Daphne Burke: Unseated, Unserved

Estimated Time to Read: 8 minutes

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Editor’s Note: The following guest commentary reflects the views and opinions of the author alone and does not necessarily represent the official views of Texas Policy Research, its staff, board, or affiliated organizations. Guest submissions are lightly edited for grammar, formatting, clarity, and length while preserving the author’s voice and arguments.

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Infrastructure is a feast of sorts. Roads, power grids, digital networks, and water systems; each course plays a pivotal role in the lives of Texans. We invest heavily in these frameworks to sustain foundational growth and a stable economy. Yet while we feast, have we assessed whether everyone has been seated and served?

The anchor for strong infrastructure has long been vigilant policymaking. Still, the infrastructure supporting the policymaking process itself has been almost entirely ignored. Main Street employers and organizations are not afforded a meaningful opportunity to participate in the process that governs them. Their voices are muffled, faint, and too easily dismissed. When policy infrastructure is absent, the regulatory process does not stop; it simply proceeds without them.

Over time, the empty seats at the table have become more noticeable, disturbing even. Organizations that lack the resources to compete with larger, more established employers fall into a widening gap. Limited capacity to track legislation and rulemaking stymies their ability to respond before it is too late. Small and midsize businesses are heavily affected, but they are not alone: nonprofits, faith-based organizations, and rural employers feel it too, which makes this a cross-sectional, cross-ideological problem. While large organizations operate with the certainty of dedicated policy staff, everyone else learns what happened only after the fact. The problem is not intent. It is architecture. There are occasional signs of reprieve, the Texas Register’s requirement that agencies weigh how proposed rules affect ground-level employers, for instance, but the concern runs only upstream. The downstream question of how that information reaches the people it governs goes unaddressed.

Consider a rural nursing home in West Texas, the kind of facility that is often the only option for care within an hour’s drive. Like many rural employers, its administrator’s attention is consumed by the day-to-day: caring for residents, making payroll, keeping the doors open for thirty employees. What that administrator is almost certainly not tracking is a Texas Health and Human Services Commission rulemaking that quietly reshaped the facility’s economics this year.

In 2025, HHSC implemented Senate Bill 457, which requires nursing facilities to spend at least 80 percent of their Medicaid patient-care reimbursement on actual patient care, or repay the difference to the state. The rule governs the measurement period running from September 1, 2025 through August 31, 2026, a window now just weeks from closing. During the comment period on that rule, which ended August 1, 2025, providers raised a specific, easily overlooked question: do costs like resident transportation and building maintenance count toward the patient-care requirement? HHSC’s answer was no. Because Senate Bill 457 did not enumerate those costs as patient care, the agency assigned them to the administrative category, where they no longer help a facility meet the threshold.

For a facility that reasonably assumed the van it uses to carry residents to appointments, and the upkeep of the building they live in, counted as patient care, that clarification is decisive. A facility comfortably above the line on its own accounting can fall below it under HHSC’s, and not learn the difference until its cost report is examined. That is the timing that makes the gap unforgiving: the report measuring this year’s spending will not be filed until the spring of 2027, and the facility will first be held accountable then. By the time a shortfall surfaces, the year being measured is long over, and nothing can be adjusted.

The exclusions that might spare a facility are narrow: HHSC may decline to recoup only if the facility held a four-star CMS rating in three or more categories, or kept occupancy at 75 percent or below while still spending at least 70 percent on patient care, or incurred disaster-related expenses. A facility running above 75 percent occupancy has none of these cushions; for it, 80 percent is simply the line. And the stakes are real. The recoupment equals the gap between what a facility should have spent and what it did, and on the multimillion-dollar Medicaid base of even a modest facility, a shortfall of a few percentage points runs into the tens of thousands of dollars. HHSC’s own published examples illustrate recoupments ranging from roughly $147,000 to more than $500,000. For a rural facility on thin margins, a figure in that range is not a line item; it is a threat to survival. And it can follow from a single reasonable assumption about how a van and a maintenance crew are classified.

One might ask whether the facility should simply have known. HHSC does publish; it issues information letters and sends notices through its GovDelivery system. But those channels assume a reader already positioned to receive them. GovDelivery is opt-in; a facility must create an account and select the right topics from a long menu of unrelated programs. Mandatory cost-report training is not a policy-awareness tool at all; it is required only when a preparer sits down to complete the report, which for this period will not occur until 2027, after every decision the report measures has been made. The information exists. What does not exist is any mechanism that puts it in front of a small operator while acting on it still matters.

The clearest evidence of the gap is the public record of this very rulemaking. When HHSC took comments on the nursing-facility rules, fifteen organizations responded. Every one was a multi-facility chain, a management company, or a trade association: Cantex, Ensign, Nexion, Regency, StoneGate, the Texas Health Care Association, and others of that scale. Not one independent rural operator appeared on its own behalf. And being at the table changed outcomes: in response to comments, HHSC added an appeals process that had not been in the proposed rule, and included MDS coordinators in the nursing rate component at a commenter’s request. The providers who participated shaped the rule that now governs them. The providers who never knew the window was open received it as written. That is the participation gap in miniature, documented, in one rulemaking, in the same window that created the financial exposure.

What the record also shows is the need for an intermediary. The U.S. Small Business Administration’s Office of Advocacy exists specifically to help small entities navigate federal rulemaking, an acknowledgment that small businesses are unlikely to find or use these processes on their own. Chambers of commerce and trade associations play a similar role at the state level, but many lack a government-affairs division or the staff to provide regular updates to members. That is not a failing; it reflects what their resources allow. Commercial policy-intelligence firms offer client-specific research and strategy, but at a depth priced for organizations that can already afford dedicated policy support, not a public floor available to all.

Closing the participation gap will take deliberate legislative action, not another diluted mandate. One workable solution is a Texas Policy Navigator Network, built for a single purpose, policy communication, rather than treating it as one duty among many. Established by legislative directive, it would be funded through a modest rider on existing economic-development appropriations rather than new spending. This is a reallocation of existing resources, not a cost-free addition, and it should be described honestly as a new government function, however lean. That base would be supplemented by opt-in fees from chambers and trade associations enrolling their members, so the network’s core is publicly funded while the cost of expanded service falls on those who benefit.

The Navigator would be the eyes and ears for small businesses, rural employers, faith-based organizations, and nonprofits. It would monitor legislation from introduction through the finalization of regulations and report on hearings, exactly the coverage that would have flagged the nursing-facility rule while there was still time to act. It would not replace legal counsel or compliance experts, who advise organizations on how to respond once rules take effect; its role is informational, not advisory. When an employer wishes to act, the Navigator would point the way, surfacing comment periods and hearings they would otherwise never have known were open. In doing so, it would draw together employers with common interests, turning isolated, faint voices into a collective one.

The chasm that has long plagued the downstream flow of policy in Texas can be repaired. With a few deliberate adjustments, the state could build a process that helps organizations navigate the regulatory terrain rather than leaving them to discover it by accident.

The purpose of roads, water systems, digital networks, and power grids is to ensure that everyone can join the feast. Policy should be no different. The place settings are laid. The missing guests are waiting just outside the door. It is time to let everyone take a seat at the table.

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Disclosure: This piece discusses Senate Bill 457, 89th Legislature (2025). Texas Policy Research published its own analysis of that legislation, recommending a NO vote to lawmakers, which can be read here. Guest contributors write independently of our positions; we neither require agreement nor decline submissions on the basis of disagreement.

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