comply with to precatory obligation. mere See receive federal Medicaid funds. The Dis- Doe, 273, 287, Univ. 536 U.S. adopted trict Magistrate Judge’s (2002) (citing L.Ed.2d 309 Alex- finding recommendation Sandoval, no of action ander 532 U.S. (2001)). statutes, L.Ed.2d 517 dismissed the case Further, 12(b)(6). we pursuant conclude that provides to Fed.R.Civ.P. * Stafford, Jr., Florida, Honorable William H. Senior Court for the Northern District Judge District sitting designation. the United States District against nursing tions were available homes

II. noncompliance partic- with federal jurisdiction found Our First, the requirements. Secretary ipation jurisdiction gives us over 1291 which Human of Health and Services or the courts. of the district final decisions decertify themselves could the facili- states under Federal deciding motion When eligi- ty and terminate the home’s 12(b)(6), a district Rule Civil Procedure bility to receive Medicaid reimbursements. “accept allegations factual all court must Second, noncompliance if was not im- true, complaint light construe the resi- mediate and serious threat plaintiff, and deter favorable most safety, Secretary the dents’ health and whether, any reasonable read mine deny payment the for new states could may the complaint, plaintiff of the to up admissions for eleven months. Phillips County v. entitled to relief.” rarely These sanctions were invoked. As Cir.2008). (3d 224, Allegheny, 515 F.3d result, permitted programs many the too plenary. of such a dismissal Our review nursing to continue op- substandard homes (3d Lapina, v. 258 F.3d Leveto “deeply thus became erations. .2001). Cir Government, troubled that the Federal through program, the Medicaid continue[d] III. pay nursing providing poor facilities for Act, Security XIX of the Social Title quality elderly vulnerable and dis- §§ is pop- at 42 1396-1396v codified U.S.C. H.R.Rep. abled beneficiaries.” No. 100— This ularly as the “Medicaid Act.” known (1987), reprinted at 471 in 1987 “cooperative federal- Act established 2313-1, 2313-272. U.S.C.C.A.N. the under which federal program state FNHRA, Congress passed the funding to states for government furnishes OBRA, provide contained the providing medical assis- purpose oversight inspection nursing homes eligible persons.” low-income Sa- tance participate in Medicare Richman, ex rel. Sabree v. bree requirements for certifi- Cir.2004) programs.1 (3d Pa. Pharm. (citing (3d satisfying certain standards cation include Houstoun, v. 283 F.3d Ass’n “quality of Cir.2002)). course, in areas such as care” and are, of not re- States §§ rights.” 1395i- “resident but program, quired participate 3(g), 1396r(g). must accept funding that do federal those Act with comply with the Medicaid alleged claims un- complaint Grammer’s Secretary regulations promulgated (Count I) wrongful death der of Health and Human Services. (Count II). Grammer con- and survival failure to tends that Kane Center’s Congress amended the Medicare Before of care only provide sanc- the standards delineated Mеdicaid Acts in two legislation Some courts have referred to the com elements. federal comes its 1. This statutory provisions at herein as the legislative "OBRA” mon name now, e.g. usually Nursing Home Reform "Act." See Congress, Federal process. then and Koren, (2d 1995). huge budgetary Blue 72 F.3d 1075 Cir. completes measure of large courts refer to these collec bill. The Other work one and substantive Nursing tively Home Reform was as Federal accomplishing that function bill e.g. Family Grant ex rel. Budget "Amendments.” See Reconciliation entitled the Omnibus Gilbert, (5th 324 F.3d 383 Cir. separate Eldercare '87.” The Act of 1987 or "OBRA 2003). designation together “amend Nursing Act find Home Reform Federal leg a more accurate reflection of many separate were "rolled ments” other bills history. passage islаtive final of all into” one bill insure of) deprived days her mother ter than 14 after by the FNHRA the date admis- rights. her Grammer’s complaint civil fo- sion for each on individual admitted following provisions (ii) cuses 1, 1990; after October FNHRA: facility must examine each resident no (cid:127) A nursing home must care for its resi- than frequently every less once three

dents such and in such an manner and, appropriate, months revise the promote environment will mainte- resident’s assessment to assure the con- quality nance or enhancement assessment; (D) tinuing accuracy ‍​‌‌​​​‌‌‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​​‌‍of the resident, life of each results such assessment shall 1396r(b)(i)(A); in developing, reviewing be used and re- (cid:127) facility A services vising plan resident’s of care under to attain or

