A growing proportion of the U.S. population—“the gray wave”—has reached or will soon reach “older adult” status. Accordingly, an increasing number of adults will require placement in a long-term care facility, which residents and their families rely on to provide high-quality care. Unfortunately, long-term care quality has declined due to staffing levels and increased private equity ownership. COVID-19 further exacerbated the problem and caused an even sharper decline in care quality. Poor care quality is directly linked to nursing home resident harm, including neglect, unnecessary psychotropic drug administration, and other forms of abuse—sometimes resulting in death.
Consequently, in the wake of COVID-19 and the continuous decline in care quality, nursing home litigation involving negligence and wrongful death has been on the rise. Section 1396r of the Federal Nursing Home Reform Act outlines requirements for care provision in nursing homes. Some recent nursing home resident claims have argued that nursing homes’ failure to adhere to § 1396r violates the residents’ rights under the U.S. Constitution. However, pre-Talevski, the circuits were split in their interpretations of § 1396r’s language. Courts have interpreted the language of § 1396r as either benefitting the nursing home residents—thus granting them a private right of action—or benefitting the nursing home facilities—thus denying the residents a private right of action.
In May 2022, to address the circuit split, the U.S. Supreme Court granted certiorari to Health & Hospital Corp. of Marion County v. Talevski, a case involving an older adult nursing home resident who allegedly experienced neglect and abuse while under the care of his nursing home facility, eventually dying as a result. Talevski argued that the nursing home failed to adhere to § 1396r’s mandated requirements for nursing home care provision—a constitutional rights violation. The Supreme Court ruled 7–2 in favor of Talevski, finding that § 1396r created a private right of action for Talevski under 42 U.S.C. § 1986. This decision will have significant and potentially long-lasting consequences for the long-term care industry and its participants. However, the Court’s decision was not unanimous, and the dissent in Talevski suggests the ruling is not immune to future legal opposition.
This Note will discuss the legality behind Talevski and similar litigation. It will also discuss the impact of the Supreme Court’s recent decision on nursing home residents’ ability to hold their facilities accountable under § 1396r of the Federal Nursing Home Reform Act. This Note will then argue that the Court’s finding that § 1396r creates a private right of action is proper, as it provides nursing home residents some method for legal remedy and maintains nursing home accountability. Finally, this Note will provide alternative solutions to protect nursing home residents should the Supreme Court eventually reverse its decision.