Judith Waltz Discusses Nursing Home Staffing Mandate, Potential Legal Challenges

Foley & Lardner LLP partner Judith Waltz offers insight on a new nursing home staffing rule from the U.S. Department of Health and Human Services and its impact on the industry in the Bloomberg Law article, “Nursing Homes, HHS on Collision Path Over Staffing Mandate.”

Waltz, who is co-chair of Foley’s Health Care Practice Group, explained that courts have been deferential to federal agencies’ authority to implement policies through the notice-and-rulemaking process, commenting that “the government has a lot of advantages when it deals with arguments about challenges to its statutory authority.”

Yet she noted that the added provider labor costs the rule imposes could be used to support a constitutional argument of “improper taking” of nursing homes’ ability “to have an economically viable entity by virtue of requirements that are not shown to be clinically necessary.” It would be difficult, however, to “show that there’s a constitutional standard that’s been violated,” Waltz added.

She suggested another pathway for a legal challenge might be to claim the staffing requirements are “arbitrary and capricious” because they haven’t been shown to have a demonstrable clinical benefit. “Just having more people there, I think we don’t have evidence that that’s going to result in better care necessarily,” Waltz said.