and activities maintain the (2); paragraph highest praсticable physical, mental and 1396r(b)(2)(C), (b)(3)(C)(i)(i) (ii), & psychosocial well-being each resident (b)(3)(D), (b)(4)(B); plan accordance with a written of care (cid:127) To extent plans needed to fulfill all (a) medical, which describes (2), paragraph care described in a nurs- psychosocial of needs the resident (or ing facility provide arrange must met; and how such needs will be of) (ii) provision medically ser- related 1396r(b)(2)(A); § U.S.C. or highest vices attain maintain the (cid:127) nursing facility A must conduct com- mental, practicable physical, and psycho- accurate, prehensive, repro- standardized (v) resident; well of being social each an each ducible assessment of resident’s ongoing program, directed qualified (i) capacity, functional which assessment profеssional, of designed activities capability per- describes the resident’s physical, meet interests and the men- daily form life functions and significant psychosocial tal and well-being of each (iv) impairments in capacity; functional resident; 1396r(b)(4)(A)(ii) § 42 U.S.C. including of prob- identification medical (v); & lems; 1396r(b)(3)(A); § 42 U.S.C. (cid:127) A nursing facility must maintain clinical (cid:127) To the extent fulfill plans needed to all residents, on all records which records (2), paragraph described nurs- (described plans include the of care (or ing facility provide arrange must (2)) paragraph and the residents’ assess- of) dietary services that assure (described (3)), paragraph ments daily the meals meet the nutritional and any preadmission well as the results special dietary needs each resident. screening сonducted under subsection (iv) Services described clause must be (e)(7) section; 42 U.S.C. provided by qualified persons accor- 1396r(b)(6)(C); § dance with each plan resident’s written (cid:127) care; § to be free from 1396r(b)(4)(A)(iv); physical or abuse, corporal punishment, mental in- (cid:127) facility A nursing services voluntary seclusion, any physical and activities to attain or maintain the imposed pur- chemical restraints for the highest practicable physical, mental and poses of discipline or convenience and psychosocial well-being of each resident to treat the resident’s medi- in accordance with a written plan of care (D) (C) symptoms, cal Psycho-pharmacologic periodically which reviewed and drugs may only each be administered revised after assessment under (3)—such of a paragraph physician only assessment must orders part (i) (but upon conducted promptly not la- a plan designed modify to eliminate or action, § must determine whether we drugs for which the symptoms if, annually confers an only applicable least federal statute prescribed re- consultant independent, right. Blessing, external individual U.S. drug appropriateness say, viewed That is to whether a 117 S.Ct. 1353. receiving such plan of each resident a federal particular federal statute creates 1396r(c)(Z)(A)(ii) & drugs; by an action right of the kind enforceable (c)(1)(D). requires that damages under we determine “whether or presented with

We are therefore rights upon a to confer individual intended provi these various whethеr question Unin, class of beneficiaries.” recip give the FNHRA2 sions of 285, 122 A plaintiff S.Ct. 2268. 536 U.S. Daniels whose like Melviteen ients establishing that a bears the burden can be remedied violation enforce noted, gives affirmative. statute rise federal As answer we Blessing, 520 able U.S. IV. 342, 346, 117 1353; City Rancho Verdes, Abrams, Palos California A. 113, 120, 161 L.Ed.2d 1983 is vehicle (2005). who, anyone liability against imposing law, person deprives under color of state B. se “rights, immunities privileges, Blessing, Court set and laws.” cured the Constitution forth three factors courts should use to Thiboutot, 1, 4-6, 100 448 Maine U.S. whether a a determine statute conferred 555(1980); 2502, L.Ed.2d see also S.Ct. 65 first, right upon federal an individual: Independent Liv Three Rivers Center for Congress courts should determine whether Authority City ing Housing Pitts statutory provision that intended (3d Cir.2004). 412, 421-22 burgh, 382 F.3d second, question plaintiff; benefits However, a must assert the viola plaintiff courts should decide whether right—not merely tion of a federal a viola “vague amorphous” is so that asserted a law—to seek redress. See tion of federal judicial com- its enforcement would strain 340, 1353; 117 Blessing, 520 U.S. at S.Ct. petence; lastly, courts should deter- Corp. Angeles, Transit v. Los Golden State unambiguously mine whether the statute 103, 106, 444, 493 110 107 U.S. S.Ct. (1989). obligation on imposes binding a a the states. plaintiff alleges If a L.Ed.2d 420 a of a federal as the 520 U.S. 117 S.Ct. 1353. violation basis rights directly implied private action and homes cannot Residents compliance private action not in the articu- with federal stan- rests sue enforce rights, availability do but in the a dards. The statutes at issue in this case lation of Richman, private remedy.” expressly of ac- Sabree ex rel. Sabree v. authorize causes 180, (citing Gonzaga par- n. 17 to enforce their 367 F.3d tion Univ., 285, 2268). dispute laws do Fur- ties do not this. Federal that 536 U.S. ther, given seeking explicitly private ac- "we take it as a that when authorize causes of Furthermore, a may implicitly. ac- under 1983 for violation of statu- do so redress tion tory plaintiff right, a need not establish that federal law under tions violations of remedy in intended to confer a addi- "presumptively available” acting right.” tion that at 183 n. 7. Section against individuals under color of state Bradshaw, 133, provides remedy. e.g., See 1983 itself law. Liradas v. Univ., (1994). Gonzaga As 536 U.S. at 122 S.Ct. 129 L.Ed.2d 93 indicated, "the we have distinction between if Supreme applied Blessing analysis, Court further instructed that We as re Univ., successfully Sabree, plaintiff by Gonzaga meets these re definеd three su quirements, pra. recently has We she established rebutta reviewed our Sabree presumption right. ble has such decision Newark Parents al. v. she Assoc. et Schl., However, (3d presumption could Newark Pub. 547 F.3d 199 Cir. be rebut 2008), briefly and will Congress “specifically ted if summarize Sabree foreclosed Univ., again here it remedy because is the foundation for 1983.” ‍​‌‌​​​‌‌‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​​‌‍285, 122 holding appeal. our in this 536 U.S. S.Ct. 2268. Sabree, In we were asked to decide Although analysis Blessing may ap- whether a of Medicaid stat-

pear straightforward, subsequent Supreme that required ute states to medical Court suggested decisions have that there services from an facility intermediate care fine application, distinctions in re- “with promptness” develop- reasonable quiring us to not only look at the mentally persons, disabled unambiguously text, but congressional also to intent. private rights conferred upon them. Univ., ap- firstWe determined the characteristics plied Blessing test, but noted that unambiguously of an right. there had been some confusion in that held that to a right, Gonzaga confer such interpretation. test’s Id. at 122 S.Ct. required a rights- Univ. statute to contain 2268. The Supreme Court noted that creating language clearly which imparts an Blessing had plaintiff come mean that a individual entitlement “unmistak- could enforce a statute under “so focus able benefitted class.” Sa- long plaintiff as the general falls within the bree, 367 (quoting Blessing, zone of interest the statute is intend- 520 U.S. at 117 S.Ct. 1353 and Gonza- protect, ed to something less than what 2268). ga 536 U.S. at required for a statute to create en- By way еxample, we noted in Sabree forceable directly from the statute itself Medicaid Act that a an private implied right of action.” plan “state medical ... assistance Supreme Id. The Court clarified the Bless- provide medical assistance ... ... all to analysis, ing stating reject that “we now [eligible] individuals” and that “such assis- the notion that permit anything our cases tance shall be furnished with reasonable short of an unambiguously conferred promptness eligible all to individuals.” Id. support to of cause action under 1983.” n. 189. We concluded that the Id. Supreme Further the outright Court statutory language requiring that a state “reject[ed] the notion that our implied provide” “must medical services with rea- right of action cases separate and dis- promptness sonable met all three factors tinct from our 1983 cases.” Id. The analysis of the Blessing plain- because the Supreme advised that when .Court deter- tiffs were the intended beneficiaries the mining whether of action implied is statute, rights plaintiffs the the sought to in particular statutory provision, we specific enforce were and enumerated and guided by should “the determination of the obligation imposed upon that the states whether a statute confers enforce- unambiguous binding. was and Id. at 189. Thus, able under 1983.” Gonzaga Blessing Univ. analysis by clarified the Although plaintiffs in the Sabree satis- adding the requirement any test, that Blessing such fied the we examined the right be unambiguously by Con- to statutes further that ensure the unam- gress. biguous rights asserted were conferred Whalen, (2d that Inc. v. 249 F.3d 136 plaintiffs, plain- and not thе ter Cir. the upon 2001), the “general Appeals specifically zone of Court fell within a merely tiffs recipients that noted were the that the statute intended interest §of noted that intended beneficiaries 1396r. In that Id. at 189-90. We protect.” case, homes the requirement plan that a sued New York statutory Health, alleging analogous Department was violations provide” “must services program the Medicaid and the FNHRA. person “no shall” determined Appeals The Court of reviewed 1396r Gonzaga Court in Univ. Supreme that it lan- and determined did not entitle nurs example rights-creating to be bring Instead, Additionally, that homes to we determined suit. guage. “mandatory provisions held that the statutory language Appeals was 1396r its accompanying than Id. at 190. Final- of U.S.C. and precatоry.” rather requiring nursing provisions regulations that the relevant facilities ly, we noted ... “provide specialized entitlements be made rehabilitative ser provided that such and, to attain or maintain the eligible highest “all individuals” vices available to such, “entity regu- physical, psychoso focus mental and practicable did protect- well-being the individuals cial of each resident” demon lated rather than clearly plain language therefore concluded that the from the ed.” Id. We strate clearly meaning text that it plain “intend[ed] was unambig- both putative plaintiff[s]”—the were delineated benefit nature, such that personal and providers uous health case. 249 Wilder, were indeed intended personal rights F.3d at 143-44. See also Instead, Congress.3 the Court Apрeals found were it, As we Court’s deci- see “obviously intended to benefit Medicaid interpreted by sion agree Id. at 144. beneficiaries.” opinions own Sabree Newark our reasoning. are obvi Assoc, require apply Parents us first ously to benefit intended Medicaid benefi Blessing test components the three residents, ciaries home not the then, whether stat- inquire into nursing homes themselves. question unambiguously confer utes right. substantive Moreover, unlike statutes Blessing, Univ. FNHRA

