[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
              HEALTH CARE FRAUD IN NURSING HOMES--PART II
=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON HUMAN RESOURCES

                                 of the

                        COMMITTEE ON GOVERNMENT
                          REFORM AND OVERSIGHT
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 10, 1997

                               __________

                           Serial No. 105-68

                               __________

Printed for the use of the Committee on Government Reform and Oversight









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              COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois          TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland       ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico            EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida         GARY A. CONDIT, California
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEPHEN HORN, California             THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida                ELEANOR HOLMES NORTON, Washington, 
THOMAS M. DAVIS, Virginia                DC
DAVID M. McINTOSH, Indiana           CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida             DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona             ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio           DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South     JOHN F. TIERNEY, Massachusetts
    Carolina                         JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire        THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas                 HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey                       ------
VINCE SNOWBARGER, Kansas             BERNARD SANDERS, Vermont 
BOB BARR, Georgia                        (Independent)
ROB PORTMAN, Ohio
                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
         William Moschella, Deputy Counsel and Parliamentarian
                       Judith McCoy, Chief Clerk
                 Phil Schiliro, Minority Staff Director
                                 ------                                

                    Subcommittee on Human Resources

                CHRISTOPHER SHAYS, Connecticut, Chairman
VINCE SNOWBARGER, Kansas             EDOLPHUS TOWNS, New York
BENJAMIN A. GILMAN, New York         DENNIS J. KUCINICH, Ohio
DAVID M. McINTOSH, Indiana           THOMAS H. ALLEN, Maine
MARK E. SOUDER, Indiana              TOM LANTOS, California
MICHAEL PAPPAS, New Jersey           BERNARD SANDERS, Vermont (Ind.)
STEVEN SCHIFF, New Mexico            THOMAS M. BARRETT, Wisconsin

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
            Lawrence J. Halloran, Staff Director and Counsel
                Marcia Sayer, Professional Staff Member
                       R. Jared Carpenter, Clerk
                    Cherri Branson, Minority Counsel
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 10, 1997....................................     1
Statement of:
    Buto, Kathy, Deputy Director, Center for Health Plans and 
      Providers, Health Care Financing Administration, 
      accompanied by Linda A. Ruiz, Director, Program Integrity 
      Group, Health Care Financing Administration................     8
    Fish, Faith, long-term care ombudsman, New York; Pat Safford, 
      California Advocates for Nursing Home Reform; and Tess 
      Canja, Board of Directors, American Association of Retired 
      Persons....................................................    39
Letters, statements, etc., submitted for the record by:
    Buto, Kathy, Deputy Director, Center for Health Plans and 
      Providers, Health Care Financing Administration, prepared 
      statement of...............................................    11
    Canja, Tess, Board of Directors, American Association of 
      Retired Persons, prepared statement of.....................    94
    Fish, Faith, long-term care ombudsman, New York, prepared 
      statement of...............................................    43
    Safford, Pat, California Advocates for Nursing Home Reform, 
      prepared statement of......................................    79
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut, prepared statement of............     3
    Towns, Hon. Edolphus, a Representative in Congress from the 
      State of New York, prepared statement of...................     6


              HEALTH CARE FRAUD IN NURSING HOMES--PART II

                              ----------                              


                        THURSDAY, JULY 10, 1997

                  House of Representatives,
                   Subcommittee on Human Resources,
              Committee on Government Reform and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:10 a.m., in 
room 2247, Rayburn House Office Building, Hon. Christopher 
Shays (chairman of the subcommittee) presiding.
    Present: Representatives Shays, Snowbarger, Pappas, Towns, 
Kucinich and Barrett.
    Staff present: Lawrence J. Halloran, staff director and 
counsel; Marcia Sayer, professional staff member; R. Jared 
Carpenter, clerk; Cherri Branson, minority counsel; and Ellen 
Rayner, minority chief clerk.
    Mr. Shays. I would like to call this hearing to order. I am 
sorry for the delay. We had a bit of computer problems.
    This is our second hearing on health care fraud in nursing 
homes. On April 16, State Medicaid officials, the Health and 
Human Services [HHS], Department's Inspector General and the 
General Accounting Office [GAO], described the absurdly complex 
system of eligibility and reimbursement rules that governs $45 
billion of annual Federal long-term care expenditures.
    It is a system that invites exploitation. In the nursing 
home setting, patients are an accessible, almost captive 
audience. Overlapping eligibility for Medicaid and Medicare 
benefits creates opportunities for dual billing and cost 
shifting between programs. Unscrupulous providers know the 
chances of getting paid are very good, while the odds of 
getting caught are currently very low.
    As a result, Medicare, Medicaid and the beneficiaries who 
rely on both programs are vulnerable to fraud, abuse, and waste 
in the form of unnecessary services, excessive prices, 
fraudulent billings, and poorly coordinated care driven by 
financial, not medical, considerations.
    Today, we invite the Health Care Financing Administration, 
HCFA, and nursing home patient advocates to join our discussion 
of health care fraud in nursing homes and to suggest how 
vulnerable programs and vulnerable patients might be better 
protected.
    Some aspects of the program can, and should, be addressed 
administratively. We asked HCFA and the HHS agency that pays 
Medicare claims and approves State Medicaid payment rules to 
describe current efforts to screen nursing home claims more 
effectively. Working with the IG, State Medicaid Fraud Control 
Units, the Justice Department and State long-term care 
ombudsmen, HCFA proved in Operation Restore Trust that a 
coordinate effort can uproot some of the scams that have taken 
hold in the jurisdictional cracks and crevices of the Byzantine 
Federal long-term care system.
    Other solutions to nursing home fraud require legislative 
action. Last year, this subcommittee was instrumental in 
advocating many of the antifraud provisions enacted in the 
Health Insurance Portability and Accountability Act, the act 
known as the Kassebaum-Kennedy bill. New criminal sanctions now 
protect all health care payers, public and private. Dedicated 
funding is now available for the coordinated antifraud 
enforcement efforts we know to be effective against 
increasingly sophisticated schemes.
    Building on that foundation, Congress is considering 
additional steps to strengthen Medicare and Medicaid program 
safeguards.
    One promising proposal calls for consolidated billing by 
the nursing home for all Medicare and Medicaid services to a 
patient. Currently, basic long-term care charges are paid by 
Medicaid, while Medicare Part A and Medicare Part B can be 
billed separately for ancillary services to the same nursing 
home patient. Consolidating all these charges should make it 
much easier to detect double billing, overcharges and cost 
shifting between payers. It should also improve the 
coordination and the quality of care provided to nursing home 
residents.
    That is the bottom line to all our calculations about 
health care fraud in nursing homes: the quality of care.
    This is not a victimless crime. Every time a bill is 
rendered for an unnecessary or never-provided service, someone 
is denied needed care. Every time a coffee klatch is billed as 
group therapy, nursing home patients suffer an incalculable 
loss, the loss of dignity. Every time Medicaid doesn't know 
what Medicare is paying, or vice versa, nursing home care 
becomes disjointed, dictated as much by the source of payment 
as the needs of the patient.
    But many victims of fraud in nursing homes remain silent. 
Some cannot speak for themselves and must rely on family 
members or friends to protect them. Others, dependent and 
vulnerable, are reluctant to complain against those on whom 
they rely for the necessities of daily living. So we asked our 
witnesses today to put a human face on what might otherwise be 
considered merely an economic crime and to describe their 
efforts to give voice to the silent victims of nursing home 
fraud.
    This subcommittee is delighted to have this hearing today. 
We welcome our witnesses, and we welcome our guests as well.
    [The prepared statement of Hon. Christopher Shays follows:]
    [GRAPHIC] [TIFF OMITTED] 45631.001
    
    [GRAPHIC] [TIFF OMITTED] 45631.002
    
    Mr. Shays. At this time I would call on my partner in this 
effort, Ed Towns, the ranking member of this subcommittee, if 
he has a statement.
    Mr. Towns. Thank you very much, Mr. Chairman, for holding 
this hearing today, hearing on the questionable billing 
practices which surround dually eligible people. However, as we 
approach this subject, I am reminded of the words of Health and 
Human Services Inspector General June Gibbs Brown who testified 
before this subcommittee on March 18, 1987. In her testimony on 
fraud in medical equipment and supplies, she told this 
subcommittee that we must proceed cautiously to ensure that any 
measure to control the benefits do not harm those beneficiaries 
who truly need these services. I believe those words have 
special meaning today; and I would like to say, thank you, June 
Gibbs Brown.
    Those people who are called dually eligible are eligible 
for both Medicare and Medicaid. As the General Accounting 
Office found, compared to the overall Medicare population, 
dual-eligibles are much more likely to be female, living alone 
or in institutions, a member of a minority group and have long-
term, chronic illnesses. They are poor--and I mean poor. Eighty 
percent of the dual-eligibles have annual incomes of less than 
$10,000. By definition, these are the people who are most in 
need of accessible and compassionate health care assistance.
    Yet this group of vulnerable beneficiaries is most likely 
to face access problems. As the Congress takes a second look at 
the billing procedures of skilled nursing care facilities and 
home health care services and as the States move toward managed 
care for Medicaid patients, this group of patients is most 
likely to fall through the cracks of any complicated system 
with unconnected coverage guidelines and confusing billing 
rules.
    Therefore, Mr. Chairman, may I suggest that as we receive 
testimony here today we keep in mind that those who are 
eligible for benefits from both programs are not people taking 
advantage of a vulnerable system, but vulnerable people 
accessing benefits which Congress has rightfully provided.
    Again, thank you for holding today's hearing, and I look 
forward to the testimony of the witnesses and taking this 
information and working with you to try and strengthen the 
system.
    I yield back.
    Mr. Shays. I thank the gentleman.
    [The prepared statement of Hon. Edolphus Towns follows:]
    [GRAPHIC] [TIFF OMITTED] 45631.003
    
    Mr. Shays. At this time, I call on Mr. Kucinich.
    Mr. Kucinich. Thank you very much, Chairman Shays.
    This hearing is of vital importance to the American public. 
The abuses that seem inherent in the system always affect those 
who are least able to protect themselves; and, as the chairman 
said, there is a necessity to put a human face on these 
hearings. Because waste, fraud and abuse involving Medicare or 
Medicaid involves people who were supposed to receive services, 
didn't get those services, perhaps were billed more than the 
services should have cost.
    Any time that happens what it leads to is an overall attack 
on Medicare and Medicaid itself. Because these programs were 
set up by the Congress to help people who needed help and 
provide a health safety net for the people of this country; and 
anyone who is involved in waste, fraud and abuse in this 
program is helping to shred that safety net.
    So there is great relevance to these hearings, and I 
congratulate the chairman for his interest and efforts in this 
regard.
    There is anticipation now of structural changes in the 
Medicare program itself; and if we are successful in these 
hearings in pointing out the areas where we can correct waste, 
fraud and abuse, we can perhaps do much to rescue Medicare from 
many of the most serious changes which would be to the 
disadvantage of the beneficiaries.
    The Department of Justice, Mr. Chairman, has estimated that 
perhaps up to 10 percent of the $35 billion in Medicare assets 
and Medicaid assets paid to--according to GAO, Federal Medicare 
and--Federal and State Medicare programs paid nursing home 
providers more than $35 billion in 1995, and the Department of 
Justice estimates about 10 percent of that is lost to fraud and 
abuse.
    So this is a question that has enormous impact today; and, 
Mr. Chairman, as you know, in the future, with the change in 
demographics, we have a growth of the nursing home industry 
occurring. There will be an even greater number of people 
applying for nursing homes, greater demands on the system and, 
therefore, increased stress on the health care resources of 
this country. So as we go into these hearings, I am hopeful 
that it will help to point the way to remedying the 
deficiencies in the system which keep the system from realizing 
its full potential to serve those who need help the most.
    Thank you, Mr. Chairman.
    Mr. Shays. I thank the gentleman.
    At this time, we will call on our first of two panels. The 
first panel is one individual, Mrs. Kathy Buto, Deputy 
Director, Center for Health Plans and Providers, from the 
Health Care Financing Administration. You are going to be 
accompanied, in the sense that there may be responses to 
questions, by whom else?
    Ms. Buto. Linda Ruiz.
    Mr. Shays. Our custom is to swear in all witnesses, 
including Members of Congress. At this time, I would like you 
to stand and raise your right hand.
    [Witnesses sworn.]
    Mr. Shays. For the record, both witnesses have responded in 
the affirmative.
    Before we receive your testimony, I just want to take care 
of some housekeeping things. I ask unanimous consent that all 
members of the subcommittee be permitted to place an opening 
statement in the record and that the record remain open for 3 
days for that purpose. Without objection, so ordered. I ask 
further unanimous consent that all witnesses be permitted to 
include their written statement in the record; and, without 
objection, so ordered.
    Let me say that we put the clock on for 5 minutes, but I am 
going to roll it over again. It is important that we receive 
your testimony, so you will have as much time as you need for 
your statement, especially since you are the only witness on 
this panel.
    So, welcome. You may proceed.

