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  1. Tax Cut Bill Just Got Worse. Health Care at Risk.
  2. This Week in Sabotage
  3. CMS Steering to Medicare Advantage
  4. Administration And Nursing Home Industry: Lockstep in Deregulating Nursing Facilities & Reducing Resident Protections

Tax Cut Bill Just Got Worse.  Health Care at Risk.

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Center for Medicare Advocacy Litigation Director, attorney Alice Bers and Center Senior Policy Attorney Toby Edelman.


Congress’ rushed effort to push through a massive tax cut for corporations and the wealthy presents a clear and present danger to health coverage, other vital programs, and families throughout the country. After adding $1.5 trillion to the federal debt, policymakers will use the higher debt – created by the tax cuts – to argue that deep cuts to Medicare, Medicaid, Social Security and other bedrock programs are necessary.  

Amazingly, the tax cut bill just got even worse. After failing repeatedly to repeal the Affordable Care Act (ACA), the Senate is now seeking to repeal the ACA’s individual mandate to purchase insurance coverage in order to help pay for tax cuts. They know this will devastate the ACA. 

According to the Congressional Budget Office (CBO), without this provision far fewer people – particularly younger and healthier people – will buy health insurance, which will lead to 13 million people without coverage, and higher premiums for millions more. 

To add insult to injury, the CBO also stated that, in addition to the longer-term threats the tax cut poses to Medicare, the cut would also immediately threaten the program. Indeed, CBO projects that the enormous cost of the tax bill would prompt immediate, automatic and ongoing spending cuts to Medicare – $25 billion in 2018 alone. 

It’s time to stop this fast-track process to starve the federal budget and pay for massive tax cuts by undercutting the health and economic security of millions of American families.

The Center for Medicare Advocacy released a statement with the Medicare Rights Center today.  Read it at:

This Week in Sabotage

In spite of the many ways the Administration has tried to sabotage the Affordable Care Act (ACA), enrollment is still going strong. A blog by the Center for Budget and Policy Priorities indicates that so far we’ve seen “over 600,000 customers selecting plans in the first four days compared to 416,000 during the first five days of last year’s period.” This is excellent news but we can’t let up.

ACA Open Enrollment doesn’t end until December 15th and there are still so many deliberate roadblocks to overcome. We’ve seen the enrollment period cut in half; funding for enrollment assistance slashed; refusal to participate in enrollment events; shut down during critical times; and refusal to pay cost sharing reductions.

Most recently, the Senate included repeal of the ACA mandate for individuals to have health coverage in its tax cut bill.  The high enrollment numbers show that people understand how critical health coverage is and will not be deterred from getting coverage if they can.  So far they are overcoming the sabotage.

Read the blog by the Center for Budget and Policy Priorities at:

CMS Steering to Medicare Advantage 

The Medicare Annual Coordinated Election Period (ACEP), from October 15th through December 7th, allows Medicare beneficiaries to make certain changes to their Medicare coverage, effective the following January 1st.  As we discussed in a previous Alert, official Center for Medicare & Medicaid Services (CMS) Medicare Open Enrollment materials for 2018 tip the scales to encourage beneficiaries to choose a private Medicare plan over original Medicare. 

Recently, the Leadership Council of Aging Organizations (LCAO), a member coalition of the nation’s non-profit organizations serving older Americans, sent a letter about this issue to CMS and committees of jurisdiction in Congress. 

The organizations listed in the letter wrote to express concerns that during the current Medicare open election period, CMS is encouraging entities that assist Medicare beneficiaries with enrollment choices to disseminate information that is incomplete, biased towards Medicare Advantage (MA) and often fails to even mention traditional Medicare. The organizations urged CMS to take immediate corrective action to include and accurately portray the benefits and drawbacks of all coverage options in CMS materials. 

Administration And Nursing Home Industry: Lockstep in Deregulating Nursing Facilities & Reducing Resident Protections

The Nursing Home Reform Law,[1] signed by President Reagan in 1987 as part of the Omnibus Budget Reconciliation Act of 1987, sets the standards of care for: nursing facilities that voluntarily participate in (and receive reimbursement from) the Medicare or Medicaid programs, or both; the survey process to determine compliance with those standards; and the enforcement system to sanction and deter noncompliance.

The Trump Administration, in lockstep with the national nursing trade associations, is rapidly dismantling the regulations and guidance that have been developed to implement that law over the past 30 years.  These devastating changes, many without any public notice or comment, have received virtually no public attention.

