Respondent.
`
`No. _________
`IN THE
`Supreme Court of the United States
`_______________
`HEALTH AND HOSPITAL CORPORATION OF MARION
`COUNTY, ET AL.,
`
`v.
`GORGI TALEVSKI, BY HIS NEXT FRIEND IVANKA TALEVSKI,
`
`_______________
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Seventh Circuit
`_______________
`PETITION FOR A WRIT OF CERTIORARI
`_______________
`LAWRENCE S. ROBBINS
` Counsel of Record
`ALAN E. UNTEREINER
`JOHN B. GOERLICH
`ANNA L. DEFFEBACH
`ROBBINS, RUSSELL, ENGLERT,
` ORSECK & UNTEREINER LLP
`2000 K Street, N.W.,
`Washington, D.C. 20006
`(202) 775-4500
`lrobbins@robbinsrussell.com
`
`Counsel for Petitioners
`
`
`
`
`
`Petitioners,
`
`
`
`
`
`
`
`No. _________
`IN THE
`Supreme Court of the United States
`_______________
`HEALTH AND HOSPITAL CORPORATION OF MARION
`COUNTY, ET AL.,
`
`v.
`GORGI TALEVSKI, BY HIS NEXT FRIEND IVANKA TALEVSKI,
`
`_______________
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Seventh Circuit
`_______________
`PETITION FOR A WRIT OF CERTIORARI
`_______________
`LAWRENCE S. ROBBINS
` Counsel of Record
`ALAN E. UNTEREINER
`JOHN B. GOERLICH
`ANNA L. DEFFEBACH
`ROBBINS, RUSSELL, ENGLERT,
` ORSECK & UNTEREINER LLP
`2000 K Street, N.W.,
`Washington, D.C. 20006
`(202) 775-4500
`lrobbins@robbinsrussell.com
`
`Counsel for Petitioners
`
`
`
`
`
`Petitioners,
`
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`Since the high-water mark in Wilder v. Virginia
`Hospital Association, 496 U.S. 498 (1990), this Court
`has consistently rebuffed efforts to find privately
`enforceable rights in Spending Clause statutes.
`Indeed, several Justices have suggested that the
`entire project of enforcing such rights under 42 U.S.C.
`§ 1983 is mistaken: Spending Clause statutes are
`“much in the nature of a contract,” Barnes v. Gorman,
`536 U.S. 181, 185-86 (2002) (internal quotation marks
`omitted), and when Section 1983 was enacted,
`contracts
`in
`general—and
`contracts with
`governmental entities in particular—did not give rise
`to claims by third-party beneficiaries.
`The Seventh Circuit’s decision below illustrates
`just how flawed this project is. Notwithstanding the
`Court’s instructions to the contrary, see Pennhurst
`State Sch. and Hosp. v. Halderman, 451 U.S. 1, 18
`(1981), and Gonzaga Univ. v. Doe, 536 U.S. 273, 289
`n.7 (2002), the court of appeals relied on the
`appearance of the word “right” several times in the
`Federal Nursing Home Amendments Act of 1987
`(“FNHRA”) to hold that patients may use Section 1983
`to
`second-guess
`garden-variety
`transfer and
`medication decisions—thereby
`federalizing much
`medical-malpractice
`litigation
`and
`nullifying
`important state medical-malpractice rules.
`This case presents the following questions:
`1. Whether, in light of compelling historical
`evidence to the contrary, the Court should reexamine
`its holding that Spending Clause legislation gives rise
`to privately enforceable rights under Section 1983.
`
`(i)
`
`
`
`
`ii
`2. Whether, assuming Spending Clause statutes
`ever give rise to private rights enforceable via Section
`1983, FNHRA’s transfer and medication rules do so.
`
`
`
`
`
`
`
`
`iii
`PARTIES TO THE PROCEEDING
`Petitioners, defendants-appellees below, are
`Health and Hospital Corporation of Marion County,
`Indiana (“HHC”), Valparaiso Care and Rehabilitation
`(“VCR”), and American Senior Communities LLC
`(“ASC”).
`Respondent is Gorgi Talevski, through his wife
`and next friend Ivanka Talevski, plaintiff-appellant
`below.
`CORPORATE DISCLOSURE STATEMENT
`HHC is a municipal corporation/subdivision of
`the state of Indiana. VCR is one of the names under
`which HHC does business.
