WASHINGTON, D.C. – The American Health Care Association (AHCA), joined by the Texas Health Care Association (THCA) and several Texas long term care facilities
filed a lawsuit late Thursday in the Northern District of Texas against the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) for exceeding their statutory authority and arbitrarily and capriciously issuing the Minimum Staffing Standards for Long-Term Care Facilities final rule. The lawsuit asks the court to issue an order and judgment setting aside the new staffing requirements that were finalized by CMS on May 10.
“We had hoped it would not come to this; we repeatedly sought to work with the Administration on more productive ways to boost the nursing home workforce. Unfortunately, federal officials rushed this flawed policy through, ignoring the credible concerns of stakeholders and showing little regard for the negative impact it will have on our nursing home residents, staff, and the larger health care system. We cannot stand idly by when access to care is on the line and federal regulators are overstepping their authority. Hundreds of thousands of seniors could be displaced from their nursing home; someone has to stand up for them, and that's what we're here to do,"
said Mark Parkinson, President and CEO of AHCA. “Hundreds, if not thousands, of nursing homes are at risk of closure over this federal staffing mandate, and nowhere is that truer than in Texas,"
said Derek Prince, Board Chair of THCA and CEO of HMG Healthcare. “Our state's nursing homes notoriously lack proper Medicaid funding, a key factor in whether a nursing home can comply with this mandate. More than two-thirds of Texas facilities cannot meet any of the new requirements, and the state's anticipating a
growing shortage of nurses. We must protect access to care for elder Texans and seniors across the country."
The suit alleges that the new rule exceeds CMS's statutory authority. Congress has already prescribed specific staffing requirements for nursing homes that participate in Medicare and/or Medicaid:
- A nursing home “must provide 24-hour licensed nursing service which is sufficient to meet nursing needs of its residents."[1]
- A nursing home “must use the services of a registered professional nurse at least 8 consecutive hours a day, 7 days a week."[2]
The Final Rule departs significantly from the statutory standards, mandating unachievable requirements and imposing a one-size-fits-all quantitative standard rather than the qualitative and context-sensitive standard that Congress adopted. The plaintiffs argue:
“Dissatisfied with Congress' judgment, CMS decided to take matters into its own hands. At the direction of the President, the agency proposed and has now adopted a rule that overrides both of Congress' statutory requirements."
The complaint further argues that the agencies' decision to adopt the new minimum staffing standards was arbitrary and capricious, in violation of the Administrative Procedure Act. The filing states:
“It simply makes no sense to impose a blanket 24/7 RN requirement and rigid staffing ratios on thousands and thousands of nursing homes across the country, regardless of each particular facility's local conditions and unique circumstances. As CMS and its predecessor agencies have repeatedly explained in a series of regulations spanning more than four decades, the indisputable fact that nursing homes care for a wide range of resident populations with greatly divergent needs renders a one-size-fits-all approach manifestly inappropriate."
The establishment of nationwide minimum-staffing standards is a major policy decision with massive economic and political significance, the plaintiffs contend. The suit cites CMS's own estimate that the mandate will cost facilities more than $5 billion each year. An
AHCA analysis of the Final Rule using more recent wage data and accounting for inflation found that the mandate would cost closer to $6.5 billion annually.
Finally, AHCA and co-plaintiffs argue that the Final Rule threatens to drive closures and displace residents from their nursing homes. The complaint further asserts:
“To be clear, all agree that nursing homes need an adequate supply of well-trained staff. But imposing a nationwide, multi-billion-dollar, unfunded mandate at a time when nursing homes are already struggling with staffing shortages and financial constraints will only make the situation worse. If CMS's new standards are permitted to take effect, hundreds of nursing homes will likely be forced to downsize or close their doors entirely. That threatens to displace tens of thousands of nursing home residents from their current facilities, while forcing countless other seniors and family members to wait longer, search farther, and pay more for the care they need. The Final Rule thus promises to be a nightmare not only for owners and operators of nursing homes, but also for the vulnerable residents they serve, in direct derogation of CMS's statutory mandate."
The other plaintiffs include:
- Arbrook Plaza, a nursing facility located in Arlington, Texas;
- Booker Hospital District, which operates Twin Oaks Manor, a nursing facility in Booker, Texas; and
- Harbor Lakes Nursing and Rehabilitation Center located in Granbury, Texas.
Read the full complaint.
[1] 42 U.S.C. §1395i-3(b)(4)(C)(i) (emphasis added); accord id. §1396r(b)(4)(C)(i).
[2] Id. §1395i3(b)(4)(C)(i); accord id. §1396r(b)(4)(C)(i).