NAELA Litigation Data Bank

Submit an Amicus Brief

To submit an entry for the NAELA Litigation Data Bank, please email NAELA Litigation Committee Staff Liaison Abby Matienzo at amatienzo@naela.org.

  • Transfer penalty significantly delayed receipt of Medicaid benefits - Hutson v. Mosier
    With the help of NAELA members Molly M. Wood, Ron M. Landsman, Esq., CAP, and Craig C. Reaves, CELA, CAP, NAELA and the Special Needs Alliance (SNA) submitted an amicus brief in the case of Hutson v. Mosier, which involved the district court imposition of the transfer penalty that significantly delayed Hutson’s receipt of Medicaid benefits for her long-term care. NAELA member Karen Weber signed and filed the SNA brief. Molly M. Wood won her point – she is entitled to a hearing on value received. Trust funds are to be counted as assets in making Medicaid eligibility determinations, and in the case of persons 65 or older who transfer assets to pooled supplemental or special needs trusts, the funds are subject to transfer penalty if transfer is for less than fair market value.

    At the same time, the court considered and rejected the argument that the federal statute exempted funding all pooled special needs trust accounts, following the prior cases from the Eight Circuit (Center for Special Needs Trust Administration v. Olson, 676 F.3d 688 (8th Cir. 2012)) and the South Dakota Supreme Court (In re Pooled Trust Advocate, 813 N.W.2d 130 (S.D. 2012)).
  • Home property and remainder interest - Daley and Nadeau
    Massachusetts' highest court ruled on May 29, 2017, that the home property and the remainder interest held in Medicaid applicants' irrevocable income-only trusts were not available assets even though the applicants retained the right to use the houses during their lifetimes. Daley v. Secretary of the Executive Office of Health and Human Services (Mass., No. SJC-12200, May 30, 2017) and Nadeau v. Director of the Office of Medicaid (Mass., No. SJC-12205, May 30, 2017).
     
    NAELA member Brian Barreira, CELA, represented Mary Daley, and NAELA member Lisa Neeley represented Lionel Nadeau. NAELA and the Massachusetts Chapter of NAELA submitted amicus briefs in support of the Nadeaus and Daleys, as did the Real Estate Bar Association of Massachusetts.
  • Decambre v. Brookline Housing Authority - October 2015 National Academy of Elder Law Attorneys, Special Needs Alliance, and National Housing Law Project amicus curaie in support of appellant Kimberly DeCambre and for reversal.
    This case concerns the treatment of distributions from a self-settled special needs trust under 42 USC Section 1396p(d)(4)(A) for Section 8 housing purposes. The federal district court, E.D. Mass., held that all distributions are to be treated as income for Section 8 purposes. The 1st Circuit acknowledged the work of NAELA regarding regulation 5.603(b), which states that “income” in section 5.603(b) “does not include the principal that initially funded the trust.” DeCambre’s main claim focused on whether the housing authority made an error under relevant regulations when calculating her income. She argued that SNT monies were from lump-sum payments and thus any SNT distribution was excluded from her annual income. After again looking at the regulation and considering the parties’ arguments, the court rejected the defendant’s position. This is a victory for people with first-party pooled trust accounts or relatively modest individual SNTs. 

  • Claypoole, et al. v. Mackereth – February 2014
    NAELA, Pennsylvania Chapter, and New Jersey Chapter
    In February 2014, the Board approved a request that NAELA prepare an amicus curiae brief to the Third Circuit to help them understand the context in which Elder Law attorneys are using annuities and educate the panel about the reality facing most Americans who need to pay for long-term nursing care in the matter of Claypoole, et al. v. Mackereth. The brief was written by John Callinan, CELA, CAP; Ron Landsman, CAP; and Stanley M. Vasiliadis, CELA. The goal of the litigation is Third Circuit recognition that under current federal law:
    • the purchase of an annuity that meets the four express requirements of 42 U.S.C. §1396p(c)(1)(F) and §1396p(c)(1)(G)(ii) cannot be treated as the disposal of an asset for less than fair market value;
    • there is no minimum annuity payment term for the purpose of determining its “actuarial soundness”; and
    • until the Secretary of HHS so specifies, annuities cannot be treated as trusts for purposes of determining Medicaid eligibility.
  • Draper v. Colvin Amicus Brief – November 2013
    Amicus Curiae of NAELA and the Special Needs Alliance

    NAELA joined the Special Needs Alliance (SNA) in filing an amicus curiae brief in the U.S. Court of Appeals for the Eighth Circuit in support of appellant Stephany Draper. The amicus brief, written by Ron Landsman, CAP, focused on the Social Security Administration’s (SSA) misinterpretation of South Dakota law as it relates to power of attorney and trusts; it also made a brief additional argument that funding and creation are not the same.