The most recent example of deregulation is the publication of a Survey & Certification Letter, S&C: 18-01-NH, by the Centers for Medicare & Medicaid Services (CMS) on October 27, 2017,[2] which explicitly repeals and replaces guidance released by the Obama Administration in July 2016.[3]  In a December 15, 2016 letter to then President-Elect Trump[4] and then again, in March 9, 2017 letter to then-HHS Secretary Price,[5] AHCA expressly urged the Administration to repeal the 2016 guidance, which it identified by number, S&C: 16-31-NH.[6]

S&C: 16-31-NH expanded the bases for immediate imposition of civil money penalties (CMPs) at facilities that are cited with deficiencies.  These circumstances include facilities cited with immediate jeopardy deficiencies, facilities designated as providing substandard quality of care, certain G-level (actual harm) deficiencies, and certain Special Focus Facilities.  Taken together, these categories of facilities represent many of the most poorly performing facilities in the country.

In the October 27 Survey & Certification Letter, CMS identifies three major revisions in the new replacement guidance: (1) limiting the imposition of civil money penalties (CMPs) for some immediate jeopardy deficiencies that reflect a “one-time mistake” or that do not reflect “intent” to harm; (2) excluding from immediate penalties instances of “past” compliance; and (3) reducing enforcement against the one or two worst facilities in each state that are designated Special Focus Facilities.[7]  All of the changes are intended to reduce CMPs for the most poorly performing facilities.  Other changes made by the new guidance, although not highlighted by CMS, have the same effect.  CMS invites public comment, by December 1, 2017, on these changes; comments should be sent to

In July 2017, CMS replaced another Survey & Certification Letter issued by the Obama Administration in ways that also reduce the amounts of CMPs.  As discussed in an earlier CMA Alert,[8] these changes include making per-instance CMPs the default, rather than the higher per-day CMPs; discouraging Regional Offices from starting per day CMPs before “the start date of the survey;” requiring Central Office review of large CMPs; and expanding facilities’ ability to describe CMPs as unaffordable, among other changes that reduce CMPs.

CMS’s own data indicate that just over 3% of deficiencies are cited at harm or jeopardy levels, the levels of noncompliance where enforcement is most likely to occur.[9]  Through these two new guidance documents, CMS has seriously undermined the already weak enforcement system.  Under the new guidance, CMS is even less likely to take effective enforcement action against even the worst-performing facilities in the country.

McKnight’s Long Term Care News saw the 2016 election as creating “new, brighter options to consider.”[10]  Clifton J. Porter, II, AHCA’s chief lobbyist, told McKnight’s that the November 2016 election provided a significant “opportunity for relief and change.”[11]  Describing the post-election environment as an opportunity to “exploit,” Porter said the nursing home industry will “get to think about how to be more on the offensive, and leverage opportunities we have, and try to make sure our issues get elevated high enough that they get consideration.”[12] 

As urged by the nursing home industry, CMS has taken, and is continuing to take, actions to reduce the standards of care that facilities must meet under the Reform Law. 


Industry request

CMS action in response

Revised Requirements of Participation (RoPs)

Look at and revise the RoPs. 

AHCA letter to then President-Elect Trump (Dec. 15, 2016), (also asked for repeal under the Congressional Review Act).

AHCA, “Requirements of Participation for Nursing Centers are Onerous and Unnecessary Regulation” (Issue Brief, undated),

CMS announces review of RoPs, as part of annual update to Medicare SNF reimbursement, 82 Fed. Reg. 21014, 21089 (May 4, 2017), focusing on grievance process; quality assurance and performance improvement; discharge notices

Prohibition on pre-dispute arbitration

AHCA sued about prohibition in final rules (Oct. 2016)

CMS publishes Notice of proposed rulemaking to allow pre-dispute arbitration, 82 Fed. Reg. 26649 (Jun. 8, 2017)

Enforcement of Phase 2 RoPs

Industry asks for delay in Phase 2 Requirements:

Barbara Gay, “LeadingAge Recommends Medicare Red Tape Relief” (Aug. 29, 2017),

(describing submission to U.S. House Ways and Means Subcommittee, Medicare Red Tape Relief Project)

AHCA, “Requirements of Participation for Nursing Centers are Onerous and Unnecessary Regulation” (Issue Brief, undated),

CMS delays enforcement of Phase 2 Requirements for a year.

S&C: 17-36-NH (Jun. 30, 2017) (“Revisions to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues”),

Nurse aide training and competency evaluation  (NATCEP) program

Industry ask for changes to policies governing loss of NATCEP for CMPs based on deficiencies “unrelated to resident harm.”

