Lawsuit seeks immediate ban on nursing home staffing rule to prevent ‘irreparable harm’ to operators

NASHVILLE — A group of 20 attorneys general asking a federal court to overturn a nursing home staffing rule has also now asked the court for an immediate injunction.

An injunction will immediately halt implementation and enforcement of the rule as the court considers written and oral arguments in the broader case.

John Lips, vice president of legal affairs for LeadingAge, spoke about the latest developments in the case at the group’s annual meeting on Sunday. The national organization LeadingAge is not involved in the case, but 17 of its affiliates, representing 21 states, are signatories to the civil lawsuit filed in the U.S. District Court for the Northern District of Iowa on Oct. 8.

“Plaintiffs in the Iowa case recently asked the court for a preliminary injunction that would prevent CMS from taking action to prepare or implement the rule, even though compliance with those requirements—other than a site assessment—is not occurring. to 2026 and beyond,” Lips said during a packed session, recounting the latest developments in federal politics.

“Iowa’s lawsuit argues that both providers and states are now taking steps to prepare for this rule that they should not have adopted.”

The attorneys general accused the Centers for Medicare and Medicaid Services of exceeding its regulatory authority by, among other things, tripling a longstanding congressional directive that a registered nurse be present eight hours a day, seven days a week. The new rule requires a nurse to be present every hour of every day, as well as 3.48 hours of daily care for each resident.

Earlier this month, plaintiffs argued that the personnel rule, approved in early May, exceeds CMS’s statutory authority. The agency’s own cost estimate of $43 billion makes the issue “of enormous economic and political significance without Congress ‘speaking clearly’ on the issue,” the attorney general’s office, led by Kris W. Kobach of Kansas, confirmed in an October statement. 22 Motion for Preliminary Injunction and Oral Arguments.

Government supplier groups speak out about harm

The case now involves legal submissions from LeadingAge officials to demonstrate the impact the rule is already having on nursing homes.

Kari Thurlow, president and CEO of LeadingAge Minnesota, for example, cautioned that even the initial site assessment provisions required significant staff time and financial investment. Despite this, providers fear they will be held accountable for non-compliance because they “lack clear guidance” from CMS.

She illustrated her concerns with the example of the 5-star Halstad Living Center, which has spent more than $10,000 in administrative costs to date, more than double CMS’s estimated compliance costs based on staff time alone.

“This is an initial cost and does not include any costs associated with ensuring compliance with the ‘ongoing’ assessment updates of the new facility,” Thurlow wrote. “These vague and arbitrary definitions may result in service providers, despite acting in good faith, being unfairly penalized with civil monetary penalties during complaint investigations or annual surveys.”

She called it an example of “overly burdensome costs without benefit to residents.”

Costs cannot be reimbursed

Also repeatedly cited as a key argument are growing concerns about staffing costs for compliance and the efforts already underway to recruit and maintain nursing staff. For example, in Pennsylvania, annual compliance costs will average $689,000 per supplier.

“LTCs that have not yet hired staff to comply with the Final Rule will soon do so, and these costs impose a significant, and in many cases, impossible burden on LTCs. This burden is especially harmful for those living in rural areas where the needed workforce simply does not exist, or in other tight labor markets where long-term care facilities compete with hospitals and other high-paying health care jobs for scarce health care workers,” they wrote. prosecutors general.

“Nursing homes will incur significant costs and may have to rely on temporary staffing agencies, which are significantly more expensive, sometimes several times the cost of the employee hired, and are notorious for providing lower quality care from those less familiar with and less invested in the well-being of residents. These increased costs will likely lead to service cuts and the closure of many nursing homes, ultimately reducing the availability of long-term care for older adults and forcing many into facilities away from their family and friends.”

That was one way the CEOs tried to make the irreparable harm argument, noting that service providers wouldn’t be able to recoup the money they spent now if the personnel rule is ultimately overturned in this court case or the two others that have consolidated in the U.S. District . North Texas Court.

“Because the Final Rule will likely be found unlawful for a variety of reasons, resulting in

irreparable harm to both the organization and the state, plaintiffs seek injunctive relief,” they wrote. “Absent a preliminary injunction, Plaintiffs will suffer irreparable harm…LTC Plaintiffs and LTC Plaintiffs have suffered and will continue to suffer dramatically increased financial and administrative burdens that will be too great for many LTCs to bear, resulting in service cuts. and closure of LTC.”

The plaintiffs said the court should not just halt implementation of the rule in the states involved in the case, but also extend the relief to all regulated nursing homes nationwide “pending a decision on the merits.”

“A less than nationwide injunction would have required plaintiff organizations to monitor and report their membership lists to determine which LTCs had members to whom the injunction applies,” the attorneys general wrote. “Meanwhile, other LTCs that are not members or do not reside in the plaintiff states will be forced to compete in an uneven market. This court should not allow such an unfair result.”