Gorgi Talevski v. Health and Hospital Corporatio ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1664
GORGI TALEVSKI, by next friend IVANKA TALEVSKI,
Plaintiff-Appellant,
v.
HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, et
al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:19 CV 13 — James T. Moody, Judge.
____________________
ARGUED DECEMBER 4, 2020 — DECIDED JULY 27, 2021
____________________
Before KANNE, WOOD, and SCUDDER, Circuit Judges.
WOOD, Circuit Judge. For Gorgi Talevski, living with de-
mentia went from difficult to worse during his stay at Val-
paraiso Care and Rehabilitation, a state-run nursing facility
near his family home in Indiana. Through his wife, Ivanka
Talevski, he sued Valparaiso Care, the Health and Hospital
Corporation of Marion County (HHC), and American Senior
Communities, LLC (ASC) under 42 U.S.C. § 1983 for
2 No. 20-1644
violations of the Federal Nursing Home Reform Act
(FNHRA), see 42 U.S.C. § 1396r et seq. (We refer to the defend-
ants collectively as Valparaiso Care unless the context re-
quires otherwise.) The district court dismissed the action for
failure to state a claim on which relief can be granted, based
on its finding that FNHRA does not provide a private right of
action that may be redressed under 42 U.S.C. § 1983.
This is a difficult area of law, no doubt, and we appreciate
the careful attention that both this district court and several
others within our circuit have given to this issue. See Terry v.
Health & Hospital Corporation, 2012 U.S. Dist. LEXIS 43702(S.D. Ind. Mar. 29, 2012); Schwerdtfeger v. Alden Long Grove Re-
hab. & Health Care Ctr., Inc., No. 13 C 8316, 2014 WL 1884471(N.D. Ill. May 12, 2014); Fiers v. La Crosse County, 132 F. Supp.
3d 1111 (W.D. Wis. 2015). We conclude, however, in keeping
with the views of two of our sister circuits, that the court
erred. See Grammer v. John J. Kane Reg’l Centers-Glen Hazel, 570
F.3d 520 (3d Cir. 2009); Anderson v. Ghaly, 930 F.3d 1066 (9th
Cir. 2019); see generally Maine v. Thiboutot, 448 U.S. 1, 4 (1980)
(“[T]he [section] 1983 remedy broadly encompasses viola-
tions of federal statutory as well as constitutional law.”). We
therefore reverse and remand for further proceedings.
I
FNHRA establishes the minimum standards of care to
which nursing-home facilities must adhere in order to receive
federal funds in the Medicaid program, 42 U.S.C. § 1396 et seq.
In addition to specifying rules for the facilities, it also includes
“[r]equirements relating to residents’ rights.” Id. §§ 1395i-3(c);
1396r(c). This case involves two of those rights: the right to be
free from chemical restraints imposed for purposes of disci-
pline or convenience rather than treatment, see id. §§ 1395i-
No. 20-1644 3
3(c)(1)(A)(ii); 1396r(c)(1)(A)(ii); and the right not to be trans-
ferred or discharged unless certain criteria are met, see id. §§
1395i-3(c)(2)(A), 1396r(c)(2)(A).
The Medicaid program “allows states to provide federally
subsidized medical assistance to low-income individuals and
families.” Bontrager v. Ind. Fam. & Soc. Servs. Admin., 697 F.3d
604, 605 (7th Cir. 2012); see 42 U.S.C. § 1396-1. Among other
services, “medical assistance” includes treatment at nursing-
home facilities. 42 U.S.C. § 1396d(a). In return for federal
funding, participating states must comply with the program’s
statutory and regulatory requirements, including FNHRA.
Bontrager, 697 F.3d at 606.
FNHRA was enacted pursuant to Congress’s Spending
Clause powers as part of the Omnibus Budget Reconciliation
Act of 1987, codified at 42 U.S.C. §§ 1395i-3; 1396r. (The two
sections are identical, and so from this point we will cite only
to section 1396r.) It outlines several ways in which govern-
ment-certified nursing facilities must avoid sub-standard
care. The Act provides comprehensive guidance on the regu-
lation and operation of nursing homes. Committee on Nurs-
ing Home Regulation, Institute of Medicine, Improving the
Quality of Care in Nursing Homes, 2-3 (1986). See, e.g., 42 U.S.C.
§ 1396r(a) (defining nursing facility); 42 U.S.C. § 1396r(b) (pro-
vision of services, performance reviews, and training expec-
tations); 42 U.S.C. § 1396r(c) (requirements related to resi-
dents’ rights, including a list of specified rights and accompa-
nying notice requirements); 42 U.S.C. § 1396r(d) (require-
ments related to the administration of nursing home facili-
ties); 42 U.S.C. § 1396r(e) (requirements for states related to
nursing facility requirements, including a state appeals pro-
cess for resident transfers and discharges); 42 U.S.C. § 1396r(f)
4 No. 20-1644
(responsibilities of the Secretary of Health and Human Ser-
vices related to nursing facility requirements); 42 U.S.C.