    The court decision, filed on March 3, 2015, affirmed the lower court decision affirming the agency’s decision, relying heavily on the Skidmore doctrine, from Skidmore v. Swift & Co., 323 U.S. 134 (1944), which counsels courts to defer to agency interpretation of the statutes they administer depending on a variety of factors. The court adopted the agency’s view that absent state authority for so-called “empty” or “dry trusts,” a trust funded by the disabled beneficiary is “established” by the beneficiary since the trust did not exist until it was funded. And since federal law does not exclude self-settled trusts under 42 U.S.C. § 1396p(d)(4)(A), a trust that came into existence with funding by the disabled beneficiary did not meet the requirements for exclusion.

    The NAELA-SNA brief led with what we thought to be the strong point, that SSA had been wrong throughout on state law, that South Dakota law would permit unfunded trusts, so that it fell within the exception that SSA itself recognized. Indeed, at oral argument, Judge Raymond Gruender, who ultimately wrote the Court’s decision, pressed counsel for SSA why, if they found that the trust satisfied state law, that wouldn’t satisfy the agency. (SSA’s other theory – that once acting as agents for their daughter, the trust they established was ipso facto her act as well – was also flatly contrary to well-established state law about reading powers of attorney narrowly.)

    The decision rejected that theory not by disagreeing with it, but by finding that even if South Dakota law did recognize dry trusts, the Drapers had not intended to create a dry trust because it recited – quoting the Court here – “that ‘[t]his trust is funded with the proceeds of the settlement of a liability claim’ (emphasis added),” so that the Drapers did not intend to create a dry trust.

    The problem with that approach is that it proves too much – since the dry trusts in states that have authorized them for supplemental security income purposes are all intended to be funded with the child’s resources. That should not make a difference.

    It is difficult to overcome the deference that SSA gets in federal court, especially when dealing with an issue that is not, itself, like trust law, one that federal judges have likely spent a lot of time studying.
  • Hughes v. Colbert Amicus Brief – September 2012
    Amicus Curiae of NAELA and the Ohio State Bar Association

    In August 2012, the Board approved a recommendation from the Litigation Committee that NAELA prepare or sign on to an amicus curiae brief to the Sixth Circuit Court of Appeals to advocate that the purchase of immediate annuities is permissible and should not be considered a countable asset in Hughes v. Colbert. The brief, prepared by Litigation Committee Chair Rene Reixach and NAELA member Molly Wood, has been submitted jointly with the Ohio State Bar Association.

    In October 2013, the Sixth Circuit Court's decision on Hughes v. McCarthy (formerly Hughes v. Colbert) adopted the arguments made in the amicus brief that a transfer of assets from an institutionalized spouse to the community spouse prior to the date for which Medicaid coverage is sought may be made in any amount without penalty.

    This is important for planning to protect the financial well-being of the community spouse who may subsequently be able to use any excess resources for his or her own financial needs, as was done in this case to provide income for the community spouse through an immediate annuity. The decision also recognized, as the amicus brief argued, that informal guidance letters from the Centers for Medicare and Medicaid Services should be given deference by the courts.

  • Zackery Lewis, et al. v. Gary Alexander Amicus Brief – August 2011
    Brief Amicus Curiae of NAELA and the Special Needs Alliance, Inc. in support of appellees.

    In December 2011, the Board approved the request that NAELA join the Special Needs Alliance and the Pennsylvania Association of Elder Law Attorneys in filing an amicus curiae brief in support of appellees Zackery D. Lewis, et al., against the Pennsylvania Department of Public Welfare in Lewis v. Alexander, involving pooled special needs trusts.

    In Lewis v. Alexander, Pennsylvania tried to limit the use of pooled special needs trusts in 2005 legislation. It would have prohibited anyone age 65 or older from having a pooled special needs trust account, as well as limited pooled special needs trusts to retaining 50 percent of the balance of any deceased beneficiary’s account. This legislation also would have limited expenditures from trust accounts for treatment of the person’s disabling condition, and nothing else.

    The Third Circuit Court held that all of the limitations that were more restrictive than Congress’ rules for pooled special needs trusts were improper. The federal statute enacted by Congress permits pooled special needs trusts to retain any amount, does not limit how money is spent so long as it is for the welfare of the beneficiary, and allows people over age 65 to have such accounts.

