Third Circuit Recognizes Federal Civil Rights Action for Death Caused by Substandard Nursing Home Care
Filed under: Elderly, Fraud & Abuse, Health Law, Uncategorized
Viejos Comiendo Sopa, Francisco de Goya, 1819-1823
[Ed. note: Today's post comes from Danielle Y. Alvarez. She is a Seton Hall Law student and a graduate of NYU, where she majored in Political Science. Ms. Alvarez is a research assistant to Dean Kathleen M. Boozang, and a former legal assistant to the Augulius Law firm.]
State and federal legislatures won’t fix the health care system by themselves, which is why a recent Third Circuit decision is a welcome tool to fight substandard long-term residential care. A few enforcement officials have been aggressively creative in using false claims act theories to pursue providers of substandard health care (See here and here). In short, the government claims that the submission of a bill to Medicare for services that were so bad they were the equivalent of no care at all is a false claim for which the government should be reimbursed and recover penalties. And now the Third Circuit has recognized that the provision of such substandard care violates an individual’s civil rights.
In Grammer v. Kane, a nursing home resident’s child sued the nursing home, operated by Allegheny County in Pittsburgh, Pennsylvania, alleging the home’s failure to provide adequate care caused her mother to develop ulcers, become malnourished and develop sepsis, from which she died. Plaintiff invoked 42 U.S.C. §1983 to argue that the nursing home had violated decedent’s civil rights by breaching a duty to provide the standards of care delineated by the Federal Nursing Home Reform Amendments (FNRA), contained in the Omnibus Budget Reconciliation Act of 1987 (OBRA). The district court granted the nursing home’s motion to dismiss, finding that FNRA merely sets forth requirements for nursing homes to comply with but does not grant the deceased rights that are enforceable under §1983. The United States Court of Appeals for the Third Circuit reversed and remanded, concluding that FNRA grants Medicaid recipients like the deceased rights whose violation can be remedied under §1983.
Congress passed FNRA in 1987 to address the substandard conditions in nursing homes that participated in the Medicare and Medicaid programs. FNRA sets forth various quality and residents’ rights standards to which the nursing homes must adhere in order to be paid by the federal government. And yet, as everyone knows, the problems persist. And so it should be a welcome outcome that the Third Circuit held that FNRA unambiguously confers federal rights upon Medicaid recipients in nursing homes, which gives rise to an action under §1983 which imposes liability on every person who, under color of state law, deprives another of “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. §1983 (2009).
To determine that FNRA affords protection under §1983, the court applied a three factor test set forth by the Supreme Court in Blessing: first, the court determined that Congress intended FNRA to protect personal rights of Medicaid beneficiaries and nursing home residents rather than the nursing homes themselves; second, the court found that the rights asserted are not so “vague or amorphous” that their enforcement would strain judicial resources; third, the court concluded that the statutory language is sufficiently mandatory in nature with its repeated use of “must” such as “a nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.” See Blessing v. Freestone, 520 U.S. 329 (1997); 42 U.S.C. §1396r(b)(2)(A) (emphasis added). Furthermore, the court found Congressional intent to create a right of action through rights-creating language, legislative history, statutory structure and Congress’ failure to set forth a more comprehensive remedial scheme. Thus, the Third Circuit recognized individual rights conferred by FNRA that are presumably enforceable under §1983.
District Judge Stafford, sitting by designation, wrote a dissenting opinion finding that FNRA is Spending Clause legislation which does not confer upon funding beneficiaries individual rights to sue funding recipients. The dissent highlighted specific statutory language to conclude that FNRA focuses on what nursing homes must do in order to receive federal funds rather than focusing on the individuals who benefit from the federal funds. Absent unambiguous Congressional intent to the contrary, FNRA does not grant nursing home residents individual rights to sue nursing homes under §1983 for alleged violations of FNRA. As such, the dissent argued that the District Court properly granted Appellee’s motion to dismiss.
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In reading the information on the Grammer case, one is convinced that the circuit court has deciding firmly, the FNHRA is rights creating and that residents, patients can sue via 42 U.S.C. sec. 1983 for civil rights violations.
However, as a current victim of retaliation for exercising my 1st Amendment Rights, and thereafter violations of my 8th and 14th Amendment Rights. The district judge Sandra Townes of the Eastern District of New York, dismissed the complaint alleging that the Grammer and Joseph v. Hogan were about state run. And because the one I am suing is private non-profit, the court has no jurisdiction.
I submitted a Motion for Reconsideration under local Rule 6.3
However, what gets me is that although she approved the application for informa pauperis, but will not approve for any appealable issues. Treating me as an experienced member of the bar, rather than a Pro Se who is also a novice in law.
Though she gave no supporting statues, law, cites, which somehow make private run corporations that are bound by the FNHRA, some how exempt, I need to know if anyone out there has something that will strongly refute this or over rule it. She stated that although I met the other requisites for a 42 U.S.C. sec. 1983, I missed one — and that is that I failed to show whether they acted under “color of law”. Well, don’t know how she missed it but it was there. Her argument is that because they are a private entity they cannot meet the color or law requisite, However, in the motion for reconsideration that I sent her, I gave her exhibits 18 U.S.C. 242 specifically states that Nursing Home Proprietors and Security Guards are inclusive as it pertains to the definition.
My only problem now is, that if she remains adamant, then the appellate court will not be able to hear my argument, unless I get the Informa Pauperis application approved.
I’ve reviewed past cases on this very issue, and based on those cases — prior to the 1987 Grammer, it was not possible to sue these private entities under 42 U.S.C. sec. 1983. However, my understanding was that the FNHRA changed all that.
Anyone have something to add to this, please feel free, I’m looking all over.
Just thought the public might want to know that, I was unable to find anything binding or otherwise that says private run or non-profit nursing homes are exempt from federal suits. I am proceeding at the State Suppreme Court. My advice is, if you are in a hurry or don’t have the time and expense to try your case in federal court, or statute of limitations is about to expire, then go straight to state court. By the way, sorry about the errors in my last post, I failed to review it before sending it.
Still am interested to know if anyone knows whether it’s true that Federal Court has no jurisdiction over private non-profits nursing homes ?
For those of you who have a relative — whether an elderly or disable person, in a Nursing Home, you may want to know that because of the use of nanny or mini cams, healthcare workers have resorted to using other tactics that will not show physical wounds on the patients. The new weapon in their arsenal is the use of toxic chemicals. By spraying these chemicals into the room on a daily basis, the chronic results are cardiac arrest and/or organ failure. And because the patient’s fragile medical state, no one suspects any wrong doing and thus will not ask for an autopsy. In essence, they will be able to get away with murder. I advise you not to leave any stone unturned, and when your love one tells you they are spraying chemicals into the room all day long, take the appropriate steps to have them tested. The Nursing Home Reform Act or OBRA, provided patients with many rights, but unfortunately came short in making it mandatory to have video surveillance to cover the corridors.Perhaps one day that hole will be covered and in doing so, be able to add further protection to the patients.