Congress’s past enactments require each Medicare or Medicaid nursing home to “provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents” and to “use the services of a registered professional nurse for at least 8 consecutive hours a day, 7 days a week.” 42 U.S.C. §§ 1396r(b)(4)(C)(i)(I)–(II), 1395i-3(b)(4)(C)(i). For Medicare, the Secretary may waive the 8-hours-a-day, 7-days-a-week requirement. § 1395i-3(b)(4)(C)(ii). For Medicaid, a particular state may waive either or both requirements and the Secretary may also exercise the waiver power. § 1396r(b)(4)(C)(ii), (iii).
HHS promulgated regulations that duplicated Congress’s mandate in relevant parts. HHS required nursing homes to have “sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 42 C.F.R. § 483.30 (2016). This meant each “facility must provide services by sufficient numbers [of different types of nurses] on a 24-hour basis to provide nursing care to all residents.” § 483.30(a). For registered nurses specifically, HHS required each facility “use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week.” § 483.30(b). In 2016, CMS declined to depart from its statute-mirroring regulations and impose mandatory staffing ratios and a 24-hour registered nurse requirement. It refused because (1) it could not identify the proper ratio, (2) nursing homes were too varied to have a blanket number, (3) nursing homes might be unable to find sufficient staff, and (4) nursing homes might only staff to the minimum. Before the Final Rule, congressional mandates governed licensed nursing services and registered nurse hour requirements, as implemented by the regulations.
In February 2022, the Biden Administration announced its intent to establish a minimum nursing home staffing requirement to “ensure[ ] that all nursing home residents are provided safe, quality care.” CMS proposed a rule mandating a staffing plateau. The proposed rule first independently proposed to “require an RN to be on site 24 hours per day and 7 days per week to provide skilled nursing care to all residents” 61353; ECF No. 80-1 at 18. Second, it “propose[d] individual minimum nurse staffing standards of 0.55 hours per resident day (HPRD) for RNs and 2.45 HPRD for NAs.” 88 Fed. Reg. at 61357. It clarified that “meeting the 24/7 requirement does not also count as meeting the 0.55 RN HPRD and 2.45 NA HPRD [requirements] and vice versa.”
CMS promulgated the Final Rule in May 2024. The Final Rule contained some modifications from the proposed rule “to provide additional flexibility and time for facilities to implement the[ ] changes.” First, the Final Rule “staggered implementation dates over a period of up to five years.” Second, it added a “total nurse staffing standard” and added “exemptions from the minimum staffing standards.” The total nurse staffing standard required “at a minimum, 3.48 total nurse staffing hours per resident day (HPRD).” Underscoring that these minimum staffing standards disregard a facility’s individual resident needs and cases, CMS declared that “facilities must meet the minimum 3.48 total nurse staffing, 0.55 RN, and 2.45 NA HPRD standards regardless of the individual facility’s resident case-mix, as they are the minimum standard of staffing.”
The Final Rule put in place the two provisions that were subsequently challenged. The first provision mandates that a “facility must have a registered nurse (RN) onsite 24 hours per day, for 7 days a week that is available to provide direct resident care” (“24/7 Requirement”). 42 C.F.R. § 483.35(c)(1) (2024). The second provision requires facilities to comply with three separate minimum staffing standards (“HPRD Requirements”). First, the “facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing.” § 483.35(b)(1). Second, to do so, a facility must have a “minimum of 0.55 hours per resident day for registered nurses.” § 483.35(b)(1)(i). Third, a facility must have a “minimum of 2.45 hours per resident day for nurse aides.” § 483.35(b)(1)(ii).
Rural facilities must comply with the 24/7 Requirement before May 10, 2027. 89 Fed. Reg. at 40913. They must comply with the 3.48 total hours provision of the HPRD Requirements before May 10, 2027. And they must comply with the remainder of the HPRD Requirements before May 10, 2029. Nonrural facilities must comply with the 24/7 Requirement before May 10, 2026. They must comply with the 3.48 total hours provision of the HPRD Requirements before May 10, 2026. And they must comply with the remainder of the HPRD Requirements before May 10, 2027.
In American Health Care Association v. Kennedy, filed in the United States District Court, N.D. Texas, Amarillo Division, the Plaintiffs challenged the Final Rule’s 24/7 Requirement and HPRD Requirements on May 23, 2024, and amended their complaint on June 18, 2024. Texas also filed suit challenging the Final Rule against the same Defendants on August 14, 2024. Upon unopposed motion, the federal court consolidated the two cases under Federal Rule of Civil Procedure 42.
The federal court stated in its April 7, 2025 decision: “CMS lacks authority to issue a regulation that replaces Congress’s preferred minimum hours with its own. That is exactly what the 24/7 Requirement does. Congress took it upon itself to set the minimum hours nursing homes “must use the services of a registered professional nurse.” 42 U.S.C. § 1396r(b)(4)(C)(i)(II). It set that level at “at least 8 consecutive hours a day.” Id. The 24/7 Requirement in effect amends the statute because it strikes Congress’s “8,” and replaces it with the agency’s “24.” 42 C.F.R. § 483.35(c)(1) (“[T]he facility must have a registered nurse (RN) onsite 24 hours per day, for 7 days a week ․” (emphasis added)). But agencies lack the power to amend statutes, regardless of other provisions that may grant authority to regulate the space. Agencies may add detail to and enforce statutes. See Loper Bright, 144 S. Ct. at 2263. That does not extend to replacing Congress’s number with a different one. “That would let the agency amend [a] scheme delineated by statute.” Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 107 F.4th 415, 432 (5th Cir. 2024). Agencies lack statutory amendment power.”
“Congress did not grant statutory amendment authority nor stay silent on the base number of hours a nursing home must use an RN’s services. It answered eight. Congress reserved to itself that decision. And it has always done so. Moreover, it has rejected attempts to change the number … Agencies may exercise general authority to explain details of a statutory scheme but may not use the same authority to amend the statute because of a basic rule of law proposition: It cannot be the case that the governed break the law when they comply with Congress’s law as written. That is why the 24/7 Requirement runs afoul of Section 706.”
Furthermore, “The agency lacks authority to eliminate consideration of a facility’s nursing “needs” when prescribing minimum staffing standards. 42 U.S.C. § 1396r(b)(4)(C)(i)(I). Congress stipulated that the “[r]equired nursing care” standard must contemplate “the nursing needs of [a facility’s] residents.” Id. at § 1396r(b)(4)(C), (b)(4)(C)(i)(I). This provision specifically governs the minimum standard of nursing care.”
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Texas or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Texas or a nursing home claim lawyer in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.
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