  • Center for Special Needs Trust Administration, Inc. v. Carol K. Olson Amicus Brief – July 2011 
    Brief Amicus Curiae of NAELA in support of the Center for Special Needs Trust Administration, Inc. and in support of the reversal of the Lower Court's decision

    In June 2011, the Board approved NAELA preparing an amicus curiae brief to the Eighth Circuit Court of Appeals in the case of Center for Special Needs Trust Administration v. Olson. The core issue involves the district court’s agreement with North Dakota Medicaid that a deposit into a pooled special needs trust for a man who was over age 65 was an uncompensated and penalizing transfer. The NAELA amicus, written by Craig Reaves, supported the Center and argued that the pooled trust deposit is not an uncompensated transfer under federal law.
  • Immel v. Franklin County Department of Job and Family Services - December 2009
    Amici Curiae of National Senior Citizens Law Center, AARP, Ohio Legal Rights Service, National Health Law Program, NAELA, Ohio Poverty Law Center, and Legal Aid Society of Columbus in support of appellant and reversal
  • Weatherbee v. Richman - June 2009
    Amicus Curiae of NAELA, NAELA - New Jersey Chapter, and Pennsylvania Academy of Elder Law Attorneys
  • James v. Richman - June 2007
    Amicus Curiae of NAELA and NAELA - New Jersey Chapter
  • Pack v. Osborn - January 2007
    Amicus Curiae of Ohio State Bar Association, NAELA, and Down Syndrome Association of Central Ohio, in support of Plaintiff - Appellee Loretta Pack
  • AAPM Amicus Brief - November 2001
    Amici Curiae of American Academy of Pain Management, Caifornia Medical Association, American Geriatrics Society, San Francisco Medical Society, The Society of General Internal Medicine, and a Coalition of Distinguished Pain and Palliative Care Professionals in support of Plaintiff
  • Bar of City of New York Amicus Brief - March 2002
    Association of the Bar of the City of New York's Amicus Brief in support of Oregon's Motion for Summary Judgment
  • Shah Amicus Brief - April 2000
    Brief filed on behalf of NAELA, the Coalition of New York State Alzheimer's Association Chapters, Inc., and Friends and Relatives of Institutionalized Aged, Inc.
A Private Right of Action in Federal Court, Statutory Cites

