[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.