C. directly concerned with “whether the question any particular person no that the statu needs of have been There is Blessing, 343, at 117 tory provisions under which Grammer satisfied.” 520 U.S. 1353, Univ., in Blessing her 536 quoted raises claims meet the first S.Ct. 288, In recipient Blessing, and a 122 S.Ct. 2268. factor. As both Medicaid U.S. resident, example, Supreme pointed home Grammer’s mother the Court provided a beneficiary of 42 the statute at issue was an intended U.S.C. out Secretary the Appeals “yardstick § 1396r. The Court of for the measure performance” systemwide also held as much. ... of a state Second Circuit has 343, 117 Here, S.Ct. Nursing program. Rehabilitation & Cen- Id. Concourse 348, First, Fourth, Kidd, (4th Cir.2007); Appeal v. F.3d 356 3. The Courts of for the Doe 501 Hood, 581, have all held that the Fifth Ninth Circuits ex S.D. rel. Dickson F.3d Weeks, in Cir.2004); we (5th same Medicaid considered 436 F.3d Watson rights. Bryson v. Sabree confer individual 1152, (9th Cir.2006). 79, (1st Cir.2002); Shumway, 88-89 contrast, in the is can language” support FNHRA’ concern wheth- 1983 action. placed 283, a nursing 290,122 er each individual Id. at S.Ct. 2268. proper home receives care. Supreme explained The Court rights-creating language clearly im- Blessing The factor is second also entitlement, part an individual and have аn met here. Grammer The asserts on “unmistakable focus the benefitted “vague amorphous” so or their Blessing, strain class.” Id. judicial (quoting enforcement would re 520 U.S. at 343, 1353; clearly- sources. various Cannon v. Univ. of delineated at issue. The Chicago, repeated phrases use pro of the “must 560, (1979)). 60 L.Ed.2d The Su- vide,” “must maintain” and “must conduct” preme next the type Court demonstrated unduly amorphous vague are not such of rights-creating unambiguous- terms that judiciary that the cannot enforce statu ly rights by looking confer enforceable tory provisions. These provisions make implied right of action cases. clear that nursing homes must a 283-84, 122 exemplify S.Ct. 2268. To basic level service and care for residents rights-creating language, patients. and Medicaid language Court looked to the Title VI of Rights the Civil Act of stating that

Finally, language unambigu person “No in the United States shall ... ously binds the states the nursing subjected be any discrimination under homes as repeated indicated use of program or activity receiving Federal fi- “must.” This language mandatory is race, nancial assistance” on the easily nature satisfies third basis factor Blessing of the test. color or national IX origin, and Title Education Amendments of stating

D. shall, person “No the United States Sabree, As supra, we held subjected basis sex ... be to dis- meeting Blessing’s “zone of interest” fac any program crimination under education enough. tor is not In Gonzaga activity receiving Federal financial as- Supreme Court cautioned us be careful sistance.” Id. at 284 n. 122 S.Ct. 2268 to ensure that the statute at issue contаins (quoting (emphasis U.S.C. 2000d add- “rights-creating language” and to make 1681(a)). ed); phrased certain that language Comparing of the statute benefitted, persons terms not in at issue in Gonzaga Family Univ.—the of a general practice.” terms “policy or Rights Educational Privacy Act of 536 U.S. While (FERPA)—to ‍​‌‌​​​‌‌‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​​‌‍rights-creating lan- Blessing stands for the proposition that guage IX, used Title VI and Title rights, laws, violations of rise give found that provisions, FERPA’s actions, nevertheless, § 1983 stating “no funds shall made available” Univ. against court warned interpreting any agency “educational or institution” Blessing allowing plaintiffs “as to enforce a a prohibited “policy which practice,” has or § long plain statute 1983 so as the in were stark to contrast Title VI and Title tiff general falls within the zone interest 283,122 IX. Id. at 2268. S.Ct. protect.” the statute is intended to specific Univ. found that the 536 U.S. at Therefore, mandatory, individually nothing language of an focused short “un ambiguously right” Titles VI and IX confer [individual] individual demonstrated “rights-creating rights, programmatic, aggregate while the treatment, participate in care and to be language merely creat- to focus FERPA’s must, abuse, physical to states. from mental to law free applicable ed therefore, language compare grievances enjoy privacy and to and voice case, name- in Grammer’s at issue confidentiality. statutes U.S.C. VI, 1396r, seq. § Title et to ly, 1396r(c)(i)(A). U.S.C. Nursing § homes are re- IX, FERPA, wheth- to determine Title and to for in a manner quired care residents rights-creating used er life, quality provide services promoting remaining steps proceeding tо the before highest prac- to maintain the and activities analysis. Blessing in physical, psychosocial and ticable mental residents, well-being of and conduct com- Sabree, compared we In 1396a(a)(8), 1396a(a)(10), prehensive assessments of their functional §§ (2) 1396d(a)(15) VI, § 1396r(b)(Z), IX and to Title Title abilities. 42 U.S.C. & (3). FERPA, those Further, and found that sections specifically guar- the statute individually Act create did Medicaid nursing home to antees residents rights. Determining whether enforceable abuse, physical free from or mental be rights-creating language Congress used punishment, involuntary corporal seclu- 1396a(a)(8), we found that drafting when sion, any physical or chemical re- accept states that requiring imposed purposes of disci- straints funding services with provide to ICF/MR pline cоnvenience and Congress con- promptness, reasonable symptoms. their medical treat U.S.C. on ferred entitlements individuals specific 1396r(Z)(A)(ii). “in that could not be clearer.” 367 terms Sabree, they the provisions As were Univ., 536 (quoting Gonzaga at mandatory. at issue here are For exam- 2268). Specifically, by stating “a home ple, must 1396a(a)(8) pertinent part, provides, manner for its residents such a assistance must plan State medical “[a] promote an environment as will main- such wishing all provide ... individuals quality or enhancement of the tenance make for medical assistance application resident,” mandatory na- life of each opportunity have plan under the shall apparent. ture of the so, do and that such assistance shall 1396r(b)(i added). )(A) (emphasis promptness reasonable furnished with provision of FNHRA provides Another rele- eligible Particularly all individuals.” facility that “a must ser- rights-creating vant the existence and activities to attain or maintain vices terms in was our determination Sabree highest practicable physical, mental that the terms well-being of resi- psychosocial each “mandatory rather than issue were 1396r(b)(2)(A) (empha- dent.” precatory,” they had an “individual focus” added). provisions, These as well as sis individuals,” “all and even eligible on brought the others under which Grammer though compli- inform the state of its they claims, strikingly similar those terms not focus requirements, ance do Sabree, we found the Sabree. “entity regulated rather than the “a plan of medical assistance phrase state protected.” individuals provide,” rights-creating. to be See replete rights- The FNHRA are Sabree, 367 F.3d at 190. creating language. The con- amendments Additionally, the FNHRA use the word upon fer residents of such facilities Thus, throughout. provi- “residents” personal attending to choose their clearly “phrased in of the informed and are terms physicians, fully to be about sions Univ., provi- is to The various persons Gonzaga benefited.” See individual receive. (quoting at place of the at an sions FNHRA issue here Cannon, 441 U.S. at 692 n. 99 S.Ct. “unmistakable focus on the benefitted 1946). Moreover, no uses recipients who are resi- class”—Medicaid In- simply passing. word “resident” participating nursing dents stead, FNHRA in such are constructed Univ., Gonzaga homes. See U.S. at way these as to stress that “residents” 284,122 S.Ct. 2268. exрlicitly rights, have identified such legislative history The of the enactment to from or physical “the be free of the FNHRA is compelling likewise abuse, punishment, mental invol- corporal determining Congressional when intent to seclusion, untary any or physical Rolland, a right create of action. In pur- imposed chemical restraints for the Appeals the Court of for the poses discipline not or convenience and First Circuit examined the legislative his- required to treat the resident’s medical tory of the it length, FNHRA and bears 1396r(c)(i)(A) symptoms.” repeating here: added). (emphasis statutory provi- These words, are, NHRA, sions in other with passed “concerned In any particular per- ‘whether the needs of part Budget of the Omnibus Reconcilia- ” satisfied,’ son solely havе been not Act, response appar- tion as a th[e] aggregate policy prac- institutional ently problem widespread mentally [of tice. (quoting Id. at S.Ct. 2268 ill and mentally retarded individuals be- 1353). Blessing, 520 U.S. at placed ing nursing that homes were provi- necessary are concerned unable to and ap- sions upon by Appellant relied propriate services and treatments]. The phrased responsibilities in terms of im- report Representa- from the House of posed on the state nursing or the home. began: tives plain The purpose of these is to mentally “Substantial numbers of re- protect rights See afforded individuals. mentally tarded and ill residents are e.g., Housing Johnson Auth. Jeffer- inappropriately placed, at Medicaid ex- Parish, (5th 356, 360, son 442 F.3d pеnse, nursing [skilled facilities] Cir.2006) (finding right action low- These res- [intermediate facilities]. though income families even the provision often idents do receive active payments made they treatment or services that need. A opposed landlords being to the made Accounting recent [Government Office] statute, intended low- beneficiaries mentally review of retarded residents in families). Further, income Connecticut, Massa- [these facilities] relied, upon by Appellant chusetts, and Rhode Island concluded distinguishable from FERPA provision active treatment needs these steps found be “two generally individuals were not being removed from the interests of individual identified met.” parents.” students attempted NHRA The to ensure that 536 U.S. at placed nursing actually those homes FERPA provision issue in needed care and that once resid- Univ. policies practices concerned home, in a individuals would must be in place funding. obtain federal case, receive the other kinds of treatment the provisions under review end, directly they needed. impact they the individual in that Towards that determine the level of care and service an requirements NHRA established mentally language did Congress rights-creating of use

