Nursing home rule challenged

Roughly 40% of states are sounding the alarm about nursing home care by filing a federal lawsuit over a policy mandating minimum staffing levels in nursing homes. While Minnesota is not one of those states, LeadingAge Minnesota, an organization representing aging services professionals and organizations, has joined the lawsuit, arguing that the rule will potentially harm those who need care.

On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) issued the Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting final rule. Under the rule, any nursing home that receives federal funding through Medicare and Medicaid must have a registered nurse on staff 24 hours per day, seven days a week. It must also provide at least 3.48 hours of nursing care per resident each day. The prior law only required that nursing home have “sufficient” staffing to meet the needs to residents.

Nonrural facilities must comply with the requirements by May 2027, while rural facilities have until May 2029. Limited, temporary exemptions will be available for the staffing standards and 24/7 registered nurse requirement.

In a press release, CMS stated, “CMS’ new minimum nurse staffing standards in this rule set a national and broadly applicable baseline that will significantly reduce the risk of unsafe and low-quality care for residents across all LTC facilities.”

On October 8, a federal lawsuit was filed in the U.S. District Court for the Northern District of Iowa. Kansas and South Carolina joined Iowa as lead plaintiffs. The other states that have signed on are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, Virginia and West Virginia. Two other lawsuits have already been filed against the rule in Texas. More than a dozen industry associations have also signed onto the lawsuit.

The complaint, which refers to the final rule as “a heavy-handed mandate,” states, “This Final Rule poses an existential threat to the nursing home industry as many nursing homes that are already struggling will have no choice but to go out of business. And the main victims will be the patients who will have nowhere else to go.”

LeadingAge Minnesota joined the lawsuit because of concerns about access to care for Minnesota’s seniors.

“CMS has exceeded their authority and acted in an arbitrary and capricious manner with the final rule as it fails to account for an existing staffing shortage in senior care settings – in Minnesota, we’re currently short 17,000 workers,” said LeadingAge Minnesota President and CEO, Kari Thurlow, in a statement. “Layering a mandate on an ongoing workforce shortage not only fails to address the root cause of the problem, it also puts many nursing homes in an incredibly tenuous position.”

In addition to public policy concerns, the lawsuit also contends that CMS lacks the authority to promulgate the rule. “Instead of pointing out where in the applicable congressional statute they have the authority to promulgate this Final Rule, CMS takes the audacious approach of ignoring the statute altogether,” the complainants assert.

The complaint also asserts that the Final Rule “flunks” the Major Questions Doctrine. “CMS’s illegality is more apparent because this is a Major Questions Doctrine case. 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.”

In addition to seeking the court’s declaration that CMS lacks the authority to impose the rule’s requirements, it also moves the court to vacate and set aside requirements like the 24/7 RN staffing.

“If this rule went into effect, our data shows that dozens of nursing homes across Minnesota would be faced with an impossible choice: further reduce capacity, limiting seniors’ access to care, or run the risk of noncompliance with the rule, resulting in the threat of closure,” Thurlow asserted.

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