Urgent Alert: Protect Your Facility with ROLF’s Proactive Legal Services

Michigan’s 34 County Medical Care Facilities (“MCMCF”s) should be considering their action plan for responding to the Supreme Court's recent decision in Health and Hospital Corporation of Marion County, Indiana, et al. v. Talevski (Talevski). For MCMCFs, Talevski means that Survey citations may now have far more significant consequences in addition to the usual enforcement remedies imposed by the State and CMS.

Since amendments to OBRA made in 1987, nursing facilities have operated under the Federal Nursing Home Reform Act (“FNHRA”), requiring that nursing homes receiving Medicaid funding must meet certain standards to ensure their residents' health, safety, and dignity. These standards have been enforced in nursing homes by way of the imposition of civil money penalties, denial of payments for new admissions, and other remedies with which every nursing home is familiar.

As a result of Talevski however, a federal statute (42 U.S.C. §1983) allowing private individuals to sue for violations of civil rights, can now be used to sue for violations of certain rights under the FNHRA. These §1983 claims can only be brought by individuals against public nursing homes.

Citations based on FNHRA rights will now put a bullseye on MCMCFs by plaintiff attorneys. It is not clear yet what additional damages nursing homes are at risk for under private FNHRA claims. However, in Talevski, the plaintiff demanded actual damages, pain and suffering, and punitive damages. Additionally, §1983 cases allow for the recovery of attorney fees.

What does ROLF Recommend MCMCFs Do?

1. Legal Review: Meticulously review your 2567s, identifying potential legal concerns in light of Talevski.
2. Survey Response/IDR Assistance: Seek legal guidance related to plans of correction and potential IDRs.
3. Enhanced Compliance Activities: Strengthen your compliance efforts and ensure you meet FNHRA standards with confidence.
4. Comprehensive Training: Empower your staff with tailored training sessions on FNHRA and appropriate documentation.
5. Monitoring and Reporting: Implement additional monitoring strategies and encourage internal reporting by residents and families to stay ahead of potential claims.
6. Smart Drafting: Have legal review any potential responses to family and resident complaints, considering potential implications under FNHRA.
7. Insurance Coverage: Confirm your liability insurer covers civil rights claims by your residents.