Congress takes aim at White House nursing home staffing quotas

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

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

The policy has exposed a divide among Democrats, especially among frontline members from rural states.

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

A CRA resolution is not subject to the 60-vote filibuster and requires only a simple majority vote. If Tester, Manchin and all Republicans in the House vote for the resolution, it will pass — although President Biden will likely veto the measure.

“At a time when nursing homes across Montana are struggling with staffing issues, it makes no sense for unelected bureaucrats in the Biden administration to enact a one-size-fits-all policy that would force these critical facilities to close their doors Close. That's why I'm working with Republicans to eliminate this rule,” Tester said in a statement.

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

Tester is running for re-election in a red state and is one of the most vulnerable Democrats in the Senate. He has been outspoken about the need to prevent the rule from taking effect.

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

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

None of these senators have spoken in favor of the CRA, and their offices have not responded to questions about whether they support the CRA.

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

The senators argue that the mandate will not solve staffing shortage problems or address quality of care issues, and that it will force many rural nursing homes to close their doors.

In the House of Representatives, a CRA resolution is fully supported by Republicans. But Democratic Reps. Jared Golden (Maine) and Chris Pappas (NH) opposed the rule when it was initially proposed.

The arguments from both chambers echo industry groups that say any federal standard is unachievable because of a nationwide workforce shortage that has been exacerbated by the pandemic.

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

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

President Biden announced a series of nursing home reforms in his 2022 State of the Union address and promised that they would include staffing minimums. Advocates have been pushing for such a requirement for more than two decades, arguing that residents are safer and receive better care with more staff, but so far the industry has successfully resisted these efforts.

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

David Grabowski, a professor of health policy at Harvard Medical School and an expert in the nursing industry, said the political response was “disappointing” to see.

“I have never viewed efforts to improve nursing home quality as a partisan issue, so I believe moves to hinder high-quality care could also be bipartisan,” Grabowski said in an email.

He noted that the opposition from rural members is “misguided.” Rural areas have traditionally faced labor shortages, but the rule has specific exceptions and other protections for rural nursing homes.

For example, there is a longer lead-in period for rural nursing homes to comply with the new rules. In addition, the rule includes language that if rural nursing homes face a local workforce shortage, they are exempt from the policy.

Non-rural facilities must comply by May 2027, and rural facilities have five years until May 2029.

“The new rule is far from perfect, but much 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 have preferred to see Members work on improving legislation to strengthen the workforce. instead of working to undo 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 states that Congress never gave CMS the authority “to impose such burdensome and unfeasible mandates on virtually every nursing home in the country.”

The lawsuit was filed in federal court in Amarillo, Texas. The 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 ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.

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