AG Nessel Files Civil Suit Over Nursing Home Staffing

Essential parts of the Centers for Medicare & Medicaid Services (CMS) notice in the Federal Register that Medicare and Medicaid nursing home staffing requirements have been put on hold until 2034:

https://www.federalregister.gov/documents/2025/12/03/2025-21792/medicare-and-medicaid-programs-repeal-of-minimum-staffing-standards-for-long-term-care-facilities

Medicare and Medicaid Programs; Repeal of Minimum Staffing Standards for Long-Term Care Facilities

A Rule by the Centers for Medicare & Medicaid Services on 12/03/2025

Published Document: 2025-21792 (90 FR 55687)This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Published Document: 2025-21792 (90 FR 55687)

Agencies

Department of Health and Human Services

Centers for Medicare & Medicaid Services

Agency/Docket Number

CMS-3442-IFC

CFR

42 CFR 483

Document Citation

90 FR 55687

Document Number

2025-21792

Document Type

Rule

Pages

55687-55698

(12 pages)

Publication Date

12/03/2025

RIN

0938-AV25

Published Content - Document Details

Published Document: 2025-21792 (90 FR 55687)This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

AGENCY:

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).

ACTION:

Interim final rule with comment period.

SUMMARY:

This interim final rule with comment period repeals provisions of the final rule titled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting.” This action is taken in view of changes made by by public law, which precludes HHS from implementing, administering, or enforcing certain provisions of the final rule until September 30, 2034.

DATES:

These regulations are effective on February 2, 2026.

Comment date:

To be assured consideration, comments must be received at one of the addresses provided below, by February 2, 2026.

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I. Background

In the May 10, 2024 Federal Register (89 FR 40876), the Centers for Medicare & Medicaid Services (CMS), published a final rule titled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” (hereinafter referred to as 2024 Minimum Staffing final rule). This rule, among other items, established minimum staffing standards for long-term care facilities participating in Medicare and Medicaid programs. The standards were informed by data and literature available in 2022 and 2023.

On July 4, 2025, Public Law 119-21 was signed into law. Section 71111 of Public Law 119-21 prohibits CMS from implementing, administering, or enforcing the minimum staffing standards set forth in § 483.5, definitions related to staffing requirements, and § 483.35, requirements for a registered nurse (RN) to be onsite 24 hours, 7 days per week and that each facility provides a minimum of 0.55 RN, 2.45 nurse aide (NA), and 3.48 total nurse staffing hours per resident day (HPRD), for a specified time period. This legislative action effectively suspends implementation of these provisions until September 30, 2034.

II. Basis for Repeal

A. Legislative Moratorium

Section 71111 of Public Law 119-21 precludes CMS from implementing, administering, or enforcing the minimum staffing standards established in the 2024 Minimum Staffing final rule (89 FR 40876) until after September 30, 2034. This prohibition renders portions of §§ 483.5 and 483.35 unenforceable and unimplementable during the period before October 1, 2034. Congress has thus effectively suspended these provisions for that period. We believe that this prohibition warrants restoration of the previous version of the Code of Federal Regulations (CFR). Without such revisions, the regulations would lack nurse staffing standard that implements the minimum requirements for long-term care facilities set forth in sections 1819(b)(4)(C)(i) and 1919(b)(4)(C)(i) of the Act.

B. Policy Considerations

HHS and CMS are committed to protecting the health and safety of residents in long-term care facilities. Following the publication of the final rule, interested parties continue to express their concerns over the establishment of the quantitative minimum staffing standards, requiring a RN to be onsite 24 hours, 7 days per week and that each facility provides a minimum of 0.55 RN, 2.45 NA, and 3.48 total nurse staffing HPRD.

LTC facilities, particularly those within rural and tribal communities, raised significant concerns that these standards, even with a comprehensive exemption process in place, could increase the risk of facility closure, thus potentially decreasing access to healthcare. Rural and tribal communities face a specific challenge of geographic isolation, making it difficult to recruit nurses and for patients to access care.[1]

LTC facilities continue to note hiring challenges due to the existing labor supply and available resources despite their best efforts to meet these requirements. The National Indian Health Board stated that the 2024 final rule would be catastrophic for keeping facilities open and meeting the trust and treaty obligations in healthcare because of the difficulty of staffing in Indian Country. Further, they noted that LTC facility closures like this in tribal communities do not just remove jobs but break cultural bonds and remove elders from their communities.

