Attorney General Bird sues to block rules requiring more nursing staff in nursing homes

Iowa's attorney general is leading a lawsuit challenging a new federal rule that, she says, will cost nursing homes and senior care facilities tens of billions of dollars over the next decade.

Attorney General Brenna Bird is joining officials from Kansas, South Carolina and 17 other mostly Republican-led states to challenge the government's Minimum Staffing Standards for Long-Term Care Facilities, a rule finalized earlier this year that will set a national standard for nursing care in facilities that receive Medicare or Medicaid funding.

The rule requires facilities to have a registered nurse on site 24 hours a day and hit minimum standards for registered nurse and nursing assistant staffing hours per resident.

In their lawsuit, filed Tuesday in Iowa federal court, the attorneys general and allied industry groups argue that the rule exceeds the authority and of the Centers for Medicare and Medicaid Services, and that moreover, it won't work.

The complaint cites studies finding 94% of current skilled nursing facilities lack the staffing to meet new requirements and would have to hire more than 100,000 new fulltime employees in a job market already hamstrung by a shortage of nurses and care workers.

From May: An Iowa woman blames nursing home staff shortages for her mom's death. Will new rules help?

"In short, there is no universe in which this final rule is lawful," according to the complaint.

The rule does come with more than $75 million in tuition reimbursement and other incentives to encourage more people to train as nurses, an effort the lawsuit dismisses as "a drop in the bucket" against the staffing shortage the rule creates.

The plaintiffs note that the Centers for Medicare and Medicaid Services calculate nursing homes will have to pay $4 billion a year to meet the new mandates; a study by an outside accounting firm estimated that number to be closer to $7.8 billion.

Even using the lower number, the rule would cost at least $46 billion over the next 10 years, the lawsuit states, while not making any additional funding available from Medicare or Medicaid to help facilities cover those costs.

Relief from rules 'necessary for the survival' of Iowa facilities, group says

The Iowa Attorney General's Office did not have any comment on the lawsuit before deadline Wednesday.

LeadingAge Iowa, an industry group that joined the lawsuit alongside is sister organizations in a number of other states, said in a statement that the rule represents "an impossible requirement" for nursing homes.

"We urge the Centers for Medicare & Medicaid Services to collaborate with stakeholders to understand Iowa’s vast workforce challenges and develop realistic, sustainable solutions,” LeadingAge Iowa Director of Clinical Services Kellie Van Ree said. "… We aim to continue to support nursing homes in providing exceptional care and service, however the current workforce crisis makes compliance with this mandate an impossibility. It is necessary for the survival and success of our members that they be excluded from CMS’ Staffing Mandate.”

LeadingAge said in its statement that Iowa lost 5% of its nurses from Fiscal Year 2022 to 2023, citing figures from the Iowa Board of Nursing.

A U.S. Department of Health and Human Services spokesperson declined to comment, citing the pending litigation.

Why did the government mandate more nurses?

Announced in April by Vice President Kamela Harris, the rule is meant to limit cases of neglect or delays in care for nursing home residents.

"If you're going to represent yourself to be a nursing home, you should have a nurse available to care for my loved one that I'm about to put in your facility," U.S. Secretary of Health and Human Services Xavier Becerra told USA TODAY at the time. "We insist that the care that you're going to provide must be quality."

One study by the University of Pennsylvania suggested fully implementing the rule could save nearly 13,000 lives per year , although that study did not take into account the potential effects of facilities closing under the rule.

An earlier lawsuit by nursing home groups also argued that the rule is an "unfunded mandate" and protesting that facilities cannot find or afford enough nurses to comply with the rule. Democrats in Congress have responded by questioning executive compensation and other non-patient spending at some of the country's largest nursing home providers.

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166 .

This article originally appeared on Des Moines Register: Attorney General Bird sues to block rules requiring more nursing staff in nursing homes