A lawsuit challenging the federal staffing mandate for nursing homes could be headed to the US Supreme Court as early as its fast-approaching session, according to a judicial preview from the AARP Foundation. 

The foundation’s preview said legal experts expect the staffing regulation lawsuit to move quickly through the lower courts.

The seniors advocacy organization is actively fighting the long-term care sector’s efforts to overturn the regulation. 

The foundation’s annual preview of the court’s fall term was released Wednesday and includes cases on disability and civil rights, as well as federally negotiated drug prices that could significantly affect operations and census at nursing homes and other long-term care facilities.

“AARP and other advocates for older adults have long advocated for specific minimum staffing standards to ensure the health and safety of nursing facility residents,” the AARP Foundation’s Fall Preview stated. “The high mortality rates in nursing facilities during the pandemic further underscored the tragic consequences of understaffed facilities.”

The American Health Care Association, the Texas Health Care Association, LeadingAge, and three Texas providers filed suit against the mandate in the US District Court for the Northern District of Texas, alleging that the Centers for Medicare & Medicaid Services exceeded its authority in requiring certain staffing levels for nursing facilities.

Guaranteed discontent

Regardless of who prevails in the Texas court, sector observers expect the losing side of American Health Care Association et al. v. Becerra et al. to appeal, which would take the case to a federal appeals court, one level below the US Supreme Court. 

Observers expect a similar reaction at the appeals court level, whether or not those judges overturn the Texas ruling. That appeal would then land the case at the Supreme Court, presuming the justices there agree to hear the case, which most expect.   

On Friday, Sept. 13, CMS filed more than 75,000 pages of rule-making records, beginning its formal defense of its controversial nursing home staffing mandate. The documents included the 46,000-plus public comments submitted on the rule.

Under the mandate, which is now in effect and unfolding its various implementation dates, all federally funded nursing homes must submit a revised facility assessment in August. The next requirements become active starting in two years, when all non-urban providers must provide 3.48 hours of direct nursing care per patient per day and staff a registered nurse 24 hours a day. By the following year, nursing homes must meet specific breakdowns requiring 0.55 RN and 2.45 certified nurse aide coverage per patient per day

The AARP Foundation’s preview noted that a facility with 100 residents would need two to three RNs per shift along with 10 to 11 nurse aides plus two additional nursing staff, who may be aides or higher.

On Wednesday, AARP sent a letter to the top members of the US House Committee on Energy and Commerce reiterating its opposition to efforts to overturn the staffing rule. 

“Research consistently shows that higher RN staffing levels are associated with better resident care quality across multiple dimensions of care,” Bill Sweeney, senior vice president for Government Affairs wrote to US Reps. Cathy McMorris Rodgers (R-WA) and Frank Pallone (D-NJ). 

Rural providers, who have longer to comply with the mandate than their urban counterparts, have been among the most vocal opponents of staffing regulations due to their hardships of attracting nursing staff. Sweeney’s letter acknowledged that challenge 

“We recognize that staffing, including in some rural areas, can be challenging, and we note that CMS included significant flexibility for these facilities with staggered implementation timelines and longer implementation timeframes for nursing homes in rural areas,” Sweeney wrote. “If a nursing home does not have enough staff to care for its residents, it should not be admitting new residents.”

Other possible cases

Challenges from pharmaceutical companies and others to the Medicare Drug Price Negotiation Program could harm access to lower cost drugs, according to AARP’s foundation. 

The Centers for Medicare & Medicaid Services announced last month that it had reached an agreement with drug makers to lower the list prices Medicare would pay for 10 of the most expensive drugs that are frequently prescribed to seniors by 38% to 79%. The new prices will go into effect Jan. 1, 2026.

“This critical change will allow millions of older people to gain access to affordable prescription drugs, as opposed to their current situation where ever-escalating drug prices have forced many to either forgo their medication entirely or make drastic sacrifices to access the medication they need,” the Foundation wrote.

But top advocates for long-term care pharmacies cautioned that, while they support lowering costs for seniors, the steep discounts will put even more pressure on these companies, which are already struggling to remain profitable. 

The AARP Foundation is also tracking developments by the US 5th Circuit Court of Appeals in U.S. v. Mississippi, which, it says, violates Title II of the Americans with Disabilities Act by placing individuals diagnosed with severe mental illnesses “at risk of unjustified institutionalization.” 

Twenty-five years ago, Olmstead v. L.C. set precedent for allowing disabled persons to live in the community instead of requiring facility care, but the primer said the foundation has continued to confront legal challenges that allege a lack of reliable care.  

“If the Fifth Circuit’s reasoning is more widely adopted, older adults living in the community who are at risk of institutionalization because of a lack of appropriate services, may not be able to bring Olmstead claims,” according to the foundation’s preview authors. “Until recently, courts have consistently held that Olmstead applies not only to people who already live in nursing facilities, but also protects people who live in the community and are at risk of institutionalization due to a lack of community-based services.” 

The Supreme Court also is expected to rule on whether plaintiffs must exhaust all administrative processes prior to filing civil rights lawsuits in state courts. Section 1983 of the Civil Rights Act of 1871 allows people to file a lawsuit in federal court before exhausting all administrative processes required by a state. 

A ruling from Alabama’s Supreme Court dismissed a case against the state’s Department of Labor over unemployment claims that AARP said threatens Section 1983 rights. 

“In [the Alabama case], the Supreme Court has a critical opportunity to empower older adults by ensuring they can seek swift and effective redress in state courts for civil rights violations, including those under the Nursing Home Reform Act,” William A Rivera, AARP Foundation senior vice president of Litigation told McKnight’s Long-Term Care News in an emailed statement Friday.

“As we approach this pivotal term, AARP Foundation remains steadfast in our commitment to advocating for stronger protections and accountability in nursing homes, ensuring that the voices of older adults are heard and their rights upheld.”