The Department of Health and Human Services filed more than 75,000 pages of rule-making records with a federal court Friday, beginning its formal defense of its controversial nursing home staffing mandate.
The submission of the administrative record is the first significant advance in the case since the American Health Care Association brought its challenge to the minimum staffing standard in late May. The Texas Health Care Association, three Texas providers and LeadingAge are also part of the case.
In another development, District Court for the Northern District of Texas Judge Matthew Kacsmaryk on Sept. 10 agreed to fold in a separate federal challenge against the staffing mandate filed by the state of Texas. He noted that the two cases “share common questions of law or fact, consist of similar parties, the same claims, and [have] the same relief sought.”
Texas Attorney General Ken Paxton filed his suit on Aug. 14, asking the court to vacate the rule, citing the Major Questions Doctrine, which holds that agencies such as the Centers for Medicare & Medicaid Services cannot issue regulations that could cause significant economic damage without prior clear direction from the legislative branch.
Because the main lawsuit was brought as an Administrative Protective Act case, HHS and CMS had to justify their rule-making process with substantial records showing the standards they used to develop and finalize the rule.
The department filed notice Friday that it submitted the extensive paperwork via a file-sharing service. The documents, which include the 46,000-plus public comments made on the rule, were not immediately available for review.
Asked to share the filing Friday, a CMS spokesperson said only that the agency does not comment on litigation.
The staffing mandate rule, which is now in effect and unfolding its various implementation dates, required all federally funded nursing homes to 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.
Rural providers have longer to comply.
Nursing homes have argued that the rule is untenable, given significant healthcare labor shortages nationwide and a dearth of registered nurses in particular.
