WASHINGTON, DC — Federal lawmakers continue to look for ways to reverse a staffing rule that demands nursing homes hire more than 102,000 new staff members, with fresh promises Monday to pursue several paths forward.

Sen. Jon Tester (D-MT) told attendees at the American Health Care Association/National Center for Assisted Living’s Congressional Briefing that he intends to introduce a resolution calling for a congressional review of the rule finalized last month.

“Washington, DC, is a baffling place,” said Tester. “There are folks here that don’t fully understand some of the challenges that are out there in the healthcare and business community, and they certainly don’t understand some of the challenges we have in rural America when it comes to accessing employees like doctors and nurses and support staff. 

“Quite honestly, they threw down a staffing mandate that’s going to result in just the opposite thing happening of what we all want to have happen,” he continued. “What’s going to end up is there’s going to be less choices for folks who have loved ones they want to put into care facilities because, quite frankly, those care facilities will have to close unless we can get this rule repealed and inject some brains into this.”

Tester previously issued two letters urging the Centers for Medicare & Medicaid Services to abandon its rule-making attempts given labor shortages. He also co-sponsored a bill to block the rule from going into effect. He said his motivation to kill the CMS rule is tied to last year’s closure of 11 Montana nursing homes, and the fact that should he one day need one, he may end up hundreds of miles from his family.

“So there will be a Congressional Review Act I’m heading the charge up on,” Tester vowed, offering a companion to a House review called for last month. “It’s going to pass. I don’t know if it will pass with enough votes that will override a potential veto, but hopefully we get enough votes that the president doesn’t veto it.”

The staffing rule dominated presentations and small talk on the first day of this two-day event on Capitol Hill, where leaders emphasized the requirements’ potential threat to skilled nursing and assisted living providers and highlighted strategies that members should embrace in conversations with their elected officials this week.

Best chance for rule change

AHCA/NCAL President and CEO Mark Parkinson, amid remarks expressing overall optimism for the sector as census rebounds, also vowed to keep the heat on regulators on multiple fronts.

“We’re not going to do nothing,” Parkinson said. “I think the path we have that is most likely to succeed is litigation.”

Parkinson, echoing arguments made in the association-led lawsuit filed last week, said it was clear that Congress intended to set nursing home staffing levels through law-making. In 2021 and 2022, Parkinson said, CMS approached lawmakers about setting direct care levels and Congress declined. The new rule is a CMS effort to circumvent congressional authority, he added.

He praised providers that had been brave enough to bring the lawsuit alongside the association.

Later, Rep. Brett Guthrie (R-KY) told attendees the current Congressional Review Act efforts might not work, but that a second attempt could be made to conduct one should Trump win the election. In that case, the CRA could be triggered only if Congress had met for fewer than 60 days following the rule’s formal May 10 publication in the Federal Register. Lawmakers might have to shorten their session to stay within that window, Guthrie said.

He criticized the rule as the Biden administration’s attempt at “paying off” the service workers union and said leaders should not let special interest groups dictate decision making. Guthrie, sponsor of a bill that would pick back up a nurse aide training waiver, said Congress should have an opportunity to “stop this” rule but also strongly consider proposed workforce solutions.

More than 650 AHCA/NCAL members are in Washington attending the Congressional Briefing, a number Parkinson called a record.

The association is planning a major press event for Tuesday in which it will continue an expanding campaign against the staffing rule, for which compliance would cost the average facility $400,000 in 2026, according to AHCA. The rule calls for 24/7 registered nurse staffing and sets first-ever levels of daily direct patient care for RNs and certified nurse aides.

For more coverage, follow mcknights.com, and see mcknightsseniorliving.com for an assisted living perspective on the staffing rule.