Case Name Citation  Section  1983  Why?   Facts
Gean v. Hattaway 330 F.3d 758 (6th Cir. 2003) 42 U.S.C. § 1396a(a)(3)  Yes Requirement that plaintiffs have a "fair hearing before the State agency" is not so vague and amorphous that it is beyond enforcement of the judiciary Plaintiffs are young men formerly in the custody of the state of Tennessee. Each of them were entitled to Social Security benefits. The benefits went to the Tennessee Department of Children Services (DCS). DCS used the plaintiff's Social Security benefits to reimburse the state for the cost of the plaintiff's current maintenance. Upon leaving state custody, the plaintiff's requested an accounting of his Social Security benefits. When the accounting was made, DCS offset the amount of Social Security benefits it had received for each plaintiff by the amount of money the state expended for his care. Because the state had spent far more money on each plaintiff's current maintenance than it had received in Social Security benefits on his behalf, none of the plaintiffs was able to get any money back from the state after he left its custody.
The plaintiffs brought several causes of action under 42 U.S.C. § 1983.
Doe v. Chiles 136 F.3d 709 (11th Cir. 1998)
42 U.S.C. § 1396a(a)(8) Yes Meets 3 factor test in Blessing  In March 1992, the plaintiffs-appellees—Medicaid-eligible, developmentally disabled individuals who had been placed on waiting lists for entry into intermediate care facilities for the developmentally disabled—instituted this lawsuit pursuant to section 1983, claiming that the defendants-appellants were causing unreasonable delays regarding the provision of services in violation of section 1396a(a)(8) and the Fifth and Fourteenth Amendments to the United States Constitution. The appellees' class-action complaint alleged that they were not “receiving the therapies, training and other active treatment to which they are entitled by virtue of [their] eligibility for a residential placement in an [ICF].” The complaint further averred that most of the appellees had been waiting for “over five years” for Medicaid services and were “languish[ing] without the training and therapies they so desperately need.” The appellants do not contest that serious delays have occurred.
Guggenberger v. Minnesota  CV 15-3439 (DWF/BRT), 2016 WL 4098562, at *19 (D. Minn. July 28, 2016) 42 U.S.C. § 1396a(a)(8)  Yes  Meets the Blessing factors. Plaintiff's allege that they are elgible for Waiver Services but have not received them because they have been placed on a waiting list.  Plaintiffs allege that Minnesota “[c]ounties act as ‘local agencies' of the state” to aid in the administration of the Waiver Services programs. Specifically, Plaintiffs allege that Defendants identify each county's total budget to spend for each Waiver, and the counties “create individual waiver services budgets and ... manage those budgets in the aggregate, within amounts specified by Defendants as available to serve eligible persons under each waiver.” Plaintiffs assert that both the counties and the Defendants withhold a portion of the funds available as “reserves.” Plaintiffs claim that the counties are authorized by state statute “to reserve a certain portion of the available funding for unexpected situations that might arise during the year.” In addition, Plaintiffs allege that “Defendants also withhold funds under each Waiver to address unexpected, crisis needs.” Plaintiffs assert that these additional reserves withheld by Defendants “eas[e] the burden on counties to handle all unexpected costs at a local level.” Plaintiffs allege that Waiver Services funds are returned to the State's general fund if unspent in a given year. In particular, Plaintiffs assert that “[u]nspent Waiver funds are not carried over or otherwise reserved for the Waiver programs to remove people from the waitlists and pay for Waiver Services in future years.
Romano v. Greenstein 721 F.3d 373 (5th Cir. 2013) 42 U.S.C. § 1396a(a)(8) Yes Meets the Blessing factors. Plaintiff Tiffany Romano received Medicaid benefits in Louisiana. In August 2011, the Louisiana Department of Health and Hospitals (“DHH”) decided that Romano was no longer eligible for Medicaid benefits. Romano appealed to a state administrative law judge (“ALJ”), who reversed DHH's termination of her Medicaid benefits. In November 2011, DHH again proposed termination of Romano's Medicaid benefits. Romano again appealed to an ALJ, who affirmed DHH's termination of her Medicaid benefits. Romano then sued the Secretary of DHH in federal court under 42 U.S.C. § 1983, the federal Medicaid Act, and the U.S. Constitution, alleging that DHH's decisions, policies, and procedures resulted in an illegal termination of her Medicaid benefits.
Doe v. Kidd 501 F.3d 348 (4th Cir. 2007) 42 U.S.C. § 1396a(a)(8) Yes Meets the Blessing factors. Doe applied for services under DDSN's waiver program in July 2002, after previous requests for DDSN services had been denied in 2000 and 2001. In December 2002, without making a determination as to Doe's eligibility for the waiver program, DDSN placed Doe on the non-critical waiting list for the program. Doe appealed this decision to DHHS, adding a claim that DDSN failed to serve her within a reasonable amount of time as required by federal regulations.
Sabree v. Richman 367 F.3d 180 (3d Cir. 2004)  42 U.S.C. § 1396a(a)(8) Yes  Meets the Blessing factors. Plaintiffs are a class of mentally retarded adults in need of medical services from an intermediate care facility for persons with mental retardation (“ICF/MR services”). Although they qualify for state assistance to obtain these services under the Medicaid Act, that assistance has not been forthcoming. In an effort to force Pennsylvania to provide the needed services, plaintiffs, pursuant to 42 U.S.C. § 1983, sued the Secretary of the Pennsylvania Department of Public Welfare.
Bryson v. Shumway 308 F.3d 79 (1st Cir. 2002) 42 U.S.C. § 1396a(a)(8) Yes Meets the Blessing factors.  Bryson, Shepardson, and the plaintiff class have applied for community-based services under the New Hampshire Home and Community Based Waiver for Persons with Acquired Brain Disorders. They have not received these services; New Hampshire instead has placed them on a waiting list, where they remain
Bertrand v. Maram 495 F.3d 452 (7th Cir. 2007) 42 U.S.C. § 1396a(a)(8) Yes Assumes 1983 supplies a private right of action to enforce claims under 1396a(a)(8). "Bertrand and Patterson, developmentally disabled adults, applied for residential habilitation services, however, they were turned down. Although both Bertrand and Patterson “require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded”, and each already received some services under the HCBS (Home and Community-Based Services) program, each was told that he did not satisfy the state's “priority population criteria” for residential habilitation under the CILA sub-program. These are the criteria:
