On November 8, the U.S. Supreme Court will hear oral argument in Health and Hospital Corporation of Marion County v. Talevski,[1] a nursing home case that has troubling implications for whether beneficiaries of federal programs can continue, as they have for more than 40 years, to privately enforce federal laws under 42 U.S.C. §1983 – so-called “Spending Clause” cases. The Center for Medicare Advocacy is an amicus party in a brief filed by AARP[2] and Center attorney Toby S. Edelman filed a brief on the history of the 1987 Nursing Home Reform Law.[3]
In July 2021, a unanimous panel of the Seventh Circuit Court of Appeals held that nursing home residents in publicly-owned facilities have a private right of action to enforce residents’ rights identified in the 1987 Nursing Home Reform Law.[4] The Seventh Circuit decision is significant in recognizing a private right of action under the Reform Law. However, the decision is limited in its application because most nursing facilities are privately-owned and operated and therefore not subject to litigation under §1983.
The National Health Law Program prepared a Summary of the 25 amicus brief filed in support of Talevski, including briefs by legal history professors, health care providers, legal scholars, former HHS officials, and Members of Congress.[5]
October 27, 2022 – T. Edelman
[1] No. 21-806
[2] https://medicareadvocacy.org/wp-content/uploads/2022/10/Talevski-AARP-Scotus-Amicus-Brief-00571666xC6348-00572615xC6348.pdf
[3] https://medicareadvocacy.org/wp-content/uploads/2022/10/Talevski-Edelman-Amicus-brief-09.2022-00572614xC6348.pdf
[4] Talevski v. Health and Hospital Corporation of Marion County, et al. No. 20-1664 (7th Cir. Jul. 27, 2021), 6 F.4th 713 (7th Cir. 2021), http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-27/C:20-1664:J:Wood:aut:T:fnOp:N:2739343:S:0, discussed in “Nursing Home Residents Have Private Right of Action to Enforce the Nursing Home Reform Law Against Publicly-Owned Facilities” (CMA Alert, Aug. 26, 2021), https://medicareadvocacy.org/snf-residents-can-take-action-against-publicly-owned-homes/
[5] Jane Perkins, Amanda Avery, and Erica Turret, “Summary of Amicus Briefs Supporting Ivanka Talevski in Health & Hospital Corporation of Marion County v. Talevski” (Sep. 28, 2022), https://healthlaw.org/resource/summary-of-amicus-briefs-supporting-ivanka-talevski-in-health-hospital-corporation-of-marion-county-v-talevski/