§ 1396r(g) (instructions for states to conduct annual compli-
ance surveys and associated certification processes); 42 U.S.C.
§ 1396r(h) (an enforcement scheme that authorizes states and
the Secretary to take several remedial steps for noncompliant
facilities); 42 U.S.C. § 1396r(i) (instructions to the Secretary for
maintenance of a “Nursing Home Compare” website for
Medicare beneficiaries).
Ivanka Talevski’s complaint, brought on behalf of her dis-
abled husband, accused Valparaiso Care of failing to adhere
to FNHRA’s requirements in numerous respects, including
the following: failure to provide Gorgi Talevski with ade-
quate medical care; the administration of powerful and un-
necessary psychotropic medications for purposes of chemical
restraint, the use of which resulted in Gorgi’s rapid physical
and cognitive decline; the discharge and transfer of Gorgi to
other facilities in Indiana without the consent of his family or
guardian, and without his dentures; the refusal to fulfill an
administrative law judge’s order to readmit him to Valparaiso
Care; and the “maint[enance of] a policy, practice, or custom,
[sic] that failed to care for Mr. Talevski in such a manner and
in such an environment as to promote maintenance or en-
hancement of the quality of life of each resident.”
On appeal, Ivanka has abandoned all but two of these par-
ticulars. Those that remain appear in sections 1395i-3(c) and
1396r(c) of the Act, “Requirements relating to residents’
rights,” known as the “Residents’ Bill of Rights,” H.R. Rep.
No. 100–391, pt. 1, at 452. Ivanka alleges that Valparaiso Care
violated Gorgi’s statutory right to be free from chemical re-
straints by over-prescribing psychotropic drugs to restrain
No. 20-1644 5
him chemically for purposes of discipline or convenience, 42
U.S.C. § 1396r(c)(1)(A)(ii), and his rights related to resident-
transfer and discharge procedures, insofar as he was deprived
of his rights to remain at Valparaiso Care and to receive
timely notice of a transfer or discharge, 42 U.S.C. § 1396r(c)(2).
We thus limit our inquiry to those two provisions.
Section 1396r(c)(1)(A) provides:
A nursing facility must protect and promote the rights
of each resident, including each of the following rights:
…
(ii) Free from restraints
The right to be free from physical or mental abuse,
corporal punishment, involuntary seclusion, and
any physical or chemical restraints imposed for
purposes of discipline or convenience and not re-
quired to treat the resident’s medical symptoms.
Restraints may only be imposed--
(I) to ensure the physical safety of the resident
or other residents, and
(II) only upon the written order of a physician
that specifies the duration and circumstances
under which the restraints are to be used (ex-
cept in emergency circumstances specified by
the Secretary until such an order could reasona-
bly be obtained).
42 U.S.C. § 1396r(c)(1)(A)(ii) (emphasis added).
Section 1396r(c)(2) describes the circumstances in which a
facility is permitted to transfer or discharge a resident. Facili-
ties “must permit each resident to remain in the facility and
6 No. 20-1644
must not transfer or discharge the resident from the facility
unless[:]”
(i) the transfer or discharge is necessary to meet the res-
ident’s welfare and the resident’s welfare cannot be
met in the facility;
(ii) the transfer or discharge is appropriate because the
resident’s health has improved sufficiently so the resi-
dent no longer needs the services provided by the fa-
cility;
(iii) the safety of individuals in the facility is endan-
gered;
(iv) the health of individuals in the facility would oth-
erwise be endangered;
(v) the resident has failed, after reasonable and appro-
priate notice, to pay (or to have paid under this sub-
chapter or subchapter XVIII on the resident's behalf)
for a stay at the facility; or
(vi) the facility ceases to operate.
Like section 1396r(c)(1)(A), this section focuses on the resi-
dents’ rights; in substance it creates a right to remain in a fa-
cility in the absence of the specified justifications. It dictates
pre-transfer and pre-discharge notice requirements and clini-
cal record documentation. 42 U.S.C. § 1396r(c)(2)(A). As we
indicated earlier, the question before us is whether sections
1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) confer a privately en-
forceable right upon nursing home residents such as Talevski.