  STATEMENT OF KATHY BUTO, DEPUTY DIRECTOR, CENTER FOR HEALTH 
  PLANS AND PROVIDERS, HEALTH CARE FINANCING ADMINISTRATION, 
   ACCOMPANIED BY LINDA A. RUIZ, DIRECTOR, PROGRAM INTEGRITY 
          GROUP, HEALTH CARE FINANCING ADMINISTRATION

    Ms. Buto. I actually will try to be brief, because I know 
there are a number of questions, and everyone has received my 
written testimony.
    Mr. Shays. Let me just say, though, I want to make sure 
that, for the record, you put in some of that verbally, so feel 
free.
    Ms. Buto. Mr. Chairman, members of the subcommittee, I am 
pleased to be here to discuss HCFA's fraud and abuse prevention 
initiatives.
    My testimony will focus on the type of fraud and abuse that 
occurs in nursing home settings. We must be increasingly 
vigilant in guarding against improper provider claims and 
billing, particularly as demand for services increase with the 
growth of the Medicare and Medicaid populations.
    We have some innovative ways to fight this type of fraud 
and abuse which I will describe and have described in detail in 
my written testimony, and I will touch on in my statement here.
    We have all heard the proverb ``an ounce of prevention is 
worth a pound of cure.'' This is especially pertinent in the 
area of physical well-being. By guaranteeing the initial 
accuracy of both claims and payments, we avoid having to, what 
we call pay and chase, and we can prevent opportunities for 
fraud and abuse.
    I think it is extremely important to note that some 
incorrectly billed claims can stem from confusion and 
misinformation about proper billing procedures, especially in 
the nursing home arena. For example, if there is a payer who is 
primary to Medicare, the Medicare contractor rejects the claim 
and submits to the appropriate primary payer. Where Medicare is 
primary, the contractor makes payment, then sends the paid 
claim to the supplemental insurer. For dually eligible Medicare 
and Medicaid beneficiaries, the Medicare contractor pays first 
and then sends the paid claims data to the Medicaid State 
agency as the payer of last resort.
    The policies regarding priority and precedence of payers is 
one source of payment confusion.
    HCFA uses many prepayment mechanisms, including our 
Medicare as secondary payer, or MSP activity, to determine not 
only the primary payer for benefits for a Medicare beneficiary, 
but to ensure that every bill is properly submitted. Using 
these methods to ensure proper billing, we can concentrate our 
resources on locating and eliminating areas of fraud and abuse, 
as I will describe.
    I would like to add, however, that we have heard many 
complaints that the Medicare/Medicaid payment methodologies are 
so complex that they invite error. This reflects the fact that 
current payment methods have evolved over 30 years into a 
variety of sophisticated methods covering a greater diversity 
of different kinds of services.
    Adding to this complexity, especially in the case of 
nursing home services, is the fact that both Medicare and 
Medicaid finance care, often for the same individuals. Because 
of the different but sometimes overlapping benefits of the two 
programs, there are opportunities for ``ping-ponging'' patients 
from nursing homes to hospitals and back.
    A typical instance is where the dual-eligible is 
transferred from a nursing facility to a hospital when there is 
an acute illness and then sent right back to the nursing home 
when the hospital determines that the admission is not needed. 
Although care could have been given in the nursing home, it was 
not provided because the opportunity to shift costs to Medicare 
for hospital costs is so great. The unfortunate results are a 
waste of Medicare and Medicaid dollars, as well as compromised 
quality of patient care. Let me stipulate some of our specific 
areas of concern.
    We are targeting fraud and abuse of Medicare and Medicaid 
at a critical time when America is spending about 15 percent of 
the gross domestic product on health care. In 1995, the bill 
for nursing home care financed by Medicare and Medicaid 
programs combined reached $44 billion, which represents about 
55 percent of all spending for nursing home care. Especially in 
the area of nursing home care, there are numerous opportunities 
for fraud, as we have already noted.
    The nursing home population has a high percentage of 
patients who are incapable of monitoring their own bills and 
may not have family members to do this for them. This makes 
them easy prey for unscrupulous providers and suppliers. We are 
focusing on the following areas where there seems to be the 
greatest concentration of fraud and abuse.
    First, for the dual eligibles generally in 1995, I think, 
as others have noted, there were about 6 million dually 
eligible beneficiaries in Medicare and Medicaid, of which about 
one-quarter reside in nursing homes. Individuals who are dually 
eligible for both Medicare and Medicaid are a diverse and 
particularly vulnerable population. Most problems arise when 
their benefits are covered by both programs but under somewhat 
different coverage rules, creating opportunities for confusion, 
billing errors, misdirected or duplicate payments and, in the 
worse cases, outright fraud.
    Second is mental health services. A finding from the 
Inspector General's medical necessity review demonstrated that 
in 32 percent of Medicare records reviewed mental health 
services for nursing home residents had been ordered improperly 
or unnecessarily.
    Another area is medical supplies. Providers of medical 
supplies, such as those required for wound care, incontinence 
and orthotic equipment may unreasonably inflate prices for 
these supplies or may inaccurately describe the supplies in the 
bills in order to receive higher payment.
    Hospice services: The Inspector General has found that 
there is considerable financial incentive to enroll nursing 
home facilities patients in the hospice benefit since Medicare 
makes an additional payment for these beneficiaries, while few 
additional services are provided.
    Therapy services: Providers, we know, have been charging 
excessively more for Medicare therapy services provided under 
contract with nursing homes.
    Let me mention just a couple of our important fraud and 
abuse prevention initiatives. My written testimony really 
details these, and the chairman has already alluded to some of 
them.
    Operation Restore Trust, our Medicare Integrity Program, 
which is authorized under the Kassebaum-Kennedy provisions, and 
Medicare secondary payer initiative, which I have mentioned.
    The President's budget contains a number of proposals to 
reduce waste, fraud and abuse in the Medicare program. These 
include, first, provisions to require insurance companies to 
report the insurance status of beneficiaries to ensure that we 
pay right the first time; second, to implement home health 
prospective payment services in Medicare that incorporates all 
services provided in the nursing home; third, that we require 
the nursing facility to bill for all services that its 
residents receive, which is not now current law--we call that 
consolidated billing, as the chairman noted; and, fourth, to 
link home health payments to the location where care is 
actually provided rather than the billing location.
    We also propose to work with the medical community to 
develop objective criteria for determining the appropriate 
number of home health visits for specific conditions so that we 
can prevent excessive utilization in the area of home care.
    In March, the President presented additional legislative 
proposals titled the Medicare and Medicaid Fraud, Abuse and 
Waste Prevention Amendments of 1997. These amendments address 
areas of hospice benefit modifications, partial hospitalization 
benefits, which are mental health benefits, the provider 
enrollment process, rural health clinic benefit reforms, and 
other important areas. We are pleased that both the House and 
Senate reconciliation bills include many of the proposals put 
forth by the President.
    Neither bill, however, includes a provision that would 
authorize the development of a prospective payment system for 
rural health clinics services, nor do they include our proposal 
to clarify the partial hospitalization benefit, which is an 
area of rampant abuse. We hope these provisions are added in 
conference.
    In conclusion, HCFA is firmly committed to aggressively 
fighting health care fraud and abuse; and by collaborating with 
our counterparts in government, the industry nonprofit 
organizations and advocates, we can build a powerful team that 
will prevent our Medicare and Medicaid resources from being 
lost. We look forward to working with Members of Congress, 
including this committee, on legislation to enact the proposals 
I mentioned today.
    Thank you.
    Mr. Shays. Thank you very much.
    [The prepared statement of Ms. Buto follows:]
    [GRAPHIC] [TIFF OMITTED] 45631.004
    
