June 22, 2024

A lawsuit has been filed in Texas against the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS), arguing that they exceeded their statutory authority and arbitrarily and capriciously issued the Minimum Staffing Standards for Long-Term Care Facilities final rule. 

The lawsuit, filed by the American Health Care Association (AHCA), joined by the Texas Health Care Association (THCA) and several Texas long-term care facilities in the Northern District of Texas, asks the court to issue an order and judgment setting aside the new staffing requirements that were finalized by CMS on May 10.

The new total nurse staffing standard is 3.48 hours per resident day (HPRD), which must include at least 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide care. Facilities may use any combination of nurse staff (RN, licensed practical nurse [LPN] and licensed vocational nurse [LVN], or nurse aide) to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard.

This means a facility with 100 residents would need at least two or three RNs and at least 10 or 11 nurse aides as well as two additional nurse staff (which could be registered nurses, licensed professional nurses, or nurse aides) per shift to meet the minimum staffing standards.

CMS is also finalizing enhanced facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care. 

CMS had said the standards take into consideration local realities in rural and underserved communities through staggered implementation and exemptions processes. But nursing home operators and associations see the new rule as unworkable.

The American Health Care Association and National Center for Assisted Living (AHCA/NCAL) represents more than 14,000 non-profit and proprietary skilled nursing centers, assisted living communities, sub-acute centers and homes for individuals with intellectual and development disabilities.
 
“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,” said Mark Parkinson, president and CEO of AHCA, in a statement. “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.” 

“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, in a statement. “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.”
• A nursing home “must use the services of a registered professional nurse at least 8 consecutive hours a day, 7 days a week.”

The plaintiffs argue that 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 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. 

CMS executives counter that the initiative is focused on improving the lives of over 1.2 million residents who reside in Medicare- and Medicaid-certified long-term care facilities. “Today, we took an important first step to propose new staffing requirements that will hold nursing homes accountable and make sure that residents get the safe, high-quality care that they deserve,” said CMS Administrator Chiquita Brooks-LaSure, in a statement when the rule was proposed.

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