Challenge the accepted assumption.
If you do not choose to resist for the sake of justice, then resist for the sake of the people on Medicare and Medicaid who are confined to a Nursing Home.
Caspar David Friedrich, “Wanderer Above the Sea of Fog” (Public Domain / Wikimedia Commons)
The life and apparent murder of Staffing Standards for Nurses who care for patients on Medicare or Medicaid shows a way to deal with preordained outcomes. This is the tale of federally funded nursing care for people in Nursing Homes and other Long Term Care Facilities.
In the before time, the time before January 20, 2025, or in 2024 to be a bit more precise, the Centers for Medicare and Medicaid Services issued a final rule. The CMS Rule provided in part for (1) a Registered Nurse (RN) to be present at Medicare or Medicaid-funded Long Term Care Facilities 24 hours a day, 7 days a week, and (2) minimum hours per resident day (HPRD) for RNs and nurse aides.[1]
This meant money, of course. The Staffing Standards for Nurses Rule increased expenses to operate Nursing Homes even as it increased the level of care for the patients inside the Nursing Homes. Because the Rule affected expenses, it naturally affected the level of income from Medicare and Medicaid. The operators of Nursing Homes and their political allies knew what to do: They filed a lawsuit. Various “states, nursing home facilities, and trade associations” challenged the Rule in a lawsuit they filed in the Northern District of Iowa, of all places, styled Kansas v. Kennedy.[2] That case resulted in a decision in their favor on June 18, 2025 vacating the Staffing Standards for Nurses Rule.
One of the reasons the Court gave for its ruling was something called the Roberts Court’s “major questions doctrine.” (Law Professor Leah Litman has called it the “major grievances doctrine” in a recently published book. LEAH LITMAN, LAWLESS 204 (2025).)
The Court in the Kansas v. Kennedy case saw the Staffing Standards for Nurses as a “major question” that Congress alone should address regarding the issue of minimum RN and Nurses’ Aide Hour per Resident. In the Court’s eyes, it is a major question for Congress alone to answer of how much time residents at Long Term Care Facilities operating with Medicare or Medicaid funding, can spend with their RNs or Nurses’ Aides.[3] On this basis, the CMS Rule was overturned as to hours per resident spent by RNs and nursing aides, as well as requiring an RN to be present at such facilities 24-7.[4]
The next month, in July 2025 and while an appeal was still pending in the Kansas v. Kennedy case (and before the regime, now in control of the CMS and the federal Defendants in the case, dismissed the appeal three weeks ago, on October 3, 2025), Congress attempted to bar the enforcement of the Staffing Standards for Nurses Rule until after September 20, 2034. (It is unclear how many residents of Nursing Homes will die or suffer, if any, without the Nursing Care Standards between now and then.)
This attempted “repeal by delay” is almost certainly unlawful. Congress imposed on itself a way for it to review and reject administrative rules and regulations when it passed the Congressional Review Act in 1996.[5] The budget reconciliation bill’s provision for the repeal of Staffing Standards for Long Term Care Facilities was not enacted under the Congressional Review Act.
However, that was true in the before time. It is unclear how true it may be now, if at all, if the attempted repeal by delaying the Staffing Standards for Nurses Rule is not challenged.
Challenge. What is abundantly clear, I respectfully submit, is that rulings and budget reconciliation bills alike need to be challenged. As a lawyer, it does not come easy for me to say that the decision in Kansas v. Kennedy in the Northern District of Iowa should not be given some deference. But if it comes to that, it is a decision in one District Court by one District Judge and it is not binding, so far as I know, on any other Judge anywhere else in the United States. Not binding on any other federal Judge or federal Court outside of the Northern District of Iowa, perhaps, and certainly not binding on any State Court Judges.
Moreover, the “major questions” doctrine is subject to challenge in and of itself in my view. The fact that Six Justices in Washington, D.C. wield it like a gun, to borrow a phrase from True Grit, it does not mean that the doctrine automatically applies even where rich people want to redress their grievances at not making as much money from Nursing Home patients as they thought they might.
Challenge. It’s your right. You don’t even have to have a relative or a friend in a Nursing Home to have standing.
[1] 42 C.F.R. § 483.35(b)(1) and (c).
[2] Kansas v. Kennedy, 787 F. Supp. 3d 906 (N.D. Iowa June 18, 2025), appeal voluntarily dismissed on motion of the regime, No. 25-2643 (8th Cir. Oct. 3, 2025)..
[3] Kansas v. Kennedy, 787 F. Supp. 3d at 925-31. Speaking of a “feel” about some things, I wonder whether this was a truly adversarial proceeding in the commonly understood sense of the word, “adversarial.”
It seems that there is also a real question whether there was any longer a “case or controversy”; if there was not, then there is a very good argument that the federal courts lacked jurisdiction entirely by that point.
[4] I have checked the electronic court file of this case on PACER, and as noted earlier, the federal Defendants, all controlled by the regime at that point, filed a motion to voluntarily dismiss the appeal which was granted at the appellate court.
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[5] 5 U.S.C.A. §§ 801-808. Actually, the CRA provides for more than review and rejection timeframes. It applies generally to every rule promulgated by an agency:
“Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing [certain stated items].”
5 U.S.C.A. § 801(a)(1)(A).