    [GRAPHIC] [TIFF OMITTED] 45631.005
    
    [GRAPHIC] [TIFF OMITTED] 45631.006
    
    [GRAPHIC] [TIFF OMITTED] 45631.007
    
    [GRAPHIC] [TIFF OMITTED] 45631.008
    
    [GRAPHIC] [TIFF OMITTED] 45631.009
    
    [GRAPHIC] [TIFF OMITTED] 45631.010
    
    [GRAPHIC] [TIFF OMITTED] 45631.011
    
    [GRAPHIC] [TIFF OMITTED] 45631.012
    
    [GRAPHIC] [TIFF OMITTED] 45631.013
    
    [GRAPHIC] [TIFF OMITTED] 45631.014
    
    Mr. Shays. Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman.
    Let me begin by thanking you for your testimony and saying 
to you that we do look forward to working with you to try and 
see what we can do to eliminate waste, fraud and abuse of any 
sort.
    Let me begin by saying, in your testimony, you discussed 
the billing confusion that results when someone is dually 
eligible. Can you tell me whether there is a way to eliminate 
the confusion without having the benefits delayed to those that 
are dually eligible?
    Ms. Buto. Yes. There are a number of different ways.
    The most tangible way that I can describe is a way that we 
have worked out and that Congress, we believe, is very much in 
favor of, which is a combined Medicare and Medicaid payment for 
the care of the dually eligible. This would be a combined, 
capitated payment.
    You may be familiar with the Program for the All-inclusive 
Care for the Elderly [PACE], for the frail elderly. This 
provides the right incentives to keep people out of 
institutions or provide them with the institutional care in a 
cost-effective way while also using the Medicare resources to 
cover their acute care, hospital-related, physician-related 
needs. This has been a very successful program. A number of the 
States are interested in this, and we look forward to expanding 
this kind of program.
    There is another programmed called the Social HMO Program, 
which is also under a demonstration in our agency, which is 
similar but doesn't target necessarily the frail elderly, but 
really tries again to combine those payments between Medicare 
and Medicaid to make the best use of the combined payment. 
That, too, seems to be a much more efficient way for some 
individuals to receive their care.
    Both of those are part of our legislative package.
    Mr. Towns. Let me make certain that I understand this 
hospice care. A patient must be terminal in order to go into 
this, like life expectancy of maybe 6 months or less, 
generally.
    Ms. Buto. Right.
    Mr. Towns. Is that what is really happening?
    Because when you talked about hospice you indicated that 
some of the services in some instances were eliminated, which 
means even though they are able to bill and get paid at a high 
level, the point is that maybe some people might be put into a 
hospice that should not go in there. I sort of get the feeling 
that that might be happening. Are you saying that? Or what are 
you really saying? That is the question.
    Ms. Buto. Let me just try to divide it into two things.
    One issue is are some people getting it who we do not think 
are really terminally ill. Hospice areas----
    Mr. Towns. You are saying what I thought you were saying.
    Ms. Buto. There are some people getting it who are not 
terminally ill, and we think there are some people that are 
unscrupulous in certifying them.
    In Operation Restore Trust, we targeted hospice services 
because we saw a lot of growth in that area. There are a number 
of provisions we have in the budget proposals to begin to 
tighten and really recertify people every 30 days after the 
first two benefit periods, so that would really help us. Right 
now, the way the law is structured, there is a much more open-
ended fourth benefit period. This would really help us tighten 
and recertify the eligibility.
    But the other issue, and the one I talked about in my 
testimony, is the issue of both Medicare and Medicaid paying 
for an individual whose home is the nursing home, but who is 
getting Medicare-covered hospice services. Right now, that 
hospice is getting a Medicaid payment for some services that 
Medicaid would cover, like the relief of pain, for example. 
Medicare's hospice payment also pays for that, so there is some 
overlap.
    The issue is, different States pay for different things, 
can we figure out what a reasonable payment is? We and the 
Inspector General are working on that issue to see if we can 
begin to audit how to pay more appropriately.
    But I think there is an issue of are we--that we have 
really raised as part of our reviews, which is, should we be 
paying or modifying proposals, both in Medicaid and Medicare?
    Mr. Towns. There has been a lot of talk about the Medicare 
Integrity Program. When is this going into effect?
    Ms. Buto. We have started the Medicare Integrity Program, 
which is an outgrowth of the Health Insurance Portability and 
Accountability Act, by whenever there is a contractor change--
--
    For example, one of our large contractors in the West, 
Aetna, recently has decided to get out of the Medicare 
business. We have started to move toward what we call benefit 
integrity contract source. So when we have the opportunity that 
is what we are doing under current law.
    But we are working now on a statement of work to really 
compete for a whole separate set of fewer contractors whose 
entire purpose it is to focus on benefit integrity issues, and 
we expect that to go into place in 1998.
    Mr. Towns. Is there an incentive involved in this at all in 
terms of the contractor receiving an incentive payment for 
uncovering fraud and abuse?
    Ms. Buto. The incentive will be to get the business. But if 
I could just turn to my colleague who will be overseeing that, 
I will ask if she wants to elaborate.
    Mr. Shays. If you could identify yourself for the record.
    Ms. Ruiz. Certainly. My name is Linda Ruiz, Director of the 
Program Integrity Group.
    We hope to offer contractors some incentives. They will not 
be directly related--for example, recovering a certain 
percentage of money based on moneys that they might recover 
from a provider or anything that would provide some kind of 
reason for the contractor to unnecessarily hassle providers--
but we are looking for some legitimate ways to provide them 
with additional financial incentives to do the very best job 
for us they can.
    Mr. Towns. So you have not finalized what these incentives 
would be?
    Ms. Ruiz. No. We are experimenting. This is a tricky area.
    Mr. Towns. I agree with that.
    Let me just sort of ask one more question, Mr. Chairman, 
before I yield back.
    Mr. Shays. Sure.
    Mr. Towns. In your testimony, you described reforms to 
Medicare payments for durable medical equipment. Will you have 
a grandfather clause that will allow current equipment 
providers to participate in the programs without fulfilling the 
new requirements?
    Ms. Buto. I actually--some of the durable medical equipment 
provisions we are talking about--I am not sure whether this is 
what you are talking about or not--involve a bonding 
requirement. Is that what you are talking about?
    Mr. Towns. That is what I am talking about, yes.
    Ms. Buto. That we are, I believe, planning to do through 
regulation, but I don't know that we have--the legislative 
staffer is informing me that there will not be a grandfather 
requirement for the existing suppliers, that they will all need 
to be recertified, so there won't be some sort of an exemption 
for them.
    Mr. Towns. Will not be?
    Ms. Buto. Will not be.
    Mr. Towns. Mr. Chairman, I would like to talk about that a 
little more later on.
    Thank you very, very much. I yield back.
    Mr. Shays. There is always this number of 10 percent of 
health care is waste, fraud and abuse. We have indications from 
the Inspector General that, in certain areas, health care fraud 
could be 15 percent. There are some who think it is 20 percent. 
It is an extraordinarily large number when we think of how much 
we spend.
    You have outlined areas, and I would like you to go into a 
little more depth with each one. You outlined dually eligible, 
you outlined mental health services, medical supplies, hospice, 
therapy services and prospective rural health care plans. You 
mentioned one other at the end. Do you remember what that was--
after rural--the two that you said that were not part of the 
proposal?
    Ms. Buto. Oh, we are hoping the conference agreement will 
pick up.
    One is prospective payment for rural health clinics, which 
we thought would have a lot of support but has not been picked 
up in either the House or Senate.
    The other is a proposal to address the issues involved with 
partial hospitalization.
    These are the mental health benefits that I will be glad to 
elaborate on, but this is the outpatient mental health services 
where we really need to have some authority to impose standards 
on providers, No. 1.
    No. 2, we have what we call right now Medicare-only 
providers. We think these should not be Medicare-only 
providers. They ought to be certified by States to provide 
services more broadly.
    We have seen a lot of abuse in the billing patterns here. 
Nursing home patients are quite vulnerable in this area where 
they are provided, in a sense, a social service. They think 
they have had a recreational activity. It is billed as a mental 
health visit.
    So that kind of behavior we need to get a handle on. We 
need to be able to screen providers, and that is called the 
partial hospitalization benefit. We will be glad to provide 
copies of the proposal to your staff.
    Mr. Shays. OK. I am having a hard time understanding, and I 
want to appreciate it, the challenge the administration faces 
and also Congress, as to why we can't deal with the dually 
eligible problem. What are the policy issues that work in 
conflict?
    My sense is that 6 million dually eligible Medicare, 
Medicare, one-fourth of those 6 million are in nursing homes. 
In our first hearing, it was very clear to me that you can rip 
off the system quite easily and not get caught. If you are 
caught, it is pay and chase. So why don't you talk to me first 
about dually eligible.
    Ms. Buto. OK. The dually eligible is an issue where we are 
dealing with people who are, as you can expect, certainly 
nursing home individuals who are the most vulnerable. Dually 
eligible are overrepresented by people over 85, for example. 
They are also overrepresented in the under-65 disabled 
population.
    Mr. Shays. Tell me, are they dually eligible because----
    Ms. Buto. They are low-income Medicare beneficiaries. They 
cannot afford--for example, they meet the standards for either 
Medicare spend-down or the QMB provisions.
    Mr. Shays. Wouldn't anyone in Title 19 be potentially 
dually eligible?
    Ms. Buto. No, because so many of the--I think it is two-
thirds of the Title 19 population is mothers and children right 
now. They would not be----
    Mr. Shays. I am talking about in the nursing homes. Anyone 
under Title 19 in nursing homes would be dually eligible.
    Ms. Buto. If they meet the Medicare requirements of Social 
Security. They have basically paid into Social Security. They 
are entitled to Social Security Medicare. But, yes, the vast 
majority would be eligible for both programs.
    Mr. Shays. OK. So what makes it difficult to deal with 
this? On the surface, it seems like a no-brainer to me. There 
are two different programs. Admittedly, they have two different 
standards. So where is the problem?
    Mr. Towns, you know, rightfully cautioned that we don't 
want people to be caught--hurt in the process----
    Ms. Buto. Yes.
    Mr. Shays [continuing]. Of our dealing with this issue, the 
patients. But describe to me why this isn't an easy issue to 
deal with.
    Ms. Buto. Medicare covers mainly acute care services. The 
skilled nursing services that we cover are supposed to be post-
hospital, related to a hospital stay. There is a 3-day 
requirement and so on.
    Increasingly, the population, as Mr. Towns pointed out, is 
becoming more chronically ill. The demographics--people are 
living longer, they are more chronically ill, et cetera. So 
that post-hospital stay begins to, when they are in the nursing 
facility, turns into a chronic care management of some 
deterioration that occurred because they went in for a hip 
replacement or something else.
    Medicaid pays for the so-called custodial care. When people 
are poor and they go into nursing facilities--and you have 
heard of people using all of their assets. They may have not 
been Medicaid eligible, but the nursing home costs $35,000 to 
$50,000 a year. After a couple of years, they use up all of 
their assets. They are poor. They are on Medicaid.
    What they are doing at that point is not necessarily and 
usually not getting acute care followup, but they are there for 
a variety of other purposes having to do with their 
deterioration, such as Alzheimer's Disease or a variety of 
other conditions that make them eligible for nursing facility 
custodial care, which Medicare doesn't cover.
    Now, the problem comes in when you have an individual who 
is custodial, who may have dementia, may have some other things 
that really make up a long-term nursing home patient. They are 
living there, and they fall or they have some acute episode 
which, in a legitimate sense, takes them back to the hospital. 
Medicare pays because it is hospital care, because it is doctor 
care. It is all the acute services covered by Medicare.
    The problem comes in when the nursing facility sees that 
when somebody is ill, even though they could take care of the 
patient in the nursing home--they have the medication, they 
have the staff--but they would just as soon ship that patient 
off to a hospital, because it is now not their reimbursement 
issue. They have the financial incentive to, if you will, shift 
the patient.
    It is those cases where it really shouldn't be done, not 
the cases where someone really needs to be hospitalized--they 
have a heart attack or need a bypass operation--where we have 
this problem of making sure that we know what is going on.
    So that is one issue.
    The other issue is for the nursing home patient who doesn't 
get admitted to the hospital but is getting a new wheelchair, 
wound care services, things that Medicare Part B covers that 
the nursing home, because it doesn't have to bill us for those, 
can really wash its hands of. You can have unscrupulous 
providers getting the patient's billing number and billing 
Medicare for those supplies, those therapy services, et cetera; 
and the nursing home is pretty, you know, indifferent in the 
sense that they are not on the hook or accountable; and it 
really is less cost for them if those services are provided by 
Medicare.
    Mr. Shays. You are making an argument now why we need to 
deal with the problem. I am trying to understand why it is 
difficult to deal with the problem.
    Ms. Buto. I am sorry. OK, it is difficult because, in the 
case of Medicare, it has us working with 50 States and 
territories because each one of them has different rules for 
paying nursing homes. Some cover some things, some cover other 
things.
    We are experimenting with the State of Minnesota in a very 
comprehensive way to pay together and to share data so that we 
know what we are paying for.
    We also have begun to make our data available on who is 
eligible for what--at least let them know who the eligibles 
are--to States so that they can begin to, if you will, pay 
smarter when they pay Medicaid rates; and that has been 
difficult because of State rules of confidentiality of data and 
because again what they need and how they code things aren't 
necessarily compatible with ours.
    We are experimenting with the State of Maine right now and 
have been with the New England States to begin to share data, 
but we found that we don't describe services the same way. They 
code them differently, so it is hard to crosswalk those 
individuals. They may have different identifier numbers for 
people.
    Mr. Shays. As you have started to describe this problem, do 
you have someone in your office who focuses only on trying to 
resolve this issue?
    Ms. Buto. There are people in our data shop who are 
dedicated to this--not entirely, they do other things--but who 
are working with the States on this issue of compatibility of 
data. So, yes, on that.
    But we have people in other offices working on 
compatibility of policies, legislative proposals to make this 
work. We have an initiative that really talks about putting 
grants out to the States so that we can come up with common 
payment systems so we don't have both of us paying separately 
but we look to join our payment in ways that will get better 
care for the individuals. And that solicitation asking States 
to come forward with proposals that we can work with just went 
out.
    Mr. Shays. We have a vote, and I am just going to try to 
move it along so we don't keep you waiting for 20 minutes.
    We have a long list of areas, but we are still in the 
dually eligible. What I am hearing you say, the bottom line is 
that you have the Federal Medicare program. You--which is all 
Federal--you have Medicaid, which is 50-50 or 30-70, some mix 
of Federal and State or State/Federal.
    You have, obviously, different kinds of programs run 
differently in each State. We have heard that before and we 
know it is just dumb. I know it is administrative, but it is 
also legislative, but I must be missing something. There must 
be something more that makes it more difficult to deal with 
this issue.
    Is it a political problem? Who is saying, don't move 
forward? Or who is saying, if you do this you are going to hurt 
us, so don't do that? How would we be potentially hurting 
someone who is dually eligible? I just don't see it. It seems 
to me like it is our money, and we should----
    Ms. Buto. Yes. There is an issue between the States and the 
Federal Government that I guess really is a political issue 
which is that, first and foremost, these are Medicare 
beneficiaries. Medicare pays primary, Medicaid pays secondary.
    The States feel, however, they are the most expensive 
beneficiaries; and they ought to have control over all of their 
health care costs. We don't agree, but the reason we have been 
able to work successfully with the States is that we have 
decided that the issue of who is in charge shouldn't be the 
issue, that we have to find a way to join the payments and 
jointly administer them.
