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3rd Circuit Recognizes New Cause of Action for Civil Rights Violations at Nursing Homes
The Legal Intelligencer
July 01, 2009
In a landmark opinion that recognizes a new category of lawsuits, the 3rd U.S. Circuit Court of Appeals has ruled that the Federal Nursing Home Reform Amendments give residents of county-run nursing homes the right to bring civil rights claims under Section 1983 to challenge the quality of their treatment.
"The language used throughout the FNHRA is explicitly and unambiguously rights-creating," U.S. Circuit Judge Richard L. Nygaard wrote in his 23-page opinion in Grammar v. John J. Kane Regional Centers.
"These provisions make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients," Nygaard wrote in an opinion joined by U.S. Circuit Judge D. Brooks Smith.
The ruling revives a suit brought by the administratrix of the estate of Melvinteen Daniels that says the 80-year-old mother of eight died in an Allegheny County, Pa.-operated nursing home as a result of neglect, malnourishment and bed sores that were so severe they led to a fatal case of sepsis.
But a dissenting judge complained that the court was stretching the law too far and ignoring the U.S. Supreme Court's explicit warnings not to recognize new causes of action unless it was clear and unambiguous that Congress intended to create such a right.
"I do not agree that Congress intended to confer upon nursing home residents the right to invoke Section 1983 to sue individual nursing homes for alleged violations of the non-monetary service requirements set forth in FNHRA," visiting Judge William H. Stafford Jr. of the Northern District of Florida wrote.
The ruling is a victory for attorneys D. Aaron Rihn and Robert F. Daley of Robert Peirce & Associates in Pittsburgh.
Nygaard said he recognized that the Supreme Court has set a high bar for showing that a statute creates a private cause of action, and that the FNHRA satisfy that strict test.
"The FNHRA are replete with rights-creating language. The amendments confer upon residents of such facilities the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances and to enjoy privacy and confidentiality," Nygaard wrote.
Under the law, Nygaard said, nursing homes "are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities."
Nygaard also found that the statute "specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms."
Congress also chose key phrases that Nygaard found to be clear indications that private lawsuits should be allowed.
"The repeated use of the phrases 'must provide,' 'must maintain' and 'must conduct' are not unduly vague or amorphous such that the judiciary cannot enforce the statutory provisions," Nygaard wrote.
As further evidence that Congress intended to create a private right of action, Nygaard noted that the FNHRA "use the word 'residents' throughout," and their provisions "are constructed in such a way as to stress that these 'residents' have explicitly identified rights, such as 'the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat the resident's medical symptoms.'"
Passed in 1987 as part of the Omnibus Budget Reconciliation Act, the FNHRA are amendments to the Medicare Act that were designed to address widespread concerns of poor quality care in state- and county-run nursing homes.
Prior to the FNHRA, Nygaard found, "only two sanctions were available against nursing homes for noncompliance with federal participation requirements. First, the secretary of Health and Human Services or the states themselves could decertify the facility and terminate the nursing home's eligibility to receive Medicaid reimbursements. Second, if noncompliance was not an immediate and serious threat to the residents' health and safety, the secretary or the states could deny payment for new admissions for up to 11 months."
But Nygaard noted that "these sanctions were rarely invoked."
Nygaard said he recognized that the Supreme Court has instructed that courts must look not only to the statutory language, but also must find a clear congressional intent before declaring that a statute creates a private right of action.
In the case of the FNHRA, Nygaard said: "[O]ur independent examination and assessment of the Medicaid Act disclosed no evidence of congressional intent to preclude enforcement of the rights created by the various provisions of this statute. This is so because no provision contains express terms to that effect and no comprehensive remedial scheme is established by the provisions at issue."
In dissent, Stafford noted that the Medicare Act is a piece of Spending Clause legislation and that such a law "rarely confers upon funding beneficiaries the right to bring private actions before thousands of federal- and state-court judges against funding recipients."
Unlike the majority, Stafford said he believed that "Congress did not speak with a 'clear voice' or manifest an 'unambiguous intent' to provide a basis for private enforcement of funding requirements under Section 1983."
The nursing home's lawyer, Michael R. Lettrich of Meyer Darragh Buckler Bebenek & Eck in Pittsburgh, could not be reached for comment.