(1) individuals who are in crisis situations (e.g., including but not limited to, persons who have lost their caregivers, persons who are in abusive or neglectful situations); (2) individuals who are wards of the Illinois Department of Children and Family Services and are approaching the age of 22 and individuals who are aging out of children's residential services funded by the Office of Developmental Disabilities; (3) individuals who reside in State–Operated Developmental Centers; (4) Bogard class members, i.e., certain individuals with developmental disabilities who currently reside in a nursing facility; (5) individuals with mental retardation who reside in State–Operated Mental Health Hospitals; (6) individuals with aging caregivers; and (7) individuals who reside in private ICFs/MR or ICFs/DD.
Those not on the list cannot be reimbursed for residential habilitation even if medical providers are willing to offer that service at a price Illinois is willing to pay. Bertrand applied for reconsideration, arguing (via his parents as next friends) that he comes within category (6). He lives with his parents, both of whom are nearing retirement. The state reversed its decision; Bertrand has been receiving residential habilitation services at state expense since May 24, 2005. But Patterson remains outside the CILA sub-program.
Plaintiffs maintain that the state's administration of its HCBS program violates 42 U.S.C. § 1396a(a)(8), which says that every state plan must “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals”." 
Mandy R. v. Owens 464 F.3d 1139 (10th Cir. 2006) 42 U.S.C. § 1396a(a)(8) Yes     
Susan J. v. Riley 254 F.R.D. 439 (M.D.Ala.2008) 42 U.S.C. § 1396a(a)(8) Yes    
Lewis v. N.M. Dep't of Health 94 F.Supp.2d 1217 (D.N.M.2000) 42 U.S.C. § 1396a(a)(8) Yes    
Lewis v. Alexander 685 F.3d 325 (3d Cir. 2012) 42 U.S.C. § 1396a(a)(8) Yes    
Boulet v. Cellucci  107 F.Supp.2d 61 (D.Mass.2000) 42 U.S.C. § 1396a(a)(8) Yes     
Lewis v. Alexander 685 F.3d 325 (3d Cir. 2012)  42 U.S.C. § 1396a(a)(10) Yes     
Lewis v. Alexander  685 F.3d 325 (3d Cir. 2012) 42 U.S.C. § 1396p(d) Yes     
Mejia v. City of N.Y.
2004 U.S. Dist. LEXIS 25058 (S.D.N.Y. Dec. 10, 2004) § 1396k Yes The trial court applied and the Blessing v. Freestone test to 42 U.S.C. § 1396k and found that although 42 U.S.C. § 1396k was intended to benefit the state and federal government, it was also meant to benefit Medicaid recipients. The court also found the right to not be subjected to lien amounts in excess of what is allowed by law to be neither vague nor amorphous. Finally, the court found that the Medicaid Act binds the states once they choose to receive Medicaid federal funding. Therefore, the court held that 42 U.S.C. § 1396k does create a private right of action under 42 U.S.C. § 1983.  Infant Medicaid recipients with long term disabilities received settlements for medical malpractice claims. The city asserted liens against the settlement amounts pursuant to state law. The amounts of the liens included surcharges that the city paid to health care providers in excess of the actual costs of the medical care. The recipients sued the city under 42 U.S.C. § 1983, claiming that the inclusion of the surcharges in the lien amounts violated their rights created by 42 U.S.C. §§ 1396a(a)(25) and 1396k. The city argued that 42 U.S.C. §§ 1396a(a)(25) and 1396k did not create a private right of action.
Tristani v. Richman  609 F. Supp. 2d 423 (W.D. Pa. 2009) § 1396k(b) Yes The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone, as clarified in Gonzaga University v. Doe, to 42 U.S.C. § 1396k(b). The court found that the structure of 42 U.S.C. § 1396k(b) was virtually identical to that of the statute held to create a right actionable under 42 U.S.C. § 1983 by the U.S. Supreme Court in Wilder v. Virginia Hospital Association. Furthermore, the court found that the use of the word “individual” in the statute indicated a legislative intent to create a right on behalf of Medicaid recipients. The court noted the existence of an administrative remedy, but found it was insufficient to show a legislative intent to foreclose a right of action under 42 U.S.C. § 1983. Therefore, the court held that 42 U.S.C. § 1396k(b) did create an actionable right under 42 U.S.C. § 1983.  The state placed liens on settlement proceeds received by Medicaid recipients. The recipients sued the state under 42 U.S.C. § 1983, claiming that the liens violated their rights created by provisions of the FNHRA, including 42 U.S.C. § 1396k.
Wallace v. Cansler 2011 U.S. Dist. LEXIS 97483 (E.D.N.C. Apr. 19, 2011)  § 1396k(b) Maybe  The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone, as clarified in Gonzaga University v. Doe, to 42 U.S.C. §§ 1396p(a)(1), 1396p(b)(1), and 1396a(a)(18). The court concluded that 42 U.S.C. §§ 1396p(a)(1) and 1396p(b)(1) create federal rights actionable under 42 U.S.C. § 1983, and that 42 U.S.C. § 1396a(a)(18), does not create such a right. However, despite the plaintiff’s 42 U.S.C. § 1983 action also being brought under 42 U.S.C. § 1396k, the court did not analyze or rule as to whether 42 U.S.C. § 1396k creates a federal right actionable under 42 U.S.C. § 1983. A Medicaid recipient received a settlement for a personal injury action based on her birth-related injuries. The state asserted a lien against the settlement amount pursuant to state law. The recipient sued the state under 42 U.S.C. § 1983 for violation of her federal rights created by 42 U.S.C. §§ 1396k(b), 1396p(a)(1), and 1396p(b)(1). 
Barton v. Summers  293 F.3d 944 (6th Cir. 2002)  § 1396k(b)  No The appellate court applied the test established by the U.S. Supreme Court in Wilder v. Virginia Hospital Ass'n (but did not mention Blessing v. Freestone, despite applying essentially the same test as established in Blessing v. Freestone) to 42 U.S.C. § 1396k(b). The court found that the intended beneficiary of 42 U.S.C. § 1396k(b) was the federal government, not Medicaid recipients. Although the court noted that 42 U.S.C. § 1396k(b) does unambiguously bind the states, the court found that the term “reasonable measures” in the statute was too vague and amorphous to create a create a federal right. Furthermore, even if a federal right had been created, the court found that 42 U.S.C. § 1396b(d) showed a legislative intent to foreclose any remedy under 42 U.S.C. § 1983. Therefore, the court concluded that 42 U.S.C. § 1396k(b) did not create a federal right actionable under 42 U.S.C. § 1983. States settled lawsuits with tobacco companies for billions of dollars. Medicaid recipients with smoking-related illnesses sued the states for a portion of the settlement funds, arguing that the provisions 42 U.S.C. § 1396k (specifically subsection (b)) entitled them to a portion of the settlement funds. The recipients brought the action pursuant to 42 U.S.C. § 1983.
 
