Indiana joined several states challenging a nursing home federal staffing minimum, saying the overseeing agency overstepped its authority.
(Natalie Krebs / Side Effects Public Media)
A lawsuit filed Tuesday by 20 states challenging a federal rule mandating higher staffing levels in nursing homes alleges that facilities will be forced to close.
The states are led by Republican attorneys general, including Indiana’s Todd Rokita. The named defendants include leaders within the federal Health and Human Services agency as well as the Centers for Medicare and Medicaid Services.
“Although the nursing home industry certainly has had its share of challenges, it fills a vital need in our communities that cannot be replaced,” the 66-page filing read. “Instead of addressing the legitimate challenges nursing homes face, the Defendants put forward a heavy-handed mandate … This Final Rule poses an existential threat to the nursing home industry as many nursing homes that are struggling will have no choice but to go out of business.”
The Health and Human Services agency’s new requirement would create a nationwide standard for staffing nursing homes. It comes in the wake of COVID-19, which put a spotlight on the institutional setting. Due to the congregational nature of long-term care facilities and the poor overall health of residents, such places saw high infections and deaths throughout the pandemic that may have been exacerbated by low staffing levels.
Such a focus prompted overseeing government agencies to increase staffing levels to better respond to health and safety concerns from residents, many of whom continue to report issues related to poor staffing.
Most of the nation’s nursing homes would fail to meet the finalized April rule, which included requirements like having a registered nurse onsite 24/7, having residents receive at least .55 hours of care from a registered nurse each day and having residents receive 2.45 hours of care from a nursing aide daily.
Currently, registered nurses only need to be at a facility for eight consecutive hours a day, seven days a week.
States would also need to collect additional information related to staff compensation.
Difficult for nursing homes to implement
Nurses and other health care professionals have been slow to return to the long-term care workforce, which was the last to recover from COVID-19 losses, and the nursing home lobbying industry has fiercely opposed the proposed rule. Some families and residents, on the other hand, say the rule doesn’t go far enough.
The first phase of the rule, which included staffing assessment requirements and not the minimum staffing hours, went into effect on Aug. 8. The minimum staffing hours would go into effect in May 2027, as detailed in a KFF analysis, which found that 19% of facilities would meet the new standards.
Tuesday’s lawsuit claimed that an outside study found nursing homes would need to hire more than 100,000 full-time employees at a cost of roughly $6.8 billion per year. It continued to say that 94% of such long-term care settings would fail to meet at least one of the three requirements, risking the care of hundreds of thousands of residents.
Attorneys general for the states, joined by lobbying organizations as plaintiffs, allege the federal agencies overstepped their authority to institute the new rule — adding that the former staffing standard was set by Congress.
Specific harm to states could include higher nursing home costs, which are primarily paid by state and federal governments through Medicaid since Medicare and many private insurers don’t cover such care or only do so in a limited capacity. Facility costs in Indiana could climb by $10.9 million if required to have a registered nurse onsite 24/7, according to CMS estimates, and complying with all the rules could cost as much as $151.2 million.
In Indiana, nursing home associations have advocated for expanding the state’s current pipeline for training nurses, specifically by expanding certifications for foreign-educated nurses. One in five Hoosiers will be retirement age or older by 2030, a period in life when people start experiencing more health issues that need care. Currently, health care facilities across the board struggle to attract such professionals, who are in short supply.
Indiana’s core nursing home lobbying agencies — the Indiana Health Care Association and LeadingAge Indiana — were not named parties in the suit, though the IHCA has previously shared its concerns about the mandate’s impact on its members.
Tuesday’s lawsuit went on to question whether stricter staffing standards, rather than the more flexible current rules, would improve the care provided to residents — calling it a “one-size-fits-all approach.”
“Troublingly, (CMS’ staffing minimum) study disregarded the ongoing ‘national health care staff shortages’ and ‘current hiring challenges’ that present barriers to nursing homes — which would make compliance with a new federal staffing requirement impractical,” the lawsuit said.
It pointed to the “hardship exemption” set by CMS to allow facilities to bypass requirements, saying it was too high a bar for facilities to meet and only lowered the registered nurse requirements from 24 hours a day to 16 hours a day.
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