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The Takeaway

The Supreme Court’s ruling in Taveski and the CMS’ final rule on minimum staffing requirements for long-term care facilities have expanded private parties’ rights to sue long-term care facilities.

Introduction

In the past, the Centers for Medicare and Medicaid Services (CMS) issued fines or denied Medicare or Medicaid funding to long-term care facilities who weren’t in compliance with federal statutes. However, these facilities were not subject to federal suits by private parties. That legal landscape has now changed. The Supreme Court’s decision in Health and Hospital Corporation of Marion County v. Ivanka Talevski[1] lays out the framework for additional federal claims by private parties. In addition, CMS’ recently adopted new federal minimum staffing requirements add another potential claim that can be brought in private-party suits.

History of Regulation

In 1987, Congress created the Federal Nursing Home Reform Act (FNHRA), a federal law containing a set of provisions that nursing homes must follow if they want federal funds from Medicare and Medicaid. The FNHRA establishes standards of care intended to protect residents. Under it, long-term care facilities are required to maintain adequate staffing, ensure proper nutrition, and supervise medication, hygiene, and nutrition. To ensure facilities are complying with the Act, states are responsible for inspecting and certifying these facilities. Historically, the FNHRA was enforced by the issuance of fines and license probation or revocation, changes in facility management, and/or the denial of Medicare and Medicaid funding.

Supreme Court’s Decision on Residents’ Private Right of Action

In June 2023, the Supreme Court’s decision in Health and Hospital Corporation of Marion County v. Ivanka Talevski,[2] held that the rights set out in the FNHRA could be enforced under 42 U.S.C. § 1983 as a private right of action.

Due to dementia, Plaintiff, Gorgi Talevski, was a resident of Valparaiso Care and Rehabilitation (VCR). As his condition worsened, VCR began chemically restraining Talevski with six psychotropic medications.[3] Additionally, three times VCR transferred Talevski to a psychiatric hospital 90 minutes away without notifying him or his family.[4] Talevski argued that these actions violated the rights guaranteed to him under the FNHRA.

The Court applied its § 1983 precedent to the two FNHRA provisions at issue and found that both provisions directly concern a resident’s rights and use “rights-creating language,” making them presumptively enforceable under § 1983.[5] Finally, the Court noted the FNHRA did not expressly forbid a § 1983 action. Based on this analysis, the Court held Talevski’s § 1983 suit could proceed.[6]

New Federal Minimum Staffing Requirements

In April 2024, the CMS adopted new federal minimum staffing requirements for long-term care facilities. The Final Rule was published in May 2024 but will not take effect until June 21, 2024.[7]

The CMS Final Rule states that nursing homes participating in Medicare and Medicaid must provide residents with a minimum of 3.48 hours of nursing care per day. The new staffing standard includes at least 0.55 hours of care from a registered nurse per resident per day and 2.45 hours of care from a nurse aide per resident per day. These new staffing standards exceed the minimum staffing requirements previously existing in all 50 states.[8] Additionally, nursing homes in the federal programs will need to have a registered nurse on site at all times to provide skilled nursing care to prevent patient safety events.[9] At current staffing levels, only an estimated 19% of current facilities would meet the minimum hours of nursing care per day under full implementation of the final rule.[10]

Non-rural/urban long-term care facilities must fully comply with the new Final Rule within three years from the publication date of the Final Rule. Rural facilities must comply within five years.[11]

The CEO of the nursing home industry’s leading association, the American Health Care Association, responded to the passage of the Final Rule by saying that while the Final Rule “may be well intentioned, the federal staffing mandate is an unreasonable standard that only threatens to shut down more nursing homes, displace hundreds of thousands of residents, and restrict seniors' access to care.”[12]

Future Litigation

Although the Talevski decision was limited in scope, there’s no doubt it creates a new path for liability litigation in long-term care. Claims brought under § 1983 can result in an award of damages and attorney’s fees to the plaintiff that weren’t previously available. Given these incentives, plaintiffs’ attorneys likely will be looking into a facility’s regulatory violations to determine if they can add these federal claims to their complaints.

[1] 143 S. Ct. 1444 (2023).

[2] Id.

[3] Talevski, 143 S. Ct. at 1451.

[4] Id.

[5] Id. at 1455.

[6] Id. at 1461.

[7] Federal Register at https://www.federalregister.gov/public-inspection/2024-08273/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid;

[8] Final Rule regulation scheduled to be published on 5/10/2024 at https://public-inspection.federalregister.gov/2024-08273.pdf (“Pending Regulation”).

[9] CMS Newsroom (CMS 3442-F); Pending Regulation.

[10] https://www.kff.org/policy-watch/nursing-facilities-staffing-levels-standards-final-rule/

[11] Id.

[12]  Nursing Homes React to Staffing Mandate Final Rule (ahcancal.org)