Nursing home groups file lawsuit to block CMS' staffing mandate

Nursing home associations have filed a lawsuit in federal court seeking to block a controversial staffing policy the Biden administration says is necessary to protect facility residents.

The American Health Care Association, the Texas Health Care Association and the operators of three nursing facilities in Texas filed their complaint Thursday in the Northern District of Texas. It seeks to block a final rule, published in the federal registrar on May 10, that they argue exceeds the administration’s statutory authority.

“We had hoped it would not come to this; we repeatedly sought to work with the Administration on more productive ways to boost the nursing home workforce,” Mark Parkinson, President and CEO of AHCA, said in a release announcing the lawsuit. “Unfortunately, federal officials rushed this flawed policy through, ignoring the credible concerns of stakeholders and showing little regard for the negative impact it will have on our nursing home residents, staff and the larger healthcare system.”

The Centers for Medicare and Medicaid Services’ (CMS’) final rule requires facilities receiving Medicare and Medicaid funding to have a total nurse staffing standard of 3.48 hours per resident per day. It also outlines ratio requirements for registered nurses (0.55 hours per resident per day) and nurse aides (2.45 hours per resident per day), and a requirement for at least one registered nurse to be onsite 24 hours a day.

These and other requirements are set to be phased in over the coming years, with certain facilities like those in rural communities getting extra leeway.

AHCA and other industry groups have been against the requirements since they were proposed last year. They warned that the final rule would in effect reduce access to care due to nursing homes’ widespread workforce shortages and tight finances.

In an analysis released earlier this month AHCA and the National Center for Assisted Living, for instance, the groups wrote that the nursing home industry would need to hire an additional 102,000 nurses and nurse aids to come into compliance, a collective $6.5 billion per year added expense. They also warned that over 290,000 current residents of nursing homes could be displaced due to census reductions or full closures.

“Hundreds of thousands of seniors could be displaced from their nursing home; someone has to stand up for them, and that’s what we’re here to do,” Parkinson said.

The lawsuit—filed in the same court where opponents of the administration’s health and abortion policies have found success—argues that Congress put laws on the books “decades ago” that outline “basic” requirements for nursing homes that participate in Medicare and Medicaid.

One outlines that a nursing home “must use the services of a registered professional nurse for at least eight consecutive hours a day, seven days a week,” and the other than a nursing home “must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents,” the groups wrote in the lawsuit.

“Dissatisfied with Congress’ judgment, CMS decided to take matters into its own hands,” they continued. “At the direction of the President, the agency proposed and has now adopted a rule that overrides both of Congress’ statutory requirements.”

The groups also argue that CMS’ adoption of the standards was arbitrary and capricious, and thereby a violation of the Administrative Procedure Act.

The nursing home industry has found support for its position from Republican lawmakers. Earlier this year the House Ways and Means committee sent a bill blocking the staffing rule to the House floor. Just last week, Reps. Michelle Fischbach, R-Minn., and Greg Pence, R-Ind., introduced their own measure that would reverse the staffing mandate.