No. 20-1644 7
II
A
Several decisions of the Supreme Court provide the start-
ing point for our analysis. In Blessing v. Freestone, 520 U.S. 329(1997), and Gonzaga University v. Doe, 536 U.S. 273 (2002), the
Supreme Court emphasized that plaintiffs seeking redress for
an alleged violation of a statute through a section 1983 action
“must assert the violation of a federal right, not merely a vio-
lation of federal law.” Blessing, 520 U.S. at 340 (emphasis in
original). “Three factors help determine whether a federal
statute creates private rights enforceable under § 1983.”
Planned Parenthood of Ind., Inc. v. Comm’r of Indiana State Dep’t
Health, 699 F.3d 962, 972 (7th Cir. 2012).
First, Congress must have intended that the provision
in question benefit the plaintiff. Second, the plaintiff
must demonstrate that the right assertedly protected
by the statute is not so “vague and amorphous” that its
enforcement would strain judicial competence. Third,
the statute must unambiguously impose a binding ob-
ligation on the States. In other words, the provision
giving rise to the asserted right must be couched in
mandatory, rather than precatory, terms.
Blessing, 520 U.S. at 340–41 (cleaned up). Gonzaga clarified that
it is not enough for plaintiffs to fall “within the general zone
of interest that the statute is intended to protect;” nothing
“short of an unambiguously conferred right … phrased in
terms of the persons benefited” can support a section 1983 ac-
tion. 536 U.S. at 283–84. See also Cannon v. Univ. of Chi., 441
U.S. 677, 692, n.13 (1979). Gonzaga further explained that
courts must “determine whether Congress intended to create a
8 No. 20-1644
federal right.” 536 U.S. at 283 (emphasis in original). In apply-
ing Blessing’s three factors in light of Gonzaga, we must decide
whether the text and structure of the relevant parts of FNHRA
unambiguously reveal that it establishes individual rights for
a particular class of beneficiaries. See id. at 286.
B
We begin with the question whether Congress intended
sections 1396r(c)(1)(A)(ii) and 1396r(c)(2)(A) to benefit nurs-
ing-home residents. We find that it did. Although other parts
of section 1396r address measures that nursing homes must
take, section (c) explicitly uses the language of rights. We do
not know how Congress could have been any clearer. After
the heading, the statute says “[a] skilled nursing facility must
protect and promote the rights of each resident, including each of the
following rights.” 42 U.S.C. § 1396r(c)(1)(A) (emphasis added).
For this part of the statute, therefore, nursing-home residents
are the expressly identified beneficiaries. 1 Gonzaga, 536 U.S. at
283. The facilities in which they reside “must protect and pro-
mote the right[] of each resident” to be free from chemical re-
straints, and “must permit each resident to remain in the fa-
cility and must not transfer or discharge the resident.” See 42
U.S.C. §§ 1396r(c)(1)(A)(ii) and (c)(2). Congress’s “unmistaka-
ble focus” on the entitlements of individual residents is ap-
parent. Cannon, 441 U.S. at 691. And, to reiterate, both protec-
tions contain exactly the type of “rights-creating language”
Gonzaga described as critical: they set forth “the rights of each
resident” and appear under the “specified rights” heading of
1 We do not have before us, and we make no comment on, the exist-
ence of a private right of action under any other provisions of FNHRA.
No. 20-1644 9
42 U.S.C. § 1396r(c). Gonzaga, 536 U.S. at 284; see also Alexan-
der v. Sandoval, 532 U.S. 275, 288–89 (2001).
Valparaiso Care argues that Ivanka cannot show the nec-
essary individual focus because the protections at issue serve
only as directives to nursing facilities and physicians, and
FNHRA as a whole is addressed to states that receive federal
Medicaid funding. But it is ignoring the language Congress
chose in the sections on which Ivanka is relying. Congress
told the facilities to respect the rights it had singled out, just as
a facility must respect a person’s right to be free from sex or
race discrimination. It is thus of no consequence that section
1396r(c)(1)(A) begins with the phrase “[a] nursing facility
must … .” What must it do? “[P]rotect and promote the rights
of each resident … .”
Faced with similar language in Anderson v. Ghaly, the
Ninth Circuit found an unambiguous conferral of individual
rights. 930 F.3d 1066, 1074–75 (9th Cir. 2019). The statute it
was evaluating, 42 U.S.C. § 1396r(e)(3), requires states to
“provide for a fair mechanism … for hearing appeals on trans-
fers and discharges.” The court rejected the argument that “a
statute cannot create rights when phrased as a directive to the
state,” id. at 1074, and held instead that the rights-creating lan-
guage of the statute was what mattered. Id. The fact that “co-
operative federalism programs like Medicaid, under which
‘Congress provides funds to the states on the condition that
the state spend the funds in accordance with federal priori-
ties,’ are necessarily phrased as a set of directives to states that
wish to receive federal funding,” id. (citation omitted), was of
no moment.
