A nursing home staffing mandate could face court challenges and congressional action as skilled nursing facilities prepare for the first phase of the Centers for Medicare and Medicaid Services rule to go into effect this summer.
Hours after CMS finalized the rule last week, nursing home trade group the American Health Care Association said it would “vigorously defend nursing home members by any means necessary and is exploring all options." Meanwhile, members of Congress on both sides of the aisle said they were reviewing possible ways to roll back the mandate.
Related: Nursing homes blast higher staffing minimums
Skilled nursing facilities, states and patient advocates have been expecting the rule since President Joe Biden announced plans to strengthen nursing home care and quality during his 2022 State of the Union address. Starting in August, the controversial staffing mandate will be phased in over three years for nursing homes in urban areas and over five years for facilities in rural settings.
The regulation requires nursing homes to provide a minimum of 3.48 hours of care per resident, per day, with .55 hours coming from registered nurses, 2.45 coming from nurse aides and the remaining .48 hours coming from a combination of registered nurses, licensed practical nurses and nurse aides. Nursing homes are also required to have a registered nurse onsite 24/7, a threefold increase over the eight consecutive hours that Congress mandated in the Nursing Home Reform Act of 1987.
Legal options
Legal challenges to the staffing mandate are a near certainty and the 24/7 onsite registered nurse requirement is a likely target, according to Greg Fosheim, an attorney specializing in healthcare regulations at McDermott Will and Emery in Chicago.
The American Health Care Association singled out that requirement when it submitted comments on the proposed version of the mandate to CMS last fall. The association challenged the agency’s statutory authority, saying the requirement “would potentially alter how available an RN must be, unlawfully substituting CMS’s judgment for the standard enacted by Congress.”
Fosheim said those who opt to bring a lawsuit would need to prove that CMS exceeded its authority without merit by increasing the standard.
“What a court would take a look at is whether CMS has appropriately demonstrated the justification for a 24-hour-per-day standard in order to overcome that arbitrary and capriciousness standard. But because the language in the statute does not say, 'for no more than eight consecutive hours,' then I think CMS has probably shown their work sufficiently to overcome that burden,” Fosheim said.
He also said nursing homes might also challenge the staffing mandate on grounds that there simply are not enough workers available to comply with it.
One of nursing homes' chief concerns with the mandate — the lack of funds available to implement it — is unlikely to lead to a court challenge, legal experts said. CMS estimates approximately 80% of the nation’s 15,000 nursing homes will need to hire more staff to come into compliance with the mandate, costing the industry an estimated $43 billion over ten years.
“If a nursing home decides it will accept Medicare or Medicaid, it must meet the minimum standards established by the government,” Syracuse University law professor Nina Kohn said in an email. “From time to time, new regulations may be promulgated consistent with CMS’ statutory authority."
Still, some legal experts think the nursing home industry could make a case in the courts that CMS needs to require states increase their Medicaid reimbursements to cover the costs of additional workers needed under the mandate.
Congressional action
On Tuesday, the House Energy and Commerce health subcommittee will hold a hearing on the Protecting Rural Seniors Access to Care Act, introduced last year by Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-Wash.). The bill will be amended in the coming weeks to prevent CMS from putting the mandate into effect, a committee spokesperson said.
In the upper chamber, Sen. Jon Tester (D-Mont.) is “reviewing options regarding the rule,” a spokesperson said in an email.
Both the House and Senate introduced legislation last year aimed at blocking CMS from finalizing the nursing home staffing mandate, but the bills did not receive a vote.
A spokesperson for Sen. Deb Fischer (R-Neb.), who introduced the Senate version, said in an email she is considering other legislation to roll back the regulation or to overturn it through the Congressional Review Act.
The act allows Congress to rescind final rules that federal agencies issue, but requires presidential sign-off. After a rule is reported to Congress, members have 60 days to introduce a joint resolution disapproving it. The resolution must then pass both the House and Senate by simple majorities and be signed by the president to be overturned.
It is unlikely Biden would overturn a rule he and his administration supported, said Sarah Hay, a policy analyst at George Washington University’s Regulatory Studies Center. Hay said a more likely scenario would be a new administration repealing the mandate through a new set of rules.
“If [former] President Trump were to win in the fall, he could rescind this regulation,” said Hay. “To rescind a regulation, you have to go through the notice and comment process again in order to take it off the table.”