`ASC
`is a privately-held nursing home
`management
`company.
` No publicly
`traded
`corporation owns 10% or more of ASC.
`RELATED PROCEEDINGS
`Pursuant to this Court’s Rule 14.1(b)(iii), the
`following proceedings are related to this case:
`United States District Court for the Northern District
`of Indiana:
`Talevski v. Health and Hospital Corp. of Marion
`Cnty., Ind., et al., No. 2:19-cv-0013-JTM-APR (Mar.
`26, 2020) (judgment)
`United States Court of Appeals for the Seventh
`Circuit:
`Talevski v. Health and Hospital Corp. of Marion
`Cnty., Ind., et al., No. 20-1664 (July 27, 2021)
`(judgment); (Aug. 25, 2021) (order denying petition for
`panel and en banc rehearing).
`
`
`
`
`
`
`iv
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ........................................ i
`PARTIES TO THE PROCEEDING .......................... iii
`CORPORATE DISCLOSURE STATEMENT .......... iii
`RELATED PROCEEDINGS ..................................... iii
`TABLE OF AUTHORITIES ....................................... vi
`OPINIONS AND RULINGS BELOW ........................ 1
`JURISDICTION .......................................................... 1
`STATUTORY PROVISIONS INVOLVED ................. 1
`STATEMENT .............................................................. 2
`A. Judicially Implied Private Rights of
`Action and Spending Clause Statutes ......... 3
`B. Statutory Background .................................. 4
`C. Factual Background ..................................... 5
`D. The Court of Appeals’ Decision .................... 7
`REASONS FOR GRANTING THE PETITION ......... 8
`I. REVIEW
`IS WARRANTED TO
`ESTABLISH THAT THIRD-PARTY
`BENEFICIARIES DO NOT HAVE
`PRIVATE RIGHTS OF ACTION TO
`ENFORCE SPENDING CLAUSE
`LEGISLATION ........................................... 10
`
`
`
`
`
`
`
`
`
`
`v
`
`TABLE OF CONTENTS—Continued
`
`Page
`II. IN WRONGLY HOLDING THAT
`FNHRA
`CONFERS
`RIGHTS
`PRIVATELY
`ENFORCEABLE
`UNDER SECTION
`1983, THE
`DECISION BELOW UNDERMINES
`STATES’ ABILITY TO PROVIDE
`SKILLED NURSING SERVICES ............. 22
`CONCLUSION .......................................................... 35
`APPENDIX A: Opinion of the United States Court of
`Appeals for the Seventh Circuit (July 27, 2021)...….1a
`APPENDIX B: Opinion and Order of the United
`States District Court for the Northern District of
`Indiana (Mar. 26, 2020)…………………………….…27a
`APPENDIX C: Order Denying Petition for Rehearing
`and Rehearing en banc (Aug. 25,
`2021)……………..37a
`APPENDIX D: Federal Nursing Home Reform
`Amendments Act, 42 U.S.C. § 1396r et seq.
`(Excerpt)…………………………………………………40a
`APPENDIX E: Complaint, Talevski v. The Health and
`Hospital Corporation of Marion County et al., Case
`No. 2:19-cv-0013 (Jan. 10, 2019) ………….…………74a
`APPENDIX F: Findings of Fact, Conclusions of Law,
`and Recommended Order, Administrative Law Judge
`for the Indiana State Department of Health (Feb. 28,
`2017)………………………………,,…………………….87a
`
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Alexander v. Sandoval,
`532 U.S. 275 (2001) ............................ 23, 24, 27, 28
`Anderson v. Ghaly,
`930 F. 3d 1066 (2019) ........................................... 29
`Armstrong v. Exceptional Child Ctr.,
`Inc., 575 U.S. 320 (2015) ............................ 4, 10, 14
`Astra USA, Inc. v. Santa Clara Cnty.,
`563 U.S. 110 (2011) .............................................. 15
`Baker v. Edwards,
`141 S. Ct. 550 (2020) ............................................ 18
`Barnes v. Gorman,
`536 U.S. 181 (2002) ........................................ 11, 12
`Bates v. Henneberry,
`211 P.3d 68 (Colo. App. 2009) .............................. 17
`Blessing v. Freestone,
`520 U.S. 329 (1997) ...................................... passim
`Cal. Ass’n of Rural Health Clinics v.