 
Dultz v. Velez 726 F.Supp.2d 480 (D.N.J. 2010)  42 U.S.C. § 1396p(c ) Yes    
Rolland v. Romney  318 F.3d 42 (1st Cir. 2003) § 1396r(c )  Yes The appellate court applied the test established by the U.S. Supreme Court in Blessing v. Freestone and concluded the FNHRA, including 42 U.S.C. § 1396r(c) specifically, contains rights-creating language, the right at issue is not vague and amorphous, and that the FNHRA unambiguously binds the states. NOTE: Two later district court cases in the 1st Circuit (Watson v. Thorne, No. 03-227-JE, 2003 U.S. Dist. LEXIS 25635 (D. Or. Nov. 24, 2003), and  Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008)) criticized this opinion for not giving enough attention to the limiting factors of Gonzaga University v. Doe. Residents of a nursing home sued state officials under a 42 U.S.C. § 1983 action for failing to provide specialized services as required by the NHRA. The appellate court reviewed whether certain sections of the NHRA, including 42 U.S.C. § 1396r(c) created rights that were actionable under 42 U.S.C. § 1983.
Baum v. N. Dutchess Hosp. & Wingate of Ulster, Inc.  764 F. Supp. 2d 410 (N.D.N.Y. 2011) § 1396r(c )  No The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and concluded that the language of the NHRA, including 42 U.S.C. § 1396r(c) specifically, was intended as a yardstick for eligibility for federal funding, and did not create individual rights actionable under 42 U.S.C. § 1983. The court relied on Brogdon v. Nat’l Healthcare Corp., 103 F. Supp. 2d 1322 (N.D. Ga. 2000) and cases from other circuits. The court also found other courts’ holdings that patients’ bills of rights generally do not create individual rights actionable under 42 U.S.C. § 1983 persuasive. The administrators of a decedent’s estate sued a nursing home to which the decedent had been admitted before her death. The decedent developed bed sores during her stay. The plaintiffs argued that 42 U.S.C. § 1396r created rights that were actionable under 42 U.S.C. § 1983, and that the nursing home’s failure to properly treat the bedsores violated those rights. 
Joseph S. v. Hogan 561 F. Supp. 2d 280 (E.D.N.Y. 2008)  § 1396r(c )  Yes (for the FNHRA in general)
 