nursing homes in their care residents, 42 mentally unambiguously confer individ- ill] sufficient [and retarded 1396r(b); specific § instituted ually rights. enforceable residents, id. enumerated E. 1396r(c); and states mentally and services to screen We one final in our step have residents, mentally id. [and ill] retarded analysis. Supreme Court instructs 1396r(e). only text of that we to examine issue, Rolland, at but structure H.R.Rep. the statutе also its (quoting at 46 sufficiently it 100-391, satisfy in ourselves that pt. reprinted at No. 2313-279).4 Univ., rights-creating. In conclud- See 1987 U.S.C.C.A.N. 2268; private right at also Sa that 1396r created U.S. see bree, action, Appeals the Court of in Rolland 367 F.3d at 191. As we did in Sa bree, look beyond provisions that identi found we change and Appellant fied instead largely in speaks NHRA terms [t]he focus to benefitted, our the structural elements intended to be persons scenery Title XIX as a whole. The has not The statute nursing home residents.... changed opinion since our in Sabree. We to be laundry list contains recognize that within the Medic and commands cer- afforded residents speak “agreement activities aid Act in terms tain state and home receive Congress particular to ensure that residents state.” order between short, Sabree, after necessary services. provi 367 F.3d 191. Other See pro- 1396(c) it clearly identifying sions, those seeks em example, tect, them goes the statute endow Secretary Hu power Housing “rights- particular rights, utilizing with suspend payments man Services to creating” language. “comply substantially” if it state fails to pro These requirements. with title’s Rolland, 318 F.3d at 53. Sabree, they gave pause us visions Sabree, here as we we hold Just held today. to cause us some reticence continue by the specific rights Sabree, 191; F.3d at Newark Par See Indeed, the could not be clearer. FNHRA Ass’n., at 211-12. Sabree ents 547 F.3d here be even language may rights-creating counsels, however, we consider language than at issue stronger rights-creating the existence of expliсitly included Sabree in other relevant “rights” expec- identifying word when Sabree, We Title XIX. 367 F.3d at 192. home and entitlements of tations provi 1396r(c)(i)(A). found that the existence of other See U.S.C. residents. (Medicaid’s appropriations and en sions next to Viewing the terms of the FNHRA provisions, for example) forcement could VI, IX, FERPA, Title Medicaid’s Title lan rights-creating “neutralize” the provisions, promptness reasonable provi- found in the guage specific hold that was the lens we determining Congressional intent. recognize cau- that the statute Wilder, 516-17, See, e.g., specific 496 U.S. 110 S.Ct. that we consider statu- tioned should 2510; Rabin, (“CUhe in- opposed to as a 362 F.3d 196-97 tory provisions a statute terpretation given be con- determining to the statute must whether an enforceable whole congressional purpose for en- Blessing, sistent exists. it.”) U.S., Nonetheless, Holloway acting (citing 526 U.S. often courts (1999)). 143 L.Ed.2d 1 legislative history the entire consider 532 1396r, Thus, drafting adopting