`Douglas,
`738 F.3d 1007 (9th Cir. 2013) .............................. 16
`Cannon v. Univ. of Chicago,
`441 U.S. 677 (1979) ........................................ 20, 22
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`DeCambre v. Brookline Hous. Auth.,
`826 F.3d 1 (1st Cir. 2016) .................................... 16
`Fitzgerald v. Barnstable Sch. Comm.,
`555 U.S. 246 (2009) .............................................. 28
`Gee v. Planned Parenthood of Gulf
`Coast, Inc.,
`139 S. Ct. 408 (2018) ...................................... 17, 18
`Gonzaga University v. Doe,
`536 U.S. 273 (2002) ...................................... passim
`Grammer v. John J. Kane Regional
`Centers-Glen Hazel,
`570 F.3d 520 (2009) .............................................. 29
`Hohn v. United States,
`524 U.S. 236 (1998) .............................................. 13
`J.I. Case Co. v. Borak,
`377 U.S. 426 (1964) ................................................ 3
`M.A.C. v. Betit,
`284 F. Supp. 2d 1298 (D. Utah 2003) .................. 17
`Madison Ctr., Inc. v. R.R.K.,
`853 N.E.2d 1286 (Ind. Ct. App. 2006) ................. 29
`Maine v. Thiboutot,
`448 U.S. 1 (1980) .................................................... 3
`McCready v. White,
`417 F.3d 700 (7th Cir. 2005) ................................ 16
`
`
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Mendez v. Brown,
`311 F. Supp. 2d 134 (D. Mass 2004) .................... 17
`Middlesex Cnty. Sewerage Auth. v. Nat’l
`Sea Clammers Ass’n,
`453 U.S. 1 (1981) .................................................. 29
`Midwest Foster Care and Adoption
`Ass’n v. Kincade,
`712 F.3d 1190 (8th Cir. 2013) .............................. 20
`N.Y. State Citizens’ Coal. for Children v.
`Poole,
`922 F.3d 69 (2d Cir. 2019) ................ 17, 19, 20, 21
`Nasello v. Eagleson,
`977 F.3d 599 (7th Cir. 2020) .......................... 16, 20
`Newport v. Fact Concerts, Inc.,
`453 U.S. 247 (1981) .............................................. 12
`NFIB v. Sebelius,
`567 U.S. 519 (2012) ........................................ 12, 19
`Pegram v. Herdrich,
`530 U.S. 211 (2000) .............................................. 30
`Pennhurst State Sch. and Hosp. v.
`Halderman,
`451 U.S. 1 (1981) .......................................... passim
`Pharm. Research & Mfrs. of Am. v.
`Walsh,
`538 U.S. 644 (2003) .......................................... 4, 14
`
`
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Planned Parenthood of Greater Texas
`Fam. Plan. & Preventative Health
`Servs., Inc. v. Kauffman,
`981 F.3d 347 (5th Cir. 2020) (en
`banc) ..................................................................... 19
`Planned Parenthood of Kansas v.
`Andersen,
`882 F.3d 1205 (10th Cir. 2018) ............................ 21
`Planned Parenthood S. Atl. v. Baker,
`941 F.3d 687 (4th Cir. 2019) .......................... 17, 19
`Rio Grande Cmty. Health Ctr., Inc. v.
