On June 20, 2023, the Supreme Court vacated and remanded two circuit court decisions finding private rights of action for violations of rights purportedly created by federal Medicaid law for further consideration in light of its recent decision in Health and Hospital Corp. of Marion County v. Talevski (Talevski) (June 8, 2023). In Talevski, the Supreme Court affirmed that private individuals may sue publicly owned nursing homes for violations of the Federal Nursing Home Reform Act of 1987 (FNHRA) pursuant to the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983 (Section 1983).
Both Saint Anthony Hospital v. Eagleson, 40 F.4th 492 (7th Cir. 2022) (Saint Anthony) and Planned Parenthood South Atlantic v. Kerr, 27 F.4th 945 (4th Cir. 2022) (Kerr) considered the same Supreme Court precedent considered in Talevski for determining whether a private right of action exists. In Talevski, however, the Supreme Court emphasized that the standards for finding such a private cause of action are “demanding.” Thus, by remanding Saint Anthony and Kerr for reconsideration in light of Talevski, the Supreme Court appears to be encouraging lower courts to apply more intense scrutiny to federal laws that purportedly create rights whose violation would support a private cause of action.
Talevski
As Health Headlines previously reported, the Supreme Court’s recent opinion in Talevski determined that a private plaintiff is entitled to pursue damages against a county-run nursing facility for the violation of FNHRA pursuant to the Section 1983. Section 1983 permits any person within the jurisdiction of the United States to sue any other person or entity acting “under color of” state law if that other person or entity has deprived them of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States.
In Talevski, the Supreme Court reiterated existing precedent: that laws like “FNHRA can create §1983-enforceable rights.” In particular, the Court reiterated that best test for determining whether an unambiguous private right of action exists for violations of a federal statute, is the test detailed in Gonzaga University v. Doe, 536 U. S. 273 (2002) (Gonzaga).
The Talevski Court reasoned that a statute could meet the requirements of the Gonzaga test if it was “phrased in terms of the persons benefited” and contains “rights-creating, individual-centric language with an unmistakable focus on the benefited class….” Statutes did not meet the test’s requirements when they “contain[ed] no rights-creating language” had “an aggregate, not individual, focus; and “serve[d] primarily to direct the [Federal Government’s] distribution of public funds.”
While the Talevski decision found that the statute in question created rights whose infringement could lead to a private right of action, the decision also reiterated:
“our precedent sets a demanding bar: Statutory provisions must unambiguously confer individual federal rights…. Although federal statutes have the potential to create §1983-enforceable rights, they do not do so as a matter of course. For Spending Clause legislation in particular, we have recognized that the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.”
Talevksi determined that the FNHRA statutes at issue were an “atypical case” in that the statutory language cited by the Plaintiff “unambiguously confe[rred]” individual rights, making those rights “presumptively enforceable” under §1983.” Specifically, FNHRA requires nursing facilities to “protect and promote” residents’ “right to be free from . . . any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms,” and to ensure they do not, “transfer or discharge [a] resident” unless certain enumerated preconditions are met.” Talevksi, citing §§1396r(c)(1)(A)(ii) and (2)(A)-(B).
Saint Anthony and Kerr
Both Saint Anthony and Kerr involve private rights of action for violations of rights purportedly created by federal Medicaid law. In Saint Anthony, the Seventh Circuit found that Medicaid law requiring that timely payment be made to providers created a private right of action for an Illinois Hospital against officials in the Illinois Department of Health and Family Services (HFS) for failing to ensure that the Hospital was being paid timely and accurately by Managed Care Organizations tasked with administering Medicaid reimbursements. In Kerr, the Fourth Circuit found a portion of Medicaid law requiring that Medicaid participants be able to receive care from any qualified provider created a private right of action against South Carolina state officials to prevent them from terminating or excluding Planned Parenthood from participating in the South Carolina Medicaid Program because they provided abortion services.
Saint Anthony and Kerr applied the Gonzaga test to federal health statutes. In doing so, the Seventh and Fourth Circuits found the relevant statutes supported a private right of action. However, both courts also analyzed the statutory language under a test created in Blessing v. Freestone, 520 U. S. 329, 347-48 (1997) (Blessing), which articulated three factors to determine whether a statute creates a rebuttable presumption of a private right enforceable under § 198, including: 1) Congress intended that the statute benefit the plaintiff, 2) the right protected by the statute is not so “vague and amorphous” that it cannot be enforced, and 3) the statute unambiguously places a binding obligation on the state.
Put together, the remand of Saint Anthony and Kerr emphasizes that there are significant hurdles to finding a private right of action and suggests that analysis applied by the Seventh and Fourth Circuits may be inconsistent with the Gonzaga test for determining whether a federal law creates a private cause of action under Section 1983.
The dockets for Saint Anthony and Kerr can be found here and here.
