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Gorgi Talevski by next friend Ivanka Talevski v Health and Hospital Corporation of Marion County, et. al.

No. 2:19 CV 13
United States Court of Appeals, Seventh Circuit
July 27, 2021

Keywords: dementia, 42 U.S. Code §1983, nursing facility, Federal Nursing Home Reform Act (FHNRA), civil rights, statute of limitations.

Summary and Facts of the Case

Ivanka Talevski, on behalf of her husband, Gorgi Talevski, sued Valparaiso Care and Rehabilitation, the Health and Hospital Corporation of Marion County, and American Senior Communities, LLC. Talevski claimed the facility violated 42 U.S.C. §1983 and the Federal Nursing Home Reform Act (FNHRA).

Ms. Talevski believed her husband’s medical provider, Valparaiso Care, violated the FNHRA when it gave him powerful and unnecessary drugs as a chemical restraint and discharged and transferred him to other facilities without the approval of his family or guardian and without his dentures. Valparaiso Care also refused to fulfill an order given by an administrative law judge to return Mr. Talevski to Valparaiso Care. Ivanka Talevski also claimed Valparaiso Care did not provide an environment that maintained or enhanced the quality of life of residents.

Mr. Talevski entered Valparaiso Care in January 2016. In August 2016, his wife noticed a rapid decline in his ability to think or care for himself. Talevski could no longer eat or speak English. His wife became suspicious when Valparaiso Care told her this was due to a natural advancement of dementia, a general term that means being unable to think, remember, make decisions, or care for oneself.  

She asked for a list of her husbands’ medications in September 2016. When she got the list, she noticed that it had ten medications. Six of the ten were drugs that affect behavior, mood, or thoughts. Ms. Talevski sued Valparaiso Care in September 2016. Before the end of 2016, Valparaiso Care tried to move Mr. Talevski to a facility over an hour away. Then, Valparaiso Care tried to discharge him, without his consent, to an all-male dementia facility more than 2 hours away. An administrative law judge stopped the move, but Mr. Talevski was never returned to Valparaiso Care.

In January 2019, Ms. Talevski filed a lawsuit with the claims listed above. The lower District Court dismissed the case because it believed that FNHRA does not provide a way for someone to sue for damages under 42 U.S.C. § 1983.

The case was appealed to the Seventh Circuit Court of Appeals that said the District Court was wrong. The court ruled that the questions to consider should be:  

1). Did Valparaiso Care violate Mr. Talevski’s right to be free from drugs to restrain him for purposes of discipline or staff convenience?  

2).  Was Mr. Talevski denied his rights to remain at Valparaiso Care and to be told when he would be transferred or discharged?

The Court of Appeals said it was wrong to dismiss the case.

Issues of the Case

  1. Could Ms. Talevski prove all three factors of the “Blessing” Test, as determined in an earlier case, (Blessing v. Freestone, 520 U.S. 329 (1997)), to bring a §1983 claim?
  2. Were Ms. Talevski’s claims within the time limits to file a suit?
  3. Did the Court’s recent decision in an earlier case, “Nasello v. Eagleson No. 19-3215 (Seventh Circuit 2020),” indicate the court did not want to find enforceable private rights in laws passed according to Congress’ Spending Clause Powers?

Arguments and Analysis

1. Valparaiso Care argued Ms. Talevski could not bring a §1983 claim because she could not prove all factors of the “Blessing” Test required to bring a claim under §1983.

Valparaiso Care claimed that Talevski could not bring a claim on behalf of her husband because her claims could not pass the three factors of the “Blessing” test identified in the earlier case, Blessing v. Freestone.

The first factor was that the protections offered by the FNHRA serve as rules for nursing facilities and doctors that receive federal funding, not protections for individual people living in nursing homes. The second factor was the rights protected by the law (FNHRA) were not clear and hard to enforce.

Valparaiso Care did not question the third factor, that the terms protecting someone’s rights are set,” because the law says “must” in the third factor.

Regarding the first factor, the Court of Appeals agreed with Ms. Talevski that Congress intended that the protections offered by FNHRA benefit the plaintiff. While some sections of the law address ways that nursing homes must take, section (c) specifically says “rights,” and clearly says what Congress had intended. The law says “[a] skilled nursing facility must protect and promote the rights of each resident, including each of the following rights,” meaning nursing home residents are specifically named as having these rights. Ms. Talevski argued that there was no question Congress intended nursing home residents to have protections found in the law, passing the first factor of the “Blessing” test.

