After Plaintiff’s case was removed to federal court, a motion to remand was filed and granted. Plaintiff argued that allegations that Defendant violated 42 U.S.C. § 1396r does not provide a basis for federal jurisdiction because there is no private cause of action relating to nursing home quality of care standards. The court applied the “total activity” test to find an absence of diversity.

Note: Plaintiff’s argument that the federal quality of care standards are not applicable is dangerous. Although they may not form the basis for a private cause of action, many courts since Brogdon have held that the quality of care standards are appropriate in determining the standard of care. The decision here is not at all clear concerning what relevance, if any, the standards will play in subsequent litigation.