Texas Attorney General Ken Paxton on Wednesday added his state’s name to the roster of groups suing the federal government over its new nursing home staffing mandate. The state is asking a federal court to vacate the rule.
Like others before it, the Texas lawsuit claims the Centers for Medicare & Medicaid Services does not have sufficient authority to impose such a rule on skilled nursing operators. The rule says that providers must provide at least 3.48 hours of direct nursing care per patient day, and have a registered nurse on duty every hour of every day.
Texas claims that, under a legal theory called the Major Questions Doctrine, agencies such as CMS cannot issue regulations that could cause significant economic damage without prior clear direction from the legislative branch.
“This power grab by Biden’s health bureaucrats could put much-needed care facilities out of business in some of the most underserved areas of our state,” Paxton said in a statement. “We are taking the federal government to court over this rule that could worsen rural care shortages by shutting down facilities due to new hiring quotas that are impossible to fill.”
The lawsuit was filed in the Amarillo division of the US District Court of the Northern District of Texas, the same court handling a similar lawsuit introduced by the American Health Care Association in May.
On Tuesday, McKnight’s Long-Term Care News exclusively reported that AHCA and the Department of Health and Human Services had agreed to a speedy schedule for that lawsuit’s resolution.
All eyes on one judge
Wednesday’s lawsuit filing all but assures Judge Matthew Kacsmaryk will hear the case, according to a report in Roll Call. Kacsmaryk also is overseeing the AHCA lawsuit, in which fellow national provider association LeadingAge is a co-plaintiff. The Texas Health Care Association and three providers also were original plaintiffs.
Kacsmaryk was appointed by former President Donald Trump and has ruled against several Biden administration policies.
The lawsuits against the staffing minimum argue that it will jack up the costs of staff and likely force service shrinkage and facility closings, particularly in rural areas.
The new rule would force “Texas institutions overnight to hire more than 10,000 personnel with highly specific qualifications — more personnel than are currently available in the labor market within the State and specific service areas,” the statement from the Texas AG said Wednesday.
While CMS estimated the cost of implementing the mandate at $43 billion over a decade’s time, AHCA pegged the price tag at much more.