Congress enacted FNHRA as an amendment to the Medi-
caid statute in response to widespread abuses among
10 No. 20-1644
government-certified nursing facilities. Nursing facilities
have an important role to play in ending that abuse. Contrary
to Valparaiso Care’s argument that the acknowledgement of
the role of the nursing facilities must mean that the statute
only tangentially touches on the rights of residents, however,
we find dispositive the fact that Congress spoke of resident
rights, not merely steps that the facilities were required to
take. This shows an intent to benefit nursing home residents
directly. As the Ninth Circuit put it in Anderson, “[i]t has never
been a requirement that a statute focus solely on individuals,
to the exclusion of all others, to demonstrate congressional in-
tent to create a statutory right.” Id. (emphasis in original). If it
were, “plaintiffs [would be] now flatly forbidden in section
1983 actions to rely on a statute passed pursuant to Congress’s
Spending Clause powers.” BT Bourbonnais Care, LLC v. Nor-
wood, 866 F.3d 815, 820–21 (7th Cir. 2017). But that is not the
law. Indeed, the Supreme Court has cautioned against such a
blunt approach in favor of a “methodical inquiry” into the
plaintiff’s claims. See Blessing, 520 U.S. at 342–43.
Blessing’s second factor requires the plaintiff to demon-
strate that the right assertedly protected by the statute is not
so vague and amorphous that its enforcement would strain
judicial competence. Sections 1396r(c)(1)(A)(ii) and
1396r(c)(2)(A) do not suffer from those flaws. The rights they
protect “fall[] comfortably within the judiciary’s core inter-
pretive competence.” Planned Parenthood of Ind., Inc., 699 F.3d
at 974. Facilities “must not” do exactly what Ivanka alleged
has occurred: subject residents to chemical restraints for pur-
poses of discipline or convenience and involuntarily transfer
or discharge any resident absent one of several allowable jus-
tifications and notice. It does not take a medical review board
to determine whether these rights have been violated.
No. 20-1644 11
Valparaiso Care’s arguments to the contrary are uncon-
vincing. Clinging to FNHRA’s use of the undefined words
“protect,” “promote,” “discipline,” and “convenience” in sec-
tion 1396r(c)(1)(A), it asks how a court could determine
whether a nursing facility has sufficiently protected and pro-
moted freedom from chemical restraints or assess whether a
decision to use restraints falls under an acceptable exception.
Similarly, it doubts a court’s ability to assess whether a trans-
fer or discharge decision falls into one of the six enumerated
circumstances under section 1396r(c)(2)(A). But these are fo-
cused, straightforward inquiries that agencies and courts are
well equipped to resolve. It is worth noting that there is no
evidence of this kind of hand-wringing in the administrative
law judge’s decision rejecting Valparaiso Care’s transfer deci-
sion.
Finally, there is no dispute that plaintiffs meet Blessing’s
third factor, which asks whether the provision giving rise to
the asserted right is couched in mandatory rather than preca-
tory terms. Facilities must protect and promote the right
against chemical restraints, must allow residents to remain in
the facility, must not transfer, and must not discharge the res-
ident; these are unambiguous obligations. Ivanka points to
this language to show that “the meaning of the statute’s terms
is plain” and our job is over. See Bostock v. Clayton County, 140
S. Ct. 1731, 1749 (2020). We agree with her that a common-
sense reading of its provisions leaves no room for disagree-
ment.
In sum, we find that sections 1396r(c)(1)(A)(ii) and
1396r(c)(2)(A) unambiguously confer individually enforcea-
ble rights on nursing-home residents such as Gorgi Talevski.
12 No. 20-1644
C
Once a plaintiff satisfies the Blessing criteria, the right is
presumptively enforceable under section 1983. A defendant
may rebut this presumption only by “showing that Congress
specifically foreclosed a remedy under § 1983 … expressly,
through specific evidence from the statute itself, or impliedly,
by creating a comprehensive enforcement scheme that is in-
compatible with individual enforcement under § 1983[.]”
Gonzaga, 536 U.S. at 284 n.4 (cleaned up). The express route is
not available here, as FNHRA does not contain any such lan-
guage. We thus confine ourselves to rebuttal by implication.
Valparaiso Care argues that FNHRA impliedly forecloses
section 1983 claims because it provides federal and state en-
forcement schemes in addition to individualized mechanisms
for recourse other than section 1983. In support, it cites section
1396r(g)(2)(A), which is entitled “Annual standard survey.”
Under that provision, each nursing facility is subject to an an-
nual, unannounced survey conducted by the state. If the sur-
vey reveals that a nursing facility is out of compliance with
the rest of the statute, including the residents’ bill of rights,
the state has several options. It can terminate the facility’s par-
ticipation in the state’s Medicaid plan; deny payment to the
facility; assess a civil monetary penalty; appoint temporary
managers; close the facility; transfer residents; or take some
combination of these measures. See 42 U.S.C.
