Texas Sues CMS Over Nursing Home Staffing Rule
On August 14, 2024, the Texas Attorney General sued the Centers for Medicare & Medicaid Services (CMS) challenging a new rule on minimum staffing requirements for nursing homes. The state’s complaint alleges that the rule violates the Major Questions Doctrine, which according to the Supreme Court of the United States means that government agencies cannot independently act on, or decide issues of, major national significance. The action must instead be supported by clear authorization by Congress. The state asked the court to vacate the CMS rule and prevent the Department of Health and Human Services (HHS) from enforcing it.
CMS finalized the federal staffing mandate on May 10, 2024. It requires every nursing home to deliver a minimum of 3.48 total nursing staff hours per resident per day (HPRD), including 2.45 hours from nurse aides and 0.55 hours from registered nurses (RN). Additionally, nursing homes will be required to have an RN on site 24-hours per day. Previously, there were no federal requirements setting minimum staffing levels for nursing homes.
In the lawsuit Texas v. U.S. Department of Health & Human Services & Centers for Medicare & Medicaid Services, the state anticipates that to meet the staffing requirements, nursing homes will need to hire about 2,579 more RNs (a 46.1% increase); and 7,887 more nurse aides (a 28.4% increase). The state alleges that this is “more personnel than are currently available in the labor market within the State and specific service areas.” As a result, facilities in challenging areas, such as rural locations, are at risk of closure if they cannot meet the staffing requirements.
Additionally, the lawsuit noted CMS’ recognition that Texas will need to hire the most additional RNs of any state to comply with the requirements. The annual cost for the additional staff is estimated at about $500 million: $84 million to meet the 24/7 RN requirement, and $409 million to meet the HRPD requirements.
On May 23, 2024, the American Health Care Association (AHCA), a long-term care industry trade association, joined by the Texas Health Care Association (THCA) and several Texas long term care facilities, filed a lawsuit against HHS and CMS. The lawsuit contends that HHS and CMS exceeded their statutory authority when they “arbitrarily and capriciously” issued the Minimum Staffing Standards for Long-Term Care Facilities final rule. The lawsuit asks the court to issue an order and judgment setting aside the new staffing requirements that CMS finalized on May 10, 2024.
AHCA estimated that the mandate will raise nationwide long-term care costs by $6.5 billion, based on the following:
- Certified nursing assistant (CNAs) at 2.45 hours per resident day (HPRD): $4.0 billion
- Nurse staffing standard of 2.45 HPRD: $2.6 billion
- Registered Nurse (RN) at 0.55 HPRD: $2.3 billion
- RN available 24/7: $729.8 million
About 94% of nursing homes will need to hire more staff to meet the mandate’s requirements, including 92% of rural facilities. This is a total of more than 102,000 RN and nurse aids throughout the U.S. About 80% of nursing homes will have to hire more RNs to meet the 24/7 RN requirement alone, including 92% of all rural facilities. Furthermore, as many as 290,000 U.S. residents could lose access to nursing home care in the coming years, as their facilities adapt to the new federal requirements.
A link to the full text of “Texas v. U.S. Department Of Health & Human Services & Centers for Medicare & Medicaid Services” is in the OPEN MINDS Circle Library at https://openminds.com/market-intelligence/resources/081424texasvhhs/.
OPEN MINDS initially reported on the rule in “Final Nursing Home Minimum Staffing Rule Released, Three-Stage Phase-In To Begin In May 2024,” which published on May 8, 2024, at https://openminds.com/market-intelligence/news/final-nursing-home-minimum-staffing-rule-released-three-stage-phase-in-to-begin-in-may-2024/.
OPEN MINDS last reported on this topic in “Federal Nursing Home Staffing Mandate Projected To Cost $6.5 Billion Annually,” which published on May 29, 2024, at https://openminds.com/market-intelligence/news/federal-nursing-home-staffing-mandate-projected-to-cost-6-5-billion-annually/.
For more information, contact: Texas Office of the Attorney General, Post Office Box 12548, Mail Code 009, Austin, Texas 78711-2548; 512-936-1414; Email: communications@oag.texas.gov; Website: https://www.texasattorneygeneral.gov/
