When nobody follows the law, then there is no law.
Signs of the Times. (Author Photo)
There are three moving parts coming together in what at an earlier time was the United States of America: the regime, the U.S. Congress, and the present majority on the Roberts Court. Many citizens are waking up to the fishnet that is being thrown around them by this trifecta in the service of those who pursue other people's money, to the exclusion of everything but other people's money.
If there was ever any doubt that the struggle over Staffing Standards for Nurses was about the kind of care patients would receive from providers who take Medicare or Medicaid money, that doubt has evaporated in the steamy summer of 2025. Private equity is fighting savagely for the power of its income stream and, it must be said, has achieved what at this time appear to be some successes.
Long before Private Equity financed the regime's grasp of power in what was the United States, the Centers for Medicare and Medicaid Services issued a final rule which provided in part (1) for 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) for a set minimum of Hours Per Resident Day (HPRD) for RNs and nurse aides. This meant money, of course, and it meant money taken from Medicare and Medicaid by the owners of Long Term Care Facilities to run those facilities.
Various "states, nursing home facilities, and trade associations" challenged the rule in a lawsuit they filed in the Northern District of Iowa, styled Kansas v. Kennedy, ___ F. Supp. 3d ___, No. C24-110-LTS-KEM, 2025 WL 1702670 (N.D. Iowa June 18, 2025). That case resulted in a decision on June 18, 2025 holding three things.
The first holding was that the Centers for Medicaid and Medicaid Services and the Department of Health and Human Services in effect "nullified" the Medicare and Medicaid statutes by requiring the presence of an RN 24 hours a day, 7 days a week for residents at Long Term Care Facilities that take Medicare and Medicaid funding.
The second holding was that the requirement of minimum Hours Per Resident Day for RNs and nurse aides treating residents at such facilities, did not conflict with Medicare or Medicaid statutory requirements.
The third ruling in question eviscerated the second ruling, however. The court held that the issue of minimum RN and nurses' aide hours per resident was invalid under a construct of the Roberts Court called the "major questions doctrine." Although that 'doctrine' has something of a 'know it when you see it' feel, which the Kansas v. Kennedy court acknowledged, the court felt that the "major questions doctrine" applied in that case to the major question of how much time residents at Long Term Care Facilities operating with Medicare or Medicaid funding, can spend with their RNs or nursing aides. Using the “major questions doctrine,” hours spent per resident by RNs and nursing aides, as well as even requiring an RN to be present at such facilities 24-7, were no longer required; these requirements were neutered.
So far as I can see, the major questions doctrine means that major questions should be left to others better suited to decide them than you and I are, and even if those others have never yet decided them.
The U.S. Senate and the U.S. House of Representatives, for their part, passed legislation in the first week of July, 2025, which includes the following provison:
“The Secretary of Health and Human Services shall not, during the period beginning on the date of the enactment of this section and ending September 30, 2034, implement, administer, or enforce the amendments made by the provisions of the final rule published by the Centers for Medicare & Medicaid Services on May 10, 2024, and titled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” (89 Fed. Reg. 40876) to [certain sections of the Code of Federal Regulations].”[1]
In July 2025 when this legislation was passed, Congress already knew the way it had previously imposed on itself to review and reject administrative rules and regulations. That is the whole reason why Congress passed the Congressional Review Act in 1996. Simply put, the quoted attempt to repeal Staffing Standards for Long Term Care Facilities is an attempt to run an end-around of the Congressional Review Act.
If this legislation had been enacted in compliance with the Congressional Review Act, the chairs and ranking members of every committee in both houses with jurisdiction to amend it, would have been given reports and there would have been the opportunity for hearings on it.
None of that occurred here.
Moreover, the Congressional Review Act sets timeframes to review and possibly reject rules and regulations, generally within 60 working days unless the session adjourns before the time is up, then "in the succeeding session of Congress." 5 U.S.C.A. § 801(d)(1).
Even given Congress's notorious working schedule, there were likely more than 60 working days before the first week in July 2025 to review and reject a rule that was finalized on May 10, 2024.
A part of the problem here is another "doctrine" of the Roberts Court, namely its erection of standing barriers to enforcement of and challenges to statutes like the Congressional Review Act or the legislation quoted above. It is very unlikely that the current regime including its department of justice will enforce the Congressional Review Act or challenge any provision of its own budget legislation. That would probably leave the issue to residents of Long Term Care Facilities, their families, organizations concerned for the residents' health and safety, or one or more or all of these and others. Time will tell eventually, but the problem exists now.
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[1] Pub. L. 119-21, erroneously titled "Sec. B" in the unedited version (emphasis added). The intended reference is rather "Sec. 71111." Although the Kansas v. Kennedy case discussed above addressed some of the sections, it did not address many others.