§§ 1396r(h)(2)(A)(i)–(iv). The statute gives the Secretary of
Health and Human Services the same authority and duties as
a state and provides rules for situations “where State and Sec-
retary do not agree on [a] finding of noncompliance.” 42
U.S.C. § 1396r(h)(3)(A); id. at § 1396r(h)(6). Valparaiso Care
also draws our attention to 42 U.S.C. § 1396r(e)(3), which says
No. 20-1644 13
that “State[s] … must provide a fair mechanism…for hearing
appeals on transfers and discharges of residents,” and 42
U.S.C. § 1396r(c)(1)(A)(vi), which requires nursing facilities to
protect and promote the rights of each resident “to voice
grievances with respect to treatment or care that is (or fails to
be) furnished … and the right to prompt efforts by the facility
to resolve grievances the resident may have.”
This is not the type of comprehensive enforcement
scheme, incompatible with individual enforcement, that we
are looking for. “The provision of an express, private means
of redress in the statute itself is ordinarily an indication that
Congress did not intend to leave open a more expansive rem-
edy under § 1983.” Planned Parenthood of Ind., Inc., 699 F.3d at
975 (quoting City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,
121 (2005)). Valparaiso Care has not identified anything close
to the type of “unusually elaborate, carefully tailored, and re-
strictive enforcement schemes” that section 1983 claims
would frustrate. Fitzgerald v. Barnstable Sch. Comm., 555 U.S.
246, 255 (2009) (cleaned up). Nursing-home residents are free
to file a complaint or grievance with the nursing facility and
state survey and certification agents. But regulatory surveys
and any accompanying enforcement processes are designed
only to ensure facilities’ compliance with FNHRA’s various
standards. They do not address, and thus do not protect, in-
dividual entitlements to be free from chemical restraints or in-
voluntary transfer or discharge. The administrative appeals
process for involuntary transfers does not indicate a compre-
hensive enforcement scheme either. “[A] plaintiff’s ability to
invoke § 1983 cannot be defeated simply by ‘the availability
of administrative mechanisms to protect the plaintiff’s inter-
ests.’” Blessing, 520 U.S. at 347 (quoting Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989)).
14 No. 20-1644
The Supreme Court has found that a statutory scheme im-
plicitly forecloses section 1983 liability in only three cases. See
Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453
U.S. 1 (1981) (comprehensive enforcement mechanisms in-
cluded citizen-suit provisions); Smith v. Robinson, 468 U.S. 992(1984) (statute afforded rights holders state hearings, detailed
procedural safeguards, and judicial review); and City of Ran-
cho Palos Verdes , 544 U.S. 113 (statute provided an express,
private means of redress in the statute itself). It has never
flatly ruled out private actions under statutes passed pursu-
ant to Congress’s Spending Clause powers. See BT Bourbon-
nais Care, 866 F.3d at 820–21.
Valparaiso Care and its fellow defendants have not shown
that, despite the express rights-creating language in the stat-
ute we are considering, there is no private action here. Were
there any lingering doubt, it should be put to rest in the gen-
eral guidance provided in section 1396r(h)(8): “The remedies
provided under this subsection are in addition to those other-
wise available under State or Federal law and shall not be con-
strued as limiting such other remedies, including any remedy
available to an individual at common law.” Defendants read
this clause to protect only existing state law, but the text has
no such limitation, and in fact specifically mentions federal
law. That means all federal law; there is nothing that supports
carving out section 1983, and we will not rewrite the statute
to create any such exception.
III
Valparaiso Care makes an additional argument that the
district court did not reach in favor of dismissal: it contends
that both of Ivanka’s claims are too late. It is worth recalling,
in this connection, that the proper way to raise a limitations
No. 20-1644 15
defense is in the answer, as an affirmative defense. See FED. R.
CIV. P. 8(c), bullet 17. If the pertinent facts are undisputed or
can be taken favorably to the nonmoving party, the defendant
may move for judgment on the pleadings. See FED. R. CIV. P.
12(c). Occasionally (perhaps all too often) both parties and
courts short-circuit this process and permit a limitations de-
fense to be raised in a motion under Rule 12(b)(6), if the com-
plaint alone alleges enough facts to eliminate all doubt about
timeliness. See, e.g., Amin Ijbara Equity Corp. v. Village of Oak
Lawn, 860 F.3d 489, 492 (7th Cir. 2017). The latter qualification
is critical, however, and it highlights what is missing in this
case.
