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July 06, 2023   

What Does Talevski Tell Us About Future Nursing Home Litigation?

This Bulletin is brought to you by AHLA’s Post-Acute and Long Term Services Practice Group.
  • July 06, 2023
  • Tara Sklar, JD, MPH , University of Arizona James E. Rogers College of Law
  • Katherine E. Barnett

For many low-income older adults enrolled in Medicaid, institutional care in nursing homes and senior living communities is the only financially viable option when they are no longer able to take care of themselves. These older adults, commonly referred to as dual eligible beneficiaries because they are enrolled in both Medicare and Medicaid, comprise a much larger percentage of nursing home residents compared to the Medicare-only population, at nearly the quadruple the rate of 66% compared to 17%. Nursing home litigation has become more frequent over the last several decades. This indicates that greater numbers of dual eligible nursing home residents and their families want nursing homes to answer for alleged negligence and wrongful deaths, especially following the recent incidents of COVID-related deaths in understaffed facilities. The U.S. Supreme Court’s landmark 7-2 ruling in Health and Hospital Corporation of Marion County v. Talevski, issued on June 9, 2023, affirmed residents’ rights under the Federal Nursing Home Reform Act (FNHRA) to bring federal court claims against Medicaid-funded nursing homes when they violate FNHRA care requirements. The Talevski decision represents a win for vulnerable populations, especially dual eligibles in institutional care, but is this private action secure?


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