    We can do that. I don't think it is impossible. It is just 
time consuming and complicated because of the different payment 
mechanisms, coding, all of the technical issues involved in 
joining payments and having proposals that the States are 
willing to come to the table with us, to come with a pay to 
jointly fund these services.
    Mr. Shays. Now, tell me what the negative impact is on us 
economically by our not dealing with dually eligible. What is 
happening? Give me some examples of what happens, where people, 
either through outright fraud or just through mistakes or 
inefficiencies, hurt us economically.
    Ms. Buto. What hurts us economically is having both 
programs sometimes paying for the same services and paying 
wastefully at times because, for example, the nursing home is 
not held accountable.
    Mr. Shays. Tell me why, if it is a health care service paid 
out of Medicare Part A, you know, Medicare Part A is hospital--
I am sorry.
    Ms. Buto. It is also skilled nursing.
    Mr. Shays. So there is--skilled nursing in Part A would be 
in a nursing home, correct?
    Ms. Buto. Right.
    Mr. Shays. So then tell me how a nursing home could 
possibly make a mistake without it being intentional to also 
bill Medicaid?
    Ms. Buto. Well, that is not--that is much less of a 
problem. When somebody is fully getting skilled nursing under 
Medicare, that is not the--the real problem comes when the 
person is really getting mainly Medicaid custodial nursing home 
care and then they bounce them back for a Part A hospital stay 
in Medicare or a Part B wound care service under Medicare. It 
is fragmented.
    Mr. Shays. So a person might be sent back to the hospital, 
but they are still billing for them being in the nursing home 
and they aren't?
    Ms. Buto. When they discharge from the nursing home, they 
are not billing for the nursing home care per se; but the most 
wasteful part is that they could have provided that care and 
were supposed to under the rules, which, by the way, are also 
the Medicare nursing home rules.
    Mr. Shays. And they also have hospitals in their--I am 
missing this part of it. If they are sending them out of the 
facility to the hospital, they are not their patient any more, 
period.
    Ms. Buto. Right. But the point is, sometimes they are 
sending people that don't need to be in the hospital.
    Mr. Shays. OK. Well, that is one thing, but I don't think 
that that is the biggest problem.
    We had lots of testimony last time that made it very clear 
that a number of nursing homes were double billing us, not that 
they were shifting them back to the hospital, which is 
inefficient and costly and wasteful, but not illegal.
    Ms. Buto. Yes. I think the double billing occurs on these 
supply issues as well as, in addition, on hospice care, where 
the nursing home really should be providing some of these 
hospice services maybe under the Medicaid rate. But the double 
billing really occurs in the medical equipment, in the therapy 
services where they are supposed to be providing those, and----
    Mr. Shays. Let's talk about therapy services then.
    Ms. Buto [continuing]. Physical therapy, occupational 
therapy, speech therapy where we know of instances where the 
services--the therapy service providers are coming into the 
nursing home, basically getting services billed for Medicare 
beneficiaries who may or may not need them. The nursing home is 
not accountable. It doesn't, in a sense, take responsibility 
for whether those are needed services or not; and that is 
wasteful spending because we don't need to provide those 
services for individuals.
    Mr. Shays. I am going to have to recess. As soon as Mr. 
Barrett gets in, he will just convene and ask questions. Thank 
you.
    [Recess.]
    Mr. Shays. My best-laid plan. No one came in my place. 
Sorry.
    As I was going to vote, I was really thinking that I am not 
really satisfied yet with leaving dually eligible, because what 
I am hearing being said is that you have waste in that you are 
taking people out of nursing homes into hospitals when they 
could still be in the nursing home, admittedly at greater cost 
to the nursing home because they might require greater 
attention. But there is still nursing home responsibility. That 
clearly is wasteful.
    The only potential kind of fraud is--that I have heard is 
that you have a dual-billing when you have a nursing home that 
is part of the overall charge, would include certain therapy or 
services, but also is billing for those therapy services to 
Medicare.
    Ms. Buto. Right. Supplies that are provided by both 
programs.
    The other thing----
    Mr. Shays. Tell me, for the record, some kind of supplies 
that we are talking about.
    Ms. Buto. Incontinence supplies, wound dressings.
    Mr. Shays. Those should be covered under the nursing care?
    Ms. Buto. Right, they really should be, because we actually 
have combined Medicare and Medicaid standards.
    Mr. Shays. Why would there ever be a bill then for that 
kind of service if it is in a nursing home? Why wouldn't you 
throw it out right away? Because the Medicare people don't know 
that the person is in a nursing home?
    Ms. Buto. Well, that is part of the issue; and that is one 
reason why we are improving our sort of information on where 
things are being billed, if you will, and one reason why the 
new contracts that focus on fraud and abuse as a result of the 
legislation will help us focus on the providers and the 
suppliers in that area and the beneficiaries and what everybody 
is getting.
    Mr. Shays. When you put a billing in for service, why 
wouldn't it say this person is in a nursing home? Why wouldn't 
we require that every time a person is in a nursing home? When 
a bill is submitted, you acknowledge that that person is in the 
nursing home. Why would that be so difficult? It is silly for 
you to sit back.
    Ms. Ruiz. It is already on the bill.
    Mr. Shays. If it is on the bill, why would we pay for any 
of that kind of service? Why would Medicare pay that?
    Ms. Ruiz. We would not pay for something for DME, for 
example.
    Mr. Shays. DME is?
    Ms. Ruiz. Durable medical equipment, if the bill said the 
person was in a nursing home. However, lots of times that is 
not accurately reflected on the bill.
    Mr. Shays. Is that viewed as fraud or what?
    Ms. Ruiz. I think you would have to ask the IG. They would 
investigate whether it was intentional or not, but it 
frequently can be fraud.
    Mr. Shays. I don't want to, you know, swallow camels and 
strain out gnats here, but I want to just get a simpler idea 
of--I still don't have a sense of where the difficulty is in 
dually eligible. It seems to me that if you are in a nursing 
home, there are certain services you have no right to bill 
Medicare and that, if you did, it is just latent fraud. That is 
what it strikes me.
    Are our systems so broken down that somehow a nursing home 
can feign that they didn't know? I mean----
    Ms. Buto. Well, let me just try to say that, because 
Medicaid, in the case of a nursing home patient who is there 
for the Medicaid stay, may pay for different items and services 
from one State to another, that nursing home should certainly 
know, and there should not be any confusion about that.
    But State rates are not necessarily always that clear. They 
will pay a rate to a nursing home. Their benefit package of 
what is covered for a nursing stay should be known. What we 
cover for a skilled nursing facility or other supplies should 
also be known, but we are finding that one of the problems is 
deliberate fraud on the one hand and some misunderstanding or 
confusion, especially as the States have been changing what 
they pay for, which they have been doing under Medicaid.
    So we need to do a better job of educating providers who 
really want to do the right thing so they understand when they 
are getting--when they ought not bill Medicare, if you will, or 
when they ought to just consider the charge covered by 
Medicaid. We are beginning to experiment in the home health 
area in both Connecticut and Massachusetts in doing that, but 
this is clearly another area.
    Let me see if I can address the dual-eligibility. I was 
trying to understand where I thought you were going.
    Mr. Towns. Would you identify----
    Mr. Shays. It is silly for you to keep moving back and 
forth.
    Ms. Buto. My sense is what you are trying to understand is 
what is the most efficient way to pay for this service. It is 
one patient. Why can't we figure out how to pay appropriately? 
Why is there so much lack of coordination?
    You know, clearly there have been proposals to either block 
grant the nursing home benefit entirely to the States. That has 
been one set of proposals on the Medicaid side. On the Medicare 
side, from time to time we have thought about what if we 
covered all of the cost of care for Medicare individuals in 
nursing homes. Unfortunately for Medicare, especially right 
now, Part A and the trust funds is a big issue; and if we take 
on an additional cost, even if we could get the States to 
maintain their effort, it would show up as an increase, big 
increase, especially with the demographic shift over the next 
10 to 20 years in the Part A trust fund in financing.
    So we are in that bad position where the States really 
don't want to take on the entire cost of care. They would like 
to control more of the care through managed care for people who 
are not in nursing homes and who are dually eligible, but they 
have not stepped up to the nursing home population except in a 
couple of States--Minnesota is one--to take on managing the 
Medicaid dollar in an efficient way under capitation.
    So part of the difficulty is we are looking for some 
comprehensive solutions and--in some sense--because of the 
nature of Medicaid, we need those to be voluntary on the part 
of individual States. We are not in a position right now to 
mandate that States have to turn their money over to us so we 
can manage it or, vice versa, that we would want to turn all 
Medicare dollars over to the States because their benefits are 
very different from ours. That is really the crux of the 
problem.
    I wanted to make sure you understood that the PACE program, 
although it has been a small demonstration, that it looks like 
Congress is going to enact legislation that will make it widely 
available as a Medicare benefit as a provider type. We think 
that is very good, because the States want that and so does the 
Medicare program. So that is one area that we can begin to get 
at nursing home fraud and abuse.
    Mr. Shays. OK. Let me recognize Mr. Barrett, and then I 
will come back. Mr. Towns, do you have more questions as well?
    Mr. Towns. I have one. You go ahead.
    Mr. Barrett. I actually have no questions at this time 
since I just came in.
    Mr. Shays. Mr. Towns.
    Mr. Towns. Yes, let me--do you believe that it would be 
appropriate for nursing homes that receive Federal funds be 
charged a fee to pay for their inspection audit as a condition 
of receiving Federal funds? Because I get the impression that 
you don't have these audits too often, and there is a reason 
for it--probably is the cost and all of that. Have you thought 
about that?
    Ms. Buto. You are talking about user fees for nursing 
home--I believe we have thought of that. Don't we--for surveys. 
Yes, sir, I believe that we have, in a number of areas, really 
gotten some initial authority to charge user fees for 
inspections and surveys. It would certainly help in terms of 
the frequency. But we do nursing home audits more regularly 
than we do some other provider audits.
    I think the complicated issue is, again, not just an audit 
of the Medicare costs, but of the joint spending and joint 
responsibility for Medicare and Medicaid. Until we get a way 
for all of the services provided to a person being billed to 
the nursing home under this consolidated billing arrangement, 
right now, some of those are suppliers or--you know, we have a 
bunch of different fragmented places to go to look at what is 
provided in that nursing home. That is why we feel we need this 
consolidated approach so that nursing home is accountable and 
we can go to that one place to look at the audit.
    Mr. Towns. When you say more frequent, I guess I need to 
have--what do you mean by more frequent? I am not sure I 
understand that part. I don't want to be pushy either. But I am 
thinking that not a lot of audits are taking place, and if you 
are not looking to see what happens--and probably there is a 
reason for it, because once you get involved in this you are 
talking about costs.
    Ms. Buto. I am sorry. I was confusing two things. The 
survey I was talking about was the health and safety and those 
kinds of things. But the audits--especially under the new 
contracts where we have integrity contractors whose whole 
purpose is to look in areas for patterns and we have, I guess, 
a contract or an agreement with the Los Alamos lab to develop 
some software for us so we can begin to detect better patterns 
of fraud and abuse in these kinds of providers.
    So we are definitely looking to improve the auditing and 
the frequency, and we are receptive to the notion of user fees 
to finance more of those audits. But I think a first step will 
be to have these benefit integrity contractors really begin to 
focus in on all of the providers in an area like nursing homes, 
to look for comprehensive patterns and to use this more 
sophisticated technology.
    Mr. Towns. Well, I am very concerned. Because I come from 
New York, and that is an area--you probably remember years ago 
in terms of the nursing home scandals, I want to make certain 
that we do not go back to this. That is a problem for me. You 
need to have some way to check to find out what is going on, 
and I think that we have to be a little bit more aggressive in 
looking.
    Ms. Buto. We agree.
    Mr. Towns. Because people are living longer, of course; and 
we need to make certain that, in their later years, that they 
are not being abused.
    Ms. Buto. The other thing I wanted to mention is that the 
Kassebaum-Kennedy legislation for the first time actually sets 
aside dedicated funding for these kinds of reviews. Before, it 
has always been the issue of how much we could spend on these 
kind of audits was subject to a budget process. This will use 
trust fund dollars to--over quite a long period of time we have 
dedicated funding for this purpose--to look at fraud and abuse 
and benefit integrity; and that is really a vast improvement 
over what existed before.
    Mr. Towns. Thank you very much, Mr. Chairman. I yield back.
    Mr. Shays. I thank you. Mr. Pappas.
    Mr. Pappas. Thank you, Mr. Chairman.
    My question centers around the coordination between Federal 
and State inspections. Is there uniformity amongst the 50 
States? And what kind of coordination or sharing of information 
is there between your agency and any of the State agencies that 
do inspect?
    Ms. Buto. Let me start, and then I will ask Linda to chime 
in.
    The coordination varies. I think Operation Restore Trust 
was the beginning of real collaboration with the States as well 
as with the Justice Department and other investigative 
agencies. We have developed an investigative data base that we 
share with the States as well as with our Medicare contractors 
that gives us all a common understanding of the investigations 
and what is going on.
    But we expect that with this expansion of our Operation 
Restore Trust kinds of efforts to target high-risk providers 
and suppliers that we are going to be in an even better 
position to share information and work with States to get at 
these areas of abuse.
    Some States have started getting Medicare data from us and 
that has been--I mentioned earlier a task to make sure we are 
talking apples and apples when we talk about services. But the 
process has started.
    There are five or six States now that are working with us 
to join those data bases together so they can do a better job 
of seeing what Medicare is paying for and what they are paying 
for, and I think both that and the target investigations and 
the investigative data base all will help make that 
collaboration better.
    Linda, I am going to let you----
    Ms. Ruiz. Ms. Buto has, I think, adequately described what 
we are doing in terms of law enforcement investigations. I just 
want to be sure that your question was not referring to initial 
or subsequent surveys for quality purposes in the nursing 
homes.
    Mr. Pappas. It is kind of both. Certainly one of the 
primary concerns that many people have is over specific 
incidents, but specific incidents could be prevented if there 
are adequate regular inspections. Again, this sharing of 
information and when it is appropriate--and sometimes it may 
not be conducive to any kind of positive application of 
information that may be passed from a State inspector to a 
Federal agency, but sometimes there is. The professionals 
themselves, I think, are best able to assess what is necessary 
information or helpful information.
    Ms. Buto. The other thing I just wanted to add--and I don't 
know if this is what you were going to say, Linda--but we are 
beginning to get data. We will start getting data on the 
quality of care being provided, the nature of services being 
provided to people in nursing homes that will enable both us 
and the States to, from a quality standpoint, make sure that we 
are not getting shoddy results or poor care for the money that 
is being paid out.
    Ms. Ruiz. I guess what I was going to say was we contract 
with the State survey and certification agencies to do the bulk 
of the surveys, and they always share the information coming 
out of those surveys with us.
    We do have some Federal surveyors. They do not do the bulk 
of the work. On occasion, they go in where there is a complaint 
made or there is some lack of resources on the part of the 
State to go in on an immediate basis. Sometimes they may go in 
to do sort of a check on what was already done. That 
information is always shared between the State and the Federal 
agency.
    Mr. Pappas. Is there any difference, generally speaking--I 
am looking for generalities--any difference between for-profit, 
not-for-profit or government owned and operated nursing home 
facilities?
    Ms. Buto. In terms of performance? We have seen a lot of 
growth in the for-profit area in terms of the numbers. But in 
terms of performance, we hold them all to the same standards; 
and for those that do not comply, there are a series of 
intermediate sanctions that apply; and they are treated all the 
same. I would be glad to take a look at the data, but I don't 
believe that we see any patterns of differences in the behavior 
or compliance.
    Mr. Pappas. One last question, is there anything that you 
think that we in the Congress could do to help you folks do 
what you are being expected to do?
    Ms. Buto. Yes, we have a long list of proposals that we 
would like to enact. Just in brief, in the nursing home area, I 
think nursing facility prospective payment and consolidated 
billing are really key to getting the payment accountability to 
where it should be. There are a series of different sanctions 
that we have asked for, some sanction authority.
    We particularly would like to get the Social Security 
numbers of, basically, the folks who own and operate these 
suppliers and providers so that we have some way of making sure 
they don't get out of one bad business and move to another 
State and get a different provider number. It is very hard to 
track them. We have asked for that, plus the employer 
identifier number. Both of those are very important to us.
    Mr. Towns. Will the gentleman yield?
    Mr. Pappas. Certainly.
    Mr. Towns. Do you have a Federal data base?
    Ms. Buto. Yes.
    Mr. Towns. You do?
    Ms. Buto. You mean generally on what we paid for?
    Mr. Towns. No, in terms of where you had--if a home had 
been cited for abuse, sanitary conditions or whatever it might 
be, that I would be able to plug into your data base to get 
information on a specific home, whether or not they have been 
cited for this or cited for that?
    Ms. Ruiz. We do have a data base that indicates 
certification citations. It is not available to the public, 
however. It is used by HCFA.
    Mr. Towns. Well, you know, I guess, just to personalize 
this thing for a moment, I was thinking that maybe we should 
have something like that in case my children want to put me in 
a nursing home. They would know whether or not the nursing home 
has been abusive or not. That, to me, seems to be information 
that one would need.
    Ms. Ruiz. I would believe that most States have that kind 
of information available to consumers, but we could check on 
that.
    Ms. Buto. Let me just mention, we did--and I believe it is 
still under development because it causes problems. We did try 
to develop, if you will, a nursing home report card kind of 
document at one time. The problem with it is that often by the 
time you develop the report card instrument the institution has 
corrected its problems. Often the problems are not health and 
safety problems. They may be technical issues of not having 
good documentation in one area, which they then are able to 
fix. So the issue of how you do those kinds of things is 
difficult.
    But I think we are looking for ways to make information 
better available to consumers so they can have some benchmark 
to figure out what facilities are doing.
    The one thing we can say is that where there are serious 
issues of health and safety or patient care, we do move against 
facilities either to terminate the provider contracts or to not 
allow--there are a series of sanctions that we can apply to not 
allow them to sign new people up, et cetera. So there are a 
variety of things we can do. It is difficult to do the 
information in a way that is current and that is fair both to 
the people who are trying to figure out which nursing home and 
to the facilities as well.
    Mr. Towns. I don't want to put you in a spot. I am really a 
nice guy. But suppose we come forward with legislation. What do 
you think the reaction would be from the agency?
    Ms. Buto. Legislation to?
    Mr. Towns. Talk about a Federal data base that would have 
specific kinds of information in it where I could push the 
button to find out if that is where I would like to put my 
mother or father.
    Ms. Buto. I think the reaction would be--the first reaction 
would probably be, gee, that sounds like a great idea. The 
reaction of a lot of people would get very critical, though, if 
the data base was inaccurate or out of date; and I can imagine 
providers who felt they were unfairly identified. So I think 
the reaction is going to vary.
    Consumers who go to one that looks good in the data base 
and then it turns out there has been a recent complaint that 
they think is serious--so, I think the initial reaction is 
probably positive. It sounds like information consumers should 
have. But it is really going to depend on how accurate, how 
reliable and how valid that information is and whether people 
feel they can really rely on it. I think the credibility of the 
data base is critical to whether or not that going to be well-
received down the road.
    Mr. Towns. Thank you very much.
    Mr. Chairman, I think we should talk.
    Mr. Shays. We talk a lot.
    This committee was responsible for Title II being inserted 
in the Kassebaum-Kennedy bill, and we were responsible because 
we had extraordinary cooperation from the administration. Much 
of what was included were suggestions by the administration. So 
I want to say for the record we have been grateful to work with 
your office. You have been very cooperative and very helpful, 
and I think we have made lots of progress.
    I am just aware of the fact that we are focused on so many 
things in Congress--balancing the budget, slowing the growth of 
Medicare--which, obviously, one way you do it is save money in 
fraud and waste and abuse. I am also aware that things don't 
happen because you have committees of jurisdiction that may be 
jealous if another committee gets involved.
    You have all of these things. I am really trying to sort 
out why you think it may take so long or why it is taking so 
long to move forward on some of these things. If I asked you 
what the most important thing to deal with dually eligible 
patients was, the most important reform, what would that be?
    Ms. Buto. I would have to say one thing as a caveat up 
front. There are distinctly different groups. The young 
disabled have a whole set of issues that are very different 
from the elderly in nursing homes, and so there are really 
different----
    Mr. Shays. I think I know what the answer is that I would 
be looking for. I am curious, and then I would tell you what I 
would put down.
    Ms. Buto. I have to say from my personal experience from 
having looked at this area, for the dually eligible and 
especially for the elderly, the big issue----
    Mr. Shays. The biggest reform we could put that would 
enable us not to be making double payments.
    Ms. Buto. OK. That is a different question. Some sort of 
combined payment approach----
    Mr. Shays. Some kind of coordinated billing.
    Ms. Buto [continuing]. For nursing home patients.
    Mr. Shays. Let me not spend a lot of time on some of these 
issues. Let me focus on that one issue, and say what do we do--
what is going to be required to do it? Is it administrative or 
legislative or a combination of both? Just give me a sense much 
what it would take to do coordinated billing.
    Ms. Buto. It would take a willingness on the part of States 
to do it, No. 1.
    Mr. Shays. So we need their buy-in.
    Ms. Buto. No. 2, there is a real question as to how you 
actually combine the payment. Because nursing home patients 
range from hip fracture recovery to somebody who has got 
dementia and is totally dependent on the nursing home. How do 
you make those payments the right amount to make sure that they 
are getting decent quality of care without overpaying? So the 
issues of how you figure that out are not real simple, quite 
frankly.
    I guess the third thing would be to have an accountable 
nursing home so that the nursing home that is providing care 
should be accountable in a way that we can properly sanction 
them, that we can properly reduce payments where they are not--
--
    Let's assume for a moment that they are combined payments, 
that we can figure that out. Then when you reduce payments you 
have to figure out who gets the savings. I assume we would have 
to figure a way of splitting Medicare and Medicaid savings so 
that States got some of the savings and the Federal Government 
got the rest.
    Mr. Shays. It strikes me that there is a lack of incentive. 
There is an incentive for Medicaid to basically send that 
patient to the hospital so it is Medicare, even though it may 
be more expensive; and there needs to be some way to have an 
incentive that we do the most cost-effective thing.
    Ms. Buto. Yes. There is one intermediate thing that we are 
trying that I think helps, which is Medicare case management of 
the nursing home patient. Medicare goes in and has somebody, a 
nurse or somebody, whose job it is to make sure that that 
tradeoff of care between what the nursing home is providing and 
what Medicare would provide is appropriate. That is a service 
we are looking at. Because there you have got an individual 
whose job it is to be the person's advocate and to worry about 
total dollars, not just one or the other. So that is a model we 
are taking a look at as well.
    Mr. Shays. I am having a little sensitivity on why it may 
be difficult to be a senior in a nursing home. Because I have 
needed to get my glasses fixed, my reading glasses that combine 
with long distance. Finally, it was going to take a week. I 
didn't want to buy a second pair, so I gave them my glasses. I 
have been frustrated this entire hearing trying to read and 
look up.
    But lots of what I want to be able to do is just read some 
of your testimony in which you outline extraordinary abuse--
your testimony is fine testimony--extraordinary abuse, much of 
it pointed out by the IG's office.
    But in one instance it says where you have a physician who 
billed $350,000 over a 2-year period for comprehensive 
examinations and never once examined the person. If a doctor or 
someone giving therapy comes to a nursing home, do they have to 
get the nursing home to sign off that they did what they said 
they did?
    Ms. Buto. I don't know the answer to that. We can get that 
for the record.
    Ms. Ruiz. The answer is no. There ought to be a record in 
the patient records of the visit. But there is no requirement 
that somebody responsible in the nursing home certify that the 
physician visited.
    Mr. Shays. I would think one way we could deal with this 
issue is that any time a service is provided in a nursing home, 
the nursing home has to agree that that service was provided. 
You walk in our building, you cannot bill for that unless it is 
certified by the nursing home that you did it. What would be 
the problem with doing that? I will be asking others, but what 
would you think would be the problem?
    Ms. Buto. I cannot think of one right off the bat. I think 
that that is a reasonable--it is kind of what we had in mind 
when we talked about consolidated billing. The nursing home in 
a sense has to sign off on everything that is provided and 
billed for.
    Mr. Shays. Why don't I conclude by having you tell me more 
about PACE and how that works. You are saying that you would be 
doing something like that under that program.
    Ms. Buto. Under PACE?
    Mr. Shays. Not under PACE. What was the program that you 
made reference to? The case management?
    Ms. Buto. I am sorry, case management.
    Mr. Shays. I confused you. You don't need to apologize. I 
apologize to you.
    Ms. Buto. I am beginning to feel like I need new glasses.
    The case management program I am talking about is one where 
we have already experimented. The earlier version we used, 
basically, nurse practitioners and nurses to manage a lot of 
the primary care and sort of under a capitated arrangement 
managed the services provided to nursing home patients.
    What we want to do, though--and that was pretty much 
limited to capitation of the Medicare service. We found that it 
had a lot of potential to limit unnecessary bouncing to the 
hospital or the outpatient department, et cetera, because the 
nurse practitioner was managing and making sure that the 
nursing home did its job and was paying appropriately, and we 
were paying that person to watch over the case.
    The other sort of variation on that that we are taking a 
look at is for people who are basically Medicaid nursing home 
patients--there is some possibility again for the nurse to 
manage the Medicare part but also the Medicaid services 
involved under a primary care kind of approach. We pay the 
nurse under Medicare, and they try to manage the whole set of 
services the patient is getting.
    It is less focused on just the Medicare service and more 
focused on the comprehensive care that is being provided. That 
has some real potential again to avoid the bouncing around that 
patients face, if somebody is managing the case, especially for 
a vulnerable person who is not able to fend for themselves.
    Mr. Shays. OK.
    Ms. Buto. So those are demonstrations again. We don't 
really have that kind of authority under Medicare now, and we 
need to know whether it is cost-effective and it works or 
whether it just adds cost to the system. But a number of people 
have suggested we look at that, and we think it is worth 
looking into.
    Mr. Shays. My regret is that we haven't taken full 
advantage of your testimony before the committee. I think what 
is going to happen is your continued dialog with this committee 
staff. But I would like some kind of sense of a time line of 
what we want to achieve and when we want to achieve it. I have 
this sense that we are having a pilot program here, we are 
having another program here, and it is a good-faith effort to 
try to get at this problem, with no sense that you would not 
come before us next year and we wouldn't be just having a 
continued dialog.
    I guess we will try to deal with this in our report on this 
issue. But I would love to see legislation that we would be 
pushing, I would love to see administrative changes that you 
would be doing, and I would love to see some kind of outline of 
some goals that we said we would achieve by this. It might help 
us provide maybe a sense of urgency to some parts of this.
    I don't know, I am just thinking out loud a bit, but I just 
have a feeling like we are just a lot of good people trying to 
do some good things, but we will be doing this forever unless 
we kind of put some time line and deadlines to this. Do you 
have deadlines?
    Ms. Buto. Well, yes we do.
    Mr. Shays. Can you give me an example of that?
    Ms. Buto. I guess I am aware of a couple of things--that it 
takes time, especially with this population. We put out in May 
basically a call to the States that said, we want to work with 
any State that wants to work with us around this population to 
come up with innovative ways to serve them better and--
especially nursing home patients--and to pay for the services 
jointly rather than to have this disaggregated payment system. 
We put that out in May, and the proposals are due this summer.
    That, we hope, will produce something that will come up 
with some approaches that we can use beyond the ones that we 
have already started. We think the States have some good ideas, 
and we have some good ideas, and we ought to try to do that. I 
know that that is going to produce something.
    We have three demonstration projects that will take us a 
long way in this area. One is Minnesota. There is a proposal 
now from six New England States including Connecticut, a 
concept paper to talk about serving the dual-eligibles in the 
six New England States.
    Mr. Shays. As one unit?
    Ms. Buto. No, each of the States will come in with its own 
proposals, although they have a number of common elements. The 
data collection will be common. There will be a number of 
things that the States want to do jointly. We are sharing data 
with all of them. That is very seriously probably coming to a 
head again this summer with specific proposals.
    Maine and Massachusetts are the two that are in the 
position to really go forward fastest. I think we are going to 
learn some important things there about how we can collaborate.
    We have some limited lessons in other areas; and, again, 
PACE has a permanent part of the Medicaid program as an option 
which it looks like it will be--as a result of the 
reconciliation process will be a major advance in Medicare. We 
have never had that dual-eligible option available, if you 
will. I don't think we are running in place or playing at the 
margins. I think there are some big things going on.
    I am also mindful of the fact that, after this Congress, 
HCFA will be--there is a tremendous amount work coming our way, 
and this is one of the things that we have already started. I 
expect we will continue, and PACE is part of that, but there 
will be a tremendous workload associated with the new 
reconciliation.
    Mr. Shays. I think that we will probably get to the next 
panel.
    Mr. Pappas. Is there anything that you want to say?
    Closing comments from both of you before we go to the next 
panel?
    Ms. Buto. The only thing I would like to say--I have said 
this before--I think that the dual-eligibles are both the 
hardest population to deal with and provide the most 
opportunity for us to do the right thing. They also represent--
since they are such a large share of spending both in Medicare 
and Medicaid, if we can responsibly address these issues I 
think we will go a long way toward ensuring a better future for 
Medicare and Medicaid.
    Mr. Shays. Ms. Ruiz.
    Ms. Ruiz. I have nothing. Thank you.
    Mr. Shays. Thank you both for being here.
    Mr. Shays. Our next panel: Ms. Faith Fish, a long-term care 
ombudsman from New York; Ms. Pat Safford, California Advocates 
for Nursing Home Reform; and Ms. Tess Canja, Board of 
Directors, American Association of Retired Persons.
    If all three of you would come forward and remain standing, 
we will swear you in.
    [Witnesses sworn.]
    Mr. Shays. If we could, we will go in the order I called 
you, beginning first with you, Ms. Fish, and then we will go to 
you, Ms. Safford, and then Ms. Canja.
    We welcome you here. If you would first present your 
testimony and make the comments you want to make, feel free to 
do that, and I will roll the clock. But the first pass is 5 
minutes, and then I will give you a little bit more time if you 
need it.