Likewise, multiple sources have described the current and projected shortages, including the International Council of Nurses (ICN) report calling for the worldwide shortage of nurses to be treated as a global health emergency. The report, titled Recover to Rebuild: Investing in the Nursing Workforce for Health System Effectiveness details the impact that the pandemic had on the world's nursing workforce, nurse burnout, and access to care. The National Center for Workforce Analysis (NCHWA) [3] projects nationwide nursing shortages, including a shortage of 295,800 nurses nationwide, with larger shortages of nurses in nonmetropolitan areas including rural and tribal communities. In addition, according to a Health Workforce Analysis published by the Health Resources and Services Administration (HRSA), authorities project just 63,720 people working as full-time RNs in 2030. Lastly, the American Association of Colleges of Nursing predicts that RN shortages will continue over the next decade and beyond, with a 13 percent deficit in the total number of RNs in nonmetropolitan areas predicted to be needed in the United States by 2037, and a 5 percent deficit of RNs predicted for metropolitan areas of the country.[4]

Furthermore, two district courts have vacated at the summary judgment stage the minimum staffing provisions related to HPRD and the 24/7 RN requirement as currently drafted and codified at 42 CFR 483.35(b)(1) and (c). First, in the summary judgement for

American Health Care Association v. Kennedy (Case Nos. 24-144 and 24-171, 777 F. Supp.3d 691(N.D. Tex. 2025)) [5]

(appealed June 2, 2025 to the Fifth Circuit), the court relied on the major questions doctrine in its finding that HHS exceeded its statutory authority with the minimum staffing policy changes. Second, in the summary judgement for

Kansas v. Kennedy (Case No. C24-110-LTS-KEM,_F. Supp. 3d_(N.D. Iowa, June 18, 2025) [6]

Interested parties should refer to the detailed order and judgement for each case for additional information.

HHS no longer believes that the current quantitative minimum staffing standards affected by the moratorium and litigation are appropriate, especially because the minimum staffing standards do not follow from the best interpretation of the relevant statute. The quantitative minimum staffing standards, as currently written, impose one-size-fits-all minimum requirements on all facilities across the country without accounting for differences in local labor supply, overall acuity of the facility's resident population, or available resources. Rural and tribal community facilities currently face significant difficulties in recruiting and retaining staff; the current quantitative minimum staffing standards could put many of these facilities at an increased risk of closure, thus potentially decreasing access to health care in these communities.

Given these policy considerations, HHS has modified its policy views with respect to the quantitative minimum staffing standards.

C. Tribal Community Considerations

In view of the policy considerations stated previously, and upon further consultation and review of certain comments, HHS and CMS believe there is an opportunity to further engage with Tribal communities. CMS received correspondence from tribal communities noting that longstanding healthcare workforce shortages across Indian Country make compliance with the LTC staffing rule impossible for many facilities and that the rule would cause closures of many LTC facilities due to limitations present in Health Provider Shortage Areas (HPSA) in rural and remote areas. In addition, the Tribal Technical Advisory Group (TTAG) is in favor of the 10-year moratorium, stating that this “supports the continued operation of rural Tribal LTC facilities”. As noted previously, the minimum staffing standards, if implemented, may impose disproportionate burdens on facilities serving these communities, which face a distinct workforce and resource constraints. Repealing the changes made to minimum staffing

standards by the rule provides an opportunity for CMS to reassess these burdens and further engage in additional dialogue with Tribal communities to better understand and address their concerns. We invite and welcome additional consultation with Tribes on the impact of the now-rescinded portions of the final rule and encourage Tribes to submit comments during the comment period for this interim final rule with comment period.

D. Agency Determination

Given the moratorium imposed by Public Law 119-21, the policy considerations discussed previously, and a desire to further engage tribal community concerns, we are repealing certain suspended provisions of §§ 483.5 and 483.35 and restoring the previous language of § 483.35, while soliciting further comment. This repeal ensures that the regulations reflect current legal authority and HHS policy, and allows for future rulemaking that incorporates new, up-to-date evidence and interested party input.

III. Provisions of the Interim Final Rule With Comment Period

This interim final rule with comment period revises the following sections of 42 CFR 483:

In § 483.5, we are removing the definition of “hours per resident day” since it is only used in relation to the minimum staffing requirements in this section that this rule repeals; therefore, the definition is no longer relevant.

In § 483.35, we are making the following changes:

++ Removing the requirements for long term care facilities to have an RN onsite 24 hours, 7 days per week and the minimum requirements for 0.55 RN, 2.45 NA, and 3.48 total nurse staffing HPRD requirements.

