The American Health Care Association, LeadingAge and other nursing home stakeholders involved in the lawsuit against the federal minimum staffing mandate filed their final argument against the rule late on Friday, asking a federal judge to deny the federal agency’s cross-motion for summary judgement.

Given that a judgement is expected early in the new year, legal experts are surprised that a preliminary injunction wasn’t sought by nursing home advocates, and wonder if possible appeals will drag out the matter.

In asking the court to deny the federal agency’s cross-motion for summary judgment, the associations and operators argued again that the staffing requirements exceed the Centers for Medicare and Medicaid Services’ (CMS) statutory authority, and that the final rule is “arbitrary and capricious” in nature.

The removal of Chevron deference was brought up as well in the plaintiffs’ final argument, and that CMS can’t use its “general gap-filling authority” to override Congress.

“Congress has not left any gap to fill,” they said. “Indeed, even in the heyday of Chevron deference, it was understood that when ‘Congress has directly spoken to the precise question at issue … that is the end of the matter,’ as the agency ‘must give effect’ to Congress’ instructions, not invent its own,” AHCA and other plaintiffs argued.

This court filing was no surprise, Craig Conley, shareholder at law firm Baker Donelson, told Skilled Nursing News. Each side moved for summary judgment and agreed for the case to proceed accordingly, he said. AHCA and LeadingAge want a quick resolution in their favor before the full mandate can go into effect.

However, the advocacy groups and operators did not take the approach that minimizes the risk of appeals, which is interesting to legal experts.

“I am still surprised that a preliminary injunction wasn’t sought like in the other cases involving the states, but it may have been strategic in order for a decision to be reached quicker on the merits of the matter,” said Conley. “It will be interesting to see how the judge rules once briefing is completed, but I suspect that will not be the end of the matter with appeals and the upcoming change in administration and the corresponding political landscape.”

The federal agency’s summary-judgment brief doesn’t rescue the final rule from its “multiple fatal flaws,” AHCA and team said. CMS relies on its general authority to impose requirements relating to the health and safety of nursing home residents, but broad authority doesn’t override other statutory provisions implemented by Congress, they argued.

AHCA and other leaders said the rule is so flawed that the only remedy is to vacate the rule entirely. Both parties agreed to a summary judgment, which allows for a fast ruling without in-person arguments; under the summary judgment, the federal judge is expected to make a decision early in the New Year.

“The Fifth Circuit has expressly rejected the notion that district courts should consider ‘the various equities at stake before determining that a party is entitled to vacatur,’” plaintiffs said in the final argument. “In short, nationwide vacatur is not only the default remedy under the APA but also the appropriate remedy in this case.”

Meanwhile, facility assessments that are part of the staffing rule have already gone into effect, to mixed reviews from nursing home operators. Some have said the assessments are costly and redundant, while others saw them as surprisingly useful in enhancing transparency and fine-tuning staffing needs.

Congress has “explicitly and repeatedly” addressed the question of nursing home staffing levels for those that participate in Medicare and Medicaid, and have in the past turned back efforts to impose a one-size-fits-all approach.

Currently, Congress has two requirements: a nursing home must have a registered nurse (RN) on site for at least 8 consecutive hours per day, but beyond that only needs to provide 24-hour licensed nursing services sufficient to meet the nursing needs of residents.

“CMS is no longer satisfied with those two statutory requirements—so it has decided to simply override them, tripling the former (from 8 hours a day to 24 hours a day), and supplanting the latter flexible, qualitative standard with rigid and impracticable quantitative mandates,” plaintiffs said in their final argument.

The final rule mandates a minimum of 3.48 hours per resident per day (HPRD) of total staffing, with specific allocations for RNs and nurse aides. This standard encompasses 0.55 HPRD of direct RN care and 2.45 HPRD of direct nurse aide care. CMS said that facilities can use a mix of nurse staff, including RNs, licensed practical nurses (LPNs/LVNs), or nurse aides, to meet the additional 0.48 HPRD.