 STATEMENTS OF FAITH FISH, LONG-TERM CARE OMBUDSMAN, NEW YORK; 
PAT SAFFORD, CALIFORNIA ADVOCATES FOR NURSING HOME REFORM; AND 
TESS CANJA, BOARD OF DIRECTORS, AMERICAN ASSOCIATION OF RETIRED 
                            PERSONS

    Ms. Fish. Thank you very much.
    Excuse me, much of my written testimony, as a matter of 
fact, will relate to specific questions that you did ask; and I 
also have incorporated some examples that I brought of actual 
cases that we worked on to give you an idea of what is 
happening in New York State and across the country.
    First, I thank you for giving me the opportunity to come 
here and to talk about the New York State long-term care 
ombudsman program and also the successful efforts of Operation 
Restore Trust.
    In New York State, I represent over 140,000 New York State 
long-term care residents. In the Nation, we are talking about--
--
    Mr. Shays. How many did you say?
    Ms. Fish. 140,000 long-term care residents in nursing homes 
and adult homes. In the country, there are 1.6 million. Today 
they are not here to speak before you because of many reasons: 
They may be ill, reasons of finance, and also fear of 
retaliation for coming to speak with their voices. So I come 
here to speak on behalf of them.
    Now what is the role of the ombudsman? What do we do? The 
ombudsman is there to support and protect the residents. We are 
there to ensure that they get quality care and that--we talk 
about quality of life, something that you have all been talking 
about in your opening statements.
    In New York State, we have over 550 volunteers that are 
trained--duly trained and authorized to go into nursing homes. 
Upon certification, what happens is ombudsmen are actually 
assigned to a facility. When you are assigned to a facility, 
you are there somewhere between 4 to 6 hours a week.
    Mr. Shays. These are volunteers you said?
    Ms. Fish. Right. These are volunteers that are trained, and 
they are trained in the 36-hour training certification program.
    When they are trained, they go in 4 to 6 hours a week. Now 
this is very different than regulatory agencies that go in once 
every 18 months or upon situations of neglect and abuse. So we 
feel that our constant presence there does a couple of things. 
One is, we are able to deal on the spot with complaints and 
resolution of complaints. But, second, it is also a prevention. 
When you are there on a regular basis what tends to happen is 
abuses do not tend to occur as much.
    Let me give you an example--a short example of a case that 
one of our ombudsmen wrote up. It is a very, very short 
summary.
    In this particular nursing home, approximately 2 months ago 
a resident developed a small sore on his toe. Due to the lack 
of aggressiveness in treatment, medical treatment, the resident 
now has blackened legs to the knees and a giant hole in one hip 
and one developing in the other. The resident went from 
ambulating freely and independently to a bedridden person with 
severe pain.
    Despite constant reporting of pain and sore sizes and 
growth, we feel nursing was very lacking in seeking prompt care 
and didn't aggressively contact the doctor. The above resident 
is scheduled for a bilateral amputation. A good quality of 
life, pain free, could have been accomplished if treatment was 
sought sooner. That is one example.
    Now, the ombudsmen, as I said before, are the only 
advocates that are in nursing and adult homes on a regular 
basis. This is one of the reasons why we became and were sought 
after as partners in Operation Restore Trust. In May 1995, we 
became very involved with this.
    But I know you know all about Operation Restore Trust, so I 
am not going to go into any of the details about that. But I 
want to tell you specifically about the model that we have in 
New York State, because I think it speaks or addresses some of 
the issues that you asked before.
    Under the leadership and the guidance of Governor George 
Pataki, a State work group was developed; and this State work 
group was a coordinated effort with the Attorney General's 
office, the State Department of Health, the State Department of 
Social Services, and the Division of Criminal Justice, with the 
State Office for Aging ombudsman program heading it up.
    The purpose was to bring all of these agencies together. 
One interesting thing that we found--you talked about what are 
some of the barriers of people coordinating these efforts--is 
we found that people weren't talking. They simply weren't 
talking to each other.
    So let me tell you some of the things that we did that have 
been used as an example for the rest of the country, and they 
are using some of the things that we have done in New York 
State.
    We approached it with three steps. We approached it with 
education and outreach. We decided that--how do you best find 
out about fraud and abuse? You best find out about fraud and 
abuse by actually educating people and teaching them what to 
look for. That is one thing. So we went out and we trained all 
of our ombudsman volunteers to, in fact, go out and look for 
certain things. We taught them certain red flags to look for.
    Then we looked at systemic changes. Well, if you find a 
complaint and you resolved it, what about the systems that we 
are talking about? What about the dual payments that we are 
talking about?
    Well, during one of our meetings, the State work group met 
with the Federal work group. When they both came together the 
Department of Social Services, Medicaid Division, started 
talking to the people in Medicare. What happened is that they 
said--we never really talked before--Medicaid people said, how 
about if we start sending you some of the things that we think 
are dual payments?
    They did, and now we have a system that is being used in 
New York State where the people in Medicaid are talking to the 
people in Medicare, and in one quarter they found over $1.1 
million in dual payments, dual billings that are taking place. 
Something as simple as talking, getting together, 
communicating.
    So that is one of the answers that I would give to you is 
communication, people sitting down and working it out. That is 
one of the things.
    Mr. Shays. I just want to be clear. Who is talking?
    Ms. Fish. OK. The State work group, which consisted of the 
State agencies I talked about--the State Department of Social 
Services; State Department of Health, OK, with HCFA, the 
Administration on Aging; and the Office of Inspector General. 
Those are the three Federal partners. I am sorry. I forgot to 
mention that. That was the systemic part of it, looking at 
those services.
    Now the third part was complaint handling, and I was happy 
to hear about talk about quality care. While making the system 
more efficient is important, we also want to make the system 
responsive, so I want to talk about the cases.
    When we first became involved in Operation Restore Trust, I 
was not a believer. I could not understand how an ombudsman 
volunteer could go in and start becoming an investigator until 
I came home. I came home, and we began to find a number of 
cases after we trained our volunteers, cases like this:
    A podiatrist wanted to make molds on every resident's feet 
and make custom shoes, whether the resident could walk or not. 
Many were in wheelchairs. A family complained to the ombudsman 
about being billed for hundreds of dollars of bandages 1 month. 
Bandages for a scratch on this person's leg was $300, and the 
resident was responsible for paying $127 of this.
    One of the other things you talked about, therapists. We 
found that when we went into nursing homes that there would be 
group therapy. Instead of giving the individual therapy that 
Medicare and Medicaid were being billed for and that the 
residents should be getting, they had what they called ``wave 
therapy.'' Wave therapy is when a therapist walks into a room 
with a group of people, they wave, and they walk out and bill 
individually. That is called wave therapy.
    We found an example of an administrator, after we trained 
our ombudsman--an ombudsman goes in and sits on a residents 
council; and the administrator comes in and says, look at the 
explanation of benefits that the person was supposed to have 
received. It is too confusing to nursing home residents. They 
don't understand. So what we are going to do is we are going to 
keep them.
    And the ombudsman said, you can't do that. First of all, 
there is a copayment; and that person has a right to see that. 
Second, there is an ombudsman in there to discuss it with them. 
Third, it is a violation of a patient's rights to keep their 
mail.
    So what happened was that the residents now have the 
ability--continue to have the ability to review the explanation 
of medical benefits.
    Another case, where a family member comes in and finds 
their mother crying hysterically. The ombudsman walks in, and 
the person reaches out and hands the ombudsman a sheet of 
paper, an explanation of medical benefits, and said, my 
granddaughter just opened this. I am so ashamed. I am so 
embarrassed.
    The explanation of medical benefits read that Medicare was 
being billed for this person for alcohol rehabilitation. This 
woman was never an alcoholic and was not a drinker, but her 
granddaughter opened this up and began to say--it was just 
humiliating, absolutely humiliating to the person.
    Mr. Shays. Let me get to our next witness soon, so if you 
would kind of conclude. You have given us some very good 
examples, so I am grateful to you.
    Ms. Fish. OK. I will conclude with one last statement. I 
urge to you support and expand on Operation Restore Trust. The 
momentum has to continue in this case.
    My last statement is this: Ombudsmen deal with many 
frustrations while working with agencies and families. 
Sometimes I wonder why volunteer ombudsmen wish to continue 
trying to overcome the obstacles they face. Then I speak to a 
volunteer and hear a story about a resident that he or she has 
helped, and every one in this room will remember a face of 
someone who needed help or a story that touches our hearts.
    Most ombudsman residents cannot be here today to talk with 
you, but they silently watch and wait for your help. My 
testimony today is on behalf of over a million voices asking 
not to be forgotten.
    I would be glad to answer any questions when the time 
comes; and I thank you very much.
    [The prepared statement of Ms. Fish follows:]
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    Mr. Shays. Let me ask you, before we go to Ms. Safford, are 
the ombudsmen not paid just in New York?
    Ms. Fish. The ombudsman program is different in every 
State, and in New York State they are all volunteers. They are 
not paid. In some States, they are paid a small stipend; and in 
other States they are just paid mileage to get to and from.
    Mr. Shays. I have been in public office 20 years, and I did 
not know they were volunteers. I am amazed.
    Ms. Fish. Most States are trying to get more volunteers. 
There are 7,000 volunteer ombudsmen in the United States, and 
you could have 21,000 with additional funding. There are people 
out there who are more than willing to give their time.
    Mr. Shays. That is amazing to me. It certainly qualifies 
for a point of light.
    Mr. Shays. Ms. Safford.
    Ms. Safford. Mr. Chairman, subcommittee members, I would 
like to thank you for the opportunity to testify today about 
health care fraud in California.
    California Advocates for Nursing Home Reform was founded in 
1983----
    Mr. Shays. I am going to have you lower the mic just 
slightly. I think that would be good.
    Ms. Safford [continuing]. Founded in 1983 by Pat McGinnis. 
She was determined to create an organization independent of 
Federal funding or funding from the industry, of course, so we 
are mainly a membership organization. We do get some fees for--
as far as buying our materials and quite a bit of foundation 
grants. Only recently we have accepted a Federal grant to 
provide pension counseling for California consumers.
    We have a program of community education, outreach and 
advocacy; and it is our goal to provide consumers with up-to-
date information to help them make choices about nursing home 
placement. To that end, we have information compiled from the 
Department of Health Services in California as well as from 
HCFA on all 1,450 nursing homes in California. We have this 
data available to any consumer who calls on our 800 line.
    We also now have it on the Internet so people--we have a 
web page so people can call up that information.
    We also put out--we have legal services, the legal services 
in California. We provide support service as far as nursing 
home patient rights. We provide assistance with legal and 
financial issues. We have organized family councils throughout 
the State, and we have community workshops as well as putting 
out an annual report card.
    The report card on the facilities in California lists the 
bottom 50, the ones with the most violations; and it also lists 
those with the best records. To keep apples and apples being 
compared, we make sure that the ones on the ``best'' list also 
accept Medi-Cal. Because it is easy to provide great care when 
you charge people exorbitant fees. It is quite another thing to 
stay within the budget. We have some very good nursing homes in 
that category, too.
    The data base helps us in a number of ways. In addition to 
providing consumers with information, it helps us to compile 
information about the nursing homes, about the ownership, too.
    We worked hard over the years to try to change the 
enforcement system in California, which, by the way, was put in 
place in 1974 with a lot of input from the industry. It has an 
awful lot of safeguards for them, and it really has not worked 
in California.
    To that end, we had a bill, AB 1133, which had made it 
through the State assembly and was on its way to the Health 
Committee in the Senate; and just last week Governor Wilson 
managed to make an end run and kill it. What we know from 
talking to those people is that they are as frustrated as we 
