The American Health Care Association, LeadingAge and four other parties in a lawsuit challenging the federal nursing home staffing mandate have told the case’s judge they expect a decision to be reached on motions alone and proposed a schedule that could lead to a resolution as early as January.
The motion, filed Friday, reveals AHCA’s intention to seek summary judgment by mid-October. Summary judgment allows a judge to decide a case based on submitted briefs and oral arguments, without the need to advance to a trial.
The Department of Health and Human Services, along with Secretary Xavier Becerra, the Centers for Medicare & Medicaid Services, and Administrator Chiquita Brooks-LaSure also have agreed to the proposed timeline, according to filings reviewed by McKnight’s Long-Term Care News Tuesday.
“Counsel for the parties have conferred, including by email and by teleconference on August 8, 2024, regarding appropriate next steps in this case in order to present the disputes in the most efficient manner possible for the Court’s resolution,” said the joint motion filed with Judge Matthew Kacsmaryk in the US District Court for Northern Texas. “The parties have agreed that this case may be resolved by cross-motions for dispositive relief.”
The first proposed deadline would require HHS and CMS to file an Administrative Record by Sept. 13. That record would include any documents CMS used in its decision to develop the staffing rule, a final version of which was announced on April 22.
The court will review that record to check compliance with the Administrative Procedure Act and weigh the plaintiffs’ challenge that the rule is “arbitrary and capricious” as alleged in the June 18 lawsuit.
AHCA and its fellow nursing home representatives would have until Sept. 27 to challenge the record. Depending on the course of that challenge, AHCA could present a motion for summary judgment by Oct. 18.
The defendants would then have until Nov. 15 to file a cross-motion for summary judgment. Both sides would then have time to reply to those motions, with HHS getting the proposed final word in a response due by Jan. 17.
That means Kacsmaryk could issue his final decision in the case more than a full year ahead of the start of Phase 2 of the rule, during which non-rural facilities are expected to meet a 3.48 per patient, per day total nurse staffing requirement and a rule demanding 24/7 registered nurse coverage.
Legal experts had previously told McKnight’s that they didn’t expect a request for injunctive relief would be required in the case because of the rule’s extensive, extended rollout. Rural providers have five years from the rule’s publication to reach Phase 3 targets of including 0.55 hours of RN coverage and 2.45 hours of nurse within the broader 3.48-hour daily requirement.
Providers, however, are already under the gun on one provision. The rule’s expanded facility assessment requirement kicked in last week.
In the lawsuit, AHCA and the other parties charge that the final rule, published in the Federal Register May 10, “effects a baffling and unexplained departure from the agency’s longstanding position” on nursing home staffing. The association asked the court to strike the law, arguing that CMS is a “creature[of statute” and “possess[es] only the authority that Congress has provided.”
“For more than half a century, Congress — not CMS or its predecessors — has taken the lead in setting staffing requirements for nursing homes that participate in the Medicare and Medicaid programs,” the lawsuit added.
Parties in the initial filing include AHCA, the Texas Health Care Association, and providers Arbrook Plaza, Booker Hospital District and Harbor Lakes Nursing & Rehabilitation Center. LeadingAge joined the case in mid-June.
