Some House lawmakers Tuesday painted their effort to repeal a new nursing home staffing mandate as a bid to ensure access to care and to stake their authority over a rogue regulatory agency at the same time.

But a bill that would block the rule from taking effect this summer is no shoo-in, judging by Democrats’ criticism.

The House Committee on Energy and Commerce held a hearing on 19 health-related bills, with most of the two-hour session focused on legislation that would effectively kill the nursing home staffing rule and a new direct-care spending requirement for home- and community-based service providers.

Both rules were finalized by the Centers for Medicare & Medicaid Services last week.

“The Biden administration is making it more difficult, in some instances, for people with disabilities to access care by setting unattainable staffing requirements,” said Committee Chair Cathy McMorris Rodgers (R-WA), “I fear that the the minimum staffing rule will force nursing homes to close or reduce the number of seniors served, and the Medicaid Access Rule, the so-called 80/20 policy, will lead to home care agencies reducing the amount of care that they can provide.”

She blasted the agency’s recent rule-making tear as adding billions of federal spending through the Medicaid and Medicare programs “all without Congress taking a single vote on any of the policies, and in the face of widespread opposition.”

The nursing home bill has already advanced out of one House committee, but the sponsors are looking to build more bipartisan support before any attempt at full passage.

‘Hardest questions’

The sole witness at Tuesday’s hearing was Dan Tsai, deputy administrator and director of the Center for Medicaid and CHIP.  Despite Rodgers’ opening pronouncement, Tsai received encouragement from many of the committee’s Democratic members. Most present voiced support for the nursing home mandate, with Rep. Anna Eshoo (D-CA) arguing that she would want such standards if she were in a nursing home.

“Today’s hearing is about the hardest questions a family can face,” Eshoo said. “How do we take care of a family member at home? If that’s not possible, can we trust the nursing home? How are we going to afford this care?”

Rep. Tony Cardenas (D-CA) argued the Protecting America’s Seniors Access to Care Act and the bill to block home health spending requirements would “chip away at CMS’ ability to support the long-term care services system and undermine workforce protections, which would take us in the wrong direction.”

In response, Tsai testified that “we wholeheartedly believe people should be able to access quality care across the board. … That’s exactly what the rules and the policies we rolled out really seek to underscore.”

A ‘binary’ choice?

But the nursing home bill had its champions too. Count Rep. Buddy Carter (R-GA) among them. The former long-term care pharmacist doggedly questioned Tsai about independent reports at the state and national level that predict many nursing homes will close or limit admissions once the rule’s full effect is felt.

“Where are the seniors going to go?” Carter asked.

Tsai noted the final rule had provided an exemption process and a slower implementation in rural areas to address such concerns.

“We know a lot of individual nursing home operators, and they’re good people that want to serve their residents. There are workforce challenges and we heard many concerns, had many discussions with the industry and others, and that’s why the rule gives a balanced, staggered approach,” Tsai said.

Tsai also made a dig at for-profit providers, who have been the subject of the administration’s ire over the last two-plus years.

“I don’t believe we should have a binary choice between a nursing home’s economics and safe care in those nursing homes,” he said. 

Spending limits

But Rodgers took her own stance on the financial impact of CMS’s recent long-term care rules, asking Tsai whether CMS had concerned the fact that states might cut some services when increased costs for direct care staff — unfunded by the federal government — begin to affect Medicaid spending.

“We’re talking billions of dollars, mandates, that you’re making [providers and states spend] without any elected representatives having a say in this,” she said. “It’s going to cost more and it could actually limit access to care.”

CMS has estimated the cost of the federal staffing rule at $40.6 billion over the first 10 years; provider groups put that number much higher. Neither the mandate nor the 2025 skilled nursing pay rule dedicated any new funding source for facilities that will have to hire.

Elsewhere Tuesday, CMS Acting Chief Medical Officer Dora Hughes, MD, again defended the rule as taking into account providers’ concerns about the workforce.

“We understand that nursing homes, particularly those in rural areas, may encounter unique challenges in meeting the new minimum nurse staffing standard requirements,” Hughes said on a CMS stakeholder call.

“These challenges could include workforce shortages in many areas, financial constraints and geographic barriers. CMS recognizes these difficulties and provides a staggered implementation timeline … along with the time-limited hardship exemptions to support facilities in achieving compliance with the minimum nurse staffing requirements.”