 
The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and concluded that the plaintiffs were part of the class of intended beneficiaries under the NHRA, and that the NHRA created rights that were actionable under 42 U.S.C. § 1983. The court’s language seems to include the NHRA in general, and the court even cites the 1st Circuit Court of Appeals’ analysis of 42 U.S.C. § 1396r(c) in Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003), in support of its holding. However, the specific action in this case was not brought under 42 U.S.C. § 1396r(c). Plaintiffs sued for declaratory and injunctive relief on behalf of individuals with mental illness who had been or would be unlawfully discharged from psychiatric hospitals to nursing homes. The action was brought under the ADA, the Rehabilitation Act, and the NHRA (specifically, 42 U.S.C. §§ 1396a(a)(28) and 1396r(e)(7)). The defendants argued that the NHRA did not confer rights that were actionable under 42 U.S.C. § 1983. 
Grammer v. John J. Kane Reg'l Centers -Glen Hazel  570 F.3d 520 (3d Cir. 2009)  § 1396r(c ) Yes The appellate court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and concluded that the rights creating language of the FNHRA, including 42 U.S.C. § 1396r(c), could not have been clearer. The court was influenced by the legislative history indicating a legislative intent to create individual rights under the FNHRA and by the reasoning of the 1st Circuit Court of Appeals in Rolland v. Romney, 318 F.3d 42 (1st Cir. 2003). A nursing home neglected a resident, causing the resident to develop bedsores, become malnourished, and develop sepsis, from which the resident died. The daughter of the resident sued the nursing home under 42 U.S.C. § 1983 for violation of the resident’s rights created by the FNHRA. The nursing home claimed that the FNHRA did not create federal rights that were actionable under 42 U.S.C. § 1983. 
Kalan v. Health Ctr. Comm'n of Orange Cnty.  Civil Action No. 3:16CV00023, 2016 U.S. Dist. LEXIS 97697 (W.D. Va. July 26, 2016)  § 1396r(c )  No (for the FNHRA in general)
 

