‘Textbook Unlawful’: Nursing Home Plaintiffs Urge Judge to Swiftly Halt CMS Staffing Mandate

The Centers for Medicare & Medicaid Services (CMS) overstepped its authority in finalizing the federal nursing home staffing mandate, which “cannot stand” and should be set aside swiftly by a judge.

This is the argument that the American Health Care Association, LeadingAge and other plaintiffs made in a Motion for Summary Judgment filed on Oct. 18 in their case against the staffing mandate.

“The Final Rule is textbook unlawful agency action,” the Motion states. “It exceeds CMS’s statutory authority, rewrites Congress’ chosen approach, and improperly tries to wrest control over a major political and economic issue without congressional authorization.”

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The motion is the latest salvo in the legal case that began on May 23, when AHCA – the largest association of nursing home providers in the United States – filed an action against the mandate. LeadingAge later joined the case, in which the Texas Health Care Association and several Texas-based facilities also are plaintiffs.

From the outset, these organizations have argued that CMS “brazenly” overstepped Congress in pursuing the nursing home staffing mandate. The Motion for Summary Judgment again asserts that CMS ran afoul of the basic principles of administrative law, noting that the agency “claims to have discovered authority” for imposing the staffing mandate provisions “lurking in ‘various provisions’ of the Medicare and Medicaid Acts.’”

But in fact CMS has no such authority, and Congress has “explicitly and repeatedly addressed” nursing home staffing levels, the court document asserts, saying that Congress has taken a much more flexible approach to nursing home staffing requirements compared with the mandate – for example, the mandate triples the registered nurse requirement from 8 consecutive hours each day of the week to on-site RN presence 24 hours every day.

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The major questions doctrine supports the plaintiffs’ argument, according to the filing. That doctrine states that in matters of special political or economic significance, agencies must have explicit Congressional authorization regarding how they approach regulation.

Given that nursing home staffing levels are a hot-button political issue, and that CMS estimates nursing homes will need to spend more than $40 billion to comply with the mandate over the next decade, the policy falls under the major questions doctrine, the motion states.

Furthermore, even if CMS did have Congressional authority to pursue the mandate, the rule would be “arbitrary and capricious” due to its blanket nature – imposing uniform and unreasonable requirements on all nursing homes regardless of their unique circumstances – and thus violate the Administrative Procedure Act, according to the filing.

“In short, the staffing requirements in the Final Rule fail basic principles of administrative law at every turn,” the document states. “This Court should grant Plaintiffs’ motion for summary judgment, hold that the 24/7 RN requirement and all three HPRD [hours per resident day] requirements exceed CMS’s statutory authority and are arbitrary and capricious in violation of the APA, and issue an order vacating those requirements.”

The defendants can file a combined summary judgment response and cross-motion for summary judgment on or before Nov. 15.

In addition to this lawsuit, there are other actions being pursued that could affect the future of the mandate. Congressional lawmakers could nullify the mandate and have put the pieces in place to do so, but so far have held off

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