`Rullan,
`397 F.3d 56 (1st Cir. 2015) .................................. 16
`Roll v. Howard,
`480 P.3d 192 (Kan. Ct. App. 2020) ...................... 17
`S. Dakota v. Dole,
`483 U.S. 203 (1987) .............................................. 19
`Sabree ex rel. Sabree v. Richman,
`367 F.3d 180 (3d Cir. 2004) ................................. 17
`Talevski v. Health & Hospital Corp. of
`Marion Cnty.,
`6 F.4th 713 (7th Cir. 2021) .................................. 32
`Wilder v. Virginia Hospital Association,
`496 U.S. 498 (1990) ...................................... passim
`
`
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Will v. Michigan Dep’t of State Police,
`491 U.S. 58 (1989) .......................................... 12, 20
`Wright v. Roanoke Redevelopment and
`Housing Authority,
`479 U.S. 419 (1987) ............................................ 3, 4
`
`Statutes and Regulation:
`5 U.S.C. § 702 ............................................................ 22
`12 V.S.A. § 5601(b) .................................................... 31
`20 U.S.C. § 1415(i)(3)(A) ..................................... 18, 21
`28 U.S.C. § 1254(1) ...................................................... 1
`29 U.S.C. § 794a(a) .............................................. 18, 22
`42 C.F.R. § 483.10(j) .................................................. 27
`42 U.S.C. § 1396r ......................................................... 2
`42 U.S.C. § 1396r(c)(1)(A)(ii) ................................. 5, 24
`42 U.S.C. § 1396r(c)(2)(A)(i) ................................ 25, 35
`42 U.S.C. § 1396r(g)(2)(A) ......................................... 26
`42 U.S.C. § 1396r(h)(8) .............................................. 28
`42 U.S.C. § 1983 ................................................ passim
`42 U.S.C. § 1988(b) .................................................... 11
`
`
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`42 U.S.C. § 12133 ...................................................... 22
`42 U.S.C. § 18116(a) .................................................. 22
`Cal. Civ. Code § 3333.2(b) ......................................... 30
`Colo. Rev. Stat. § 13-64-302(1)(b) ............................. 30
`Del. Code Ann. tit. 18, § 6865 ................................... 31
`Fla. Stat. § 768.28(5)(a) ............................................. 31
`Idaho Code § 6-926(1) ................................................ 31
`Indiana Code § 34-13-3-4(a) ...................................... 31
`Indiana Code § 34-18-14-3 .................................. 10, 30
`Indiana Code § 34-18-18-1 .................................. 10, 31
`La. Rev. Stat. 40:1231.2(B)(2) ................................... 30
`Mass. Gen. Laws ch. 231, § 60H ............................... 30
`Mo. Rev. Stat. § 538.210(2)(1) ................................... 30
`Nev. Rev. Stat. § 7.095 .............................................. 31
`Tenn. Code Ann. § 29-26-120 .................................... 31
`Tex. Civ. Prac. & Rem. Code § 74.301(a) .................. 30
`
`
`
`
`
`xii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Other Authorities
`American Health Care Association,
`Protect Access to Long Term Care for
`Vulnerable Residents,
`https://perma.cc/Q57A-6VY4 ............................... 34
`David C. Grabowski, Ph.D. & Vincent
`Mor, Ph.D., Nursing Home Care in
`Crisis in the Wake of COVID-19,
`JAMA Network (May 22, 2020),
`https://perma.cc/7RUW-MKMC ........................... 33
`Eljay, LLC & Hansen Hunter & Co.,
`PC, A Report on Shortfalls in
`Medicaid Funding for Nursing
`Center Care (Apr. 2016),
`https://perma.cc/FH2R-7WN3 ............................. 33
`Hansen Hunter & Co., PC, A Report on
`Shortfalls in Medicaid Funding for
`Nursing Center Care (Nov. 2018),
`https://perma.cc/42DT-3YZU ............................... 33
`A. Gruneir and V. Mor, Nursing Home
`Safety: Current Issues and Barriers
`to Improvement, 29 Annual Review
`of Public Health (2008) ........................................ 32
`Amy O’Connor, Nursing Home
`Insurance Market In Need of Care,
`Insurance Journal (May 4, 2020),
`https://perma.cc/4RF7-FTTD ............................... 34
`
`
`
`
`
`xiii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Restatement (Second) of Contracts §
`313 (1981) ............................................................. 15
`J. Troyer and H. Thompson, Jr., The
`Impact of Litigation on Nursing
`Home Quality, 29 J. Health Politics,
`Policy & Law 11-42 (2004) ................................... 32
`Anthony Jon Waters, The Property in
`the Promise: A Study of the Third
`Party Beneficiary Rule, 98 Harv. L.
`Rev. 1109 (1985) ................................................... 13
`H. White, Promoting Quality Care in the
`Nursing Home, 13 Annals of Long
`Term Care (Apr. 2005) ......................................... 33
`13 Williston on Contracts, § 37:35 (4th
`ed.) ........................................................................ 15
`M. Wortham, The Role of Litigation in
`the Quest for Better Care: A Critique
`of “Litigating the Nursing Home
`Case,” 12 No. 1 Andrews Nursing
`Home Litig. Rep. 1 (July 2009) ............................ 32
`
`
`
`
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`Petitioners Health and Hospital Corporation of
`Marion County, Indiana (“HHC”), Valparaiso Care
`and Rehabilitation (“VCR”), and American Senior
`Communities, LLC (“ASC”) respectfully petition for a
`writ of certiorari to review the judgment of the United
`States Court of Appeals for the Seventh Circuit in this
`case.
