In the world of nursing home operators who participate in Medicare and Medicaid, up is down, and paying RN’s for “at least 8 hours a day” means paying RNs for ‘no more than 8 hours a day.’ This is called privatizing their profits and socializing their expenses, meaning that they take home the prize and you – and your parents and grandparents -- pay the price.
Lionel Barrymore as Mr. Potter in the movie "It's a Wonderful Life".jpg (1946) (Public Domain; Wikimedia Commons)
Before the regime changed hands, at a time when the Centers for Medicare and Medicaid Services were run by different people than will run them in the future, CMS proposed a rule. The horror stories of patients wandering the streets or locked out at night, and the alleged use of drugs to keep the nursing home residents quiet, and other, similar reports[1] sparked a new rule for nursing homes taking Medicare or Medicaid money..
CMS proposed that nursing homes that sign up to take Medicare and Medicaid money should provide nursing services at their nursing homes. Specifically, CMS provided that nursing homes signing up for the money should spend some of it to pay an RN to be at those nursing homes all day.
Three trade associations and three nursing homes that make profits off of Medicare and Medicaid said that this was “onerous.” They sued, this being America. The case is American Health Care Association v. Becerra (N.D. Tex. Case No. 2:24-cv-00114).
They alleged in their Amended Complaint that these RN nursing standards are too “onerous” for their nursing homes.[2] The reason, they say, is because Congress enacted a statute in 1972, to which Congress “enact[ed] extensive revisions” in December, 1987 in an Omnibus Budget Reconciliation Act.[3]
Congress has apparently not changed the statute’s language since 1972. The statute[4] has provided ever since that nursing homes that voluntarily take Medicare or Medicaid money – actually apply for it, you understand -- “must” pay an RN “for at least 8 consecutive hours a day, 7 days a week.”
In their lawsuit, the nursing home associations and operators say that when Congress voted on “at least 8 hours,” what Congress was actually voting on was what they call a “directive”[5] that effectively means ‘no more than 8 hours.’
After they call it “onerous” to pay for an RN all day at their nursing homes in order for the associations and the operators to get Medicare and Medicaid money, they say in their first paragraph:
That rule exceeds CMS’s statutory authority, effects a baffling and unexplained departure from the agency’s longstanding position, and creates impossible-to-meet standards that will harm thousands of nursing homes and the vulnerable Americans they serve.[6]
First of all, the new rule is not “baffling” to anyone who reads it and understands the reason for it.
Nor is it any kind of departure from a “longstanding position,” unexplained or otherwise. CMS’s prior position had been different before the afternoon of January 20, 2017; CMS changed its position during the “long standing” time between January 20, 2017 and the morning of January 20, 2021.
Again, the reason for the rule explains it: It was enacted in response to horror stories at nursing homes inflicted on the residents because of a lack of nursing support services, including the alleged administration of drugs by persons allegedly not qualified to administer them, and allegedly because a nursing home population that is drugged is easier to control when the residents are drugged, among other things.
Ask any survivor of the nation’s past mental hospitals about drug administration to keep the patients quiet because there was not enough staff to handle them. This is only one of the kinds of horror stories that have crawled out of their nursing homes, and only one of the kinds of stories that we can see.
So, the new rule is neither “baffling” nor “unexplained,” no matter how much the nursing homes want to make it seem so. But they do not stop there, as you can see. They also allege that the standards are “impossible to meet” and that having nursing standards in their nursing homes “will harm thousands of nursing homes and the vulnerable Americans they serve.” For good measure, they add in their paragraph 12 that this new rule is a “nightmare” that will harm nursing homes and “also the vulnerable residents they serve[.]”[7]
They actually allege that these “vulnerable Americans” will be harmed by having a nurse on staff all day at their nursing homes.
Not one of the six plaintiffs in this case is a resident of a nursing home. Not one of them is a user of the nursing home services.
As for being impossible to meet, I suppose that depends a lot on how much profit you intended to make from your investment in nursing homes. Explain that to a resident who wandered away because no staff was there to prevent it, a resident who is locked out of your buildings on a winter night, for starters.
Plausibility is the standard that complaints and amended complaints must measure up to, and outside of Amarillo, Texas where this case was filed, these allegations do not seem plausible. But read them for yourself and come to your own conclusion.
Longhorns.jpg (From the U.S. District Court, Northern District of Texas Website)
We may not have to wait long, in any case. All parties have filed motions with the trial judge, a man named Matthew Kaczmarek, that he should not wait for a trial but should decide the case himself. The plaintiffs did not demand a jury trial anyway. If I am not mistaken, this is a person who may not have ever ruled in favor of the United States in a case before now, which may explain why the nursing home associations and operators filed their lawsuit in his court and did not demand a jury trial.
We may not have to wait even that long, if the federal government defendants agree to scrap the CMS rule and allow nursing homes to apply for federal Medicare and Medicaid money without having to provide an RN at their nursing homes all day. That’s not much of a leap after the current federal government, as these words are written, is trying to dismiss cases involving election interference and classified documents even before the incoming federal government arrives and dismisses them itself.
The moral of the story: No need to wait until January 20, 2025.
[1] A healthy selection of reports and studies, likely representing only the tip of the iceberg when all are taken together, are explored in § 18C:6.50 by Dennis J. Wall in 2 CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition).
[2] American Health Care Ass’n v. Becerra, ¶ 1 of Amended Complaint, DE 26, filed June 18, 2024 (N.D. Tex. Case No. 2:24-cv-00114).
[3] Id., ¶ 37.
[4] 42 U.S.C.A. § 1396r(b)(4)(C)(ii).
[5] American Health Care Ass’n v. Becerra, ¶ 5 of Amended Complaint, DE 26, filed June 18, 2024 (N.D. Tex. Case No. 2:24-cv-00114).
[6] Id., ¶ 1.
[7] Id., ¶ 12.
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