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Ways and Means Gave HR7513 The Green Light and That Does Not Bode Well for Nursing Home Residents

If our elected officials had each seen their mothers bruised, bleeding, crying in pain, or being stitched up in a hospital a few times because she was left alone a toilet, another resident assaulted her in her sleep, or she was rolled off a raised bed because the facility did not have enough staff to keep stay in the bathroom, watch the hall, or change her properly, maybe they would look at the minimum staffing requirement differently.

The bill that says CMS cannot move forward with their proposed minimum staffing standard for nursing homes was given the go-ahead by The House Committee on Ways and Means today chaired by Congressman Jason Smith.

Comically, HR7513, written by Congresswoman Michelle Fischbach and Congressman Greg Pence is called "The Protecting America’s Seniors’ Access to Care Act". It does no such thing. It should actually be called, "The Protecting the Nursing Home Industry from Scrutiny and Hiring Thereby Saving Them Money Act" because the rule is not just about staffing. It's also about accountability and how much money is spent on direct care.

Officially, the minimum staffing rule is called "Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS 3442-P)" and it also allows the consumers to know the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation to direct care workers and support staff. It's like a direct care ratio. The industry does not want you knowing how much of they Medicaid money is spent on direct care versus capitol expenditures.

Here's one overly simplified example of why that is in the rule. Suppose most of a nursing home's Medicaid revenue and private pay income goes to pay rent on the building and leases on their vehicles and equipment. So what? Well what if the building, vehicles, and equipment are owned by the same company that owns the nursing facility except that it is incorporated under a separate name? Then, the company pays itself rent and leases but can charge itself as much as it wants. Companies overcharge, earn a profit, declare a loss, and the facility looks like it doesn't make money and cannot afford to hire additional staff, do building repairs, etc.

CMS already held a 60-day public comment period for stakeholders that ended on November 6, 2023. CMS specifically requested comments on several proposals, including:

  • The feasibility of each facility having an RN on site 24 hours a day, seven days a week, including possible alternatives.

  • Whether in addition to, or in place of, the .55 RN hours per day and 2.45 NA hours per day requirements, a total nurse staffing standard should be required.

  • The most appropriate approach to display determinations of facility compliance with minimum staffing standards on the Care Compare website.

  • The benefits and tradeoffs of the different standards, evidence, or methodologies that states use to establish minimum staffing standards and other key considerations.

Smart to have those specific asks considering the stakeholders commenting included industry professionals, medical professionals, finance officers, staff, family members, ombudsmen, residents themselves, you name it.

What HR7513 does, however, is negate CMS's fact finding and opinion seeking process from the American public and puts a stop to it. It stops everything because the bill says The rulemaking docket says there are 46,528 comments but 46,891 were received. I don't know what the discrepancy is. Perhaps people kept submitting comments after the November 6th deadline. AHCA has set a goal of 10,000 comments and far exceeded it. Reminds me of how TALA slammed HHSC with comments in order to delay the ALF rules.

But 46,528 comments do not matter at all if HR7513 passes because the whole process comes to a screeching halt. Basically, passing the bill means the will of Congress prevails so high over that of the voters and stakeholders in nursing homes that our remarks are irrelevant even though Congress is elected to represent we, the people.

We have discussed rule provisions at great length in the group posts on Facebook and there may be one or two posts on this website but we will definitely revisit that rule so everyone recalls that there are provisions to make sure that no facility, urban or rural, must close. In fact the waiver process is probably better described as a hardship provision and it is NOT difficult as one provider tried to tell me. The provisions are SIMPLE:

  • There's a workforce unavailability formula based on location as evidenced by one of these two ways:

    • (i) either a medium (i.e., 20 percent below the national average) or low (i.e., 40 percent below national average) provider-to-population ratio for the nursing workforce, as calculated by CMS, by using the Bureau of Labor Statistics and Census Bureau data,

    • (ii) the facility’s location at least 20 miles away from another LTC facility (as determined by CMS)

  • Good faith efforts are being made to hire and retain staff through the development and implementation of a recruitment and retention plan, documented job postings and job vacancies, number and duration of vacancies, job offers made, competitive wage offerings

  • A financial commitment to staffing by documenting the total annual amount spent on direct care staff (that's PROBABLY the direct care but I'm not sure)

Or to put it more simply (1) Have a valid reason for the hardship, (2) make an effort, and (3) show where your money is going.

We are Texas Caregivers for Compromise and we are #notgoingaway!

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