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American Nurses Association v. Leavitt

January 13, 2009


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs, the American Nurses Association, and two of its constituents, the New York State Nurses Association and the Washington State Nurses Association, bring this action against Michael O. Leavitt, Secretary of the United States Department of Health and Human Services and Mark McClellan, Administrator of the Centers for Medicare and Medicaid Services (collectively, "HHS" or the "Secretary") seeking a declaratory judgment. Plaintiffs assert that HHS has unlawfully permitted inadequate staffing of registered nurses at hospitals that participate in the Medicare program.They argue that the Medicare Act, and regulations promulgated by HHS pursuant to it, require HHS to ensure "the immediate availability of a registered nurse for bedside care of any patient." By deeming hospitals in compliance with this requirement if they are accredited by the Joint Commission on Accreditation of Hospitals ("Joint Commission"), a private organization, plaintiffs contend that HHS unlawfully fails to ensure compliance with this requirement and unlawfully delegates its authority to a private party.

Before the court is the motion of the Secretary to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted [#24] and the motion of plaintiffs "for order of jurisdiction or, in the alternative, to permit jurisdictional discovery" [#27]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that the Secretary's motion must be granted and the plaintiffs' motion must be denied.


A. Parties and Claims for Relief

Plaintiffs are nonprofit membership organizations that represent the interests of registered nurses. They promote patient safety, workplace rights, appropriate staffing, workplace and environmental health and safety, and the public health.Plaintiffs allege that inadequate nurse staffing at hospitals accredited by the Joint Commission*fn1 has led their members to suffer harms, including shifts where they are not able to complete patient care tasks in a manner they believe is necessary and safe or take necessary rest breaks. Among other relief, plaintiffs seek: (1) a declaratory judgment that the failure of HHS to assure that the Joint Commission imposes standards at least equivalent to those promulgated by HHS constitutes action unlawfully withheld and results in the improper participation of hospitals in the Medicare program, and (2) a declaratory judgment that through this failure HHS is engaging in an unlawful delegation of its responsibilities to the Joint Commission. Compl. ¶¶ 60-63. B. Statutory and Regulatory Background

In order to participate in the Medicare program, a hospital must meet the statutory definition of a "hospital" found in section 1395x(e) of the Medicare Act, which lists certain conditions of participation. 42 U.S.C. § 1395x(e). The Secretary may refuse to enter into an agreement or may terminate an agreement after determining that a hospital fails substantially to meet these conditions. Id. § 1395cc(b)(2)(B). There are nine different conditions. The first eight are substantive and include one condition specifically aimed at nursing requirements: a hospital must "provide[] 24-hour nursing service rendered or supervised by a registered professional nurse, and ha[ve] a licensed practical nurse or registered professional nurse on duty at all times." Id. § 1395x(e)(5). The ninth condition requires hospitals to "meet[] such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution." Id. § 1395x(e)(9).

HHS promulgated a regulation interpreting section 1395x(e) with respect to nursing requirements. See 42 C.F.R. § 482.23. The regulation, with respect to nurse staffing, states:

The nursing service must have adequate numbers of licensed registered nurses, licensed practical (vocational) nurses, and other personnel to provide nursing care to all patients as needed. There must be supervisory and staff personnel for each department or nursing unit to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient [hereinafter, the "bedside availability requirement"].


Under the Medicare Act, if an institution is accredited by the Joint Commission it shall be deemed to meet the requirements of section 1395x(e) with two exceptions. Id. § 1395bb(a). Relevant to this case, such accreditation shall not be deemed to meet a requirement promulgated pursuant to section 1395x(e)(9) if that requirement is higher than the requirements prescribed for accreditation by the Joint Commission unless the Secretary determines the Joint Commission's standard is at least equivalent to that promulgated by the Secretary. Id. In addition, notwithstanding any other provision, if the Secretary finds that a hospital has significant deficiencies, the hospital shall be deemed not to meet the conditions the hospital has been treated as meeting pursuant to section 1395bb(a). Id. § 1395bb(d).

The Medicare Act requires the Secretary to enter into agreements with states to determine whether institutions in that state qualify as hospitals within the meaning of the Act, and to the extent the Secretary finds it appropriate, she may treat an institution certified by the state as a hospital. Id. § 1395aa(a). The Secretary may also enter into an agreement with any state to survey hospitals deemed to meet the conditions of participation under section 1395bb(a) (i.e. to meet the requirements because they have been accredited by the Joint Commission) on a selective sample basis or on the basis of substantial allegations. Id. § 1395aa(c).

HHS has promulgated regulations further specifying how it will enforce the conditions of participation at accredited hospitals. See 42 C.F.R. § 488.7. Under these regulations, HHS, through the relevant state agency, may require a survey of an accredited provider to validate a hospital's accreditation on a representative sample basis or in response to substantial allegations of noncompliance. Id.; see also id. § 488.10 (describing the Secretary's authority under 42 U.S.C. § 1395aa and bb). For non-accredited hospitals, HHS will determine on the basis of a state survey whether the hospital is eligible to participate in the Medicare program. Id. § 488.12. Determinations by HHS that a hospital is in compliance with the conditions of participation are made as often as HHS deems necessary. Id. § 488.20.


HHS moves to dismiss this action under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). HHS contends that the court does not have subject matter jurisdiction under Rule 12(b)(1) because plaintiffs do not have standing to sue either as organizations or on behalf of their member nurses. HHS further contends that this court does not have subject matter jurisdiction because review of plaintiffs' claims is not available under the Administrative Procedures Act. Finally, HHS asserts that plaintiffs fail to state a claim upon which relief may be granted under Rule 12(b)(6) because they lose on the merits.

A. Plaintiffs Have Standing in Their Capacity as Representatives of Their Member Nurses

HHS argues that plaintiffs lack both standing in their own right and representational standing to assert the putative rights of their member nurses. While the court agrees with HHS that plaintiffs lack standing in their own right, it agrees with plaintiffs that they have standing to prosecute this action in a representional capacity on behalf of their members.*fn2

When an organization brings suit in a representational capacity, the organization must demonstrate that at least one of its members "would have standing to sue in [her] own right, [that] the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit."

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 169 (2000); see also Int'l Cntr. for Tech. Assessment v. Johanns, 47 ...

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