After a federal judge in Texas vacated the nursing home staffing rule on Monday, operators are rejoicing, though some legal experts in the sector suggest the fight may not be over just yet.
“This is a really strong decision on both prongs of the staffing mandate. It hits all of the relevant points as to how the ‘unflinching’ mandate seeks to alter what Congress set in place,” Mark Reagan, managing shareholder at Hooper, Lundy & Bookman, told Skilled Nursing News. “The rule does not supplement, it contradicts. If appealed, I am very confident that the District Court’s judgment will be upheld by the Fifth Circuit Court of Appeals.”
The Texas court’s selection of “vacatur as the appropriate remedy” – the action annulling the mandate – is an important point to note, Reagan said.
“It is essential that the mandate be vacated and that there be that certainty given the chaos that would ensue from any continued uncertainty as to the mandate,” he said.
All said, nothing is final yet. The Trump administration now has 60 days to appeal, and if they fail to do so, the federal court’s ruling will stand.
But given Thursday’s Department of Justice (DOJ) filing urging the appeals court to deny a preliminary injunction in the Eighth Circuit court, it is possible an appeal would be made in the Texas decision too. That said, it is worth noting that the DOJ will typically defend federal regulations until they are rescinded, regardless of the current policy positions of a presidential administration.
“The ruling is a big step in defeating the staffing mandate but I don’t believe it is the last step in that process,” Craig Conley, shareholder at law firm Baker Donelson, told SNN. “The federal government has a right to appeal, and I assume the federal government will exercise that right and appeal the decision especially given the recent DOJ filing and its position in support of the staffing mandate.”
Moreover, Conley said, by ruling that Centers for Medicare and Medicaid Services (CMS) exceeded its authority in implementing the staffing mandate, the judge invited Congress to step in and block the rule in its entirety as questions remain on how much of the staffing mandate, if any, should remain in place following the district court ruling.
And other legal experts didn’t rule out the possibility of the matter heading to the Supreme Court.
“These cases are far from over. Since the DOJ defended the rule in the 8th Circuit, we should expect them to appeal this decision and defend the rule before the 5th Circuit, and the 5th Circuit may disagree and reverse the Northern District of Texas,” said Spencer Bruck, health care attorney at Crowell & Moring. “If, down the road, the 8th Circuit and 5th Circuit disagree on the merits, it’s possible this winds up before the Supreme Court.”
Next phase of the fight
In the meantime, advocacy groups are continuing to urge Congress to repeal the mandate, so it is in statute, and not an issue for future administrations. And given that defeating the staffing mandate has bipartisan support, hopes are high that it will also see a legislative defeat.
“Given the makeup of Congress, that is something that likely may occur. If Congress decides to take action, it will be interesting to see how that plays out in light of the DOJ filing. In short, while the ruling is not the final end to the mandate, it is a step in the right direction,” Conley said.
As the legislative defeat is being sought, the nursing home sector should outline the financial gains from the removal of the mandate as a sort of olive branch to its proponents, legal experts advise.
“The positive financial impact of the elimination of the mandate provides a meaningful opportunity to demonstrate savings that would be helpful for the purposes of reconciliation,” Reagan said. “This is an important consideration, particularly given that the mandate has been vacated.”
In ruling against the federal mandate, a federal judge for the U.S. District Court of Northern Texas argued that the staffing rule Congress ultimately held the authority to make such rules, not federal agencies, noting discrepancies in Congress’s intent versus the rule’s stipulations.
“Though the final rule attempts to remedy chronic nursing home deficiencies, it does so deficiently,” said Judge Matthew Kacsmaryk. “The final rule still must be consistent with Congress’s statutes. To allow otherwise permits agencies to amend statutes though they lack legislative power. Separation of powers demands more than praiseworthy intent.”
The latest Texas court ruling is part of an ongoing legal case initiated on May 23, when the American Health Care Association filed a lawsuit against the nursing home staffing mandate. LeadingAge, the Texas Health Care Association, and several Texas facilities joined the case. These organizations had argued that CMS overstepped its authority, claiming the federal agency improperly skirted the basic principles of administrative law and lacked authority to impose the policy.
Judge Kacsmaryk agreed that there was a wide gap between the 24/7 registered nurse (RN) rule and Congress’s baseline of having an RN for 8 hours a day, Also, the mandate required staffing hours based on number of residents, while Congress mandated consideration of a facility’s individual nursing needs, he noted.
CMS’ final staffing rule stipulates a minimum 3.48 hours per resident per day (HPRD), in addition to the 24/7 requirements for RNs to be on-site.
Operators view
Nate Schema, president and CEO of the Evangelical Good Samaritan Society, applauded the decision, which he said was particularly meaningful to keeping the doors of rural nursing homes open. Good Sam is the largest nonprofit skilled nursing provider, with 70% of its residents housed in rural nursing homes.
“Yesterday’s court decision was a critical step in safeguarding access to care for seniors in rural America. With the courts making clear that CMS lacks the authority to impose staffing mandates, it’s now up to Congress to lead,” Schema said in an emailed statement to SNN Tuesday. “Lawmakers must repeal the minimum staffing rule and focus on common-sense policy solutions that prioritize recruitment, training, and retention of caregivers to meet the needs of our seniors and their families—today and into the future.”
Without “rigid staffing quotas” looming over the sector, Schema said the industry could now turn it attention on investing more in the nursing workforce.
“Quality care isn’t about rigid staffing quotas — it’s about meeting residents’ individual needs,” he said. “Now is the time to build on this momentum and advance meaningful, common-sense policy solutions to attract, support, and grow the long-term care workforce.”
(Amy Stulick contributed to the reporting.)
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