Section 1983 claims do not have a built-in statute of limi-
tations; instead, they borrow state statutes of limitations and
tolling rules for general personal injury actions. Wilson v. Gar-
cia, 471 U.S. 261, 275 (1985); see Dixon v. Chrans, 986 F.2d 201,
203–04 (7th Cir. 1993). In Indiana, the pertinent statute of lim-
itations is two years. See Devbrow v. Kalu, 705 F.3d 765, 767
(7th Cir. 2013); Ind. Code Ann. § 34-11-2-4. A brief timeline of
events is helpful here to understanding the dispute in this
case.
Gorgi began his stint at Valparaiso Care in January 2016.
Around August of that same year, his daughter observed the
rapid deterioration of her father’s cognitive and physical abil-
ities; he could no longer feed himself and lost the ability to
speak English, though he could still speak his mother tongue,
Macedonian. Skeptical of Valparaiso Care’s insistence that
any change in her father’s condition could be traced to the
natural advancement of dementia, Talevski’s daughter re-
quested a list of her father’s medications in September 2016.
The list she received showed ten medications, six of which
16 No. 20-1644
were identified as powerful psychotropic drugs—that is,
drugs capable of affecting the chemical composition of the
brain. The family hired a private neurologist, who had the
drugs removed. Around the same time, the Indiana Depart-
ment of Health conducted its “annual standard survey” of the
facility. 42 U.S.C. § 1396r(g)(2)(A). The Talevskis filed a formal
complaint during the week of September 27, 2016. Before the
end of the year, Valparaiso Care began trying to transfer
Talevski to a facility over an hour away. It made several ef-
forts: initially between November 23, 2016, and December 15,
2016; then December 19, 2016, and December 29, 2016; and fi-
nally, December 30, 2016, and January 9, 2017.
At this point, Valparaiso Care tried to discharge Talevski
involuntarily to an all-male dementia facility two-and-a-half
hours away in Indianapolis. The Talevskis filed a petition for
review of the transfer decision with the ISDH while Talevski
moved to yet another facility an hour away. See 42 U.S.C.
§ 1396r(e)(3). An administrative law judge eventually rejected
Valparaiso Care’s transfer efforts, but Talevski never returned
to Valparaiso Care. Ivanka Talevski filed the complaint in this
case on January 20, 2019.
Valparaiso Care argues that Talevski’s chemical-restraint
claim accrued in September 2016 when the Talevski family re-
ceived a list of medications that confirmed the use of chemical
restraints. The complaint does not specify when the facility
stopped using the medications. But Valparaiso Care reasons
that the claim most likely accrued in September 2016, or per-
haps as late as November 23, 2016, when Valparaiso Care be-
gan the transfer process. At the very latest, it contends, the
claim accrued on December 30, 2016, the last time Gorgi was
at the facility and more than two years before the filing of the
No. 20-1644 17
complaint. As for the transfer claim, Valparaiso Care trans-
ferred Talevski on December 30, 2016, and refused to readmit
him on January 9, 2017, making one of those two dates the
likely date of accrual. Both dates fall more than two years be-
fore the complaint.
Ivanka responds that Gorgi’s claims are not time barred
because the statute of limitations was tolled as a result of his
legal disability. Indiana law states that “[a] person who is un-
der legal disabilities when the cause of action accrues may
bring the action within two (2) years after the disability is re-
moved.” Ind. Code Ann. § 34-11-6-1. Indiana defines “Under
legal disability” to include “persons less than eighteen (18)
years of age, mentally incompetent, or out of the United
States.” Ind. Code Ann. § 1-1-4-5 (12) & (24). Gorgi Talevski
may be considered incapacitated under Indiana’s Constitu-
tion because of his dementia. If he is, there is no statute of lim-
itations issue.
Looking to Dixon v. Chrans, 986 F.2d 201 (7th Cir. 1993),
Valparaiso Care contends that tolling should not take place
here. Dixon dealt with Illinois’s legal disability tolling provi-
sion. That law differentiated among various types of disabili-
ties: for suits brought by incarcerated persons under section
1983 against officials or employees of the Illinois Department
of Corrections, there was no tolling; suits against other de-
fendants were tolled. The plaintiff in that case was incarcer-
ated and sued IDOC officials under section 1983. He did not
get the benefit of tolling. We concluded that absent a “tolling
rule designed specifically for general personal injury claims …
the process of deciding which state tolling rule to apply in-
volves the straightforward application of the rules as writ-
ten.” Id. at 204 (emphasis in original).
18 No. 20-1644
This case is not like Dixon because Indiana has only one
tolling rule for personal injury actions. But Valparaiso Care
asks that we apply an exception to the legal-disability tolling
provision because Indiana’s Medical Malpractice Act contains
an exception to that rule:
A claim, whether in contract or tort, may not be
brought against a health care provider based upon pro-
fessional services or health care that was provided or
that should have been provided unless the claim is
filed within two (2) years after the date of the alleged
act, omission, or neglect[.]
