Montana Joins 19 Other States Suing Feds to Block Staffing Mandates for Nursing Homes

By Clark Kauffman for States Newsroom

The state of Iowa, where nursing homes have compiled one of the nation’s worst records for staffing-level violations, has joined 19 other states, including Montana, in suing the Biden administration to block the implementation of new staffing requirements.

The lawsuit, filed in U.S. District Court for the Northern District of Iowa, seeks to overturn the nursing home staffing requirements approved earlier this year by the Centers for Medicare and Medicaid Services.

In their petition, the 20 states and more than a dozen industry associations argue that the new staffing requirements pose “an existential threat to the nursing home industry as many nursing homes that are already struggling will have no choice but to go out of business. And the main victims will be the patients who will have nowhere else to go.”

The lawsuit is in response to CMS’ decision in April to finalize new minimum staffing standards that will require homes to conduct assessments of their residents’ needs and provide 3.48 hours of direct nursing care per resident, per day. The rule also requires the homes to have a registered nurse available 24 hours per day, seven days a week.

Earlier this year, the Iowa Capital Dispatch reported that Iowa nursing homes have the sixth-worst record in the nation for staffing-level violations. Data from CMS show that 14% of the state’s 422 nursing facilities were cited for insufficient staffing in fiscal year 2023. That was more than double the national average, which was 5.9%.

Only five other states — Hawaii, Michigan, Montana, New Mexico and Oregon — had a worse record of compliance with the sufficient-staffing requirement.

Des Moines’ Fleur Heights care facility compiled Iowa’s worst record of compliance.  During a nine-month period between May 2023 and February 2024, Fleur Heights was cited, but never fined, five times for insufficient staff — more than any other facility in the state.

Lawsuit: CMS Pulls an Elephant out of a Mousehole

Federal data suggest many care facilities already meet the new standards, but industry officials allege nursing homes will need to hire an additional 27,000 full-time registered nurses and 78,000 full-time certified nurse aides, at a cost of more than $7 billion, to meet the requirements.

A report from the Long-Term Care Community Coalition earlier this year showed that 6 in 10 of all U.S. nursing homes would have met the new nurse-staffing standard of 3.48 hours in the fourth quarter of 2023. Iowa homes fell below the national average, with 56.5% of them meeting the new standard.

The fact that a majority of facilities already meet the new minimum standard while still facing quality-of-care issues has been an issue with many advocates who say the new standards don’t go far enough. They point to a federal study that shows each resident needs at least 4.1 hours of nursing care each day – which is a standard met by only 26% of all nursing homes nationally.

The lawsuit alleges the new requirements, which apply only to homes that accept taxpayer money through Medicaid and Medicare funding for resident care, are “not even close to lawful.”

That claim appears to be based on the plaintiffs’ argument that CMS lacks the broad authority needed to enact a rule that would “result in at least $43 billion of compliance costs for nursing homes nationwide over the next ten years” without first obtaining congressional approval. The lawsuit likens CMS’ action to pulling an elephant out of a mousehole.

The lawsuit also notes that the previous standards included a “flexible staffing standard” that dates back to 1972 and which required only that a nursing home “provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents.”

For at least 40 years, that standard came under fire from advocates for seniors who alleged it allowed corporate nursing home owners to define for themselves what constituted a “sufficient” level of staffing, even as federal studies showed inadequate staffing to be the single largest contributor to poor quality care in nursing homes.

Congress, the lawsuit points out, chose not to take action on complaints regarding the rule on “sufficient” staff.

“For decades, Congress, CMS, and its predecessors have considered — and rejected — proposals to replace the flexible staffing standards with a one-size-fits-all requirement,” the lawsuit argues, adding that the new mandate “threatens the health, safety, and well-being of millions of nursing home patients across the country.”

Hardship Exemptions are Questioned

Although the new staffing requirements are to be phased in over the course of two to three years, and include a waiver for homes in rural areas with labor-pool shortages, “the reality of a tight labor market requires nursing homes to hire immediately because the available supply of nurses will dwindle as the implementation date approaches,” the lawsuit claims.

The lawsuit characterizes the new staffing mandate of having a nurse available on a 24/7 basis as “a one-size-fits-all approach,” but acknowledges other elements of the mandate would be based on a care facility’s own assessment of residents’ needs.

Although the new rule includes a financial-hardship waiver for homes that can’t afford to meet the new staffing level requirements, the plaintiffs argue that in order to get such a waiver, a home must prove there’s a significant local shortage of health care workers, show evidence of staff recruitment efforts and competitive wages, and document their spending on staffing in relation to their overall revenue.

Even then, the plaintiffs argue, a “hardship exemption” can still be denied if a nursing home is designated a “special focus facility” due to major, recurring violations of resident-care standards.

Another point of contention referenced in the lawsuit is the new rule’s lack of recognition for the use of licensed practical nurses. The plaintiffs argue that the rule creates an incentive for facilities to fire LPNs and replace them with less skilled certified nurse aides. The rule “pressures long-term care facilities to replace experienced LPNs” with less-qualified new hires, the lawsuit alleges.

The lawsuit seeks a declaration by the court that CMS lacks the authority to impose the new requirements as well as orders vacating and setting aside specific requirements such as the 24/7 requirement for a registered nurse.

Plaintiffs in the lawsuit include the states of Iowa, Nebraska, Kansas, South Carolina, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kentucky, Missouri, Montana, Oklahoma, North Dakota, South Dakota, Utah, Virginia, and West Virginia.

Co-plaintiffs include the LeadingAge lobbying and professional associations in Iowa, Nebraska, South Dakota, Kansas, Oklahoma, South Carolina, Missouri, New Jersey, Ohio, Colorado, Delaware, Virginia, Maryland, Pennsylvania, Tennessee and Michigan.

The defendants, CMS and the U.S. Department of Health and Human Services, have yet to file a response to the lawsuit. In other, similar lawsuits, such as one filed in Texas by industry officials, the agencies have denied any wrongdoing.

This story was originally produced by the Iowa Capital Dispatch which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity.