The staffing regulation is the centerpiece of a nursing home quality and safety improvement agenda President Joe Biden announced during his State of the Union address in 2022.
Since CMS proposed the staffing rule almost a year ago, it has been the target of attacks from industry groups such as the American Health Care Association/National Center for Assisted Living, LeadingAge and the American Hospital Association, and from a cadre of lawmakers seeking to undo the regulation.
“This power grab by Biden’s health bureaucrats could put much-needed care facilities out of business in some of the most underserved areas of our state,” Paxton said in a news release. "We are taking the federal government to court over this rule that could worsen rural care shortages by shutting down facilities due to new hiring quotas that are impossible to fill."
In May, the AHCA/NCAL and LeadingAge filed a similar lawsuit in the same federal court.
Related: CMS’ proposed nursing home staffing mandate explained
Under the rule, skilled nursing facilities must provide a minimum of 3.48 hours of nursing care per resident, per day, including at least 0.55 hours from registered nurses. A registered nurse must be on duty at all times. Most nursing homes have three years to come into compliance, while rural facilities have five years. CMS estimates the necessary additional employees will cost skilled nursing facilities $40.6 billion over 10 years.
Research has shown strong connections between higher nursing home staffing levels and superior safety and quality, and to specific effects such as fewer falls and infections, said Priya Chidambaram, senior policy manager for the KFF Program on Medicaid and the Uninsured.
The nursing home industry characterizes the staffing rule as unfeasible, citing workforce shortages and insufficient reimbursements from government health programs.
The Texas lawsuit echoes those criticisms and asserts the CMS rule will force Texas nursing homes to spend millions of dollars to hire thousands of nurses with no additional government support.
But Paxton mostly bases his legal complaint not on the substance of the policy but on what he describes as CMS' lack of authority to issue such a rule.
Texas specifically cites a legal principle known as the Major Questions Doctrine, which calls for courts to be skeptical of regulatory actions that don't derive from specific statutory language. Texas also alleges CMS violated the Administrative Procedure Act of 1946, which spells out how federal regulations should be promulgated.
Recent Supreme Court rulings that weakened the power of federal agencies invited this kind of legal challenge, Chidambaram said. The Texas lawsuit and opposition from industry and some in Congress underscore the pitfalls of efforts to improve the beleaguered long-term care system, she said.