sions at created a and issue. Sabree whereby Appellant’s mother squarely test courts should balance the falls within the zone of interest strength specific language provisions these Hence, protect. meant to against we hold provisions statutory provisions which larger Grammer seeks structural elements of statute.5 satisfy to enforce 1983 both under Gon- language throughout used zaga Univ.’s insistence on rights-creating ‍​‌‌​​​‌‌‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​​‌‍explicitly unambiguously FNHRA is Congressional as evidence of in- rights-creating, despite countervailing Blessing’s tent and remaining factors. We larger elements of statute. The statu- will reverse the order of the District structure, tory therefore, not neutral- does proceed- remand the cause for further rights-creating ize the language contained ings. throughout the FNHRA. STAFFORD, Judge, District dissenting.

F. agree Because I cannot that the district Accordingly, provisions the various court granting erred in the defendant’s under FNHRA which Grammer sues dismiss, motion to I respectfully dis- do confer individual rights pre- that are sent. The district court determined—I be- sumptively through § enforceable 1983. lieve correctly—that Appellant may not The burden shifts to the Kane Center to home, Appellee, sue for viola- rebut the presumption of an enforceable tions of 42 1396r under U.S.C. Sabree, 1983. 367 F.3d at § 1983. 193. The Kane Center has not satisfied its here, argue

burden as it fails to that Con- (the “Act”), The Medicaid Act which gress precluded individual enforcement of statutory provisions contains the allegedly rights by the FNHRA in by Appellee, violated is Spending Clause any Moreover, way. independent our ex- legislation. Spending legislation Clause amination and assessment of Medicaid rarely upon funding confers beneficiaries Act congressional disclosed no evidence of bring private actions “before intent preclude enforcement of the thousands of federal- and state-court by provisions created the various judges” against funding recipients. Gon- this statute. This is so provi- because no zaga, 2268; U.S. 122 S.Ct. sion express contains to that terms effect Ass’n, Newark Parents 547 F.3d at and no comprehensive remedial scheme is (this foray circuit’s latest into the established at issue. See thicket). rights-creating-language The Su- 536 U.S. at 122 preme Court hаs been explicit: “[UJnless 2268; Blessing, U.S. 117 Congress voice,’ ‘speak[s] with a clear Sabree, S.Ct. 1353. As we held in “Title ‘unambiguous’ manifests an intent to con- XIX contains no explicitly pre- rights, fer funding provi- individual federal cluding individual actions.” F.3d at provide sions no private basis for enforce- §by ment Gonzaga, 1983.” 536 U.S. at 280, 122 2268 (quoting Pennhurst

