Connecticut’s largest nursing home association has sued the state Department of Public Health to stop nurse staffing ratios, arguing that state officials went beyond the intent of the legislature in enacting specific requirements.

Connecticut lawmakers last year approved the adoption of a more stringent staffing standard for the state’s 233 nursing homes, increasing overall hourly direct care provisions from 1.9 hours per patient day to a 3.0 hour daily standard. But the real trouble began after the legislation left the statehouse and went to the health department for implementation, according to a suit filed by the Connecticut Association of Health Care Facilities in state Superior Court Oct. 6.

“Given that the General Assembly rejected any allocation of minimum hours among different nursing staff categories, it is clear that the state legislature intended to leave specific staffing choices to the individual nursing homes, which are in the best positions to assess the specific needs of individual patients and determine specific staffing to meet those patients’ needs,” attorneys for the association argued in court documents reviewed by McKnight’s Long-Term Care News Wednesday.

“While the General Assembly authorized DPH to implement interim policies and procedures, DPH was not given authority to ignore the plain language of the statute or its legislative history,” they continued.

The association said unelected health officials’ issued policies and procedures late last year that “violate the plain language and legislative intent of” the bill passed by lawmakers and “represent a significant, overreaching departure from DPH’s existing regulations regarding staffing ratios for nursing homes.”

The department’s director of communications told McKnight’s DPH would not comment on the pending litigation.

Lawmaker intentions crux of case

State legislators updated overall staffing standards in 2021, after debating a possible 4.1 overall standard and hourly care requirements for certified nurse aides, licensed practical nurses and registered nurses. They ultimately reduced the total coverage to 3.0 daily hours and left language on standards by license type out of a final bill.

In doing so, several lawmakers specifically addressed the cost of the steeper requirements as a hindrance to adoption. A state analysis found ramping up to 4.1 hours and addings care levels specific to RN, LPN and CNA roles could cost “at least $200 million.” But a lower standard without specific ratios by nurse type would run approximately $600,000 to $1 million. The General Assembly later allocated $500,000 in state funding for two fiscal years, which CAHCF argued was in line with lawmakers’ intent to finance the lower standards.

CAHCF in February asked the health department to reconsider its policies, given the Legislature’s intent.

The policies were technically effective March 1, 2023. Enforcement of the standards has started, although CAHCF President and CEO Matthew Barrett told McKnight’s that public comments didn’t open until July and the regulations remain pending.

In August, according to court documents, the DPH Commissioner issued declaratory rulings rejecting CAHCF’s arguments that the policies and procedures were “improperly promulgated.” In September, state officials also rejected a request for reconsideration regarding “errors of law” and new evidence that materially affects the case.

Included in that new evidence: findings from a Centers for Medicare & Medicaid Services-commissioned study on minimum staffing that found there is “no obvious plateau at which quality and safety are maximized or ‘cliff’ below which quality and safety steeply decline.”

Proposed in a vacuum

In regard to Connecticut’s ratios, CAHCF said that the health department has offered no research or studies to back its adopted minimums, nor did it seek any public input in the process. Instead, the association alleges, state officials set their numbers “based on ‘anecdotal’ information provided by the Connecticut long-term care ombudsman and other outside groups.”

The association is asking the court to find the health department’s rulings on the matter “arbitrary or capricious or characterized by an abuse of discretion.”

It also asks the court to require DPH to issue new rulings in support of a 3.0-hours standard and find any policies and procedures promulgated for minimum staffing levels for nursing categories “to be in violation of the purpose and intent” of statute passed by the General Assembly.