D.Colo: No enforcement of Nursing Home Reform Amendments under Section 1983

The District of Colorado dismissed a lawsuit alleging violations of the Federal Nursing Homes Reform Amendments (FNHRA) of 1987, finding that Congress did not intend to provide an enforceable private right under FNHRA. Hawkins v. County of Bent, Colo., No. 11–cv–00126–CMA–CBS, 2011 WL 2632866 (July 6, 2011). The judge was nominated by George W. Bush.

Alice Hawkins went to Bent County Healthcare Center after a Bent County nurse discovered that she had a pressure sore. The Center allegedly failed to monitor her sore, to inform her of her condition, and to provide adequate nutrition and hydration. She later underwent surgery to treat the pressure sore. Hawkins filed a complaint against the Center’s administrator and the county of Bent, claiming that they “violated her rights by failing to satisfy the standards of quality of care and resident rights set forth in 42 U.S.C. §§ 1395i–3 and 1396r.” Arguing that FNHRA does not create an enforceable private right under 42 U.S.C. § 1983, the defendants moved to dismiss the lawsuit for failure to state a legal claim.

The court granted the defendants’ motion. It followed the Tenth Circuit’s interpretation of Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002), that “an enforceable private right exists only if the statute contains nothing ‘short of an unambiguously conferred right’ and not merely a vague benefit or interest.” Mandy R., ex rel. Mr. and Mrs. R. v. Owens, 464 F.3d 1139, 1147 (2006) (quoting Gonzaga). Citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), the opinion remarked that, “even when a statute speaks in terms of rights, there is no presumption of enforceability.” Instead, the textual test was whether the statue is phrased in terms of beneficiaries rather than regulated entities (citing Gonzaga, 536 U.S. at 284). The court found that “FNHRA provisions focus on what state nursing facilities must do to maintain funding, not on the benefits received by the residents,” to conclude that Congress’ intent as to creating an enforceable private right is ambiguous. Notably, the opinion expressed disagreement with the Third Circuit’s decision in Grammar v. John J. Kane Regional Centers–Glenn Hazel, 570 F.3d 520 (3d Cir. 2009).

The court then focused on FNHRA’s enforcement provisions to add support to its finding of ambiguity. It noted that Congress gave the Secretary of Health and Human Services authority to enforce the statute, thus impliedly precluding enforcement by individuals. The opinion further reasoned that individuals may still bring common law actions or file complaints that the Secretary can then use to further enforce the law. In doing so, it distinguished this case from Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987), in which no individual redress other than federal court was available.

Having found no Congressional intent to create an enforceable private right in FNHRA, the Court did not consider the other prongs of the test in Blessing v. Freestone, 520 U.S. 329, 340-341 (1997) (“[T]he statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence….[and] must unambiguously impose a binding obligation on the States.”). It also did not reach the alternative defense of qualified immunity, stating that no statutory right was “clearly established” at the time of the alleged violations.

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