V. Halderman, Hosp. State Sch. and sum, is clear enough Congress 1, 17, 694). it 67 L.Ed.2d 1396r, create intended to individual in In section not speak did By comparison, we determined that overall structure the No Child Left Behind Act, rights-creating language" "less-than. seq. found in et F.3d at Newark Parents Ass’n. was neutralized 211-12. eligible “unam- certain individuals. To receive “clear voice” or manifest awith Act, funds under the Medicaid federal pri- basis intent” biguous low-in- required states administer funding requirements of enforcement vate pursu- programs come medical assistance section 1983. under approved by “State the Sec- plans” ant to Gonzaga empha- in Supreme The Court retary of Health and Human Services. on the that focus that “[statutes sized requirements The Act sets forth detailed than the individu- regulated rather person plans. Among many other for state an implication no of create protected als things, provides the Act that State “[a] particular class rights confer on intent to pro- ... plan for medical assistance must Gonzaga, 536 U.S. persons.” of receiving any nursing facility ... that vide (internal quotations marks 122 S.Ct. plan satisfy all payments under such must omitted). In Par- Newark and citations (b) requirements of the subsections Ass’n, recognized likewise this court ents (d) through of section 1396r.” entity the “where focuses on that statute 1396a(a)(28)(A). the re- Section 1396r lists the to be regulated ... and benefit to be quirements nursing that facilities—as re- secondary, on individual is funding—must of re- cipients federal meet of the i.e., flows to as a result it individuals to the of its lating provision services to [recipient] regulation the States patients. in Importantly, Medicaid each has not created the Congress agencies, (b) the in subsections charac- individual entitlement that type of (b){l (e)(£)-(8) (d), )-(8), namely, subsections cre- unambiguous the intent to terize [sic] (d){l)-(4), Congress began by stating: Parents Newark personal rights.” ate In nursing facility “The must ...” each Ass’n, 213.6 547 F.3d at case, nursing the focus is what the Act, funds; the the federal Under Medicaid facility do in return for federal funding directs to states focus is the whom government the not on individuals to. mеdical assistance the benefit each flows.7 providing assist them Gonzaga, against nursing estate the home for tient's In FNHRA, finding that al- violations explained court’s "[a] Court that though the statute was enacted to benefit rights discerning personal whether role nothing legislative plaintiff, there was context ...-not exist in should suggest Congress purpose history that per- discerning its whether differ from role action). private right intended to create a implied right action in the sonal exist right implied con- In the of action context.” Ass'n, Newark com- In Parents this court text, consistently that federal have held courts Left pared language used in the No Child implied private right no of action exists (''NCLBA”) (the Act Behind statute See, OBRA, Act, FNHRA. Newark) language in the two with the used Dicker, e.g., Fed.Appx. v. 54-55 Prince exemplars rights-creating language cited discussion, Cir.2002) (2d (holding, with no (Title Rights VI of the Civil pri- 1396r did not confer that IX Act of 1964 and Title of the Education enforced vate of action could be 1972), stating follows: Amendments of home); private nursing Brogdon against [Tjhe in the relevant terms used Corp., F.Supp.2d Nat’l Healthcare materially distin- of the NCLBA ... (N.D.Ga.2000) (finding that Con- 1330-32 guishable in Titles from found nursing gress did not intend authorize VI and IX. command used in those against file home residents to suit person ... ... sub- statutes—"No shall 1396r stan- facilities to enforce section jected its one to discrimination”—makes participation the Medic- "person.” dards only subject a In the and NCLBA, County, program); Sparr pri- v. Berks subjects: aid are two there 18, 2002) (E.D.Pa. July mary subject always WL 1608243 *2-3 the State par- pa- agency,” "the (dismissing brought "local educational while action executor Gonzaga, Gary Muffley, Regional Court noted W. Director Region ... “more recent decisions have the Ninth La- National Board, infer rejected attempts bor enforceable Relations for and on be- of; from Clause half Spending statutes.” National Labor Relations Board, Petitioners-Appellees, 2268. Whatever Sa- 1396a, may say as to I do not bree section intended to agree confer Massey Energy Company, and its upon home residents subsidiary, Respondent- invoke section 1983 to sue individual nurs- Appellant, alleged homes for violations of the non- monetary requirements service set forth in

section 1396r. court properly The district Spartan Mining Company, d/b/a case, dismissed the and we should affirm. Company, Coаl Mammoth

Respondent. America, United Mine Workers of Supporting Appellees. Amicus Gary Regional Muffley, W. Director Region Ninth La- National Board, bor Relations for and be- of; half National Labor Relations Board, Petitioners-Appellants, Gary MUFFLEY, Regional W. Director Region Ninth of the National Spartan Mining Company, Mam- d/b/a Board, Labor Relations for and on Company; Massey Energy moth Coal of; behalf NATIONAL LABOR RE- Company, subsidiary, Respon- and its BOARD, Petitioners-Appel- LATIONS dents-Appellees. lees, America, United Mine Workers of Supporting Amicus Appellants. COMPANY, SPARTAN MINING d/b/a Company, Mammoth Coal 08-1973, 08-2067, Nos. 08-2201. Respondent-Appellant,

United Court Appeals, States Fourth Circuit. Argued: May Massey Energy Company, and its July 1, Decided: subsidiary, Respondent. America, Mine

United Workers of Supporting Appellees.

Amicus Ass’n, ents of each secondary student” are the Newark Parents 547 F.3d at 210. subject—they benefit from the but only as a regulation ‍​‌‌​​​‌‌‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​​‌‍imposed upon result of the State and its actors.

Case Details

Case Name: Grammer v. John J. Kane Regional Centers-Glen Hazel

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 30, 2009

Citation: 570 F.3d 520

Docket Number: 07-2358

Court Abbreviation: 3rd Cir.