Supreme Court Ruling Among Potential Hurdles for Nursing Home Staffing Mandate

• A recent Supreme Court ruling could have implications for enforcement of the Centers for Medicare and Medicaid’s long-term care facility staffing mandate.
• The ruling overturned the “Chevron deference,” which required federal courts to defer to agencies when the law is unclear.
• Despite the ruling — and a lawsuit unrelated to the ruling — CMS continues to issue guidance for implementing the staffing rules.

A recent Supreme Court ruling and a pending lawsuit could upend the mandated minimum staffing requirements for long-term care facilities.

But those in favor of the Minimum Staffing Standards for Long-Term Care Facilities, issued by the Centers for Medicare and Medicaid Services (CMS), aren’t stepping aside.

The ruling requires nursing homes that receive funding through Medicare and Medicaid to maintain staffing ratios of 3.48 hours per resident, per day. Facilities have three or five years to implement the appropriate staff, depending on whether they are in a rural or urban area. 

How a Supreme Court Ruling Could Impact the Mandate

The Supreme Court recently overturned the Chevron deference, a four-decade-old standard that required federal courts to “defer to reasonable agency decisions where federal law is silent or unclear.” The move will have “profound effects on healthcare,” according to the nonprofit KFF, potentially hindering executive agencies’ ability to implement laws.

“While agency final rules will still have the force of law, there will be more of an incentive to challenge these rules in a court that now will not have to give any weight to agency decisions and expertise where statutes are not clear,” the KFF issue brief stated. “More regulations will be overturned, placing a real barrier on implementing key health care protections such as prescription drug affordability in Medicare, eligibility rules for Medicaid beneficiaries, infectious disease control and public safety standards, as well as consumer protections for those in self-insured private employer-sponsored plans.”

The American Nurses Association condemned the ruling, citing concerns that “long-standing policies governing public health” can be challenged through legal means.

“Nurses are well aware of the life-saving impact of sound regulatory policies,” said ANA President Jennifer Mensik Kennedy, PhD, MBA, RN, NEA-BC, FAAN, in a statement. “Not only does this decision put the health and safety of patients at risk, but it diminishes the authority of experts who are well-qualified to make decisions on complex health issues.”

Experts who spoke to Skilled Nursing News said the ruling “further opens the doors” for challenges to the nursing home staffing mandate.

“As for the seriousness of this ruling, it is a significant blow to several agencies, including CMS,” Craig Conley, a shareholder with Baker Donelson Bearman Caldwell & Berkowitz, told SNN. “For nursing home operators, this should be seen as a victory.”

One of those challenges is the American Health Care Association’s (AHCA) lawsuit, which argues the mandate violates of the Administrative Procedures Act. LeadingAge, a group of nonprofit aging services providers, later joined the suit.

Earlier this week, Massachusetts Sen. Elizabeth Warren and Illinois Rep. Jan Schakowsky called the AHCA and LeadingAge’s moves to stop the mandate “shameless attempts to sabotage a long-overdue CMS rule,” The Hill reported.

“The basis of the nursing home industry’s opposition to this rule appears to be quite simple: greed,” Warren and Schakowsky wrote in a letter The Hill obtained. “Industry claims that nursing homes cannot afford to hire more nurses are undermined by a recent investigation by our offices, which found that for-profit nursing homes have been stuffing hundreds of millions of dollars into their pockets with sky-high executive salaries, massive dividends, and large stock buybacks.” 

Legislative Disapproval

The American Hospital Association put its name behind a resolution for congressional disapproval to the mandate. The resolution, H.J.Res. 139, has 35 co-sponsors, all but two of which are Republican.

In a letter to Washington, D.C., representatives, Stacey Hughes, AHA’s executive vice president, said they believe the ruling could “exacerbate already serious shortages” in the workforce.

“Safe staffing is complex and dynamic,” Hughes wrote. “It must account for the acuity of the patients’ needs, the experience and clinical expertise of the nurses and health care professionals on the care team, and the technical capabilities of the facility. Mandated nurse staffing standards remove from the practice of nursing real-time clinical judgment and flexibility.”

Such mandates, Hughes wrote, don’t take into consideration technological advances or “the interprofessional team care model” used in collaborative practice. 

Advocacy Efforts Continue

In late June, members of the American Nurses Association, and some nursing students, converged to Capitol Hill to urge legislators to “protect” the CMS staffing mandate. 

“For those with loved ones in long-term care, knowing that they receive the best possible care provides peace of mind, and we at ANA want to ensure that we advocate for policies that will allow nurses to provide exemplary care in optimal work conditions” ANA President Jennifer Mensik Kennedy, PhD, MBA, RN, NEA-BC, FAAN, said in a news release. “Ultimately, the nurse staffing crisis requires a national dialogue and ongoing collaboration between nurses, congressional leaders, and other key stakeholders to support our nursing workforce, our patients, and our nation’s health and well-being.”

AARP, the nonprofit organization for people 50 years old and older, also supports the mandate, stating in April it will “help protect the basic rights of residents to live in dignity.”

“It is shameful that nursing homes receiving taxpayer dollars through Medicaid and Medicare haven’t been required to provide quality care through specific minimum staffing standards until now,” said Nancy LeaMond, AARP executive vice president and chief advocacy and engagement officer. “Far too many residents and families have experienced tragic consequences because of poorly staffed facilities.” 

Implementation Begins

Despite legal and legislative challenges, CMS issued in June its first guidance related to the staffing mandate.

New facility assessment regulations must be implemented by Aug. 8, according to the notice issued to state survey agency directors: 

• Facility assessments must include an evaluation of diseases, conditions, physical or cognitive limitations of the resident population, acuity, and any other pertinent information about the resident population.  
• Resident population assessments should dictate staffing decisions, including what skills and competencies staff must have to provide care. Assessments will also help determine additional needs for residents, such as physical space, equipment, assisted technology, and individual communication devices.

The notice also stated that even if a facility is found compliant based on the facility assessment, if surveyors determine that resident needs aren’t being met due to staffing, “the facility will be cited for noncompliance and be required to implement a plan of correction.” 

The Bottom Line

In April, the Centers for Medicare and Medicaid Services issued its final ruling on staffing mandates for long-term care facilities. Since then, a resolution for congressional disapproval of the mandate has been introduced and a lawsuit filed, arguing the mandate violates the Administrative Procedures Act. Now, a recent Supreme Court ruling could have implications for the mandate. CMS continues to issue guidance on implementation despite the challenges. 

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