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Families for Better Care Submits Comments on Proposed Nursing Home Regulations

September 16, 2019

Families for Better Care Executive Director Brian Lee submitted the following comments to the Center for Medicare and Medicaid Services regarding "Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency, and Transparency."  Mr. Lee called the proposed regulatory revisions "eerily reminiscent of much of the same water cooler jargon that industry lobbyists have frequently used to decry any regulatory accountability."  He demanded federal officials immediately "jettison this very provider-friendly" proposal, arguing that promulgation would "only negatively affect residents’ care in the long-term."

September 16, 2019
Ms. Seema Verma, Director
Center for Medicare and Medicaid Services
Department of Health and Human Services
Attention: CMS-3347-P
P.O. BOX 8010
Baltimore, MD 21244-1810
Re: Comments on Proposed Nursing Home Regulations; #CMS-3347-P
Dear Ms. Verma:
My name is Brian Lee and I serve as the executive director of Families for Better Care, a leading national watchdog group that advocates for the safety and rights of America’s elderly living in nursing homes and other long-term care settings.  The purpose of this correspondence is to share our organization’s thoughts about proposed regulations CMS-3347-P and how they will affect nursing home residents. 
It was on March 18, 1995 that Michael Jordan shocked the world when he abruptly ended his early retirement with two simple words, “I’m back.”  In a similar fashion, Families for Better Care believes that proposed regulations CMS-3347-P can also be summed up in the following two words: ENOUGH ALREADY.

Enough already…

Enough already with the ruse that these proposed regulations are nothing more than a benign “paperwork” purge to offer nursing homes some sort of administrative relief under the Paperwork Reduction Act
The fact is these regulations are eerily reminiscent of much of the same water cooler jargon that industry lobbyists have frequently used to decry any regulatory accountability.  This is best evidenced by the more than 100 times CMS references a “burden” they’re trying to fix for the industry.  This all-too-familiar “paperwork reduction” language is regularly found in nursing home testimonies, articles, and other propaganda arguing that an “increased paperwork burden” was an ongoing “obstacle” that needed to be overcome.[1] 

Residents and their families have witnessed for years how the nursing home industry’s energy and expense is too often squandered on creating this false narrative of regulatory hardship.  And it’s that narrative that’s now, unfortunately, brought us to the precipice of this proposal.  Nursing homes should not be afforded the latitude proposed in these revisions.
Enough already with the ruse that these purposed regulations will improve resident care and safety.  Any regulatory downgrade in the name of “streamlining efficiency” would be an unnerving setback in resident safety. 
The nursing home industry’s track record is, at best, wanting and, at worst, downright scary.  Nursing homes, by and large, have done nothing to warrant any excused accountability that’s permitted in these regulatory revisions. 
In fact, the opposite is needed. 
A recent report[2]by the Government Accountability Office (GAO) contends that more “improved oversight” in nursing homes was needed to keep residents safe from abuse and neglect.  The GAO found that “gaps in CMS processes” resulted in “delayed and missed referrals” in reporting abuse and neglect.  The report went onto to find that nursing homes critically failed to “collect” necessary information to investigate abuse cases.  Near daily publicly reported nursing home horror stories underscore this fact.  It was just within the last few weeks that Oklahoma state officials were reported to be negligent in stopping the deliberate conspiring by several caregivers to torture numerous residents.  The abuse lasted for months even after it was reported to the Department of Human Services.[3]
In our 2019 Nursing Home Report Card[4], which relies heavily on inspection data collected and compiled by the Center for Medicare and Medicaid Services, we found that nursing home inspections have worsened.  Inspection data show “no state achieved a majority percentage of above average nursing home inspections, indicating a significant step back in overall nursing home quality.”  This now means that approximately 500,000 elderly residents are living in nursing homes with “dangerous conditions.” 
These regulatory lapses are becoming more frequent and underscore the fact that nursing homes need more scrutiny, not faux paperwork reductions that loosen oversight.
Enough already with the cost savings rhetoric.  The Center for Medicare and Medicaid Services’ projects that the proposed revisions will generate a cost savings of more than a half-a-billion-dollars over the next five years.  If that is the case, CMS is quick to point out that these proposed paperwork reductions will not meaningfully “free up staff to focus on resident care rather than unnecessary paperwork.”  In other words, these cost savings will not tangibly benefit residents’ care, but they will, what seems, boost owners’ coffers. 
If these regulations are promulgated, perhaps CMS could find a way to “motivate” nursing homes to expend any realized “savings” for hiring additional frontline caregivers or for procuring generators to prevent power failure neglect.  The estimated $644 million would translate to roughly 25,300[5]additional caregivers in the nursing home workplace or more than 1,800 nursing homes[6]being fitted for a generator. 
While Families for Better Care could dive into the minutia of each proposed revision, elaborating on why CMS should require all nursing homes to notify ombudsmen regarding any discharges or explain the necessity of a workable grievance process that prioritizes residents’ interests, our doing so would only validate the legitimacy of what’s being offered in these proposed regulations.
What the Center for Medicare and Medicaid Services must do is altogether jettison this very provider-friendly proposal.  Promulgation of these proposed revisions will only negatively affect residents’ care in the long-term.
Haven’t residents suffered enough already?
Yours in service,

Brian Lee, Executive Director

[1]“Staffing: Tight and Getting Tighter.” n.d.
[2]  GAO-19-433: “Nursing Homes: Improved Oversight Needed to Better Protect Residents from Abuse,” June 2019
[3]Tess Maune, “Mannford Nursing Home Workers Accused of Patient Abuse,” KOTV, September 6, 2019.
[4]“Nursing Home Report Cards.” n.d.
[5]Calculated using median $12.23 average certified nurse assistant hourly rate,
[6]News Service of Florida. “Nursing Homes Look for Answers on Generator Costs.” (accessed September 2019).

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