`
`OPINIONS AND RULINGS BELOW
`The opinion of the Seventh Circuit is reported at 6
`F.4th 713. App., infra, 2a-26a. The order of the
`Seventh Circuit denying rehearing is not reported.
`App., infra, 38a-39a.
`JURISDICTION
`The Seventh Circuit entered judgment on July 27,
`2021. App., infra, 2a-26a. Petitioners timely filed a
`petition for panel and en banc rehearing which was
`denied on August 25, 2021. App., infra, 38a-39a. This
`Court’s jurisdiction is invoked under 28 U.S.C.
`§ 1254(1).
`STATUTORY PROVISIONS INVOLVED
`42 U.S.C. § 1983 provides:
`Every person who, under color of any statute,
`ordinance, regulation, custom, or usage, of any State
`or Territory or the District of Columbia, subjects, or
`causes to be subjected, any citizen of the United States
`or other person within the jurisdiction thereof to the
`deprivation of any rights, privileges, or immunities
`secured by the Constitution and laws, shall be liable
`to the party injured in an action at law, suit in equity,
`or other proper proceeding for redress, except that in
`
`(1)
`
`
`
`
`
`
`
`2
`
`any action brought against a judicial officer for an act
`or omission taken in such officer’s judicial capacity,
`injunctive relief shall not be granted unless a
`declaratory decree was violated or declaratory relief
`was unavailable. For the purposes of this section, any
`Act of Congress applicable exclusively to the District
`of Columbia shall be considered to be a statute of the
`District of Columbia.
`The Federal Nursing Home Amendments Act of
`1987 (“FNHRA”) can be found at 42 U.S.C. § 1396r.
`The relevant portions of FNHRA are voluminous, and
`per this Court’s Rule 14(f) can be found in full at App.,
`infra, 41a-73a.
`
`STATEMENT
`This case presents a fundamental and recurring
`question, which several Members of this Court have
`raised but which the Court has not yet squarely
`resolved: Whether, under the original understanding
`of 42 U.S.C. § 1983, a third-party beneficiary may
`enforce federal Spending Clause legislation that
`imposes conditions on a State’s receipt of federal
`funds. The case also presents a significant and
`recurring question concerning whether claims by
`nursing facility residents and their families—second-
`guessing garden-variety treatment and transfer
`decisions made by physicians and nursing facility
`administrators—may be pursued under Section 1983
`and the Federal Nursing Home Amendments Act of
`1987 (“FNHRA”), 42 U.S.C. § 1396r, free from the
`limitations prescribed by state law.
`
`
`
`
`
`
`
`3
`
`A. Judicially Implied Private Rights of
`Action and Spending Clause Statutes
`For most of this nation’s history, individuals did
`not have a recognized private right to enforce rights
`and privileges guaranteed by federal statutes. It is
`only when the rights revolution of the 1960s and
`1970s came into full force that this Court began to
`expand access to courts through judicially implied
`private rights of action. See, e.g., J.I. Case Co. v.
`Borak, 377 U.S. 426, 433 (1964). In 1980, this Court
`held for the first time that 42 U.S.C. § 1983 provides
`a cause of action for deprivations of federal statutory
`rights. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). And
`in Wright v. Roanoke Redevelopment and Housing
`Authority, 479 U.S. 419 (1987), and Wilder v. Virginia
`Hospital Association, 496 U.S. 498 (1990), the Court
`allowed Section 1983 suits brought by private parties
`to enforce rights contained in federal Spending Clause
`legislation, even though Congress had not expressly
`provided for a private right of action in the statute.
`In the three decades since Wilder, this Court has
`declined to find new implied private rights of action to
`enforce Spending Clause
`legislation. Plaintiffs
`nevertheless continue to bring Section 1983 lawsuits
`in the federal and state courts based on this Court’s
`jurisprudence. As a consequence, state and local
`governments have been burdened by litigation costs
`and hefty damages—arising from unpredictable and
`shifting multi-factor balancing tests—that they never
`anticipated when they agreed to accept federal
`funding. Spending Clause legislation, as this Court
`has noted, derives its legitimacy from an agreement
`between the states and the federal government. It is
`doubtful that third-party enforcement actions, with
`
`
`
`
`
`
`
`4
`
`sky’s-the-limit damages, are among the commitments
`that contracting states elected to shoulder.
