Texas sues over nursing home staffing rule

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Texas Attorney General Ken Paxton has sued the Biden Administration to stop a new Centers for Medicare and Medicaid Services final rule that requires nursing home staffing standards.

The rule, finalized in April, requires nursing homes participating in Medicare and Medicaid programs to provide residents with a minimum total of 3.48 hours of nursing care per day, which includes at least 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day.

Nursing homes will need to have a registered nurse on site 24 hours per day, seven days per week, to help mitigate against preventable safety events and deliver critical care to residents at any time.

Paxton said in the lawsuit this week that the rule could cause rural nursing homes to shut down, forcing elderly citizens out of care. He said the staffing requirement changes could force Texas healthcare organizations to hire more than 10,000 new personnel with highly specific qualifications, adding that this number represents more personnel than currently exists in the labor market in the state.

Rural locations are especially vulnerable, according to the suit, and at risk of shutting down due to a national shortage of qualified personnel.

WHAT'S THE IMPACT?

Under the final rule, facilities will need to develop a staffing plan to maximize recruitment and retention. Lack of staff and funding to hire more employees, who often work for low wages, have been the main issues when CMS released its proposed minimum staffing rule in September.

The lawsuit alleges that the rule violates the Major Questions Doctrine, which forbids government agencies from passing regulations on significant topics that are "more appropriately handled by Congress." 

Asking the court to vacate the rule, Paxton called it "arbitrary and capricious," and said it violates the Administrative Procedure Act.

The rule has received pushback from a number of healthcare organizations, including the American Hospital Association, with executive vice president Stacey Hughes saying it could lead nursing homes to reduce capacity or close outright, including those that perform well on quality and safety metrics.

"The loss of these nursing home beds could adversely impact patients who have completed their hospital treatment and need continuing care in nursing facilities," Hughes said in April. "The AHA has already documented rising lengths of stay for hospital patients in need of skilled post-acute care, with patients waiting days, weeks or even months for post-acute care placements. As those patients continue to occupy hospital beds, other patients awaiting elective surgeries or other scheduled procedures may find their care disrupted because there is no bed for them in the hospital. Even more troubling, this final rule could lead to delays in urgent medical care as patients coming into hospital emergency departments may experience longer waits as EDs and inpatient beds are occupied by patients awaiting nursing home placements."

Premier's SVP of government Affairs, Soumi Saha, said the organization was "deeply concerned that (the) final rule implements an unfunded staffing ratio mandate in LTC facilities that will only exacerbate this schism and lead to nursing home beds remaining empty due to staff shortages, worsening boarding issues at acute facilities and escalating healthcare system costs."

Paxton said in his lawsuit that the role was a "power grab."

For its part, CMS said nursing home direct care workers are often women of color who typically earn low wages, rarely receive health and retirement benefits, and experience high injury rates.

"The Biden-Harris Administration believes that by improving working conditions and wages, improvements in the recruitment and retention of direct care workers will follow, enabling nursing staff to provide safer, higher quality care to all residents within nursing homes," CMS said.

THE LARGER TREND

CMS said upon the rule's announcement that it's developing a $75 million national nursing home staffing campaign to increase the number of nurses in nursing homes, thereby enhancing residents' health and safety. 

Through this campaign, CMS will be providing financial incentives for nurses to work in nursing homes, the agency said, without giving specifics.

More than 1.2 million residents receive care in Medicare- and Medicaid-certified nursing homes each day. 

CMS said it received and considered more than 46,000 public comments on this rule from various stakeholders, including residents and their family members, workers, advocates and the industry. 

Many of these comments highlighted how, without sufficient staff, residents do not receive necessary care, including baths or trips to the bathroom, and experience preventable safety events, such as pressure ulcers and falls.
 

Jeff Lagasse is editor of Healthcare Finance News.
Email: jlagasse@himss.org
Healthcare Finance News is a HIMSS Media publication.