A federal judge, Matthew J. Kacsmaryk, ruled yesterday to strike down the nursing home minimum staffing rule, arguing that the Centers for Medicare & Medicaid Services (CMS) lacked the authority to impose such staffing requirements and violated Congressional intent. The case was dismissed with prejudice and the federal government may appeal the decision.
The rule, Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting, was finalized by the Biden Administration in April 2023 and established federal staffing requirements for Medicare and Medicaid-certified SNFs of 3.48 hours of daily direct care per patient/resident. While it would not directly impact senior living communities, Argentum was concerned with potential unintended impacts of the rule, as long-term care communities would be forced to compete for a finite pool of workers. In joint comments we submitted with a coalition, we advised CMS to instead focus on efforts to strengthen the long-term care workforces through policies to assist in training, recruiting and retaining staff.
In the ruling, Judge Kacsmaryk wrote, “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. Congress took it upon itself to set the minimum hours nursing homes ‘must use the services of a registered professional nurse.’” The ruling noted that, “agencies lack the power to amend statutes, regardless of other provisions that may grant authority to regulate the space.”
Yesterday’s ruling follows a ruling from January where a judge denied a request to temporarily block the rule as the 20 states challenging the mandate failed to demonstrate the need for an injunction. The judge found that providers' concerns about the financial impact of staffing requirements, including the mandate for 24/7 registered nurse presence, were too speculative to justify halting the rule.
The ruling may prompt Congress to act to formally block the rule. Legislation is pending in Congress, the Protecting Rural Seniors’ Access to Care Act (S. 750 and H.R. 1683), to prevent implementation of the nursing home minimum staffing rule. A prior effort to overturn the rule using the Congressional Review Act (CRA) was advanced from committee last year, but was not considered on the House floor. Had it been passed by both the House and Senate, it likely would not have had the votes to override a veto by then-President Biden.
Both HHS Secretary Robert F. Kennedy, Jr. and CMS Administrator Mehmet Oz had expressed concerns about the rule. During his confirmation hearing, Kennedy said, “the rule was well intentioned, but…will be a disaster for their states. Some of the nursing homes, these are staffing rules that require 24 hour staffing by medical professionals. Some of the nursing homes in rural areas simply do not have the available personnel or the economics to be able to do that. It will mean the closure of nursing homes in rural areas all across our country...So the intention, although it was noble, was in reality for rural areas, at least, it is going to be a disaster." Similarly, Oz said the nursing home minimum staffing rule would be "one of the earlier things" he would focus on, noting that telemedicine may help reduce the need for on-site nurses.
While the federal rule will not move forward, some states may seek to advance their own mandates in-line with what would have been the federal standard. Argentum will be working closely with our State Partners as any legislation is introduced or regulations are proposed that would impact access to caregivers in senior living communities.