Besides government enforcement mechanisms, including surveys, sanctions, corrections, and complete exclusion from Medicaid funding, based on the new case of Health and Hospital Corporation of Marion County, Indiana, et al. v. Talevsk, decided by the US Supreme not just the government, but now private litigants may bring civil claims against skilled nursing facilities (“SNF”) to recover damages for violations of provisions of the Federal Nursing Home Reform Act (“FNHRA”).  Talevsk dealt with SNF’s obligations to meet Medicaid funding standards to ensure their residents’ health, safety, and dignity.  The costs can be great.  So, SNFs should double down on their monitoring and compliance efforts.

Under FNHRA, SNF residents can now sue for (1) the right to be free from unnecessary chemical restraints; and (2) the right to be discharged or transferred only when certain preconditions are met.  In Talvesk, a resident sued a SNF for civil rights violations under a federal statute (42 U.S.C. §1983) that provides private litigants the right to sue certain entities for civil rights violations.  Talevski claimed violations of FNHRA as the SNF used psychiatric medication on a resident without familial consent and subsequently also refused to readmit the resident.  The SNF argued that only the government could bring those claims, not a SNF resident.  The trial court agreed with the SNF, but the resident appealed.  The appellate court reversed and agreed with the resident.  The SNF appealed to the US Supreme Court and lost.

While the Talevski ruling is specific to these two FNHRA rights, the ruling has broad application to other FNHRA provisions.  For example, Section 1396r(c)(1)(A)(v)(I) of FNHRA says that a SNF “must protect and promote the rights of each resident, including … the right to reside and receive services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered.”

While government agencies have limited resources to inspect and enforce FNHRA provisions, plaintiff attorneys now have incentives to sue SNFs representing individual or classes of residents to prosecute claims against SNFs that could easily put a SNF out of business.  So, SNFs should review, update and double down on compliance activities to ensure there are no FNHRA violations.   Update educational programs, employee training and monitoring.  Encourage internal reporting.  Investigate and remedy any problems before there’s a lawsuit. Involve counsel early and often.

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