are about trying to get some changes made and trying to get the 
nursing homes to be responsible and try to correct problems; 
but, for now, effectively it killed the bill this year. It did, 
however, make us more determined to have more reform and a 
bigger bill for next year.
    In 1996, California got a large share of the Medicare and 
Medicaid pie. We call it Medi-Cal in California. We have--over 
$4 billion income came to California nursing homes. Seventy-
five percent of that is directly from the taxpayers through 
Medi-Cal, Medicare or through the Department of Mental Health 
Services. So the majority is tax dollars, and the problem is 
there is really no accountability for it.
    We started a number of years ago studying costs. Our first 
report came from OSPHD, Office of Statewide Health Planning and 
Development. They come out yearly with a report, usually about 
a year and a half late, of all the costs for every nursing 
home. But the problem with this is that it is self-reported, 
and the auditing they do is simply to see if the numbers add up 
and if they filled out every category.
    Starting last year, we have ordered all of the audits that 
have been done by the State Department of Health Services. They 
have an audit and investigation division. Unfortunately, they 
only audit 15 percent of the nursing homes a year; but what we 
found there was pretty startling, at least to me anyway.
    With a one-in-seven chance of ever being audited--and they 
never audit chains as a whole--the chances of getting caught 
are almost nil. In addition to that, even if the audits find 
some horrendous overcharge, it doesn't automatically get turned 
over to an investigation division because the audits division 
of DHS mainly concentrates on beneficiary fraud. They are not 
looking at provider fraud particularly. They are looking at 
people who applied for Medi-Cal who shouldn't have, who filled 
out the application paper and had assets. That is their focus 
instead of focusing on the provider fraud, the bigger area.
    I have brought these along. One Inglewood facility claimed 
$109,000 in expenses for home health care, and they don't 
provide it. This is very common.
    One facility claimed half a million dollars for lease and 
rental expense. They own the facility. This is clearly a 
subsidiary company, and that is what they do. They pay rent to 
themselves, and this goes around and around. Often they will 
take both lease expense and the mortgage interest, so they are 
taking doubly.
    This is fairly easy to spot in a cost report. But when it 
is spotted, it doesn't automatically go to investigations. It 
is just essentially they set the rate. The only purpose of the 
audit division is to set the daily reimbursement rate. No other 
reason.
    I have a few other examples, one where the owner's airplane 
expense was listed as patient care. That was disallowed, 
obviously.
    Anyway, for-profit chains routinely form subsidiary groups. 
They are related corporations. The State is aware of some of 
these but not all of them. There is a morass out there.
    We had a project about 3 years ago called Who Owns Nursing 
Homes. You may or may not be aware that violations with the 
nursing home stay with the facility. They don't stay with the 
owner or the licensee. They essentially don't stay with the 
persons responsible for the violations. That is why when the 
lady from HCFA was talking about the report card, why we have 
to be so careful. We have to try to identify the current owner. 
Who was responsible when these violations occurred?
    What consistently happens in California is if you get into 
too much trouble and the State or Federal Government is 
breathing down your neck you simply sell out to someone else, 
move somewhere else, obtain a new corporate name and continue 
on and take that new facility and drive it into the ground. 
That is why it is really important to try to identify the 
owners and the chains and to take a look at these costs State-
wide, not just one individual facility. Because if they are 
improperly taking costs in one facility, you can be sure they 
are doing it, you know, right across the board.
    Right now, the California Attorney General's Bureau of 
Medi-Cal Fraud and Patient Abuse is responsible for 
investigating Medi-Cal fraud. There has been very little 
activity in this area, by the way. I tried to get statistics 
this week about how many cases. They didn't have any.
    I know a year ago they started a patient abuse in nursing 
home--I mean, they have one unit just for that; and the report 
they issued about a month ago showed they had 10 convictions 
last year. I know this is 10 more than we ever had before, but 
this is minuscule compared to what goes on every day in the 
nursing homes in California where we have 125,000 residents.
    In 1996, the California Department of Health Services 
issued what they call a WFM citation. It is welfare 
falsification of medical records. Every single one of these 
cases reported treatments and therapies and services that were 
not provided. So the Department of Health Services doesn't turn 
that over to a fraud unit, but they issue a citation for 
fraudulent recordkeeping.
    Medicare was billed for many of these. Medicare is billed 
for doctor visits. They are called gang visits; and even if 
they do visit the facility, they visit the chart, not the 
patient. They sit there and take a group of them. Particularly 
it is the medical director of the facility. They will get 
everyone's chart; and even if you look at them, they say the 
same thing month after month after month. We have cases where 
someone deteriorated to the point where they died; but their 
chart looks just fine, very stable. Essentially, they are not 
looking at the patient.
    It is also difficult for consumers to spot fraud. As she 
was saying, they often do not get the explanation of benefits. 
In our family council meetings, we try to have the people to 
bring their bills. It is very easy to spot. Many are billed for 
things they never receive.
    Some of the cases that we saw--a Nevada company was billing 
for psychotherapy services for one facility. No one had gotten 
those services. This is probably where they were then given a 
diagnosis of mental illness which they didn't have.
    Lotion was being billed at $150 a month from another 
company; $75 for discharge instructions when it was a 
mimeographed sheet of paper saying what to do when you get out 
of the hospital. Another $10 for talcum powder. This is not 
unusual.
    A bill I brought in with me was a complaint I received just 
before I left was $40 for 4 ounces of baby lotion, and that was 
being billed throughout the chain.
    Mr. Shays. What was that?
    Ms. Safford. $40 for a 4 ounce bottle of baby lotion. 
Pretty expensive.
    Anyway, we have a number of recommendations. We have tried 
to beef up protections, but one of the main problems we have is 
fear of retaliation. In a group in San Mateo County I met with 
2 weeks ago, people said they wanted to do things, but they 
were afraid to complain because administrators could identify 
who was complaining by who they investigated. If the State came 
in to look at a patient, there is retaliation going on.
    In California, there is a $1,000 fine for retaliation; but 
it is difficult to prove and hardly ever is cited. If your 
mother now has to wait for an hour for a call bell, how can you 
prove it is because you complained? It is hard to get consumers 
to come forward and family members to come forward.
    We need stronger ownership disclosure and conflict of 
interest. These subsidiary companies, they should report every 
way that they are getting income. In some places, they are 
charging us for outside x-ray equipment that is being used. It 
is their own x-ray equipment. This is not outsiders coming in. 
It should be a lower rate.
    Mr. Shays. You need to conclude your comments.
    Ms. Safford. Finally, we believe that there should be a 
Federal ownership data base to coordinate ownership throughout 
the country so that when these bad operators go from California 
to Nevada to New York we will be able to provide those 
regulatory agencies with their background. We are not able to 
do that right now.
    [The prepared statement of Ms. Safford follows:]
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    Mr. Shays. And your organization again is?
    Ms. Safford. California Advocates for Nursing Home Reform, 
otherwise known as CANHR.
    Mr. Shays. How are you funded?
    Ms. Safford. Mostly through membership and by foundation 
grants. We sell publications, generally for cost.
    We are lucky if we make our costs. For instance, we have 
all of the facilities by county. We charge $2 for the list for 
every facility in the county and their record for the last few 
years. It costs about 78 cents to send it out.
    Mr. Shays. Are you an ombudsman in California?
    Ms. Safford. No. I was for 4 years an ombudsman in upper 
California and handled over 100 cases of abuse. I was disgusted 
at what I found about the system and how it doesn't work for 
the patients and decided I wanted to work in a more direct way 
to try and change some of these abuses.
    Mr. Shays. It raises an interesting question of whether we 
can do what you all are doing in some measure, to have the 
ombudsmen be people who are really well-versed in bills.
    Ms. Safford. In California, we have some staff--generally, 
each district may have one or one-and-a-half staff members, 
very understaffed. The rest are all volunteers.
    One of the problems that we found is that we need two 
different types of ombudsmen. I was in Tehama County, the only 
ombudsman in that county. But we need one person that goes out 
and is the eyes and ears for the office. The second is one that 
has some investigatory skills.
    Also, we found that the problem in the ombudsman program in 
California, as it is with the Department of Health Services 
over all, is that money talks and the industry is very 
powerful. This is a billion-dollar industry. So they stop 
reforms often before they get started.
    Mr. Shays. I am having some dentist bills, and the bills 
sometime come in 6 months after because they go to the 
insurance company. So I thought I would pay the bill if I have 
it. So, finally, I asked them to give me all the billing that I 
have had, because it struck me that I was paying a lot. I can 
tell you I cannot decipher one line of that bill, not one line. 
So I am going to have a visit with my dentist. But it is 
awkward, because he is a friend. Yet I am finding it is just a 
good experience for me to have to go through that, because I 
have a sense of what it must be like for people.
    Mr. Shays. Ms. Canja.
    Ms. Canja. Thank you. Good morning. I am Tess Canja from 
Port Charlotte, FL, and vice president of AARP.
    I was asked to testify today about the results of a survey 
that we conducted recently on public attitudes toward health 
care fraud. I appreciate that opportunity and commend you for 
holding this hearing and for your genuine interest in finding 
ways to make inroads against fraud and abuse in nursing homes.
    Based on the results of our survey, AARP believes that 
older Americans and their families want to help correct the 
problems of fraud in all areas of the health care system, 
including nursing homes. The stumbling blocks for consumers are 
in identifying fraud and in knowing what actions to take.
    Of course, consumers can't do the job alone. They need to 
feel confident that Congress and the Health Care Financing 
Administration are doing their part to protect consumers and to 
spend taxpayer dollars wisely.
    Our survey also reveals a widely held misconception that 
stopping health care fraud can solve all of the financial 
problems of our health care system. However, we know that 
stopping fraud alone cannot keep the Medicare program solvent 
or repair the problems with the Medicaid program, but it is an 
essential first step.
    Fraud and abuse, especially in nursing homes, directly 
affect consumers in two basic ways--in their pocketbooks and in 
the quality of the care they receive. Indeed, fraud and abuse 
affect all Americans by increasing the cost of the Medicaid and 
Medicare programs. The most serious impact is on consumers who 
depend on these programs for their health and long-term care.
    AARP's health care fraud survey sheds light on how the 
public views fraud and its impact on health care costs and the 
delivery of quality care. Here is what the survey found.
    Americans believe that health care fraud is a major, 
widespread and growing issue. Interestingly, when asked who is 
responsible for health care fraud, respondents mentioned 
doctors, consumers or patients and insurance companies, those 
people they are most familiar with. Respondents were unaware of 
any efforts to reduce fraud, but the survey underscores that 
Americans are optimistic that something can be done about it.
    Almost all respondents agreed that it is their personal 
responsibility to report suspected health care fraud. Eighty-
five percent indicate they would be more inclined to report 
fraud if only they knew more about it; and, in addition, 70 
percent of respondents indicated they would not be more likely 
to report suspected fraudulent behavior if a reward or monetary 
incentive was offered.
    Finally, a solid two-thirds approved spending more public 
and nonpublic funds to fight health care fraud.
    The results of this survey demonstrate that the American 
public believes there is a significant problem with fraud and 
abuse in our health care system. The results also clearly 
underscore the need to provide the public with more information 
about how to recognize and report fraud and about ongoing 
efforts to fight it.
    Clearly, there is a need and a desire for greater public 
education on health care fraud. If consumers were aware of the 
types of fraud being perpetrated, if they knew what to look for 
when reviewing their claims and if they knew whom to call when 
they suspect fraud, their chance of being unwitting 
participants in a scam would be greatly reduced. Equally as 
important, they would become valuable partners in the fight to 