The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and concluded that the language of the FNHRA was part of a regulatory scheme for nursing homes receiving federal funding, did not create individual federal rights for nursing home residents, and that the rights allegedly created by the FNHRA were vague and amorphous. The complaint appears to have been brought under 42 U.S.C. §§ 1396r(b) and 1396r(d), NOT under 42 U.S.C. § 1396r(c). However, the court did note that 42 U.S.C. § 1396r(c) provided an administrative enforcement scheme apart from any private right of action. Therefore, the court concluded that the FNHRA did not create individual rights actionable under 42 U.S.C. § 1983. A nursing home failed to prevent a resident from falling several times. The last fall caused fatal injuries. The administrator of the resident’s estate sued the nursing home under 42 U.S.C. § 1983 for violation of the resident’s rights created by the FNHRA. 
Roberts v. Woodcrest Manor Care Ctr.  No. 12-200-DLB-JGW, 2012 U.S. Dist. LEXIS 180417 (E.D. Ky. Dec. 20, 2012) § 1396r  No This case was brought under 42 U.S.C. § 1396r(b), NOT under U.S.C. § 1396r (c). However, the trial court reiterated its reasoning from Duncan v. Johnson-Mathers Health Care, Inc., and held that the FNHRA, including 42 U.S.C. § 1396r (but without specifically discussing 42 U.S.C. § 1396r(c)), did not create individual rights actionable under 42 U.S.C. § 1983. The plaintiff sued a nursing home on behalf of a deceased resident, alleging that the nursing home failed to provide adequate medical care to the resident, in violation of 42 U.S.C. § 1396r(b) of the FNHRA, which led to the resident’s death.
Duncan v. Johnson-Mathers Health Care, Inc.  No. 5:09-CV-00417-KKC, 2010 U.S. Dist. LEXIS 75869 (E.D. Ky. July 28, 2010)  § 1396r(c )  No The trial court found that the focus of the FNHRA, including 42 U.S.C. § 1396r(c), was on setting requirements for nursing homes receiving federal funding, not on creating rights for the individuals benefitting from those requirements. Therefore, the court reasoned that the FNHRA fell outside of the limitations set by the U.S. Supreme Court in Gonzaga University v. Doe. The court expressly rejected the 3rd Circuit Court of Appeals’ reasoning in Grammer v. John J. Kane Reg'l Centers -Glen Hazel, and held that the FNHRA did not create individual rights actionable under 42 U.S.C. § 1983. A nursing home prescribed blood-thinners for a resident with a fall risk. The resident later fell and hit his head, causing bleeding in the brain. The nursing home did not realize the severity of the injury until hours after the fall. The resident died two days later. The administrator of the resident’s estate sued the nursing home under 42 U.S.C. § 1983 for violation of the resident’s rights created by the FNHRA.
Schwerdtfeger v. Alden Long Grove Rehab. & Health Care Ctr., Inc.  No. 13 C 8316, 2014 U.S. Dist. LEXIS 64711 (N.D. Ill. May 12, 2014) § 1396r(c ) No  The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and found that the FNHRA, including U.S.C. § 1396r(c) specifically, was structured to penalize nursing homes that failed to provide certain benefits to residents, instead of creating private rights of residents. Furthermore, the court found that 42 U.S.C. § 1396r(c) provided a separate administrative remedy to residents. Therefore, the court concluded that 42 U.S.C. § 1396r(c) did not create an individual right enforceable under 42 U.S.C. § 1983. The trial court also held that even if the FNHRA did create private rights enforceable under 42 U.S.C. § 1983, a U.S.C. § 1983 action would not have been available to the plaintiff in this case because the defendant was a private nursing facility. A nursing home resident had verbal disputes with a nurse and another resident. The nursing home discharged the resident without complying with the requirements of the FNHRA, including 42 U.S.C. § 1396r(c) specifically. The resident sued the nursing home, and the nursing home argued that the FNHRA did not create a private right of action. 
Terry v. Health & Hosp. Corp. No. 1:10-cv-00607-DML-JMS, 2012 U.S. Dist. LEXIS 43702 (S.D. Ind. Mar. 29, 2012) § 1396r(c )  ? (Answer is unclear; see reasoning) The trial court noted that the patient was a Medicare patient, not a Medicaid patient. Therefore, the court substituted the corresponding sections of the Medicare Act for the Medicaid Act sections alleged to have been violated, and applied the Blessing v. Freestone test, as clarified in Gonzaga University v. Doe. The court held that those Medicare Act sections set standards for nursing homes receiving federal funding, and did not create individual rights actionable under 42 U.S.C. § 1983. However, the trial court did not expressly analyze 42 U.S.C. § 1396r(c). The personal representative of a decedent’s estate sued a nursing home to which the decedent had been admitted before his death. The plaintiff alleged that the decedent’s suffering and death were the result of poor care by the nursing home in violation of nursing home standards under the FNHRA. The suit was brought as a 42 U.S.C. § 1983 action. The plaintiff’s complaint did not specify which sections of the FNHRA were violated. However, the defendant’s opening brief stated that 42 U.S.C. § 1396r(c), among other sections, was identified by the plaintiff in answers to interrogatories as the violated sections.
Slovinec v. Ill. Dep't of Human Servs. No. 02 C 4124, 2005 U.S. Dist. LEXIS 44523 (N.D. Ill. Feb. 22, 2005)    ? (Answer is unclear; see reasoning)  The trial court dismissed the plaintiff’s claim for two reasons. First, the plaintiff lacked standing because he was not injured by the alleged violation of the Medicaid Act. Second, the court noted that the plaintiff “failed to point to any authority to suggest that Section 1396 provides a private right of action for his putative claims.” The court also cited cases holding that the Medicaid Act does not create individual rights actionable under 42 U.S.C. § 1983, but the court did not perform its own Blessing v. Freestone analysis. A pro se plaintiff who was a former employee of the Illinois Department of Human Services alleged that a nursing home "fraudulently discharge[d]" a resident in violation of the Medicaid Act. The trial court charitably read the complaint as alleging a violation of 42 U.S.C. § 1396r(c). 
Liptak v. Ramsey Cnty. No. 16-225 ADM/JSM, 2016 U.S. Dist. LEXIS 130761 (D. Minn. Sep. 23, 2016)  § 1396r(c ) No  The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and found that the FNHRA, including 42 U.S.C. § 1396r(c) specifically, was “not written in clear language to ‘unambiguously’ confer rights to nursing home residents.” Instead, the court found that the language set requirements for nursing homes in exchange for federal funding. Therefore, the court held that the FNHRA, including 42 U.S.C. § 1396r(c) specifically, did not create private rights enforceable under 42 U.S.C. § 1983.
A nursing home resident with dementia required a diet of pureed food to reduce choking risk. The nursing home served the resident non-pureed food on which the resident choked, causing aspiration and a pulmonary edema, leading to the resident’s death. The personal representative of the resident’s estate sued the nursing home under the FNHRA and 42 U.S.C. § 1983. 
Hawkins v. Cnty. of Bent  800 F. Supp. 2d 1162 (D. Colo. 2011) § 1396r(c ) No  The trial court applied the test established by the U.S. Supreme Court in Blessing v. Freestone as limited by Gonzaga University v. Doe and found that the plain language of the FNHRA did not unambiguously confer enforceable rights, but instead was part of a regulatory scheme setting standards for nursing homes receiving federal funding. Furthermore, the court found that 42 U.S.C. § 1396r(c), specifically, provided a separate administrative remedy to residents. Therefore, the court concluded that the FNHRA did not create a private right of action under 42 U.S.C. § 1983.  A nursing home failed to properly monitor and treat a resident’s pressure sore, failed to notify the resident’s doctor of the pressure sore, and failed to provide the resident with adequate nutrition and hydration. This led to surgical treatment of the pressure sore, including removal of the resident’s tailbone. The resident sued the nursing home for violation of her rights under 42 U.S.C. § 1396r (although not under 42 U.S.C. § 1396r(c) specifically), and the nursing home responded by arguing that the FNHRA did not confer a private right of action under 42 U.S.C. § 1983. 
McCarthy v. 207 Marshall Drive Operations, LLC No. 6:15-cv-2121-Orl-18TBS, 2015 U.S. Dist. LEXIS 174538 (M.D. Fla. Dec. 24, 2015)  § 1396r(c )  ? (Answer is unclear; see reasoning)  This report and recommendation of the magistrate judge was subsequently adopted by the trial court. The magistrate reviewed cases from other circuits holding that the Medicare Act and the Medicaid Act do not create private rights actionable under 42 U.S.C. § 1983, and found those cases persuasive. The magistrate did mention the Medicaid Act (including 42 U.S.C. § 1396r(c) specifically) in his reasoning. However, this case was brought under the Medicare Act (42 U.S.C. § 1395i-3), not the Medicaid Act. Two nursing homes neglected and mistreated a Medicare resident, leading to the resident’s death from septic shock caused by necrotic wounds. Before her death, the resident complained to the State Ombudsman for Long-Term Care, but her complaints were met with little response. The ad litem administrator of the resident’s estate sued the nursing homes and the ombudsman for violation of the Medicare Act and its supporting regulations.
Brogdon v. Nat’l Healthcare Corp. 103 F. Supp. 2d 1322 (N.D. Ga. 2000) § 1396r(c ) No The trial court recognized that the issue was whether the FNHRA, including 42 U.S.C. § 1396r(c) specifically, created a private right of action under 42 U.S.C. § 1983. This case was decided before Gonzaga University v. Doe, and does not even directly reference Blessing v. Freestone. However, the court did find that the language of the FNHRA, including 42 U.S.C. § 1396r(c) specifically, did not show legislative intent to create enforceable rights, but that the FNHRA was a regulatory scheme for nursing homes receiving federal funding. Therefore, the trial court concluded that the FNHRA did not create a private right of action. A nursing home failed to provide adequate care to residents who required assistance with daily living skills. The residents sued the nursing home for violation of federal standards under 42 U.S.C. § 1396r.