[Congressional Record Volume 170, Number 149 (Tuesday, September 24, 2024)]
[Senate]
[Pages S6355-S6356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               Centers for Medicare and Medicaid Services

  Mr. CRAMER. Mr. President, the Federal Centers for Medicare and 
Medicaid Services is seemingly doing everything they can to prevent our 
veterans and seniors from receiving quality long-term care. That is 
their mission, but they seem to be doing everything they can to prevent 
it.
  Instead of working to ensure quality care for our veterans and 
seniors, the Agency seems hyperfocused on what appears to be a 
warpath--a warpath to push long-term care facilities to their limit. 
Rather than listening to the substantial feedback from facilities and 
managers, healthcare leaders, and Members of Congress, the Agency 
insists on implementing these overbearing, unrealistic rules and 
procedures to flex its bureaucratic muscle, as if to just show us how 
big their muscles are.
  The actions of CMS are far beyond misguided, and the result is the 
intentional--it seems to me--disregard for the actual safety and care 
of the seniors and veterans they are charged to care for.
  In North Dakota, our facilities are really feeling the squeeze, and 
the issue is really twofold. First and most importantly for my State, 
the minimum staffing rule--the minimum staffing rule. In an attempt to 
ensure adequate staffing levels, CMS went over the top. In May, CMS 
issued this minimum staffing rule which requires long-term care 
facilities to implement new staffing requirements. Now, these are 
institutions that are already woefully understaffed because of a lack 
of a workforce.
  Most burdensome is the new requirement to have a registered nurse--a 
registered nurse--on-site 24 hours a day, 7 days a week, rather than 
the previous 8 hours a day, 7 days a week. Less than a quarter of North 
Dakota's facilities meet this requirement, and among rural facilities 
only 14 percent will meet that mandate.
  And we should make no mistake, this is an unfunded, one-size-fits-all 
mandate coming from the bureaucratic bullies at CMS. In fact, by CMS's 
own lowball estimates, this regulation--it is almost hard for me to say 
this number. By their low-ball estimates, this regulation will cost 
facilities over $40 billion to comply. Why would you want to impose $40 
billion more of unproductive costs on our facilities that are there to 
care for our seniors and our veterans?
  To meet these elevated staffing levels, our facilities really have no 
good options, if they have any options at all. At existing staff 
levels, North Dakota facilities would need to reduce the average number 
of residents served per day by about 74 people to satisfy this mandate. 
Let me say that again: To meet this mandate, North Dakota facilities 
would have to reduce--reduce--the people they care for by 74.
  They are being required to hire more staff from a supply of 
registered nurses that simply does not exist. I don't know why they 
would be surprised by this. We have a nursing shortage. Hello, CMS. 
Wake up. Listen to one or two people, and you will know we have a 
nursing shortage in this country, and it is particularly challenging in 
rural America.
  Now, if they don't get that, if they don't find the nurses, of 
course, they do have the option of reducing the number of seniors they 
serve, as I mentioned earlier, or just closing their doors entirely. 
That doesn't seem to meet the stated goal of CMS.
  It is also clear that this rule will disproportionally harm our 
small, rural States like North Dakota, as I said, and certainly our 
rural facilities. These are the same facilities already struggling to 
stay open. In my State, we have had six facilities close since 2021, 
indicating the already challenging operating environment, and I fear 
this misguided rule will supercharge this trend and deprive rural 
individuals--remember, these are people, CMS; rural individuals, 
people--the opportunity to receive care in their home communities, near 
the people they love and know the best: their families and their 
friends, their loved ones.
  Mr. President, this math just doesn't add up. How does CMS not 
understand that this mandate is impossible to meet? Or maybe they do. I 
fear that

[[Page S6356]]

