In the aftermath of the Department of Health and Human Services’ (HHS) response to a pending lawsuit against the federal minimum staffing mandate, nursing home sector experts are stressing that legally defeating the mandate – and effectively canceling it – remains crucial.

“The section [in HHS’s response] relating to the limitation on the relief is an interesting administrative issue involving vacatur,” said Mark Reagan, managing shareholder at Hooper Lundy & Bookman, referring to the process of setting aside or canceling a ruling, judgment, or order. “AHCA and the other plaintiffs are seeking that remedy in order to set the rule aside immediately without the need for any additional regulatory action or consideration.”

At the end of last week, HHS issued a reply to a summary judgement to the lawsuit brought against the staffing mandate by the American Health Care Association (AHCA), LeadingAge and some Texas providers in the U.S. District Court for Northern Texas.

Lawyers for the HHS stated that the requirements at issue reflect the HHS Secretary’s longstanding, congressionally delegated authority to condition nursing home participation in Medicare and Medicaid on compliance with health and safety standards. This authority has been exercised consistently for over 40 years, they argued.

The associations and the providers have said that the staffing mandate will force facilities with fewer staff to hire more, unavailable workers, or risk losing federal funding, unless granted an exemption.

However, this outcome is typical of many Medicare and Medicaid regulations designed to protect patients and the public, the government’s lawyers countered in the filing.

“That is indeed the consequence of the rule, just as it is the consequence of many Medicare and Medicaid rules adopted to protect patients and the public,” the HHS filing states. “And Plaintiffs’ combined response and reply brief … does not dispute these minimum staffing requirements qualify as a measure to protect residents’ ‘health and safety’ within the plain meaning of those terms, and fails to demonstrate that the challenged requirements are otherwise arbitrary, capricious, or contrary to law.”

A procedural move

Nursing home advocates called the HHS reply a procedural move, with nothing in the government’s latest court filing to change the strength of their case against minimum staffing.

“The defendants’ reply Memorandum completes a four-step schedule established in the case for submission of motions and memoranda. We remain confident in the strength and merits of the arguments we and our fellow plaintiffs have presented through our filings with the court,” Linda Couch, SVP of policy and advocacy at LeadingAge, said in an emailed statement to SNN.

For its part, AHCA/NCAL also remains confident of an outcome in the nursing home sector’s favor.

“We are optimistic that the unrealistic staffing mandate will ultimately be defeated—whether through the courts, Congress, or the new Administration, but there are still multiple paths for Congress and the courts to address this issue as well. We will continue to pursue all angles to protect access to care and push for more meaningful workforce solutions,” Michael Bassett, Senior Vice President of Government Relations at AHCA/NCAL, said in an emailed statement to SNN.

Earlier, in seeking a temporary injunction against the staffing mandate,  20 states, 17 LeadingAge affiliates and two Kansas nursing home facilities had sought to put a pause to the mandate. And a federal judge’s ruling to deny the temporary halt last week could present “a wrinkle” in the interim, but overall isn’t as consequential following a Republican victory, said Leah Klusch, executive director of the Alliance Training Center, who said that she has been in close touch with Ohio legislators who are confident the staffing mandate will be derailed. 

‘Final rest’

Of course, even if in the legal case, Centers for Medicare and Medicaid Services (CMS) could convince the court to deny vacatur, the staffing mandate will still ultimately get defeated, Reagan told Skilled Nursing News, given the ushering in of a regulation-wary Republican president, who is backed by Republican majorities in the House and Senate.

“[T]he new Administration may well be willing to take any necessary administrative action to put it to a final rest. This has become a fairly significant issue in other health care regulatory cases where federal rules have been determined to be outside of the authority of CMS or otherwise arbitrary and capricious,” Reagan said.

That said, some providers believe that the staffing troubles for the sector will need to be addressed even if the staffing mandate is defeated.

“[A]t the end of the day, we are cautiously optimistic that reason will prevail, whether it is through the courts, Congress or the new Administration, and that the staffing mandate will ultimately be struck down or seriously modified. That noted, policymakers should realize that the sector faces serious workforce challenges even if the staffing mandate is knocked down,” Brian Ellsworth, vice president for public policy and payment transformation with Health Dimensions Group (HDG), told SNN.