`And the historical evidence strongly suggests
`that states should not have to absorb those costs at
`all. At the time that Section 1983 was enacted, third-
`party beneficiaries had no right to sue to enforce a
`contract. Even today, private parties typically lack a
`private right of action as third-party beneficiaries to
`government contracts. For those reasons, many
`Members of this Court have questioned whether
`Section 1983 provides a private right of action for
`third-party beneficiaries
`to enforce cooperative
`federal-state Spending Clause programs. See, e.g.,
`Blessing v. Freestone, 520 U.S. 329, 339 (1997) (Scalia,
`J., concurring, joined by Kennedy, J.); Pharm.
`Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 683
`(2003)
`(Thomas, J. concurring); Armstrong v.
`Exceptional Child Ctr., Inc., 575 U.S. 320, 332 (2015)
`(plurality opinion of Scalia, J., joined by Roberts, C.J.,
`Thomas, J., and Alito, J.).
`Because this argument was never raised in
`Wright and Wilder, the Court has never squarely
`addressed it.
`B. Statutory Background
`The federal nursing facility law, FNHRA, 42
`U.S.C. § 1396r et seq., establishes a cooperative
`federal-state program and was enacted under the
`Spending Clause. FNHRA imposes an obligation on
`states to regulate their nursing facilities in a certain
`manner; in exchange, the states receive Medicaid
`funding. App., infra, 41a-73a.
`Two directives to nursing facilities are implicated
`here. The first is that a “nursing facility must protect
`
`
`
`
`
`
`
`5
`
`and promote * * * [t]he right to be free from * * *
`physical or chemical restraints” except in certain
`circumstances. 42 U.S.C. § 1396r(c)(1)(A)(ii). The
`second is that “[a] nursing facility must permit each
`resident to remain in the facility and must not
`transfer or discharge the resident from the facility”
`except when certain broad and vague conditions are
`met. Id. § 1396r(c)(2)(A). Both of these directives are
`contained
`in a portion of FNHRA entitled
`“Requirements relating to residents’ rights.” Id. §
`1396r(c).
`FNHRA also contains an extensive set of
`remedies intended to ensure that states and nursing
`facilities live up to their obligations under the statute.
`For example, states must survey nursing facilities on
`a yearly basis, and facilities that fail those surveys are
`subject to a variety of sanctions, including denial of
`access to Medicaid
`funds and replacement of
`management. Id. §§ 1396r(h)(2)(A)(i)-(iv). The
`federal Secretary of Health and Human Services may
`levy many of
`the same sanctions.
` Id. §§
`1396r(h)(3)(A)-(C). FNHRA also requires facilities to
`provide an
`individualized grievance system for
`patients to use if they object to their treatment or
`medication, id. § 1396r(c)(1)(A)(vi), and requires
`states to provide an independent administrative
`review system for patients who wish to appeal a
`transfer to another facility, id. § 1396r(e)(3).
`C. Factual Background
`from
`suffers
`Respondent Gorgi Talevski
`dementia. App., infra, 2a. His wife and next friend
`Ivanka placed him in VCR, a long-term care facility in
`Valparaiso, Indiana that is owned by HHC and
`
`
`
`
`
`
`
`6
`
`operated by ASC.1 Ibid. Talevski’s condition was
`progressive, and it worsened while he was in VCR’s
`care; no doubt because of his condition, Talevski
`repeatedly acted in a violent and sexually aggressive
`manner toward members of VCR’s staff and female
`residents. App., infra, 92a. These were not minor
`infractions; among other things, Talevski repeatedly
`(and inappropriately) touched female residents, led
`them into his room and closed the door, and tried to
`stab VCR staff members with knives and forks. App.,
`infra, 92a-93a.
`In an effort to arrest his decline and ameliorate
`his behavior, Talevski’s doctors prescribed, and
`requested that VCR administer, several drugs. Ibid.