they maybe actually do understand that. CMS's intransigence seems to 
imply that it doesn't care.
  Every State will feel the negative impact of this rule, but rural 
States like mine will be hurt the most.
  I have sent letters advising CMS to hold off on this one-size-fits-
all rule as far back as January of last year, and I have questioned CMS 
officials at hearings about the mandate's impact on already stressed 
staffing challenges.
  And opposition to this rule has been bipartisan. It has been across 
the aisle and across the Capitol. In one example, Senator King and I 
sent a second letter last October before introducing a bill together in 
March to require the Veterans' Affairs to study the CMS rule's impact 
on our war heroes, our veterans. Again, in June, we made the same 
request in a letter.
  I also cosponsored a bipartisan Congressional Review Act resolution 
of disapproval in June to overturn the rule CMS is so unwilling to 
modify.
  In addition, litigation is ongoing in two Federal districts, both of 
which argue the Agency exceeded its statutory authority and the rule 
should be set aside. It is not uncommon for Agencies lately to overstep 
their legal boundaries.
  Our concerns have simply, to this point, fallen on deaf ears at CMS.
  The minimum staffing rule is part of a broader pattern of CMS's 
bureaucratic crackdowns on facilities for no reason other than it can.
  And that is what bothers me so much about bureaucratic bullies is 
they are bullies because they can be, without materially improving the 
health and safety of long-care residents. Again, that is their goal--
supposedly, that is their goal.
  This brings me to the second part of the issue impacting our long-
term care facilities. They are called civil monetary penalties or, in 
bureaucratic speak, CMPs. They are punitive monetary actions that CMS 
can take against long-term care facilities in situations where CMS 
determines they do not substantially comply with Medicare or Medicaid 
participation requirements, the requirements that the bullies create 
out of thin air. These penalties are heavily used to punish facilities 
beyond a simple correction. The goal should be to help them comply, not 
to punish them.
  During a survey visit of a facility--just for instance--an inspector 
can issue citations for a range of violations. The inspector has the 
ability to issue citations based on perceived severity, ranging from no 
actual harm up to immediate jeopardy, which indicates an issue or 
situation that puts a resident's health or safety at imminent risk--
again, as determined by CMS.
  The problem only begins with the initial citation, however. CMS can 
still issue additional citations following the survey or the visit, 
sometimes many months later. I will try to explain this as simply as I 
can so you get the sense of just how awful this is. The Agency 
continues to expand its ability to issue these citations and related 
penalties to exert even more control over the facilities. And there is 
where the real issue is: control over you.
  The irony here is that for every dollar spent on a penalty is one 
less dollar invested in staff, the facility itself, equipment, anything 
that might enhance the care for the senior or the veteran.
  Our seniors and veterans certainly deserve to live in safe, regulated 
facilities. But this is not about letting facilities off the hook when 
infractions occur; rather, this is about the avalanche of penalties 
facilities face after a single infraction and the consequences of 
excess fines.
  But it gets worse. CMS has updated its ability--remember, every time 
I reference what CMS is doing with regulations or updating, that is 
them arbitrarily, individually, unilaterally making up lies. For your 
benefit? I don't think so. So they updated their ability to impose 
these penalties for up to three survey cycles. What does that mean? 
Most of these survey cycles--these are the visits, again, by a 
regulator. Most of them include inspections on average of every 12 
months. To simplify the math, what this means is paper-pushing bullies 
in Washington could issue another penalty from the comfort of their 
desks on top of the original penalty imposed at the time of the survey. 
They don't even have to leave their desk. In fact, I suspect many of 
them never have, except the ones that now work from home--that work 
from home. This could be months or years later and without ever having 
to set foot in a facility or in a State other than the District of 
Columbia and the surrounding counties.

  So what is the purpose of these additional delayed penalties? Who 
thinks this would be a good idea? Well, it is certainly not about 
taking immediate action to enhance the care or to help them comply and 
help the safety of residents or addressing noncompliance during the 
visit itself. No.
  To make matters worse, for certain citations--now, get this. When I 
read this, I had to check on it and check on it to make sure this is 
true. For certain citations, facilities are financially incentivized 
not to challenge the findings. Let me say that again because it is 
almost too hard to believe.
  For certain citations, facilities are financially incentivized not to 
challenge the findings. Isn't that rich? In fact, CMS offers a 35-
percent extortion discount to facilities if they waive their right to a 
hearing and just simply accept the penalties from the bureaucratic 
bully that was imposed. This, of course, only further empowers the 
bully and allows the initial citations to stand undisputed. It is 
unconscionable. I can't even believe it is legal; and maybe it is not.
  I hesitate to even share this, but I feel I have to. I have had 
facility managers in my home State plead with me not to use their 
specific example for fear of retaliation from the bureaucracy, the very 
people who are supposed to be helping provide safe, reliable care for 
our veterans and our seniors.
  The recently finalized skilled nursing facility rule introduced yet 
another way to punish facilities with the addition of--get this--per 
instance per day civil monetary penalties. Only a bureaucrat could love 
a title like that. This is what's called an instance multiplier of 
fines--an instance multiplier of fines--based on the number of 
residents impacted or the number of times the conduct is repeated. It 
is another flawed approach as citations already account for this. When 
the initial citation is issued, it accounts for scope. It accounts for 
how insulated the incident is or pattern, how widespread the pattern 
may be. All of that is calculated into the initial citation.
  But if that is not good enough, they can always go back and say: You 
know what? Let's multiply instances and see if we can't punish them a 
little bit more so maybe they could close down.
  If these rules and penalties were really about better care for 
residents, CMS should yield to reason. However, the actions of the 
bureaucrats at CMS prove they are out of touch--simply out of touch--
with operational challenges actually facing these facilities and the 
people that the facilities serve. If they, in fact, want to achieve the 
stated goal of improving quality, well, these decisions do just the 
opposite. In fact, what they do is they reduce choice and access and, 
ultimately, they lead to facilities closing.
  I don't think that is the goal. It is not the stated goal. Maybe it 
is somebody's goal, but it is not the stated goal. I hope those with 
the ability to do something about it enter reality one of these days 
and listen to our warnings. They are real. These are real people living 
in real places.
  And, yes, they might be in red States--I am sorry, some of them are. 
A lot of these rural places are. But that is not your job to worry 
about the politics.
  I have little faith that they are going to do the right thing and 
reverse course, but I pray they will.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.