Regarding the second factor, the Court of Appeals agreed with Ms. Talevski that the rights protected by the law were clear and would not prevent the court from having the ability to enforce them. The protected rights are clear in the law. Facilities cannot do what Valparaiso Care did, giving Mr. Talevski, a resident, drugs to restrain him for discipline or staff convenience, and transferring him against his will without good reason or proper notice. Ms. Talevski claimed there was no need of special knowledge to see that these rights had been violated. Valparaiso Care claimed that the words, “protect,” “promote,” “discipline,” and “convenience,” were not clear, but the Court of Appeals disagreed.

The Court of Appeals ruled that Ms. Talevski met all three factors of the “Blessing” test. However, Valparaiso Care then tried to deny that the law was enforceable. They said that FNHRA did not permit §1983 claims by allowing federal and state enforcement methods in addition to the personal ways that a suit might be filed beyond section 1983.

The Court of Appeals disagreed with this too, saying “regulatory surveys and any accompanying enforcement processes are designed only to ensure facilities’ compliance with FNHRA’s various standards,” so they are not intended as remedies for nursing-home residents whose rights are violated.

2. Valparaiso Care argued that both of Ms. Talevski’s claims were too late.

Valparaiso Care argued that Ms. Talevski brought both of her lawsuits too late, past the time allowed to file the lawsuits.

However, Valparaiso Care offered no proof of this. The Court of Appeals ruled claims under Section 1983 do not have built-in time limits, relying on time limits established for general personal injury cases. Valparaiso Care said that the claim drugs were used to restrain Mr. Talevski happened in September 2016 when his family received a list of medications that proved the use of the drugs.

Valparaiso Care also said that the claim might have happened as late as November 23, 2016, when Valparaiso Care began the transfer process.

Finally, Valparaiso Care said the claim could have happened in December 2016, the last time Mr. Talevski was at the facility and more than two years before the complaint was filed in 2019. Admittedly, the dates did occur more than two years before the filing of the complaint in January 2019. Ms. Talevski replied that the claims were not limited by time because time was paused due to Mr. Talevski’s legal disability.

The Court of Appeals ruled that, under Indiana law, Mr. Talevski had a disability (i.e., dementia) and believed the District Court must develop the record and rule accordingly.

3. Valparaiso Care argued that the Court’s decision in “Nasello v. Eagleson” showed the court was unwilling to find enforceable private rights in laws passed according to Congress’s Spending Clause Powers.

In a final effort to get around the “Blessing” test, Valparaiso Care claimed that the Court’s decision in “Nasello v. Eagleson” showed the court was unwilling to enforce private rights in laws passed because of Congress’ Spending Clause Powers. Valparaiso Care named many cases, one being a thirty-one-year-old case, “Wilder v. Virginia Hospital Association,” that the Court found to be out of date.

The Court of Appeals relied on a more recent and applicable 2015 case, “Armstrong v. Exceptional Child Center, Inc.” In this case, the decision was that the role of providers is different from the role of people who receive services. The Court of Appeals said it was important that the law at hand have the necessary “rights-creating language” for the recipients meaning the rights of people receiving services should be clearly stated and understandable to them. Therefore, the Court of Appeals rejected Valparaiso’s last-effort argument.

Rulings

The United States Seventh Circuit Court of Appeals held that Ms. Talevski met all three factors of the “Blessing” test and could bring a §1983 claim. The Court sent back to the lower court the issue of time limits. They also found that there were private citizen enforceable rights in the law and that Congress’ Spending Clause Powers did not prevent Ms. Talevski from bringing her claims.

Policy and Practice

While the FNHRA was passed to provide guidelines for nursing-homes and doctors that receive federal funding, the purpose of the FNHRA is to protect the residents of the nursing homes and courts must interpret FNHRA in this way. these are enforceable claims under 42 U.S. Code Section 1983.

Health and Hospital Corporation of Marion County, et.al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased (No. 21-806) has been appealed to the United States Supreme Court. The case is scheduled to be heard on Tuesday, November 8, 2022.

Links

Disclaimer

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.

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