`Talevski’s daughter disagreed with some of those
`prescriptions, so Talevski filed a grievance with the
`Indiana State Department of Health (“ISDH”) and, in
`September 2016, a different doctor ordered that
`Talevski’s medication be tapered down. App., infra,
`81a. Unfortunately, Talevski’s aggressive behavior
`persisted, and after an incident in December 2016
`VCR chose to transfer him permanently to an all-male
`facility (after discussing that possibility with his
`family
`in March 2016 and
`transferring him
`temporarily to such a facility twice in the intervening
`months). App., infra, 81a; 94a.
`Talevski’s family again objected. App., infra, 82a.
`Nevertheless, a physician at the new facility—entirely
`independent of VCR—determined that Talevski
`should not return to VCR because of his behavior.
`App., infra, 94a. So VCR sought to transfer Talevski
`
`1 We refer to these three entities—petitioners here and
`appellees below—collectively as “VCR” whenever possible.
`
`
`
`
`
`
`
`7
`
`again—this time from the facility to which VCR had
`originally transferred him to a new, different facility.
`After Talevski’s family challenged that transfer before
`an Administrative Law Judge (“ALJ”) of the ISDH,
`the ALJ ruled in Talevski’s favor. App., infra, 95a.
`But, when VCR offered Talevski the opportunity to
`return to its facility, Talevski declined that invitation.
`App., infra, 83a.
`More than two years later, Talevski filed suit in
`the United States District Court for the Northern
`District of Indiana. App., infra, 77a-88a. He claimed
`that VCR violated a panoply of resident “rights” under
`FNHRA and that 42 U.S.C. § 1983 provided him a
`means of enforcing those rights. Ibid. The district
`court dismissed his complaint for failure to state a
`claim, App., infra, 28a-36a, and Talevski appealed.
`D. The Court of Appeals’ Decision
`The Seventh Circuit reversed. App., infra, 3a. In
`its view, the two supposed rights in FNHRA that
`Talevski specifically pressed on appeal—the rights (a)
`to be free from certain chemical restraints and (b) to
`remain in a facility without being transferred except
`in certain circumstances—were implied in the text of
`FNHRA, and therefore Talevski could sue to enforce
`them under Section 1983. Ibid.
`In so concluding, the Seventh Circuit purported
`to apply the tests this Court set out in Blessing, 520
`U.S. 329, and Gonzaga University v. Doe, 536 U.S. 273
`(2002). It held that FNHRA, despite being a Medicaid
`grant condition telling states how to regulate
`Medicaid-participating
`nursing
`facilities,
`unambiguously focused on the rights of nursing
`facility residents. App., infra, 9a-10a. The court also
`
`
`
`
`
`
`
`8
`
`concluded that enforcing the supposed rights Talevski
`claimed would not strain judicial competence. App.,
`infra, 12a-13a. And, even though FNHRA contains
`extensive administrative and individualized remedies
`for residents who are unhappy with medications or
`transfers, the Seventh Circuit concluded that those
`remedies did not foreclose access to Section 1983
`remedies. App., infra, 13a-15a.
`Petitioners’ request for rehearing and rehearing
`en banc was denied without comment. App., infra,
`38a-39a.
`REASONS FOR GRANTING THE PETITION
`This Court should grant review to revisit and
`squarely address the fundamental question whether
`Spending Clause legislation gives rise to rights
`enforceable by private parties under Section 1983.
`Only this Court has the authority to reconsider its
`holding in Wilder and replace the current multi-factor
`balancing
`tests with
`the
`clear and
`easily
`administrable bright-line rule required by history and
`common-law tradition.
`Even if the Court declines to revisit Wilder, this
`case also presents an ideal opportunity to provide
`greater guidance concerning Spending Clause
`enforcement. Respondent here—a former resident of
`a nursing facility owned and operated by petitioners—
`brought a lawsuit under Section 1983. He claimed
`that petitioners violated his
`rights by
`(1)
`administering him certain medications (which he
`terms chemical restraints) that his doctors prescribed
`and (2) transferring him to an all-male facility
`without his consent (after his violent and sexually
`aggressive behavior threatened staff members and
`
`
`
`
`
`
`
`9
`
`female residents). The Seventh Circuit, parsing the
`language of some of this Court’s cases, concluded that
`FNHRA provided Talevski a statutory right, and that
`Section 1983 provided him a cause of action. This
`decision parted ways with this Court’s treatment of
`the statutes at issue in Pennhurst and Gonzaga, and
`it compounded the confusion surrounding how to
`apply the tests this Court has created for assessing
`judicially implied private rights of action.
