The regulation met swift condemnation from the American Health Care Association and other industry groups, many Republicans, and some Democrats. The AHCA and the Texas Health Care Association sued to block the rule last month.
But lawmakers could render the legal case moot by overturning the rule under what's known as the Congressional Review Act of 1996, which allows the legislature to nullify regulations under expedited, filibuster-proof procedures in the Senate if Congress acts within 60 legislative days.
When that deadline arrives is tricky to calculate because it depends on how many days Congress in session, but it is likely to fall in the second week of November, making any vote an election issue.
Related: Fight over nursing home staffing heats up
House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.) said Republicans in the lower chamber support undoing the staffing rule, but she demurred on whether there is a plan to bring a Congressional Review Act resolution the floor. "We're going to continue to move forward," she said. The House GOP majority would need to lure dozens of Democrats to secure a veto-proof two-thirds margin.
Lawmakers on both sides of Capitol Hill introduced resolutions under the Congressional Review Act this month. Two senators who caucus with Democrats, Jon Tester (D-Mont.) and Joe Manchin (I-W. Va.), joined with Republicans, signaling it has enough votes to pass the Democrat-led upper chamber.
Sen. Angus King (I-Maine), who also caucuses with Democrats, said he also would vote to cancel the CMS rule. King's vote would be tip the resolution into majority support.
"I'm in favor of improved staffing ratios, but not at this moment, because there aren't the people to fill the positions," King said. "The net result, as it's already happening in Maine, is it will be the closure of nursing homes, which does no service to anybody."
Sens. Jeanne Shaheen (D-N.H.), Maggie Hassan (D-N.H.) and Kyrsten Sinema (I-Ariz.) also have spoken out against the rule.
The regulation gives most nursing homes three years to comply while rural facilities would have five years. But Tester said he doesn't believe the rule's phase-in period or its exemptions and waivers will work.
"The administration made a big mistake," Tester said. "They have their off-ramps, they said, 'We covered all this' — and it's bullshit."
Tester argued the Senate should take up the Congressional Review Act resolution within the next two weeks.
But Sen. James Lankford (R-Okla.), who is leading the push in the upper chamber, indicated that would be premature.
Opponents of the nursing home rule are still counting votes and a majority isn't enough, Lankford said, because President Joe Biden could veto any resolution Congress sends him. Canceling vetoes requires support from two-thirds of the House and Senate. "We need 67 to override a veto," Lankford said.
That may be a tall order, considering senior Democrats have signaled support for the staffing rule, which Biden touted in his State of the Union address in 2022. Democrats who vote to repeal the staffing rule would be rebuking a Biden policy in the middle of his reelection campaign.
On the other hand, the staffing rule resolution would provide Democrats in tough races — such as Tester, Sen. Bob Casey (Pa.) and Rep. Ruben Gallego (Ariz.). who is running for Senate — an opportunity to break with an unpopular president and boast of protecting access to care.
And if Lankford and his allies fail to secure 67 votes in the Senate, Democrats would be able to demonstrate independence from Biden by supporting a resolution that would have no actual impact, assuming the president were to veto it.
