PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
GEORGIA F. TALBOT,
Plaintiff-Appellant,
v.
LUCY CORR NURSING HOME; JACOB
No. 96-1915
W. MAST, in his capacity as
Administrator of the Lucy Corr
Nursing Home,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-978)
Argued: May 7, 1997
Decided: July 1, 1997
Before NIEMEYER and HAMILTON, Circuit Judges, and LEGG,
United States District Judge for the District of Maryland, sitting
by
designation.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Hamilton wrote
the opinion, in which Judge Niemeyer and Judge Legg joined.
_________________________________________________________________
COUNSEL
ARGUED: Edwin Ford Stephens, CHRISTIAN & BARTON, L.L.P.,
Richmond, Virginia, for Appellant. Lloyd Lee Byrd, SANDS,

ANDERSON, MARKS & MILLER, Richmond, Virginia, for Appellees. ON BRIEF: Michael W. Smith, John W. Montgomery, Jr.,
CHRISTIAN & BARTON, L.L.P., Richmond, Virginia, for Appellant. Frank B. Miller, III, John B. Catlett, Jr., SANDS, ANDERSON,
MARKS & MILLER, Richmond, Virginia, for Appellees.
_________________________________________________________________
OPINION
HAMILTON, Circuit Judge:
The issue presented by this appeal is whether a plaintiff who
alleges a violation of the nursing care facility resident rights
provisions of the Medicare Act, see 42 U.S.C. 1395i-3(c), must exhaust
her state administrative remedies before bringing a cause of action
for
those violations pursuant to 42 U.S.C. 1983. Because we hold that
the exhaustion of state administrative remedies is not required
under
such circumstances, we vacate the district court's order dismissing
appellant Georgia Talbot's complaint and remand for further
proceedings consistent with this opinion.
I.
Talbot is a 71-year-old resident of Chesterfield County, Virginia,
who suffers from diabetes and other physical ailments that require
her
to use a wheelchair and result in the need for trained nursing
care.
From June 24, 1994 until August 31, 1995, Talbot was a resident at
appellee Lucy Corr Nursing Home (Lucy Corr), located in Chesterfield County.
Talbot alleges that while she lived at Lucy Corr, her care and
treatment progressively worsened in an environment in which almost
every night other residents yelled and cried, making it impossible
for
Talbot to sleep. Talbot alleges that she frequently awoke at night
to
find another resident standing at the foot of her bed, staring and
yelling at her. According to Talbot, Lucy Corr did little to change the
disruptive behavior of other residents and, instead, began to change
its
treatment and conduct toward her. Specifically, Talbot alleges
that, on
some occasions, Lucy Corr staff refused to respond to her "call

but2

ton" or otherwise refused to communicate with her. At other times,

Talbot alleges, she was not catheterized on schedule and was not
promptly provided other required care. In addition, Talbot alleges
that
Lucy Corr increasingly ignored her and refused to resolve her
grievances and concerns.
On July 18, 1995, Lucy Corr reclassified the level of Talbot's care
and changed the classification of her bed from "intermediate" to
"skilled care." According to Talbot, this change was made without
consulting her and without any change in the health care provided
to
her; nevertheless, the reclassification resulted in an increase in
the
daily cost of Talbot's care from $103 to $120. Talbot asserts that
Lucy Corr did not similarly reclassify the treatment given to other
residents.
On July 12, 1995, Jacob W. Mast, administrator of Lucy Corr, sent
a letter to Gwen Talbot, Georgia Talbot's daughter and her
responsible party, advising Gwen Talbot that he was giving her thirty days'
notice of Lucy Corr's intent to terminate the patient care
agreement
entered into between the parties and to evict Georgia Talbot.
Subsequent to that initial notice, by letters dated July 26, 1995, and
August
4, 1995, Lucy Corr advised Gwen Talbot of appeal rights which were
available to her and her mother. On August 31, 1995, Lucy Corr
evicted Talbot.
On September 1, 1995, Talbot filed an appeal with the Commonwealth of Virginia Department of Medical Assistance Services (the
Department). The Department hearing officer assigned to hear Talbot's case informed her on September 25, 1995 that the Department
Appeals Division had authority and jurisdiction over issues
relating
to nursing home discharges, admissions, and transfers. The hearing
officer also informed Talbot, however, that the Appeals Division
did
not have jurisdiction to consider issues relating to the quality of
care
provided by the nursing home. Talbot subsequently withdrew her
appeal.
On December 8, 1995, pursuant to 42 U.S.C. 1983, Talbot filed
this action in the United States District Court for the Eastern
District
of Virginia against Lucy Corr and Mast, in his capacity as
administra-

