The American Health Care Association, LeadingAge and other plaintiffs on Friday formally asked a federal court to issue a quick judgment in their favor in their case opposing a national nursing home staffing rule.
The request for summary judgment filed in the US District Court for Northern Texas is the latest step in a legal challenge being mustered primarily through written arguments. It follows the Centers for Medicare & Medicaid Services’ September submission of more than 75,000 pages of documents the agency used as rationale to support its staffing mandate, which was finalized in spring.
In its newest arguments, AHCA and its attorneys say that CMS has failed to show that Congress granted the agency the authority to impose overall hourly nurse requirements or increase existing registered nurse coverage.
“CMS has not even tried to claim that the statutory provisions in which Congress explicitly addressed staffing requirements empower the agency to enact these sweeping new mandates,” attorneys wrote. “Instead, CMS claims to have discovered authority to do so lurking in ‘various provisions’ of the Medicare and Medicaid Acts that enable the agency to promulgate requirements promoting resident health and safety.”
But, the filing adds, that argument “runs headlong into basic principles of administrative law” because general rulemaking provisions don’t allow agencies to “promote their own policy du jour over the policy choices that Congress enacted into federal law.”
AHCA is asking Judge Matthew J. Kacsmaryk to grant the motion for summary judgment. It wants the judge to rule that the 24/7 RN requirement and all three hourly requirements in the nursing home staffing rule exceed CMS’ statutory authority and issue an order vacating those requirements.
Congress has “explicitly and repeatedly” addressed staffing levels for nursing homes using a consistent approach, AHCA and its partners said. That includes requiring 24-hour licensed nursing services “sufficient to meet the nursing needs of its residents.” Not until the staffing mandate’s issuance, however, has CMS ever dictated mixes of staff or provider-to-resident ratios above the requirement of RN presence for at least eight consecutive hours a day, seven days a week. Congress has repeatedly opted not to increase or further delineate those requirements, even after commissioning studies on the issue, AHCA noted.
“These onerous new requirements exceed CMS’s statutory authority, represent a baffling and unexplained departure from the agency’s longstanding position, and create impossible-to-meet standards that will harm thousands of nursing homes and the vulnerable Americans they serve,” the plaintiffs argued. “The Final Rule cannot stand.”
The case now includes the state of Texas, which filed an overlapping lawsuit in August. Both challenged the final rule under the Administrative Procedures Act, arguing it is arbitrary and capricious. Kacsmaryk agreed to consolidate the cases Sept. 18, without objection from CMS or the Department of Health and Human Services.
Texas Attorney General Ken Paxton helped draft Friday’s arguments, which note that the “nursing home mandate will create “artificial demand” and make compliance “practically impossible in many parts of the country.”
In its final rule, CMS estimates Texas nursing homes will need about 2,579 additional RNs, representing an increase of 46% over current staffing, as well as 7,887 more nurse aides, an increase of 28%.
“Texas simply does not have enough RNs and NAs to sustain these massive increases. Meanwhile, Texas does have a relatively high proportion of licensed vocational nurses (‘LVNs’) working in nursing homes across the State — but the Final Rule largely ignores their important contributions to resident care,” the lawyers said. “The Final Rule will also have a disproportionate impact on smaller, rural facilities across Texas, which will struggle to compete with larger, better-funded urban facilities vying to attract new hires from the limited pool of RNs and NAs.”
The case also references the rapidly evolving federal legal view of regulatory authority.
AHCA points to a September ruling from Fifth Circuit Court of Appeals that found the so-called major questions doctrine applies when an agency “claims the power to resolve a matter of great political significance.”
“That describes this case to a T: Nationwide nursing-home-staffing requirements have been a hotly debated political issue for more than half a century, and Congress has directly addressed that issue by setting its own statutory standards — and by conspicuously and repeatedly declining to enact the type of rigid requirements CMS now seeks to impose,” the plaintiffs wrote.
“Moreover, the major questions doctrine is ‘independently trigger[ed]’ when ‘[an] agency seeks to … require billions of dollars in spending by private persons or entities,’ as the Final Rule unquestionably does. … Even by CMS’s own low-ball estimate, nursing homes will need to spend more than $40 billion over the next decade to comply with the new staffing requirements. CMS therefore must identify clear congressional authorization for its onerous new mandates — which CMS comes nowhere close to doing.”
HHS and CMS have until Nov. 15 to file a cross-motion for summary judgment, which will presumably ask the court to clear the way for the rule to stand.
Both sides can reply to each other’s motions, with the final response due by mid-January and a ruling possible any time after that.
