In the latest development related to litigation against the federal nursing home staffing mandate, the U.S. Department of Justice (DOJ) is urging a federal judge to deny the injunctive relief requested by 21 state attorneys general and several providers.

The DOJ on Nov. 21 filed a memo with the U.S. District Court for the Northern District of Iowa, arguing that while operators may be unhappy with the nursing home staffing mandate and the effect it may have on their business practices, this alone doesn’t make for a successful challenge nor entitle them to the “extraordinary remedy” of a preliminary injunction.

The DOJ argued that the mandate fits within the agency’s authority to protect the health and safety of residents, and it doesn’t conflict with statute. Moreover, the agency’s reasoning for adopting the final rule, backed by administrative record, is stronger than the states’ argument that the rule is “arbitrary and capricious.” The attorneys general failed to establish imminent irreparable harm to the sector if the mandate goes forward, or demonstrate that the public interest aligns with the requested injunction, the DOJ said in its memo.

Craig Conley, shareholder at law firm Baker Donelson, told Skilled Nursing News that the denial of a preliminary injunction would be a setback for the industry but not the end of the world, as the challenge against the mandate would continue. He wasn’t surprised by the request for injunctive relief, nor by the DOJ’s response.

Ultimately, there are other factors at play giving plaintiffs an edge over the DOJ, the Department of Health & Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) – namely the demise of the Chevron deference and the real potential for irreparable harm to the industry as a whole, Conley said.

“I think the biggest wins for the industry in regard to the mandate potentially are the results of this past election and the end of the Chevron deference,” Conley added. “Both should assist the challenges to the mandate and potentially end it all together.”

Iowa Health Care Association President and CEO Brent Willet told SNN that the DOJ’s efforts to reject legitimate access to care concerns among operators is “as disappointing as it is unsurprising.”

DOJ move underscores out of touch agencies

CMS in the past has shown little interest in understanding ripple effects from the rule, and the agency’s latest efforts to dismiss the court challenge is an indication the agency will try to push the rule through despite threat of closures, Willett said.

“Laughably, the dismissal memorandum highlights a $75 million CMS pledge to help providers navigate the mandate’s staggering costs, which are projected to range between $4 billion and $11 billion annually,” Willett said. “This response is not only insufficient, but it underscores a troubling disconnect from the realities faced by the very communities CMS is charged with serving. Calling the agency out of touch with reality on this issue is charitable.”

The group of 21 attorneys in late October requested an immediate injunction to pause the implementation and enforcement of the rule, while the case played out in court. The group had originally filed the lawsuit against HHS and CMS on Oct. 10.

“There are several battles left in the war, but I predict that the mandate will eventually not be implemented, at least in its present form,” Conley said.

DOJ’s argument

Those seeking relief from the final rule “fail to demonstrate that their claims are likely to succeed on the merits, or that the public interest favors injunctive relief,” the DOJ said in the memo. An agency action wouldn’t historically be set aside unless it’s arbitrary and capricious, or it’s not in accordance with the law, the DOJ said.

In such cases, a focal point for judicial review should be with administrative record already in existence, the DOJ argued. The court should defer to agency action so long as the agency examined relevant data and has a good explanation for its action.

The staffing mandate fits “squarely within” the agency’s authority, which is to protect the health and safety of residents, and it doesn’t conflict with any portion of the statute, according to the DOJ. The 24/7 registered nurse requirement, for one, is authorized by statute and not in conflict with Congress’s statutory requirements, the agency argued in the memo.

Further, the DOJ said that the attorneys general and nursing home providers are unlikely to succeed on the claim that the mandate is arbitrary and capricious because the CMS provided a “rational and robust” explanation for adopting the final rule, and the mandate is consistent with the agency’s longstanding position on minimum staffing standards.

“Even if the final rule were a departure from the agency’s prior position, CMS had good reason to reevaluate and fully explained its decision,” the DOJ stated. “Lessons learned from the staggering number of nursing home resident deaths during the Covid-19 public health emergency in addition to the availability of new, more reliable data provided a strong basis for CMS to reassess its alleged prior policy.”