tor of Lucy Corr, alleging violations of the Medicare Act and its
3

implementing regulations. Talbot also alleged a state law claim for

breach of contract. Pursuant to 1983, Talbot alleged six counts
of
violations of the Medicare Act and its implementing regulations,
including: (1) unauthorized changes in Talbot's treatment in
violation
of 42 U.S.C. 1395i-3(c)(1)(A)(I); (2) retaliation for voicing
grievances in violation of 1395i-3(c)(1)(A)(vi); (3) eviction in
violation
of 1395i-3(c)(2)(A); (4) abuse in violation of 42 C.F.R.
483.13(b);
(5) staff abuse in violation of 42 C.F.R. 483.13(c); and (6)
failure
to provide Talbot with a satisfactory quality of life in violation
of 42
C.F.R. 483.15.
Lucy Corr and Mast subsequently filed a motion to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(6) and
12(b)(1) on the following grounds: (1) that the complaint failed to
allege the requisite state action necessary to support a claim
under
1983; (2) that Lucy Corr and Mast are not"persons" amenable to
suit under 1983; (3) that Lucy Corr and Mast are entitled to
Eleventh Amendment immunity; (4) that Talbot had failed to exhaust her
administrative remedies; and (5) that the complaint failed to state
a
cause of action upon which relief could be granted under the Act.
On
March 19, 1996, the district court entered a memorandum opinion and
order granting Lucy Corr and Mast's motion to dismiss under Rule
12(b)(1), finding that it lacked subject matter jurisdiction over
Talbot's complaint because Talbot failed to exhaust her state
administrative remedies. The district court did not address Lucy Corr and
Mast's
motion to dismiss for failure to state a claim upon which relief
could
be granted under Rule 12(b)(6).
On April 2, 1996, Talbot filed a motion to alter or amend the judgment, and on May 29, 1996, the district court denied Talbot's
motion.
Talbot then noted a timely appeal.
II.
Whether a district court properly required a plaintiff to exhaust
her
administrative remedies before bringing suit in federal court is a

question of law. See Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 965
(11th Cir. 1986). Therefore, we review the district court's order
de
novo. See id.
4

III.
In Patsy v. Board of Regents, 457 U.S. 496 (1982), the Supreme
Court held that, as a general rule, a plaintiff bringing a suit
pursuant
to 42 U.S.C. 1983 does not have to exhaust state administrative
remedies before filing suit in federal court. See id. at 512. In so
holding, the Supreme Court first considered the legislative history of
1
of the Civil Rights Act of 1871, the precursor to 1983, to discern
whether requiring the exhaustion of state administrative remedies
was
consistent with Congress' intent in enacting 1. See id. at
502-07.
From the legislative history, the Court concluded that it was "fair
to
infer that the 1871 Congress did not intend that an individual be
compelled in every case to exhaust state administrative remedies
before
filing an action under 1." See id. at 507.
The Patsy Court then considered the text and legislative history of
42 U.S.C. 1997e, in which Congress created a specific, limited
exhaustion requirement for adult prisoners bringing actions
pursuant
to 1983. See id. at 502-12. The Court determined that the
explicit
exhaustion requirement contained in that provision only made sense
if exhaustion could not be required before its enactment and if
Congress intended to carve out a narrow exception to a general noexhaustion rule already understood to follow from 1983. See id. at
512.
Since Patsy, the Supreme Court, this court, and other circuit
courts
of appeals have confirmed that, as a general rule, exhaustion of
state
administrative remedies is not required prior to bringing suit
under
1983. See, e.g., Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
523
(1990) ("The availability of state administrative procedures
ordinarily
does not foreclose resort to 1983."); Felder v. Casey, 487 U.S.
131,
147 (1988) ("plaintiffs need not exhaust state administrative
remedies
before instituting 1983 suits in federal court"); VanHarken v.
City
of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997) ( Patsy expressly

rejected a requirement of exhausting administrative remedies before

suing under 1983); Jeremy H. v. Mt. Lebanon Sch. Dist. , 95 F.3d
272, 283 n.20 (3d Cir. 1996) ("the policies of section 1983
strongly
disfavor the imposition of additional exhaustion requirements");
Thornquest v. King, 61 F.3d 837, 841 n.3 (11th Cir. 1995) ("a section 1983 claim cannot be barred by a plaintiff's failure to
exhaust
5

