by: Ethan Dahlen
FORT WAYNE, Ind. (WANE) — Allen County nursing homes, and nursing homes across the nation, will be playing by a different set of rules in court thanks to an Indiana case that went all the way to the Supreme Court.
Health and Hospital Corporation of Marion County v. Talevski, originated when Gorgi Talevski sued a nursing home under the Federal Nursing Home Reform Act (FNHRA).
“He alleged violations of these federal regulations and was suing to enforce those regulations as a private citizen,” said David Farnbauch, Managing Partner at Sweeney Law Firm in Fort Wayne. “The owners of the nursing home, their position was that the Indiana State Department of Health were the ones with the right to enforce the federal regulations regarding nursing homes and that private citizens and residents of nursing homes can’t rely on these regulations as a basis to sue for money damages.”
The case went to the 7th Circuit of Appeal in Chicago, which claimed that the regulations do empower residents of nursing homes to use the regulations in the course of a lawsuit against a nursing home that accepts federal Medicare and Medicare funds.
When the case went to the Supreme Court, the same decision was found.
But what does that mean for nursing homes across the nation?
For starters, in Talevski’s case, it means “he was discharged from the nursing home without complying with proper procedures for the discharge of nursing home residents,” Farnbauch said.
And the other uses the precedent can apply to are excessively broad.
“I always tell my clients when they ask what sort of rules and regulations govern nursing homes, I whip out a book at my office called the watermelon book,” Farnbauch said while making a large motion with his hands. “It’s literally that thick of regulations that govern nursing home care, literally every aspect of life in a nursing home.
One concrete example Farnbauch did give is how nursing homes are allowed to dispense medicine.
“There are specific regulations again using medication as a chemical restraint,” Farnbauchsaid. “Drugging residents to make it easier to take care of them.”
Ultimately the decision gives residents of nursing homes and their families solid ground to stand on when pursuing legal action against a nursing home, and the county hospitals that own them.
“About 95% of the nursing homes in the state of Indiana are owned by county hospitals, that is a little-known fact. It’s a scheme that was set up years ago to increase the amount of money they could bill for nursing home services,” Farnbauch said. “They are government-owned facilities, so you can use this decision to enforce those decisions and file suits against county hospitals that own nursing homes.”
And beyond allowing greater freedom in lawsuits, it also makes the process much easier: many lawsuits against nursing homes beforehand had to go through a medical review panel.
“When you sue nursing homes under this new right of action under section 1983, you don’t have to go through a medical review panel,” Farnbauch said. “It’s an important decision by the United States Supreme Court that gives nursing home residents and their families some important rights and their families some ammunition to sue nursing homes when they do not comply with federal regulations that govern nursing home care.”
However, with the precedent, Farnbauch also thinks it may just cause nursing homes to get creative to avoid large lawsuits.
“I would anticipate that what this decision is going to foster is
some changes in the way that nursing homes perhaps try to get residents
to sign what we call an arbitration agreement,” Farnbauch said. “They
try to get families to sign away their legal rights as an exchange for
admitting you to the nursing home.”
Talevski case sets national nursing home precedent
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