II 118th CONGRESS 1st Session S. 3410 IN THE SENATE OF THE UNITED STATES December 5, 2023 Mrs. Fischer (for herself, Mr. Tester , Mr. Marshall , Mr. Lankford , Mr. Manchin , Ms. Sinema , Mr. Wicker , Ms. Collins , and Mr. King ) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce.

1. Short title This Act may be cited as the Protecting Rural Seniors’ Access to Care Act . 2. Findings Congress makes the following findings: (1) According to the Bureau of Labor Statistics, between February 2020 and August 2023, nursing homes in the United States lost nearly 200,000 employees. (2) Forty-five percent of nursing home providers have reported a worsening workforce situation since May 2022. (3) Ninety-six percent of nursing home providers have reported difficulty in hiring staff. (4) More than ninety percent of nursing home providers have increased wages and bonuses to recruit and retain staff. (5) Nearly eighty percent of nursing home providers have hired temporary staff, who are often much more expensive than permanent staff. (6) The Centers for Medicare & Medicaid Services reported that 129 nursing homes closed in 2022, threatening access for America’s seniors, especially in rural areas. (7) The minimum staffing mandate in the proposed rule entitled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” published by the Department of Health and Human Services on September 6, 2023 (88 Fed. Reg. 61352–61429), will result in nursing home closures, displacing an estimated 450,000 nursing home residents, harming access to nursing home care, especially in rural areas (as defined in the proposed rule). (8) The minimum staffing mandate in the proposed rule may exacerbate workforce shortages, especially in rural areas (as defined in the rule). 3. Prohibition on finalizing proposed staffing rule The Secretary of Health and Human Services may not implement, enforce, or otherwise give effect to the proposed rule entitled Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting published by the Department of Health and Human Services on September 6, 2023 (88 Fed. Reg. 61352–61429), and may not promulgate any substantially similar rule. 4. Advisory panel on nursing home workforce (a) In general Not later than 60 days after the date of the enactment of this section, the Secretary of Health and Human Services (in this section referred to as the Secretary ) shall establish the Advisory Panel on the Nursing Home Workforce (in this section referred to as the Panel ). (b) Membership (1) Number and appointment The Panel shall be composed of 17 members representing various geographic areas, appointed by the Secretary as follows: (A) 1 representative of the Secretary, who shall serve as the chair of the Panel. (B) 2 registered nurses who actively furnish services in a skilled nursing facility or nursing facility, one of whom shall represent a rural area. (C) 2 licensed professional nurses who actively furnish services in a skilled nursing facility or nursing facility, one of whom shall represent a rural area. (D) 2 nurse aides who actively furnish services in a skilled nursing facility or nursing facility, one of whom shall represent a rural area. (E) 2 physicians who actively furnish services in a skilled nursing facility or nursing facility, one of whom shall represent a rural area. (F) 1 representative of the Centers for Medicare & Medicaid Services. (G) 1 representative of the Health Resources and Services Administration. (H) 2 individuals with professional expertise related to the nursing home workforce, one of whom shall have experience with respect to the nursing home workforce in rural and underserved areas. (I) 1 licensed administrator or representative of a rural not-for-profit skilled nursing facility. (J) 1 licensed administrator or representative of a rural for-profit skilled nursing facility. (K) 2 representatives of State boards of nursing. (2) Timing of appointments Each of the appointments under paragraph (1) shall be made not later than 60 days after the date of the enactment of this section. (3) Terms; vacancies Each member shall be appointed for a term not to exceed 2 years, and a vacancy in the Panel shall be filled in the manner in which the original appointment was made. (4) Quorum 13 members of the Panel shall constitute a quorum. (5) Federal Advisory Committee Act Chapter 10 of title 5, United States Code, shall apply to the Panel. (c) Duties (1) Meetings (A) Frequency The Panel shall meet not later than 180 days after the date on which the appointments described in subsection (b) are made, and not less frequently than twice per year thereafter. (B) Public access The Panel shall make available on a public website of the Department of Health and Human Services— (i) real-time virtual access to each meeting of the Panel; and (ii) not later than 30 days after each such meeting, a recording and transcript of the meeting. (2) Reports (A) Initial report Not later than 60 days after the initial meeting of the Panel under paragraph (1)(A) , the Panel shall submit to the Secretary, the Committee on Ways and Means and the Committee on Energy and Commerce of the House of Representatives, and the Committee on Finance of the Senate, and shall publish on a public website of the Centers for Medicare & Medicaid Services, a report on the state of the nursing home workforce, which shall include— (i) an assessment of the state of the nursing home workforce in rural and underserved areas, including an analysis of— (I) workforce shortages; and (II) with respect to individuals entitled to benefits under part A of title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq. ) and individuals entitled to medical assistance under title XIX of such Act ( 42 U.S.C. 1396 et seq. ), barriers to access to skilled nursing facilities and nursing facilities caused by such shortages; (ii) an analysis of regulations, sub-regulatory guidance, and guidance to State survey agencies issued by the Secretary with respect to skilled nursing facilities and nursing facilities, and the effects of such regulations and guidance on the nursing home workforce; (iii) recommendations for the Secretary to strengthen the nursing home workforce, including recommendations for decreasing regulatory burdens for skilled nursing facilities and nursing facilities and making financial investments in training for health professionals; and (iv) other information as the Panel determines necessary. (B) Subsequent reports Not later than 1 year after submitting the initial report under subparagraph (A) , and annually thereafter, the Panel shall submit and publish an updated report in the same manner as required under such subparagraph. (d) Definitions In this section, the following definitions apply: (1) Nursing facility The term nursing facility has the meaning given such term in section 1919(a) of the Social Security Act ( 42 U.S.C. 1396r(a) ). (2) Nursing home workforce The term nursing home workforce means the workforce of health professionals that provide direct resident care in skilled nursing facilities and nursing facilities. (3) Rural area The term rural area means any area outside a metropolitan statistical area. (4) Skilled nursing facility The term skilled nursing facility has the meaning given such term in section 1819(a) of the Social Security Act ( 42 U.S.C. 1395i–3(a) ). (5) Underserved area The term underserved area means an area that is— (A) a health professional shortage area, as such term is defined in section 332(a)(1)(A) of the Public Health Service Act ( 42 U.S.C. 254e(a)(1)(A) ); or (B) designated as a medically underserved area pursuant to section 330(b)(3)(A) of such Act ( 42 U.S.C. 254b(b)(3)(A) ).