Texas adds pressure with lawsuit against ‘power grab’ nursing home staffing mandate

Texas Attorney General Ken Paxton on Wednesday added his state’s name to the list of groups suing the federal government over its new nursing home staffing mandate. The state is asking a federal court to overturn the rule.

Like others before it, the Texas lawsuit argues that the Centers for Medicare and Medicaid Services lacks sufficient authority to impose such a rule on qualified health care providers. The rule says providers must provide at least 3.48 hours of direct nursing care per patient day and have a nurse on duty every hour of every day.

Texas argues that under a legal theory called the Major Question Doctrine, agencies like CMS cannot issue regulations that could cause significant economic harm without clear prior direction from the legislative branch.

“This power grab by Biden’s health care bureaucrats could put much-needed care facilities in some of our state’s most disadvantaged areas out of business,” Paxton said in a statement. “We’re taking the federal government to court over this rule that could exacerbate the rural care shortage by closing facilities because of new hires that are impossible to fill.”

The lawsuit was filed in the Amarillo division of the District Court for the Northern District of Texas, the same court handling a similar lawsuit brought by the American Health Care Association in May.

Tuesday, McKnight Long Term Care News exclusively reported that AHCA and the Department of Health and Human Services have agreed to a fast-track schedule to settle that lawsuit.

All eyes on one judge

Wednesday’s filing all but ensures that Judge Matthew Kacsmaryk will hear the case, according to a report in Roll Call. Kacsmaryk is also overseeing the AHCA lawsuit, in which national provider association LeadingAge is a co-plaintiff. The Texas Nursing Association and three providers were also original plaintiffs.

Kacsmaryk was appointed by former President Donald Trump and has spoken out against several policies of the Biden administration.

Lawsuits against minimum staffing argue that it will increase staffing costs and likely force service cuts and facility closings, particularly in rural areas.

The new rule will force “Texas institutions to hire more than 10,000 workers with very specific skills — more than is currently available in the state labor market and in certain service areas,” the Texas AG said in a statement Wednesday.

While CMS estimated the cost of implementing the mandate at $43 billion over a decade, the AHCA pegged the price at much more.