AHCA letter to then President-Elect Trump (Dec. 15, 2016),

AHCA letter to HHS Secretary Price (Mar. 9, 2017), AHCA, “Requirements of Participation for Nursing Centers are Onerous and Unnecessary Regulation” (Issue Brief, undated),

CMS allows waiver of loss of NATCEP if CMP of (at least) $10,483 was not related to “direct hands-on care” of residents.  “Clarification regarding Nurse Aide Training and Competency Evaluation Program (NATCEP/CEP) Waiver and Appeal Requirements,” S&C: 18-02-NH (Oct. 27, 2017),

Payroll-based Journal (reflecting requirement that facilities submit by 2013 (and CMS to post on Nursing Home Compare) direct care staffing information “based on payroll and other verifiable and auditable data,” 42 U.S.C. §1320a-7j(g)

Delay the requirement that facilities submit information through the PBJ.

AHCA letter to then President-Elect Trump (Dec. 15, 2016),

Suspend implementation of the PBJ.

AHCA letter to HHS Secretary Price (Mar. 9, 2017),

Effective Nov. 1, 2017, CMS posts PBJ data on a site separate from Nursing Home Compare, CMS, “Electronic Staffing Submission – Payroll-Based Journal (PBJ) Public Use File,” S&C: 17-45-NH (Sep. 25, 2017),

Reduction of inappropriate use of antipsychotic drugs

Industry describes its Quality Initiative, which it claims led to reduction in use of off-label antipsychotics.

AHCA, “Requirements of Participation for Nursing Centers are Onerous and Unnecessary Regulation” (Issue Brief, undated),

CMS ends 5-year National Partnership to Improve Dementia Care.  CMS, “Data show National Partnership to Improve Dementia Care achieves goals to reduce unnecessary antipsychotic medications in nursing homes” (Fact Sheet, Oct. 2, 2017),

More changes in the federal regulatory structure for nursing homes are planned and underway.  CMS officials told state survey agency directors in August 2017 that CMS is evaluating additional regulatory policies, including “Multiple tags for same noncompliance (AKA ‘stacking’)” – that is, citing a single deficiency rather than multiple deficiencies when multiple systems fail in a facility – and “Exploring improving care through other remedies (e.g., DPOC [directed plans of correction]” – that is, using remedies other than financial penalties, even when deficiencies are cited.[13]


CMS is decimating both the standards that nursing homes must meet and the oversight system.  These changes are occurring when 15 residents died at a Florida nursing facility when power went out during and after Hurricane Irma and the public and Congress[14] ask how this catastrophe happened.  It is decimating the system at a time when the HHS Inspector General issued an Early Alert about states’ failure to protect residents from sexual assaults,[15] and when the HHS Inspector General issued a report on states’ receiving large increases in nursing home complaints (despite fewer residents) and prioritizing more than half as “immediate jeopardy” or “high priority.”[16]

Comments on S&C: 18-01-NH are due December 1, 2017; submit comments to  The Center’s comments are available on request.

The voices for residents’ advocates on these and other statutory, regulatory, and subregulatory changes must be heard.

[1] 42 U.S.C. §§1395i3(a)-(h), 1396r(a)-(h), Medicare and Medicaid, respectively.
[2] S&C: 18-01-NH (Oct. 27, 2017), “Revised Policies regarding the Immediate Imposition of Federal Remedies – FOR ACTION,”
[7] CMS, The Special Focus Facility (‘SFF’) Initiative,
[8] “As Sought by Nursing Home Industry, CMS Changes Guidance to Reduce Civil Money Penalties for Nursing Facility Deficiencies” (Alert, Aug. 9, 2017),
[9] CMS, Nursing Home Data Compendium 2015 Edition, page 85, Table 2.5.e (Percentage and Distribution of Scope and Severity of Health Deficiencies: United States, 2014),
[10] “An unexpected opportunity,” McKnight’s Long Term Care News (Feb. 2017),
[11] Id.
[12] Id.
[13] CMS Powerpoint at annual meeting of Association of Health Facility Survey Agencies, Slide 41 (Aug. 23, 2017),
[14] Oct. 18, 2017 letter from Senator Hatch (R, UT) and Wyden (D, OR), Senate Finance Committee, to CMS Administrator Seema Verma,
[15] OIG, Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements, page 1, A-01-17-00504 (Aug. 24, 2017),
[16] OIG, A Few States Fell Short in Timely Investigation of the Most Serious Nursing Home Complaints: 2011-2015, OEI-01-00330 (Sep. 2017),



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