Nursing home residents, just 0.003% of the U.S. population, accounted for at least 23% of the COVID-19 deaths in the country. The pandemic-related deaths of so many residents made it impossible to continue ignoring the critical cause of poor outcomes for nursing home residents: facilities’ lack of sufficient numbers of nursing staff to meet residents’ needs. President Biden’s nursing home reform agenda, announced in February 2022, recognized that resident deaths during the COVID-19 pandemic made meaningful staffing standards the essential foundation for improving the quality of nursing home care for residents.
The consequences of inadequately staffed facilities are dire for residents. KFF reports that when facilities are understaffed, residents “get festering bedsores because they aren’t turned. They lie in feces because no one comes to attend them. They have devastating falls because no one helps them get around. They are subjected to chemical and physical restraints to sedate and pacify them.” An analysis by researchers at the University of Pennsylvania calculated that enforcing minimum staffing levels in nursing homes, as required by final rules, “would save approximately 13,000 lives per year” and reduce adverse outcomes for residents. More than 270 national and state organizations support the final staffing rule and urged Congress to keep it in place.
The nursing home industry ignores the critical importance of staffing and why, as a result, the public have such overwhelmingly negative views of nursing homes and seek to avoid nursing facilities whenever possible.
Instead of working to increase nurse staffing levels, improve nursing home quality, and gain the trust of the public, the nursing home industry has filed a third case challenging the final staffing rule, State of Kansas v. Becerra, Civ. A. No. (N.D. Iowa, Oct. 8, 2024. Sixteen state affiliates of LeadingAge (the trade association of non-profit nursing facilities), 20 states (represented by 20 Republican Attorneys General), and two Kansas nursing facilities are plaintiffs in the new lawsuit, filed in Iowa.
The hyperbolic, over-the-top Complaint (“[T]here is no universe in which this Final Rule is lawful.” Complaint, p. 5) describes the rule as “an existential threat to the nursing home industry.” It does not discuss residents’ needs, only industry claims that facilities cannot possibly find or afford to pay for the additional nursing staff required by the final rule.
Plaintiffs deny that CMS has statutory authority to change the staffing requirements. They contend that, 40 years ago, Congress required registered nurses (RN) only eight hours per day, seven days per week and otherwise required “sufficient” nursing staff to meet residents’ needs. They argue that the final rule triples the RN staffing requirement and, without legal authority, “abandons the flexible staffing standard” of sufficiency, replacing it with “a three part national requirement – irrespective of facility needs, current staffing capacity, or State law minimum staffing standards.” Complaint, pp. 3-4.
Arguing that the staffing rule violates the Administrative Procedure Act and is arbitrary and capricious, they seek declaratory and permanent injunctive relief.
There is some irony in filing the case in Iowa, where reporter Clark Kauffman of Iowa Capital Digest regularly reports on poor conditions in the state’s nursing homes. On October 10, 2024, for example, in “Mason City nursing home cited for insufficient staff after resident dies,” Kauffman reports that a resident of Good Shepherd Health Center died in August 2024 (with 14 rib fractures, a punctured and collapsed lung, and air trapped in his chest, neck, and tissue surrounding his heart) when an overworked nurse failed to assess him or send him to the hospital for several hours after he fell. The nurse told state surveyors that sometimes residents are not assessed because there is only a single nurse for 165 residents. Good Shepherd’s CEO, who was paid $284,431 in 2023, opposed the staffing rule as “‘unaffordable.’” He wrote that the facility had 320 employees before the pandemic, but 260 employees now, as he has had to rely on expensive temporary agency workers. However, Clark reports that the facility’s insufficient staffing predated the pandemic. In 2015, the family of a resident sued the facility, after complaining about the lack of sufficient staff to meet residents’ needs. The facility CEO and director of nursing both testified that they had received complaints from staff about not having enough workers. A nine-day trial resulted in a jury verdict of $900,000. In 2018, the Iowa Court of Appeals upheld the jury verdict for negligence, writing in Christensen v. Good Shepherd, Inc., No. 17-0516 (June 6, 2018), “Good Shepherd’s inadequate care of O’Brien continued despite the prevalence of adverse consequences — continued falls, significant weight loss, deterioration of overall health, and dehydration — which became fatal. Good Shepherd was aware of these adverse consequences and took no steps to remedy them. Good Shepherd’s conduct evinced an indifference to, or a reckless disregard of, the health or safety of others.”
Two now consolidated cases challenging the staffing rule are pending in Texas, American Health Care Association v. Becerra, Case No. 2:24-cv-00114-Z (N.D. Tex. May 23, 2024), and State of Texas v. United States Department of Health and Human Services, Civil Action No. 2:24-cv-00171 ( (N.D. TX Aug. 14, 2024). The Iowa case makes essentially the same factual and legal arguments as the Texas cases (See CMA Alert on first Texas case).
Conclusion The nursing home industry may win one or more of these lawsuits or it may get Congress to enact legislation to stop enforcement of the final rule. But there is no question that if the nursing home industry continues to fight changes that would improve care for residents, it will continue to dwindle and decline, as people increasingly choose any long-term care option other than a nursing home.
October 17, 2024 – T. Edelman