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Floor Speech

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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 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.

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