California AG blasts Trump Administration’s proposed rule that weakens protections for residents at nursing homes

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California AG Becerra

California Attorney General Xavier Becerra criticized the Trump Administration’s new policy proposal that weakens critical protections for people with disabilities and seniors living in long-term care facilities or nursing homes.

In July, the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) released a proposed rule changing the long-term care requirements for nursing homes. The agencies stated that the rule is just removing “unnecessary, obsolete, or excessively burdensome” requirements.

In a statement on Tuesday, AG Becerra said the proposed rule is unlawful and will harm residents of nursing homes and states like California. He noted that there are more than 1,200 skilled nursing facilities in California. These facilities are serving around 400,000 Californians annually.

According to AG Becerra, “This reckless rule would deprive Californians who reside in long-term care facilities of protections for quality care. The Trump Administration is attempting to sidestep the law in order to roll back common-sense safeguards for our most vulnerable family members.”

“We will fight against this rule for the sake of our seniors and people with disabilities. In California, we don’t turn our backs on those who do not have the ability to fight back,” he added.

Nursing Homes

Becerra’s arguments against HHS’ and CMS’ proposed rule on nursing homes

In his letter to HHS Secretary Alex Azar and CMS Administrator Seema Verma, AG Becerra pointed out that the proposed rule violates the Social Security Act (SSA) and the Affordable Care Act (ACA).

He also emphasized that the proposal eliminates the rights of nursing home residents and ignores the responsibilities of the HHS Secretary under Section 1819 and 1919 of the SSA.

AG Becerra said that the proposed rule weakens the grievance process and protections against infection for residents. It allows the use of “as-needed” psychopharmacological drugs without adequate examination and disregards the Secretary’s responsibility that ensures the quality of care in favor of reducing costs for facilities.

Furthermore, AG Becerra argued that the proposed rule contradicts Section 11281 of the SSA and Section 1554 of the ACA.

Section 11281 of the SSA establishes requirements for effective compliance and ethics programs as well as quality assurance and performance improvement (QAPI) programs for skilled nursing facilities and nursing facilities.  The proposed rule repeals standards set for QAPI programs beneficial for nursing home residents and requirements for personnel responsible for ensuring compliance with regulations.

Section 1554 of the ACA prohibits the Secretary of HHS from implementing any regulation that “creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; and impedes timely access to health care services; [or] interferes with communications regarding a full range of treatment options between the patient and the provider…”

AG Becerra noted that the proposed rule lets facilities to ignore residents’ grievances and removes requirements that ensure residents remained informed about the names and contact information of their primary care providers.

Moreover, AG Becerra argued that the proposed rule violates the Administrative Procedure Act (APA) citing the reason that it is capricious and arbitrary. The proposal “removes protections” for residents at nursing homes “without adequate justification” and does not consider the harms it will cause to residents of long-term care facilities and states.