Nursing home operators are exploring various avenues to challenge or block the mandate, including legal action, congressional review, and leveraging the appropriations process.

“We will vigorously defend our nursing home members by any means necessary,” Rachel Reeves, spokesperson for the American Health Care Association (AHCA) said in a statement to Bloomberg Law. “We are exploring all our options.”

Hinshaw & Culbertson partner Aimee Delaney said she wouldn’t be surprised if industry trade organizations used legal recourse to block the mandate, although the success of such initiatives will depend on the Centers for Medicare & Medicaid Services’ (CMS) rulemaking authority.

“CMS is often found to have a lot of leeway in terms of its rulemaking authority for the conditions for participation,” she told Skilled Nursing News. “I don’t know that a legal challenge would be the most successful – that’s not to say it shouldn’t be tried.”

Bloomberg reported that AHCA plans to work with Congress to advance the Protecting America’s Seniors’ Access to Care Act, which would block the staffing mandate, and will be discussed at an April 30 House Energy and Commerce subcommittee hearing on strengthening Medicaid.

Katie Smith Sloan, president and CEO LeadingAge, which represents nonprofit aging services providers, said LeadingAge would support a Congressional Review Act resolution of disapproval, or use the congressional appropriations process to block funding for the rule’s implementation.

Meanwhile, congressional leaders criticized the Biden administration for ignoring bipartisan opposition to the rule.

“This misguided rule will devastate nursing homes across this country and worsen the staffing shortages,” Sen. Deb Fischer (R-Neb.) said in a statement Tuesday.

Legal challenges may arise especially in the event of a new administration assuming office. Yet the chances of completely blocking the mandate may be slim, Delaney said. 

“There’s certainly consensus, from all sides, to support [efforts] to improve resident care,” she said. “And that’s from the communities, residents, their families and lawmakers … but, I think it’s difficult to probably look for a solution that would be successful without any staffing requirements.”

The rule mandates a minimum of 3.48 hours per resident per day (HPRD) of total staffing, with specific allocations for registered nurses (RN) and nurse aides.

This standard includes 0.55 HPRD for direct RN care and 2.45 HPRD for direct nurse aide care. CMS has stated that facilities can utilize a combination of nurse staff, such as RNs, LPNs/LVNs, or nurse aides, to meet this requirement. This differs from the initial proposed rule from CMS in September 2023, which proposed 3 HPRD of care and excluded licensed practical nurses.As per a KFF analysis released on Monday, only 19% of nursing facilities currently meet the full staffing standards outlined in the final rule. Nearly 60% of facilities meet an interim requirement of 3.48 HPRD, without specific RN and nurse aide allocations.