`In reaching its erroneous result, the Seventh
`Circuit
`in one
`fell swoop
`federalized medical
`malpractice law for patients in nursing facilities
`throughout its jurisdiction, sweeping aside carefully
`chosen state policies in favor of a one-size-fits-all
`resort to Section 1983. The states in the Seventh
`Circuit, of course, had no idea that they were
`consenting to such a bargain when they accepted
`Medicaid funds. But, respectfully, that kind of
`disruption of state policies
`is
`the
`inevitable
`consequence of this Court’s private right of action
`jurisprudence. At the very least, then, the Court
`should clarify yet again that lower courts must cast a
`jaundiced eye on claims of implied private rights of
`action—and, as Pennhurst and Gonzaga should have
`sufficiently reminded the Seventh Circuit, the mere
`inclusion of the word “rights” in a statute is not
`“dispositive” for finding an implied private right of
`action. App., infra, 11a.
`This Court should grant certiorari and reverse the
`Seventh Circuit.
`
`
`
`
`
`
`
`10
`
`I. REVIEW IS WARRANTED TO ESTABLISH
`THAT THIRD-PARTY BENEFICIARIES DO
`NOT HAVE PRIVATE RIGHTS OF ACTION
`TO ENFORCE
`SPENDING CLAUSE
`LEGISLATION
`The last time this Court recognized an implied
`right of action under a Spending Clause statute was
`more than thirty years ago in Wilder v. Virginia
`Hospital Association, 496 U.S. 498 (1990). Although
`the Court has since “plainly repudiate[ed] the ready
`implication of a § 1983 action
`that Wilder
`exemplified,” Armstrong v. Exceptional Child Ctr.,
`Inc., 575 U.S. 320, 330 n* (2015), it has never
`repudiated Wilder itself. As a result, the courts of
`appeals continue to imply new private rights of action
`under a wide array of Spending Clause statutes,
`typically seizing on one or more stray passages from
`this Court’s Section 1983 jurisprudence.
`The Seventh Circuit’s opinion illustrates the
`problem. Respondent’s fundamental complaint was
`that VCR administered a medicine that his daughter
`disliked and then transferred him to a different
`facility when, in the professional judgment of his
`physicians and facility administrators, his aggressive
`behavior became a threat to himself and others. App.,
`infra, 92a-93a. Under the decision below, such
`garden-variety medical disputes now give rise to a
`federal civil rights lawsuit, based on little more than
`unelaborated references to “rights” in FNHRA. App.,
`infra, 11a. Such lawsuits allow dissatisfied nursing
`facility residents to circumvent important state
`policies. Indiana, for example, has enacted a cap on
`damages and attorneys’ fees in medical malpractice
`cases, see IC §§ 34-18-14-3, 34-18-18-1, but now any
`
`
`
`
`
`
`
`11
`
`resident (or, more realistically, any enterprising
`plaintiff’s lawyer) can nullify those limitations by
`suing in federal court under Section 1983, which has
`no damages cap, and seeking fees under 42 U.S.C. §
`1988(b), which does not cap fees.
`This proliferating body of law reflects not simply
`an errant turn in the road. To the contrary, the
`implication of third-party beneficiary claims under
`Spending Clause statutes was problematic from the
`start: At the time Section 1983 was enacted, common-
`law
`contractual principles—which
`inform
`the
`construction of Spending Clause legislation—simply
`did not permit strangers to a contract to make third-
`party claims. This case is an ideal vehicle for clearing
`away the underbrush, restoring predictability and
`fairness to contracting states, and ensuring that run-
`of-the-mill malpractice cases are adjudicated under
`the limitations prescribed by state law.
`1. The Spending Clause broadly authorizes
`Congress to “place conditions on the grant of federal
`funds” and, in so doing, exert federal power over states
`indirectly in a manner that Congress could not do
`directly through its other Article I legislative powers.
`Barnes v. Gorman, 536 U.S. 181, 185-86 (2002). In
`exchange for federal funds, “States agree to comply
`with federally-imposed conditions.” Pennhurst State
`Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
`Spending Clause
`legislation,
`this Court has
`repeatedly noted, is “much in the nature of a contract.”
`Ibid. As such, “[t]here can, of course, be no knowing
`acceptance if a State is unaware of the conditions or is
`unable to ascertain what is expected of it.”
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