Ind. Code Ann. § 34-18-7-1(b). This provision applies without
regard to legal disability. Id. at § 34-18-7-1(a).
The problem with this argument is that a section 1983 ac-
tion is not a medical malpractice action. It is analogous to a
personal-injury claim. It is well established that “the charac-
terization of civil rights statutes for limitations purposes is a
federal question.” Allen v. Hinchman, 20 N.E.3d 863, 873 (Ind.
Ct. App. 2014). The Supreme Court has spoken, and section
1983 claims are “best characterized as personal injury ac-
tions.” Dixon, 986 F.3d at 203 (citing Wilson v. Garcia, supra,471 U.S. 261).
This makes sense. The choice of a limitations period can-
not depend on the facts of a plaintiff’s specific circumstances.
See Allen, 20 N.E.3d at 873 (quoting Garcia, 471 U.S. at 274)
(“[I]f the choice of the statute of limitations were to depend
upon the particular fact or the precise legal theory of each
claim, counsel would almost always argue, with considerable
force, that two or more periods of limitations should apply to
each § 1983 claim[.]”). Moreover, assuming for present
No. 20-1644 19
purposes that the legal disability tolling exception is at issue,
there is no record from the district court to determine whether
the doctors who administered six chemical restraints to Talev-
ski did so “based upon professional services of health care
that was provided” rather than for reasons of convenience or
restraint. The proper course at this point is for the district
court to develop the record and rule accordingly.
IV
In a last-ditch effort to circumvent Blessing, Valparaiso
Care argues that our recent decision in Nasello v. Eagleson, 977
F.3d 599 (7th Cir. 2020), indicates an unwillingness to find en-
forceable private rights in statutes passed pursuant to Con-
gress’s powers under the Spending Clause. There we found
that a provision of the Medicaid Act that requires states to
count earlier medical expenses not covered by third parties
when calculating a “medically needy” persons’ income “sets
conditions on states’ participation in a program, rather than
create direct private rights” and that plaintiffs’ other claim fell
outside of the scope of the provision they invoked. Id. at 601–
02. We also observed that since Wilder v. Virginia Hospital As-
sociation, 496 U.S. 498 (1990), the Supreme Court has “repeat-
edly declined to create private rights of action under statutes
that set conditions on federal funding of state programs,” Na-
sello, 977 F.3d at 601.
It has indeed been more than 30 years since Wilder, and we
realize that the Supreme Court itself has not recognized new
Spending Clause-based private rights of action during that
period. But it is just as true that the Court has never disap-
proved Wilder. As a careful look at its decisions shows, it has
instead insisted on a high bar for these private rights of action,
20 No. 20-1644
and it has found that the parties in the cases before it have not
cleared that bar.
Astra USA, Inc. v. Santa Clara County, 563 U.S. 110 (2011),
illustrates this point well. It dealt with section 340B of the Pub-
lic Health Services Act, 42 U.S.C. § 256b, which imposes ceil-
ings on the prices that drug manufacturers may charge to
public and community health centers. The price ceilings are
enforced through Pharmaceutical Pricing Agreements be-
tween the drug manufacturers and a unit of the Department
of Health and Human Services (HHS). The suit was brought
by the health centers (called 340B entities) against manufac-
turers for alleged overcharges. Notably, the centers conceded
that they had no private right of action under the statute to
bring a direct action against the manufacturers. Id. at 113. But
they argued nonetheless that the statute permitted them to
sue the manufacturers as third-party beneficiaries of the
Agreements. Not so fast, said the Court: “[i]f 340B entities
may not sue under the statute, it would make scant sense to
allow them to sue on a form contract implementing the statute
… .” Id. at 114. Since the recognition of a private right of action
for violating a federal statute is proper only if Congress in-
tended to provide a private remedy, id. at 117, and Congress
did no such thing in the relevant statute, plaintiffs were out
of luck.
Another case that touches on this issue is Sossamon v.
Texas, 563 U.S. 277 (2011). It relies on the uncontroversial rule
that it is ultimately Congress that controls whether a private
right of action should be recognized in legislation that rests to
some extent on the Spending Clause. In fact, the central issue
in Sossamon was tangential to our inquiry. The question was
whether a state, by accepting federal funds, automatically
No. 20-1644 21
consents to waive its sovereign immunity to suits for money
damages under the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq. Id. at
280. For reasons irrelevant to our case, Congress had relied on
its Spending and Commerce Clause powers when it passed
RLUIPA. The statute included an express private right of ac-
tion against various governmental entities, including states.
