‘Baffling’ Departure: Understanding the Nursing Home Staffing Mandate Lawsuit

• The American Health Care Association has filed a nursing home staffing mandate lawsuit in response to a ruling earlier this year by two governing agencies.
• AHCA argues in the suit that the U.S. Department of Health and Human Services and Centers for Medicare and Medicaid violated the Administrative Procedures Act.
• Though some nursing organizations came out in support of the ruling, several other organizations and advocacy groups voiced opposition.

The recently issued, nationwide staffing mandate for long-term care facilities is a “baffling and unexplained departure” from governing agencies’ long-standing position, according to a lawsuit filed last week by the American Health Care Association.

“We had hoped it would not come to this,” Mark Parkinson, AHCA’s president and CEO, said in a news release announcing the lawsuit. “We repeatedly sought to work with the Administration on more productive ways to boost the nursing home workforce. Unfortunately, federal officials rushed this flawed policy through, ignoring the credible concerns of stakeholders and showing little regard for the negative impact it will have on our nursing home residents, staff, and the larger health care system.”

The suit, filed on May 24 in the U.S. District Court for the Northern District of Texas, Amarillo Division, alleges that the U.S. Department of Health and Human Services (HHS) and Centers for Medicare and Medicaid Services (CMS) exceeded CMS’s authority. 

“Over the years, Congress has considered alternative regulatory approaches, including proposals to replace the flexible sufficient-staffing requirement with a one-size-fits-all numerical minimum staffing requirement,” the suit states. “But each time, Congress has declined to adopt such proposals, and instead concluded that the adequacy of nursing home staffing should be determined flexibly based on the particularized needs of each facility.” 

How Did We Get Here?

Statutory requirements for nursing home staff have “remained substantively unchanged since 1990,” the suit states. It also notes that more than 97% of U.S. nursing homes that participate in Medicare or Medicaid adhere to “two basic staffing requirements” — A registered nurse must be on site eight hours per day, seven days per week, and facilities must provide nursing services 24/7 to meet residents’ needs.

However, in 2022, the White House announced plans to set a minimum staffing requirement for long-term care facilities. First issued last fall, the proposed plan supported an April 2023 executive order regarding quality of care and caregiver support.

The Minimum Staffing Standards for Long-Term Care Facilities require nursing homes that receive federal funding through Medicare and Medicaid to maintain total staffing ratios of 3.48 hours per resident per day, including a specific number of registered nurses and nurse aides. Though an unfunded ruling, a federal nursing home staffing campaign is expected to include more than $75 million to assist states with recruiting. Requirements were expected to be rolled out in phases.

Nursing homes, according to CMS estimates, would need to spend at least $40 billion over a decade to comply with the mandate. 

What’s in the Nursing Home Staffing Mandate Lawsuit?

The lawsuit details several issues related to AHCA’s allegation that the ruling violates the Administrative Procedure Act, and that the industry’s workforce shortage wasn’t considered. The Administrative Procedure Act was enacted in 1946 and sets guidelines for how government agencies make decisions and issue rulings. 

1. No consideration for workforce shortage 

CMS, the suit alleges, did not take into consideration the nursing industry’s current staffing shortages, which “will be exacerbated by the artificial demand that the agency’s mandate will produce nationwide.” It also contends that facilities throughout the country will be forced to close because of the mandate.

“To be clear, all agree that nursing homes need an adequate supply of well-trained staff,” the suit states. “But imposing a nationwide, multi-billion-dollar, unfunded mandate at a time when nursing homes are already struggling with staffing shortages and financial constraints will only make the situation worse.”

AHCA’s 2024 “State of the Nursing Home Sector” survey found that a majority of nursing home providers believe their workforce situation has remained the same or gotten worse in the past six months and seven out of 10 facilities have fewer staff than before the COVID-19 pandemic.

2. One-Size-Fits-All Approach

The nationwide staffing standards are seen as “unreasonable” due to differences among states’ Medicaid rates, which can range from $170 per day to $400 per day,” according to the suit.

“The general (and undisputed) proposition that increased staffing in understaffed facilities can lead to better outcomes does not justify mandating a blanket 24/7 RN requirement and three rigid HPRD requirements for all LTC facilities nationwide,” the suit states.

3. Unachievable requirements

AHCA also argues that implementing the new requirements, which would require additional staff at more than 79% of facilities, will be “impossible” because of the aforementioned workforce shortage.

“Those increases are beyond impossible at a time when many LTC facilities are already experiencing extreme difficulty finding qualified RNs and NAs to fill vacant positions, and when staffing shortages are expected only to worsen .. The Final Rule also irrationally discounts the vital role of LPNs/LVNs, who hold nearly 230,000 jobs in LTC facilities across the country.” 

Fallout from the Mandate

Several entities have come out against the mandate, including the Medicare Payment Advisory Commission (“MedPAC”), LeadingAge, the National Rural Health Association, the Catholic Health Association of the United States, Lutheran Services in America, the Association of Jewish Aging Services, and the National Association of State Veterans Homes.

Legislation also has been introduced to hinder the ruling’s implementation. Legislation that could block the mandate has been making its way through Congress since last fall. Minnesota Rep. Michelle Fischbach introduced the Protecting Rural Seniors’ Access to Care Act, which would prohibit HHS and CMS from putting the minimum staffing requirement into effect. 

“If the one-size-fits-all staffing ratios issued by CMS are put in place, it will devastate facilities across greater Minnesota, forcing them to either decrease the number of patients they serve even further, or close their doors entirely,” she said in a September statement.

And earlier this month, Fischbach and Indiana Rep. Greg Pence introduced a Congressional Review Act resolution. The act is a “little-known oversight tool” that can overturn final rulings from a federal agency, according to the National Conference of State Legislatures. 

Though enacted in 1996, it has only successfully overturned a “handful” of rulings. 

The Bottom Line

A national staffing mandate for nursing homes and long-term care facilities was issued in early 2024 by the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services. The ruling would require several facilities that already are struggling to fill positions to add additional staff. Some believe that facilities would have to close because they wouldn’t be able to meet the requirements.

While the ruling wasn’t unanimously opposed, those who have been vocally against its implementation argue that it’s an overreach. As such, the American Health Care Association filing a lawsuit against the government agencies, alleging violations of the Administrative Procedure Act. 

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