NASHVILLE — A group of 20 attorneys general asking a federal court to strike down the nursing home staffing rule also has now asked the court for an immediate injunction.

An injunction would pause implementation and enforcement of the rule immediately as the court considers written and oral arguments in the broader case.

Jon Lips, vice president of legal affairs for LeadingAge revealed the latest development in the case at the group’s annual meeting here Sunday. The national LeadingAge organization is not involved in the case, but 17 of its affiliates representing 21 states signed on to the civil suit filed in US District Court for the Northern District of Iowa on Oct. 8.

“The plaintiffs in the Iowa case have recently asked the court to issue a preliminary injunction that would block CMS from taking action to prepare for or implement the rule, even though compliance with those requirements — other than the facility assessment — don’t come along until 2026 and beyond,” Lips told a packed session outlining recent federal policy developments.

“The Iowa lawsuit asserts that both providers and states are taking action now to prepare for the rule, which they ought not to have to take.”

The attorneys general have accused the Centers for Medicare & Medicaid Services of overstepping its regulatory authority by, among other things, tripling a longstanding congressional directive for a registered nurse to be present for eight hours per day, seven days a week. The new rule calls for RN presence every hour of every day, as well as 3.48 hours of daily nursing care for every resident.

Earlier this month, the plaintiffs argued that the staffing rule, finalized in early May, exceeds CMS’ statutory authority. The agency’s own estimated cost of $43 billion makes it an issue of “vast economic and political significance without Congress ‘speak[ing] clearly’ to the issue,” the attorneys general filing led by Kris W. Kobach of Kansas reiterated in the Oct. 22 motion for preliminary injunction and oral argument.

State provider groups tell the harm

The case now includes legal declarations from LeadingAge chapter officials intended to show the impact the rule is already having on nursing homes.

Kari Thurlow, president and CEO of LeadingAge Minnesota, for instance, warned that even the initial facilities assessment provisions have required significant staff time and financial investment. Despite that fact, providers worry they’ll be cited for non-compliance because they have a “lack of clear guidance” from CMS. 

She illustrated her concerns with the case of the 5-star rated Halstad Living Center, which has spent more than $10,000 on administrative costs to date, over double the CMS estimated compliance cost for the requirement, in staff time alone. 

“These are for initial costs and do not include any costs associated with the issue of achieving compliance with ‘continuous’ updates to the new facility assessment,” Thurlow wrote. “These vague and arbitrary definitions could result in providers, despite acting in good faith, being unfairly penalized through Civil Money Penalties during complaint investigations or annual surveys.” 

She called it an example of the rule’s “overly burdensome cost without benefit to residents.”

Costs can’t be recouped 

The main argument also repeatedly cites mounting concerns about the costs of staffing up to comply, and efforts already underway to recruit and maintain nursing workforce. In Pennsylvania, for example, annual costs to comply are expected to average $689,000 per provider.

“LTCs that have not already hired staff to comply with the Final Rule soon will do so, and those costs impose significant, and in many cases, impossible, burdens on LTCs. Those burdens are especially harmful in those in rural areas in which the required workforce simply doesn’t exist or in other tight labor markets where LTC facilities compete with hospitals and other higher-paying healthcare jobs for scarce healthcare professionals,” the attorneys general wrote.

“Nursing homes will incur substantial costs, and they may be required to rely on temporary staffing agencies, which are significantly more expensive, sometimes multiple times the cost of an employed staff member, and notorious for providing lower quality care by those less familiar with and less invested in the residents’ wellbeing. These increased costs will likely lead to reduced services and closures for many nursing homes, ultimately reducing long-term care availability for seniors and forcing many to facilities far from their family and friends.”

That was one of the various ways the AGs attempted to argue irreparable harm, noting that providers won’t be able to recoup money spent now should the staffing rule ultimately be defeated in this court case, or two others that have combined in the US District Court for Northern Texas.

“Because the Final Rule is likely to be held unlawful on a host of grounds, and it causes

irreparable harm to both organizational and State plaintiffs here, plaintiffs need injunctive relief,” they wrote. “Absent preliminary injunctive relief, Plaintiffs will suffer irreparable harm … The LTC Plaintiffs and the Organizational Plaintiffs that represent LTCs are suffering and will continue to suffer sharply increased financial and administrative burdens that will be too great for many LTCs to bear, leading to reduced services and LTC closures.”

The plaintiffs said the court should not just pause the rule’s implementation in states involved in the case, but to extend relief to all regulated nursing homes nationwide “pending a decision on the merits.” 

“Less than a nationwide injunction would require the organizational plaintiffs to monitor and report their membership rolls to determine which LTCs were members to whom the injunctive relief applies,” the attorneys general write. “Meanwhile, other LTCs who are not members, or who do not reside in Plaintiff states, would be forced to compete in an uneven market. This Court should not permit such an inequitable outcome.”