Industry and legal experts are expressing confidence in a lawsuit filed last week that aims to kill a federal nursing home staffing mandate, with some boldly predicting a fairly straight-forward defeat for the Biden administration.
The American Health Care Association, The Texas Health Care Association and three Texas providers brought their case Thursday in the US District Court for the Northern District of Texas.
It argues that the rule exceeds the regulatory authority of the Centers for Medicare & Medicaid Services and applies arbitrary and capricious standards that will potentially put nursing home operators out of business.
“This action is both well-conceived and well-crafted,” said attorney Mark Reagan of Hooper Lundy Bookman, general counsel to provider associations in California and Massachusetts and one of the long-term care sector’s most seasoned litigators.
“Congress has clearly occupied the field of federal minimum staffing requirements for skilled nursing facilities and CMS plainly lacks the authority to impose the requirements set forth in the final rule,” he told McKnight’s Long-Term Care News Friday.
AHCA’s complaint outlined a long history of Congress retaining its stake in dictating staffing requirements for nursing homes, which Reagan said “exposes the meritless claims of authority asserted by CMS in the rule.”
“In an era with far less judicial deference to questionable claims of governmental authority, this action is perfectly positioned as yet another example of such overreach,” added Reagan.
He said he was “confident” the challenge would succeed and predicted the case could be resolved by summary judgment — meaning without a trial — by early 2025.
Staffing contentions
The rule requires federally funded nursing homes to staff a registered nurse full-time and provide 3.48 hours of daily direct care per patient by 2026, with specific hourly requirements for certified nurse aide and RN direct care kicking in in 2027. Rural facilities have additional time to comply.
CMS Friday referred a request for comment on the lawsuit to the Department of Health and Human Services.
An HHS spokeswoman told McKnight’s Friday that the administration “is committed to fulfilling the President’s promise to improve safety and support workers so everyone can age with dignity,” referencing anecdotes about staffing concerns shared in public comments responding to the CMS rule first proposed last year.
“The status quo in too many nursing homes unacceptably endangers residents and drives workers into other professions,” she added.
But Drew Graham, creator of the Long Term Care Practice Group at Hall, Booth, Smith, said Friday that, allowed to proceed, the “impossible-to-meet standards” of the new staffing rule would ultimately harm staffing through increased frequency and severity of lawsuits by residents and their families.
“Professional liability insurance, where available, will likely be out of financial reach for most operators,” he said. “If history is a guide, the coming litigation crisis will degrade staff satisfaction and retention, forcing many out of an industry that badly needs them.”
AHCA has estimated the rule will demand an additional 102,000 nurse aides and registered nurses, and the national is expected to have an RN shortage through at least 2031, according to the Labor Department. That demand was calculated before taking any new CMS requirements for nursing homes into account.
Still, consumer advocates continue to press forward with their calls for higher standards, even if those regulations might diminish access to care.
“All of the evidence we’re tracking at AARP tied to this rule points to the urgency behind implementation,” AARP Vice President Sarah Lovenheim said Thursday, before the lawsuit was filed. “The rule has bipartisan support, it’s long overdue and it should help save lives. Any attempt to shortchange older Americans of this baseline level of care is short-sighted and risks the health of well over one million people living in nursing homes today — and in the years to come.”
The legal action follows at least three efforts in Congress to revoke or block the mandate, all of them also with bipartisan support.
The Supreme Court is also expected to rule next month on two related cases regarding the Chevron deference, which compels federal courts to defer to a federal agency’s interpretation of statutes on which Congress has been unclear. SCOTUS is widely expected to limit the doctrine, if not strike it down — ushering in a change that could undercut CMS arguments in support of the staffing rule.
Stil, Reagan said he thinks providers’ arguments are so solid that a win in Chevron isn’t needed to succeed. Barring “something unforeseen,” he said he also doubts that there will be any need to seek an injunction in the case because it would be resolved before hiring requirements kick in 2026.
He said arguments in the case may hinge on legal authority rather than disputed facts, but another industry observer told McKnight’s Friday that there is plenty of data to prove nursing homes are unable to afford the hefty additional costs the mandate would impose.
CMS repeatedly said in its May 10 regulation that its ability to change Medicare and Medicaid reimbursement is outside the scope of its rule-making, and yet, compliance would force providers and, later, states to absorb the costs of additional staffing.
“They did not do any research to see if it was economically feasible for nursing homes to do this,” the expert said.
“Along with the realities that there is no workforce available to meet the new requirements and no new funding to support facility hiring, the complaint persuasively argues the unreasonableness of the rule,” Reagan concluded.
