With a Texas court striking down efforts to increase staffing levels in nursing homes, and Congress pushing back against those same efforts, the state of Iowa’s lawsuit to block the new regulations is continuing to move forward.
Last fall, Iowa joined 19 other states and representatives of the nursing home industry in suing the Biden administration to block the implementation of new staffing requirements for taxpayer-funded nursing homes.
The new standards would eventually require homes to conduct assessments of their residents’ needs, provide 3.48 hours of direct nursing care per resident, per day, and require then to have a registered nurse available 24 hours per day, seven days a week.
The lawsuit, filed in U.S. District Court for the Northern District of Iowa, seeks to overturn those requirements, which were approved last year by the Centers for Medicare and Medicaid Services.
In their court petition, the 20 states and more than a dozen industry associations argue that the staffing requirements pose “an existential threat to the nursing home industry as many nursing homes that are already struggling will have no choice but to go out of business. And the main victims will be the patients who will have nowhere else to go.”
Nursing home staffing lawsuit
Other plaintiffs in the Iowa-led lawsuit over nursing home staffing include: Nebraska, Kansas, South Carolina, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Missouri, Montana, Oklahoma, North Dakota, South Dakota, Utah, Virginia, and West Virginia.
Co-plaintiffs include the LeadingAge lobbying and professional associations in Iowa, Nebraska, South Dakota, Kansas, Oklahoma, South Carolina, Missouri, New Jersey, Ohio, Colorado, Delaware, Virginia, Maryland, Pennsylvania, Tennessee and Michigan.
Texas judge says CMS lacks authority
The Iowa lawsuit is nearly identical to a suit filed in U.S. District Court for the Northern District of Texas where, on April 7, District Court Judge Matthew Kacsmaryk vacated the new requirements.
Kacsmaryk ruled that while the goals of the new rules were “laudable,” they were not consistent with congressionally approved statutes.
“CMS lacks authority to issue a regulation that replaces Congress’s preferred minimum hours with its own. That is exactly what the 24/7 requirement does,” Kacsmaryk stated in his ruling. “Congress took it upon itself to set the minimum hours nursing homes ‘must use the services of a registered professional nurse.’ It set that level at ‘at least eight consecutive hours a day.’ The 24/7 requirement in effect amends the statute because it strikes Congress’s ‘eight,’ and replaces it with the agency’s ’24.’”
The ruling was not unexpected. When the Texas case was filed, consumer groups noted that Kacsmaryk, who was the only judge to whom it could be assigned, had previously presided in multiple health care cases in which he had ruled against government regulators.
In the Iowa case, which remains active, a judge in January denied the states’ motion for a preliminary injunction to block implementation of the rule. Three weeks ago, CMS filed a brief in the states’ appeal of that decision — signaling that CMS, at least to a certain extent, still backs the new rule, despite the change in administration that took place in January when Donald Trump took office as president.
On the same day CMS filed its brief with the appeals court, the State of Iowa and its co-plaintiffs filed a brief in the underlying case, arguing that even if CMS had been granted the statutory authority to enact such rules, Congress’ delegation of that authority was unconstitutional. “If that authority justifies the rule, there is no limit on what CMS can do,” the plaintiffs argued. “The rule imposes billions of dollars in costs, overrides state laws, and effectively rewrites other provisions of the Medicaid and Medicare statutes.”
Congress poised to block rule
Some consumer advocates believe CMS, now headed by Robert F. Kennedy Jr., is angling for congressional action to block the new rules, so that government savings from repealing them can be used to partially offset a proposed $880 billion cut in the Medicaid budget.
Given that, as well as the potential for an Iowa court ruling that might conflict with that of Kacsmaryk’s decision, industry officials and GOP lawmakers are pushing for CMS to administratively repeal the rule or for Congress to simply block it.
U.S. Rep. Michelle Fischbach, a Minnesota Republican, told industry lobbyists recently that she believed the staffing mandates threatened rural nursing homes, adding that despite the Texas court ruling she would be pursuing “legislation because we need to make sure this rule is overturned.”
Fischbach first introduced the Protecting Rural Seniors Access to Care Act in 2023, shortly after a preliminary version of the rule was proposed by CMS. U.S. Rep. Randy Feenstra of Iowa was a co-sponsor of the bill.
Fischbach reintroduced the bill in February of this year. In the Senate, James Lankford, an Oklahoma Republican, and Deb Fischer, a Nebraska Republican, have introduced a similar version of the bill.
Iowa homes cited for lack of staff
Last year, the Iowa Capital Dispatch reported that Iowa nursing homes had compiled the sixth-worst record in the nation for staffing-level violations. Data from CMS showed that 14% of the state’s 422 nursing facilities were cited for insufficient staffing in fiscal year 2023. That was more than double the national average, which was 5.9%.
Only five other states — Hawaii, Michigan, Montana, New Mexico and Oregon — had a worse record of compliance with the sufficient-staffing requirement.
Des Moines’ Fleur Heights care facility compiled Iowa’s worst record of compliance. Over a nine-month period between May 2023 and February 2024, Fleur Heights was cited, but never fined, five times for insufficient staff — more than any other facility in the state.
Federal data suggest many care facilities already meet the new standards, but industry officials allege nursing homes will need to hire an additional 27,000 full-time registered nurses and 78,000 full-time certified nurse aides, at a cost of more than $7 billion, to meet the requirements.
A report from the Long-Term Care Community Coalition earlier this year showed that 6 in 10 of all U.S. nursing homes would have met the new nurse-staffing standard of 3.48 hours in the fourth quarter of 2023.
The fact that a majority of facilities already meet the new minimum standard while still facing quality-of-care issues has been a concern for many advocates who say the new standards don’t go far enough. They point to a federal study that shows each resident needs at least 4.1 hours of nursing care each day – a standard met by only 26% of all nursing homes nationally.
A University of Pennsylvania study recently concluded that the new staffing mandates, if left in place, would save roughly 13,000 lives per year. In Iowa alone, the researchers said, the mandates would save 101 to 250 lives per year.
