D.D.C.: Nurses have standing under Medicare, but can't force more staffing

D.C.’s federal district court held that a nurses’ group had standing to challenge the federal government’s failure to strictly enforce Medicare staffing requirements, but rejected their claims on the merits.

The court held that nurses’ poor working conditions were fairly traceable to the Department of Health and Human Services’ (HHS) failure to ensure adequate staffing. The court also held that the methods for determining a provider’s eligibility for Medicare participation are reviewable under the Administrative Procedures Act (APA). However, the court ultimately held that HHS’s interpretation and application of its regulations is reasonable. Amer. Nursing Ass’n v. Leavitt, --- F.Supp.2d ---, 2009 WL 94546 (D.D.C. Jan. 13, 2009) (No. 06-01087).

 

The plaintiff nursing associations claimed that HHS was improperly deeming hospitals to be in compliance with Medicare staffing rules based on their accreditation by the Joint Commission on Accreditation of Hospitals. According to plaintiffs, this practice leads to chronic understaffing. Under 42 C.F.R. § 482.23, providers must have sufficient staffing “to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient.” The case turns on whether this regulation arises under 42 U.S.C. § 1395x(e)(5) (requiring 24-hour nursing service), or under § 1395x(e)(9) (permitting Secretary to impose “other requirements”). Requirements under §§ 1395x(e)(1)-(8) are deemed to be met by accreditation from the Joint Commission; by contrast, § (e)(9) requirements are not deemed to be met if they are higher than the accreditation requirements.

 

The court held that the plaintiffs had standing. First, the loss of breaks and other poor working conditions allegedly suffered by nurses were cognizable injuries. Second, the court reasoned that while government inaction does not always create standing, the nurses’ injuries here were fairly traceable to HHS’s deeming practice because this practice led directly to violations of § 482.23. Third, the court held that because the nurses’ interests “converge” with the interests of patients, they fall within the “zone of interests” protected by the Medicare Act.

 

The court further held that some of plaintiffs’ claims were reviewable under the APA. It noted that HHS’s general enforcement priorities, and its determinations of eligibility for specific providers, are matters committed to agency discretion. However, the court found that it is proper, under the APA, for the court to review the methods by which HHS makes such determinations. Cf. Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667 (1986) (permitting review of methods for determining Medicare payments). This holding was supported by the “lack of a forum in which this aspect of the Secretary’s actions could [otherwise] be reviewed.”

 

On the merits, however, the court upheld HHS’s deeming practice, saying it was based on a reasonable interpretation of § 1395x(e)(5). See  51 Fed.Reg. 22010 (1986). The court said that the language of § (e)(5) – requiring “24-hour nursing services rendered or supervised by a registered professional nurse” – “is ambiguous and can reasonably be interpreted to incorporate the bedside availability requirement.” Accordingly, it was proper for HHS to deem providers in compliance with the bedside availability requirement based on their accreditation. Additionally, the court held that this practice was not an unlawful delegation of authority, because the Secretary “merely takes notice of the fact of [accreditation] when she decides how to enforce the conditions of section 1395x(e).”