Twenty state attorneys general filed suit this week to block a federal nursing home staffing rule, a move that was widely interpreted Thursday as an important backup to other ongoing efforts to defeat it.
The case, filed in federal court in Iowa late Tuesday, represents a new front in the battle against the months-old mandate. It was also joined by 21 LeadingAge affiliates.
Still, some experts said Thursday that a suit filed earlier in the US District Court for Northern Texas’ Amarillo Division, seen as a friendly venue, probably remains the sector’s best chance of beating back the rule and its nurse staffing demands. Minimums workforce levels are on track to be phased in beginning in 2026.
“This Final Rule represents not only another attempt from the Biden-Harris administration to impose its policy preferences on the rest of the country but is also monumentally costly and nearly impossible to comply with,” the new lawsuit argues. “Beyond the costs, the latest Rule from the Biden-Harris Centers for Medicare & Medicaid Services (CMS) is not even close to lawful.”
The attorneys general accuse the agency of overstepping their regulatory authority by, among other things, tripling a longstanding Congressional directive for a registered nurse to be present for 8 hours per day, 7 days a week. The new rule calls for RN presence every hour of every day.
The new federal requirements also add hourly stipulations calling for 3.48 hours of daily nursing care per patient starting in 2026, with specific designations for care provided by certified nursing assistants and registered nurses.
Providers clearly see the situation as a crisis that could use an “all hands on deck”attack.
“This parallel lawsuit bolsters efforts in Texas and provides another way to oppose the mandate,” noted Rachel Monger, president and CEO of LeadingAge Kansas.
“The lawsuit provides a venue for 20 states to outline the harm this regulation will cause to their citizens and the cascading negative effects the rule will have on their healthcare systems, state agencies and state-run institutions,” she elaborated in an email to McKnight’s Long-Term Care News.
Monger said LeadingAge members also were seeking to push back against the damning language used by the administration in developing and finalizing the staffing rule.
“Rhetoric condemning these organizations with broad strokes erodes the public’s trust and devalues the irreplaceable role staff and administration play in the lives of the people they serve,” Monger pointed out. “Hand-in-hand with our attorneys general, we are standing up to that rhetoric and demanding that this destructive, one-size-fits-all policy be turned aside.”
Major questions
The suit, of course, deals with more technical aspects of the staffing rule, which was finalized in May.
“Implementing such a broad mandate that would result in at least $43 billion of compliance costs for nursing homes nationwide over the next ten years, without Congress ‘speak[ing] clearly” to the issue, is a flagrant violation of the Major Questions Doctrine,” the attorneys general’s suit states, citing a legal principle that limits the authority of regulatory bodies unless they have explicit Congressional authorization.
Under the leadership of Chief Justice John Roberts, the Supreme Court has expanded the use of the doctrine and generally made it harder for administrative agencies to implement rules that go beyond express permissions and duties assigned to them.
The Texas case, American Health Care Association v. Becerra, is potentially on a fast track for the Supreme Court, with more filings due this month. AARP earlier this month projected that the case could wind its way through the appeals process and to Roberts and his colleagues in time for the 2025 session.
That’s one reason it is largely seen as the first line of defense for nursing homes.
“The AHCA-led lawsuit challenging the rule in Texas, which was filed earlier, is more critical than any other to ensuring this rule is blocked,” Brent Willett, president & CEO of the Iowa Health Care Association, told McKnight’s Long-Term Care News. “We stand firmly behind it. It should be litigated and won as soon as possible, rendering other suits unnecessary, and restabilizing a sector suffering from the uncertainty this senseless rule has created.”
In a separate LinkedIn post, Willett contended the mandate would “throttle access to long-term care.”
Iowa Attorney General Brenna Bird led in filing the new suit, along with attorneys general from Kansas and South Carolina.
“Our seniors spend a lifetime investing in our communities,” she said in a statement Wednesday. “Now, we need to invest in them by ensuring they have access to the care they need. I am suing to stop the Biden-Harris attack on senior care that will force nursing homes out of business, increase costs for families, and remove access to senior care altogether.”
Bird’s press release on the case referred to it being filed on Oct. 9, but court documents reflect an Oct. 8 filing date.
Also joining the suit are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, Virginia, and West Virginia.
Second push welcomed
Willett and other state association heads said they were pleased state officials had come to the table on behalf of skilled nursing providers and their patients.
“The Final Rule has already forced our nonprofit and mission-driven nursing homes to make difficult decisions about reducing their skilled nursing offerings, decertifying their skilled nursing beds, and in some cases closing their buildings all together,” added LeadingAge Nebraska CEO Kierstin Reed in a press release. “This affects our entire healthcare system and limits older adults’ ability to receive care, especially in rural areas. We are amid the largest workforce shortage in our country and with the closure of skilled nursing communities, older adults and family members will have to travel great distances to receive care. The Final Rule will also exacerbate the wait times for long-term care services in our state.”
AHCA leaders Thursday said the organization remained focused on its case, but welcomed others to join in its fight.
“We appreciate that attorneys general are similarly concerned about CMS’ overreach in issuing this staffing mandate,” said spokeswoman Rachel Reeves. “AHCA/NCAL and our state affiliates believe we have a strong case with LeadingAge and others in the Northern District of Texas, and that’s where our energy is focused right now. There’s also strong bipartisan opposition on Capitol Hill, and we continue to urge lawmakers to block the staffing mandate and protect access to care.”
In addition to the Iowa suit representing LeadingAge affiliates, the American Health Care Association’s suit includes the Texas Health Care Association and three providers in that state.
LeadingAge national is also a party to that lawsuit. A spokeswoman Thursday characterized the new lawsuit as “a further expression of opposition to the rule and deep concern about the negative impacts that will result if the rule is implemented.”