++ Reinstating the minimum statutory RN staffing requirement for LTC facilities to use the services of an RN for at least 8 consecutive hours a day, 7 days a week and to designate an RN to serve as the director of nursing on a full-time basis except when waived.

With converting the nurse staffing requirements at § 483.35 back to the requirements finalized in the 2016 “Medicare and Medicaid Programs; Reform of Requirements for Long Term Care Facilities” final rule (81 FR 68688), we are also including technical corrections to several incorrect paragraph citations that were made as part of the updates to § 483.35 in the May 2024 Minimum Staffing final rule (89 FR 40996 through 40998). We are finalizing the corrected citations as part of this interim final rule with comment period to assure accuracy and clarity. Therefore, we are making the following revisions:

++ In the introductory paragraph, we are replacing the reference to § 483.70(e) with a reference to § 483.71, where facility assessment requirements are now located.

-- In paragraph (a)(2), we are changing the cross reference from paragraph (c), Proficiency of nurse aides, to paragraph (e), Nursing facilities: Waiver of requirement to provide licensed nurses on a 24-hour basis. The requirement will now state that, except when waived under paragraph (e), a facility must designate a licensed nurse to serve as a charge nurse on each tour of duty.

-- In paragraph (f)(2), we are changing the cross reference from paragraph (d)(1) to paragraph (f)(1), which allows for the Secretary of the Department of Health and Human Services (Secretary) to waive the requirement that a skilled nursing facility provide the services of an RN for more than 40 hours a week, including a director of nursing specified in paragraph (b) of this section, under certain circumstances. This requirement will now state that a waiver of the RN requirement under paragraph (f)(1) of this section is subject to annual renewal by the Secretary.

-- In paragraph (g)(2)(i), we are changing the cross reference from paragraph (e)(1) to paragraph (g)(1) the facility must post the nurse staffing data on a daily basis. This requirement will now state that the facility must post the nurse staffing data specified in paragraph (g)(1) of this section on a daily basis at the beginning of each shift.

IV. Good Cause for Proceeding With an Interim Final Rule With Comment Period

For the reasons described in this section, we have determined that an interim final rule with comment period is the appropriate mechanism to align regulations with current enforceable law. Although this interim final rule with comment period is effective in 60 days, comments are solicited from interested members of the public on all aspects of the interim final rule with comment period. We will consider these comments in deciding the next steps following this interim final rule with comment period.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)) and 42 U.S.C. 1395hh(b)(2), CMS may forgo notice-and-comment rulemaking when it finds, for good cause, that such procedures are impracticable, unnecessary, or contrary to the public interest. We find that there is good cause based on the totality of the circumstances described later in this section.

The current regulations at issue here have not yet been enforced, and section 71111 of Public Law 119-21 precludes CMS from taking any further actions to administer or enforce them until September 30, 2034. Additionally, two Federal district courts have vacated portions of the final rule and there is no current reliance on these provisions by regulated entities or the public. The absence of a comment period before repeal will not cause injury to any interested person.

Moreover, maintaining regulations that are unenforceable and unimplementable for several years in the CFR is confusing and impracticable. The presence of unenforceable and unimplementable provisions during the moratorium could lead to misunderstandings regarding applicable standards, potentially causing confusion among LTC facilities, regulators, and the public. Repealing these specific provisions immediately eliminates this risk and ensures regulatory clarity. Moreover, it is impracticable to maintain these unenforceable regulations because doing so would prolong the period in which there is no specific implementing language for sections 1819(b)(4)(C)(i) and 1919(b)(4)(C)(i) of the Act to specify the level of staffing CMS views as “sufficient” to meet nursing needs of residents and establish consistent nationwide standards of mandatory minimum staffing levels in regulated facilities. While many States have regulations in place for minimum nursing services to LTC facility residents, those regulations vary, and do not assure consistent minimum standards across the country.

We also believe that including a comment period before repealing a regulation that can only be enforced and implemented almost a decade in the future is unnecessary. Further, the inclusion of a comment period would delay the removal of unenforceable regulations and prolong confusion and possible misapplication or misapprehension of standards, which would be contrary to public health interests served by the staffing standards, including setting a national and broadly applicable baseline. We considered delaying the repeal until after a comment period or delaying the effective date to 2034, but given the facts, context, and litigation, we concluded that doing so would perpetuate regulatory uncertainty and is not in the public interest.

While under these specific circumstances we find good cause for issuing this interim final rule with comment period prior to a public comment period, the agency is committed to considering public input. We invite comments on this interim final rule with comment period and future rulemaking. Comments received by the date specified in the DATES section of this interim final rule with comment period will be considered in determining whether further action is warranted.

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