See 42 U.S.C. § 2000cc-2(a). Noting that the test for finding a
waiver of sovereign immunity is “a stringent one,” 563 U.S. at
284, and that “[a] State’s consent to suit must be unequivo-
cally expressed in the text of the relevant statute,” id. (quota-
tions omitted), the Court found that the mere act of accepting
federal funds was not adequate to serve as a waiver of sover-
eign immunity. The fact that RLUIPA rested in part on the
Spending Clause made no difference. As the Court put it:
It would be bizarre to create an “unequivocal state-
ment” rule and then find that every Spending Clause
enactment, no matter what its text, satisfies that rule
because it includes unexpressed, implied remedies
against the States. The requirement of a clear statement
in the text of the statute ensures that Congress has spe-
cifically considered state sovereign immunity and has
intentionally legislated on the matter.
Id. at 290.
The third case in this line is Armstrong v. Exceptional Child
Center, Inc., 575 U.S. 320 (2015). Its facts are closer to our case
than those of the other two, insofar as it involved an effort to
enforce certain aspects of the Medicaid program. The Court
put the question presented succinctly, as “whether Medicaid
providers can sue to enforce § (30)(A) of the Medicaid Act.”
Id. at 322. That section requires a state plan to include the
22 No. 20-1644
provision of certain in-home care services for eligible people.
Relying on the theory that they had an implied private right
of action under the Supremacy Clause of the Constitution,
Art. VI, cl. 2, the providers of those services filed a suit in
which they argued that Idaho’s reimbursement rates were too
low to support the required level of services.
The Supreme Court held that the premise of the suit was
wrong—the Supremacy Clause does not support a private
right of action whenever someone asserts that state law con-
flicts with a federal mandate. The Court then addressed the
question whether the providers could base their right of ac-
tion directly in section 30(A) of the Act. It also answered this
in the negative. Critically, it found that section 30(A)’s text
was “judicially unadministrable,” id. at 328, and that by
providing an express administrative remedy, the Act pre-
cluded private enforcement. Finally, the Court rejected the
idea that the Medicaid Act itself provided a private right of
action to the providers, because “[s]ection 30(A) lacks the sort
of rights-creating language needed to imply a private right of
action.” Id. at 331. It is phrased, the Court pointed out, as a
directive to the federal agency, “not as a conferral of the right
to sue upon the beneficiaries of the State’s decision to partici-
pate in Medicaid.” Id.
Armstrong thus confirms the inquiry we must make to see
if a different part of the Medicaid Act, in a suit brought by
different parties, can support a private right of action: do we
have the necessary rights-creating language to support a pri-
vate right of action? The Court could have saved itself a great
deal of time if it had wanted to establish an unbending rule
that Spending Clause legislation never supports a private ac-
tion. It did not do so in Armstrong, and it did not even hint
No. 20-1644 23
that it was overruling Wilder. In keeping with that guidance,
neither we nor other courts have found any such categorical
rule. See, e.g., Bontrager, 697 F.3d at 607 (section 1396a(a)(10)
satisfies Wilder and permits private right of action enforceable
through section 1983) (alterations in original); Planned
Parenthood of Ind., Inc., 699 F.3d at 974 (private right of action
under section 1396a(a)(23), which says that “all state Medi-
caid plans provide that ‘any individual eligible for medical
assistance ... may obtain such assistance from any institution,
agency, community pharmacy, or person, qualified to per-
form the service or services required’”); BT Bourbonnais Care,
LLC v. Norwood, 866 F.3d at 817 (private right of action under
section 1396a(a)(13)(A), which says “[a] State plan for medical
assistance must … provide … for a public process for deter-
mination of rates of payment under the plan for ... nursing
facility services”).
Our sister courts have agreed that FNHRA confers such
rights. See Grammer v. John J. Kane Reg’l Centers-Glen Hazel, 570
F.3d 520, 524–25, 527 (3d Cir. 2009); Anderson v. Ghaly, 930 F.3d
1066, 1074 (9th Cir. 2019); cf. Concourse Rehabilitation & Nurs-
ing Center Inc. v. Whalen, 249 F.3d 136 (2d Cir. 2001) (section
1396r(b)(4)(A) “is obviously intended to benefit Medicaid
beneficiaries” and thus does not entitle health care providers
to bring suit under section 1983). Nasello reflects the caution
with which we approach finding an enforceable private right
of action, but, as Armstrong clarified, the position of providers
is different from that of recipients, and it is critical in our case
that the statute itself contains the necessary rights-creating
language for the recipients.
24 No. 20-1644
* * *
We therefore hold that it was error to dismiss this case for
failure to state a claim. The judgment of the district court is
REVERSED and the case is REMANDED for further proceedings
consistent with this opinion.