By Nathaniel Weixel - 06/11/24

A fight over the White House plan to mandate minimum staffing levels in nursing homes is escalating, as the Biden administration seeks to ward off challenges in Congress and in the courts.

On Capitol Hill, lawmakers in both chambers have introduced joint resolutions under the Congressional Review Act (CRA) to overturn the rule.

The policy has exposed a division among Democrats, especially front-line members from rural states.

The Senate measure, led by Sens. Jon Tester (D-Mont.), James Lankford (R-Okla.) and Joe Manchin (I-W.Va.), has a significant chance of passing the Democratically controlled Senate.

A CRA resolution isn’t subject to the 60-vote filibuster and needs only a simple majority of votes. If Tester, Manchin and all the chamber’s Republicans vote for the resolution, it will pass — though President Biden will likely veto the measure.

“At a time when nursing homes across Montana are struggling with workforce shortage issues, it makes no sense for unelected bureaucrats in the Biden Administration to hand down a one-size-fits-all policy that would force these critical facilities to shutter their doors. That’s why I’m teaming up with Republicans to shut this rule down,” Tester said in a statement.

Manchin, who is retiring, called the rule “overly demanding and unrealistic.”

Tester is running for reelection in a red state and is one of the Senate’s most vulnerable Democrats. He has been outspoken about the need to block the rule from taking effect.

Last fall, he and Manchin led a letter to the Centers for Medicare & Medicaid Services (CMS) demanding the agency rescind the rule.

That letter was signed by Democratic Sens. Maggie Hassan (N.H.), Jeanne Shaheen (N.H.) and independents Kyrsten Sinema (Ariz.) and Angus King (Maine).

None of those senators have spoken in favor of the CRA, and their offices did not answer when asked if they support it.

However, King recently joined with Sen. Kevin Cramer (R-N.D.) to express concern about the mandate’s impact on veterans and ask the Department of Veterans Affairs to produce a report on the issue.

The senators argue the mandate won’t fix workforce shortage problems or solve care quality problems and will force many rural nursing homes to shut their doors.

In the House, a CRA resolution is backed entirely by Republicans. But Democratic Reps. Jared Golden (Maine) and Chris Pappas (N.H.) opposed the rule when it was initially proposed.

The arguments from both chambers echo industry groups that say any federal standard is unfeasible because of a nationwide staffing shortage made worse by the pandemic.

Under the requirements unveiled in April, all nursing homes that receive federal funding through Medicare and Medicaid will need to have a registered nurse on staff 24 hours per day, seven days per week and provide at least 3.48 hours of nursing care per resident per day.

The rules will cost nursing homes $43 billion over the next decade, according to estimates from the Department of Health and Human Services (HHS).

President Biden in his 2022 State of the Union address announced a slate of nursing home reforms and vowed staffing minimums would be among them. Advocates have been calling for such a requirement for more than two decades, arguing that residents are safer and have better care with more staff, but until now the industry had been able to successfully resist those efforts.

According to the industry trade group American Health Care Association (AHCA), only 6 percent of nursing homes currently meet all four requirements in the rule.

David Grabowski, a professor of health policy at Harvard Medical School and a nursing industry expert, said the political backlash has been “disappointing” to see.

“I have never thought of the effort to improve nursing home quality as a partisan issue so I guess steps to impede high-quality care can also be bipartisan,” Grabowski said in an email.

He noted that the opposition from rural members is “misguided.” Rural areas have historically suffered from workforce shortages, but the rule has specific carve-outs and other protections for rural nursing homes.

For example, there is a longer ramp-up period for rural nursing homes to comply with the new rules. Additionally, the rule contains language that if rural nursing homes are facing a local labor shortage, they are exempt from the policy.

Nonrural facilities must meet the requirements by May 2027, and rural facilities have five years, until May 2029.

“The new rule is far from perfect but lots of research supports the idea that many U.S. nursing homes often operate at levels that pose risks to the health and safety of their residents. I would rather have seen members work to improve the legislation to strengthen staffing rather than work to overturn it,” Grabowski said.

But a congressional resolution is not the only threat to the new policy. A lawsuit filed by AHCA in Texas asks a judge to overturn the rule.

The complaint argues Congress never gave the CMS the authority “to impose such onerous and unachievable mandates on practically every nursing home in the country.”

The lawsuit was filed in federal court in Amarillo, Texas. The district court in Amarillo has only one judge, Matthew Kacsmaryk.

Kacsmaryk, an appointee of former President Trump, is the same judge who suspended approval of the abortion pill mifepristone and has ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.