state administrative remedies with respect to an unreviewed

administrative action"); Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir.
1995)
("[E]xhaustion of state judicial or administrative remedies is not
a
prerequisite to the bringing of a section 1983 claim."); Wilbur v.
Harris, 53 F.3d 542, 544 (2d Cir. 1995) (recognizing that
exhaustion
of state administrative remedies is not required as a prerequisite
to
bringing an action pursuant to 1983); Hall v. Marion Sch. Dist.
No.
Two, 31 F.3d 183, 190-91 (4th Cir. 1994) (recognizing that exhaustion of state administrative remedies is not a prerequisite to
bringing
a 1983 action). Thus, courts universally agree that the
exhaustion of
state administrative remedies is generally not required prior to
bringing an action under 1983 in federal court.
Two exceptions to this no-exhaustion rule have been recognized,
however. First, as recognized in Patsy in the context of 42 U.S.C.
1997e, Congress may explicitly provide that state administrative
remedies must be exhausted before bringing suit under a particular
federal law pursuant to 1983. See Patsy, 457 U.S. at 508. Second,
Congress may implicitly require the exhaustion of state
administrative
remedies where "`the obligation to require exhaustion of
administrative remedies may be fairly understood from congressional action.'"
Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 966 (11th Cir. 1986)
(citation omitted); see also Patsy, 457 U.S. at 502 n.4 (stating,
in the
context of discussing the exhaustion of federal administrative
remedies, that "[e]ven where the statutory requirement of exhaustion is
not
explicit, courts are guided by congressional intent in determining
whether application of the doctrine would be consistent with the
statutory scheme"). The mere provision of state administrative remedies,
however, is not enough to demonstrate an implicit Congressional
intent to impose an exhaustion requirement on a plaintiff seeking
to
bring a 1983 action. See Alacare, 785 F.2d at 967-68 ("[T]he mere
fact that Congress created parallel and perhaps duplicative avenues
for review does not, standing alone, demonstrate an implicit
purpose
to impose an exhaustion requirement."); see also Monroe v. Pape,
365
U.S. 167, 183 (1961) (noting that federal remedy under 1983 is

supplementary to state remedy). If there is doubt as to whether an

exception applies, courts should refrain from requiring exhaustion in
1983
suits because " Patsy leaves no doubt that the presumption is
strongly
in favor of no exception." Alacare, 785 F.2d at 967 (emphasis in
original).
6

In this case, neither exception applies. As to the first exception,

Congress did not explicitly require the exhaustion of state
administrative remedies prior to bringing a 1983 suit based on violations
of the
Medicare Act.1 Therefore, the issue in this case is whether
Congress
implicitly evidenced its intent to require exhaustion by providing
for
particular state administrative enforcement mechanisms in the Medicare Act.
While no court has apparently addressed whether there is a state
administrative remedy exhaustion requirement before bringing suit
under 1983 for violations of the Medicare Act, the Eleventh
Circuit
has addressed the exhaustion of state administrative remedies in
the
context of the Medicaid Act2 and 1983 suits. See Alacare, 785 F.2d
at 967-69. In Alacare, the Eleventh Circuit held, in accordance
with
Patsy, that plaintiffs asserting violations of the Medicaid Act
pursuant
to 1983 do not have to exhaust their state administrative
remedies
_________________________________________________________________
1 As Lucy Corr noted in its brief supporting its motion to dismiss
in the
district court, the Medicare Act does contain an explicit
exhaustion
requirement for claims contesting the determination of entitlement
to
benefits under 42 U.S.C. 1395ff(a). See 42 U.S.C. 1395ii
(incorporating requirements contained in certain sections of 42 U.S.C. 405
into
Medicare Act); Heckler v. Ringer, 466 U.S. 602, 614 (1984) (holding
that exhaustion requirement contained in 1395ii applies to claim
for
benefits). However, this exhaustion requirement applies to federal
administrative remedies that provide for the review of benefit
determinations. See 42 U.S.C. 1395ii. Since the issue in this case is the
exhaustion of state administrative remedies and since Talbot's claim is
not for
benefits under the Medicare Act, but rather for damages resulting
from
a violation of the resident rights provisions, the exhaustion
requirement
contained in 1395ii does not apply to bar this suit. Cf. Buckner
v.
Heckler, 804 F.2d 258, 250 (4th Cir. 1986) (requiring exhaustion of

federal administrative remedies by plaintiff asserting claim for

benefits
under the Medicare Act).
2 Because both the Medicare Act and the Medicaid Act contain
parallel
nursing care facility resident rights provisions and require
participation
by the states to ensure compliance with these provisions, see 42
U.S.C.
1395i-3 and 1396r, decisions considering the exhaustion of state
administrative remedies in the context of the Medicaid Act are
instructive in determining whether exhaustion is required under the
Medicare
Act.
7

prior to doing so. See id. In holding against an exhaustion

requirement, the Alacare court rejected the notion that the existence of
a
federally-mandated state administrative review process was
sufficient
to evidence Congress' intent that exhaustion of those remedies
should
be required before permitting a 1983 claim. See id. at 967-68.
The
Alacare court emphasized that 1983 was designed to be "an alternate, supplemental avenue for relief to persons who almost always
have an additional available remedy at state law." Id. at 967
(emphasis in original). The Alacare court also reasoned that to hold that
the
mere existence of a state remedial scheme is sufficient to support
an
exhaustion requirement would eviscerate the general rule
established
in Patsy and would dramatically narrow the scope of relief
available
under 1983. See id. at 968; see also Greenwald v. Axelrod (In re:
Greenwald), 48 B.R. 263, 270-71 (S.D.N.Y. 1984) (holding no
exhaustion requirement in 1983 suit alleging violations of the
Medicaid Act); but see Arden House, Inc. v. Heintz, 612 F. Supp. 81,
85
(D. Conn. 1985) (holding that there is an exhaustion requirement in
1983 suits asserting violations of the Medicaid Act); St. Joseph
Hosp. v. Electronic Data Sys. Corp., 573 F. Supp. 443, 450 (S.D.
Tex.
1983) (same).
We agree with the reasoning of the Eleventh Circuit in Alacare and
believe that it applies with equal force to the issue presented in
this
case. There is no question but that, as emphasized by Lucy Corr and
the district court, the Medicare Act and its implementing
regulations
contain numerous provisions setting forth residents' rights,
quality of
care parameters, and specific survey, certification, and
enforcement
procedures. See, e.g., 42 U.S.C. 1395i-3(c), (e), (g), (h); 42
C.F.R.
483.10, 483.12, 483.13, 483.15, and 483.25. In addition, the
administrative scheme set forth in the Medicare Act includes a
state
appeals process for the transfer and discharge of patients. See 42
C.F.R. 431.205. Virginia has complied with these provisions by
providing for a right of appeal to the Department following a
transfer

or discharge from a nursing home. See 12 Va. Admin. Code 30-11090.

The state administrative hearing provisions under the Medicare Act
are limited, however. These provisions do not, for example, require
the state agency to establish hearing procedures for complaints
based
on the quality of care and, therefore, do not appear to encompass
all
8

of Talbot's claims. Although the Medicare Act does require that

residents be informed of their right to file a complaint with a state
survey
and certification agency respecting abuse and neglect, see 42
U.S.C.
1395i-3(c)(1)(B), it does not appear that this remedy affords
individual relief, such as that sought by Talbot, see id. 1395i-3(h).
In
addition, as explained by the hearing officer assigned to Talbot's
claim, the right to appeal a discharge to the Department does not
appear to include the right to assert claims of maltreatment or
claims
that the nursing care facility has violated the quality of care
provisions of the Medicare Act.
In the face of the strong presumption against requiring the exhaustion of state administrative remedies in 1983 suits, the
existence of
these state administrative review procedures does not suffice to
evidence Congress' intent to implicitly create an exhaustion
requirement
for claims asserted under the resident rights provisions of the
Medicare Act pursuant to 1983. This conclusion makes particular sense
where, as here, the state administrative procedures do not
encompass
many of the claims asserted by the plaintiff. Because the district
court
in this case required Talbot to exhaust her state administrative
remedies before bringing this suit, its decision was in error.
IV.
For the foregoing reasons, we vacate the district court's grant of
Lucy Corr and Mast's motion to dismiss pursuant to Rule 12(b)(1) 3
for Talbot's failure to exhaust her state administrative remedies
and
remand this matter for further proceedings consistent with this
opinion.
VACATED AND REMANDED
_________________________________________________________________
3 We note that the district court expressly declined to rule on
Lucy Corr
and Mast's motion to dismiss for failure to state a claim upon
which

relief could be granted under Federal Rule of Civil Procedure

12(b)(6).
The district court is free, on remand, to consider all of the
grounds previously asserted by Lucy Corr and Mast, and we express no opinion as
to
their merits.
9