reduce health care fraud.
    AARP believes there are several simple things that 
consumers can do to prevent fraud: One, protect your Medicare 
card the same way you protect your credit card. Two, Medicare 
does not make house calls. Beware of anyone who contacts you 
claiming to be from the Medicare program. Three, be cautious of 
any offer of free medical services or supplies.
    The standards set by government to hold providers 
accountable and the coordinated enforcement efforts of Federal, 
State and local authorities are essential to reducing fraud and 
abuse in nursing homes as well as in the rest of the health 
care system. However, these efforts cannot be successful unless 
Congress provides adequate financial resources and continues to 
develop legislative policies that support enforcement efforts.
    Moreover, nursing home owners and operators themselves are 
important players in the fight against fraud. It is incumbent 
on them to take more responsibility for their actions and for 
the actions of other providers in their facilities to follow 
their own code of ethics and to set standards for their 
industry.
    Thank you for the opportunity to testify.
    [Note.--The AARP survey entitled, ``America Speaks Out On 
Health Care Fraud,'' can be found in subcommittee files, or 
obtained from AARP by calling (202) 434-2277.]
    [The prepared statement of Ms. Canja follows:]
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    Mr. Shays. Thank you, all three of you. Your testimony is 
very helpful and valuable because it may get us to think 
outside the box a little bit.
    We tried last year--we, in this case, the majority party--
tried to, in our Medicare reform bill, provide a bounty 
provision; and we weren't able to set a number.
    But I remember one time I spoke before a group at AARP, and 
a woman came and gave me a stack of envelopes. They were 
Medicare bills. She said, they all came in 1 week, she said, 
over like a 2- to 3-day period. She wanted to know why they 
couldn't have all been in one envelope. I was trying to look 
through these envelopes, but there were something like 30 of 
them. This is just this bill of the $40 for the lotion. I mean, 
you know, fortunately, it is registered down as baby L-T-N.
    Ms. Safford. Lotion.
    Mr. Shays. Yes, but they could have put a code number. They 
could have just put some code, and you wouldn't have known.
    Ms. Safford. Did you also notice the $400 for gauze for 1 
month?
    Mr. Shays. The dressing is $402.
    Ms. Safford. Yes, for 179 little gauze bandages.
    Mr. Shays. But what you could do very quickly is, it seems 
to me, you could have the beneficiary, if they have a bill that 
they think is wrong, that they get to keep 10 percent of it.
    Ms. Safford. That would be great.
    Mr. Shays. Or even more. But it could be 10 percent. We 
would get 90 percent. Because in most cases we wouldn't catch 
it.
    Ms. Safford. Just 90 percent more than we would get 
otherwise.
    Mr. Shays. Yes. But the bottom line is, on the $402, they 
would get $40.
    Ms. Safford. I have one other quick comment.
    We found a real strong correlation in California between 
those operators that have the most cases of violations and 
fraud. They seem to go together. They cut their costs by 
cutting back on staff and services and activities, by not 
providing what they are contracted to do. So I would like to 
see some way to put these two together, because they are 
joined.
    Mr. Shays. What I want to ask, though, is what is the 
downside of paying a beneficiary a certain sum?
    Because the interesting thing about my dentist bill is, I 
can tell you this, that if I didn't pay it, I wouldn't care. 
That is a horrible thing. I wouldn't have noticed. I have to 
pay it. My insurance doesn't cover it. I mean, it covers like 
10 cents on the dollar, so it matters to me.
    But to someone who has Medicare, Medigap, Medicaid, it is 
simply not going to really show up, other than the fact they 
just, as American citizens, become outraged. If they have to 
pay a portion of it, they would become more concerned. But if 
they were given a bounty, what would be the negative on that?
    Ms. Safford. Retaliation. For nursing home residents, money 
isn't the issue. The issue is, if you reported that it was 
fraud or misbilling and you were afraid that your vulnerable 
relative in a nursing home is going to suffer for it, you 
wouldn't say a word. That is the downside.
    Ms. Canja. Our survey showed that that really doesn't help, 
that people didn't feel that they would be more inclined to 
report it if they had a bounty.
    The other side is, my mother was in a nursing home for 2\1/
2\ years, so I have some experience with some of this. I 
thought I detected fraud; but, you know, there is small 
amounts, like the doctor that didn't see her. Well, 10 percent 
would have been $4. The podiatrist that cut her nails and gave 
this inflated bill, that would have been $6, $7, $8.
    Mr. Shays. Was the bill paid?
    Ms. Canja. The bills were paid by Medicare. They were paid.
    Mr. Shays. So maybe we give them 50 percent.
    Ms. Canja. No, would I have? Yes, I did report one of them. 
Would I have done it for the money and what would the 
administrative cost have been to give me the $6 and the $8 and 
the $4? I don't know. I am just answering your question.
    Mr. Shays. I am not trying to have you answer the way I 
want. I want you to answer the way you feel.
    Ms. Canja. Yes. I don't know. But if there were larger 
amounts of money--I am wondering if they were mainly small, 
accumulative kinds of things that add up to a lot of money in 
the aggregate.
    Mr. Shays. Ms. Fish.
    Ms. Fish. Yes. I think it would be an incentive. But we 
have done with our volunteers an enormous amount of education 
and outreach, teaching them to read the bills, teaching them to 
talk with the residents. We have found that when the residents 
have found out that they were victimized, just the thought that 
they were victimized, it didn't even have to do with the fact 
of the money, that they had to pay it or didn't pay it, but 
that they were outraged, and the families and residents are now 
beginning to come forward. Resident councils as a group are 
being educated on how to read these bills.
    So, to me, the answer is, yes, I think it could be an 
incentive; but I think the real focus has to be on getting out 
to the public, the way we have been doing, on reaching out and 
educating not only ombudsmen, but now we are going into senior 
centers.
    You have right now existing all the tools you need to do 
exactly what you need to do. You have the ombudsman program, 
which has a whole cadre of volunteers throughout the country. 
You have organizations like the National Citizens Coalition for 
Nursing Home Reform right here in Washington, which is a base 
organization, which has distribution to all the nursing home 
residents across the country, to do education and outreach.
    You would be amazed at the outrage that you would hear out 
in the public. People would say, I am not going to take it any 
more, and they are going to mean it. They really are going to 
mean it.
    In New York State, we have found in the first year, as a 
result of our coordinated efforts in getting the word out to 
the community, we have identified over $25 million in 
overpayments, overbillings, with people coming forward.
    Mr. Shays. The fact that it would inhibit you is just the 
personal relationship you have with the people who have 
submitted the bills. They are your friends, they are caring for 
you, and questioning them would be kind of difficult, I would 
think. It is difficult for me. I would think it would clearly 
be difficult for someone in a nursing home.
    Ms. Safford. Is there a way to take it out of that personal 
range or even worrying about retaliation and have like an 
automatic review, you know, like just so many--that you 
actually have a readout?
    Right now, Medicare just gets a summary bill. They don't 
even handle these charges. They would spot in a minute 
something is wrong with $40 worth of baby lotion, but they are 
not. They are just getting a package. But isn't there some way 
in the billing system that we could use to help find these 
problems? It seems to me that that would be a start.
    Mr. Shays. OK. Mr. Towns.
    Mr. Towns. Thank you very much, Mr. Chairman.
    You have been extremely helpful in so many ways. Let me 
begin with you, Ms. Canja. Do you believe that patients who are 
called dual eligibles--you have been listening to the 
discussion that we have had this morning--are more vulnerable 
than those who receive Medicare or private insurance coverage? 
Do you feel they are more vulnerable?
    Ms. Canja. I would have to speak from my personal 
experience, because my mother was in both of those situations. 
I did feel she was more vulnerable when she was a dual-
eligible, just because she was more dependent on other 
resources. I am not aware that because she was dual-eligible 
that there was fraud involved. I am not aware in her situation 
that she received a lower level of care, although I know of 
many situations where that did happen.
    Mr. Towns. Thank you. Feel free to talk. We are really 
trying to come up with some ways to--there is a problem out 
there, and I think we all are saying that, and I think that we 
want to make certain that we get as much information as 
possible to be able to fix the problem.
    I think that, as Members of Congress, you are there on the 
firing line, and you have been out there working in this area 
and have some very valuable information, and that is what we 
are really looking for. So feel free to share that, because we 
want to be helpful in every way.
    Yes.
    Ms. Safford. We have found that there is a big impact on 
the people who have both Medicaid and Medicare. I will tell you 
a typical call I get at least twice a week. They say, oh, all 
of a sudden you are told you don't need skilled nursing 
anymore. You have been in here 2\1/2\ weeks. I say, are you now 
qualified for Medicare? Invariably, they say, yes. The facility 
says, sorry, you don't need care anymore; get out.
    That is what happens to those people in California. It is 
not proper, it is not legal, but it happens. So I think they 
suffer.
    Mr. Towns. Ms. Fish, it appears that the ombudsman in your 
program have an extremely important oversight responsibility. 
There is no question about that. Since you operate with 
volunteers, is there some concern about the turnover rate? 
Consistency in this business is very, very important.
    Ms. Fish. Turnover, yes. There is definitely burnout, 
because this type of work you are dealing constantly with a 
very serious problem. But we have volunteers who have been 
volunteers for 10, 15 years because of their dedication. We 
hand-select volunteers, and they are usually people who have 
some background in this work, and they are very committed.
    I would say that probably there is at least a 10 percent 
turnover every year, 10 to 20 percent turnover every year, but 
I don't think any more than that right now. It depends on the 
type of support the State is giving the volunteer program, I 
think.
    Mr. Towns. You mentioned communication or coordination--I 
am not sure which one it was--but I remember hearing 
communication or coordination of the various agencies that are 
providing services and have responsibility for oversight. What 
is your office's relationship with State and local prosecution 
in terms of police authorities and when you file a complaint? 
What happens there? You didn't talk about that.
    Ms. Fish. Right. When the Governor convened the first State 
work group, we brought on board the Attorney General's Office, 
but we also worked with the Office of Inspector General. We 
developed a system where, when an ombudsman saw a red flag in 
one of the facilities, saw something happening, a therapist not 
giving treatment, whatever, we would then make the referral 
directly to the Office of Inspector General and HCFA and also 
the State Attorney General's Office.
    If it was Medicaid, the State Attorney General's Office 
handled it. If it was Medicare, HCFA and the Office of 
Inspector General would handle it. Then they would get back to 
us, and we would get back to the complainant.
    But that is basically how it worked. We were very involved 
with all of the law enforcement. We continue to be.
    Mr. Towns. Ms. Safford indicated instances of physical 
abuse of residents. Have you found any such instances in New 
York?
    Ms. Fish. Of physical abuse?
    Mr. Towns. Yes.
    Ms. Fish. Oh, yes. I can't right now give you the number, 
but I can tell you last year our figures. We have reported over 
5,000 cases. That is reported. We know that could be tripled if 
people would, you know, the ombudsman actually did the 
paperwork. But out of our work, the majority of cases is 
resident care, and within that category is patient abuse and 
neglect. I mean, there is still a question. That case I gave 
you is the first example. I wish I could say it wasn't really 
typical, but it does happen. It happens frequently.
    Mr. Towns. Let me just ask you one other question, also, 
picking up on Ms. Safford's testimony, about an extensive data 
base established by her group which includes important 
information about complaints and penalties imposed on nursing 
home facilities. Can you tell me whether your office keeps a 
similar data base?
    Ms. Fish. We keep a data base of all of our cases that we 
get in regards to that. We have a reporting system, an 
ombudsman reporting system, but we also take a look at the data 
that our health department has. But, no, we really don't have. 
Does that respond to your question?
    Mr. Towns. Yes. Sometimes my staff will say to me that you 
are barking up the wrong tree. I just think that if you have 
information, then it helps in a lot of ways. If people know 
that this information is coming in a very coordinated fashion, 
they would even behave differently in terms of being 
responsible for providing service.
    Ms. Fish. You are right.
    As a matter of fact, you had said something earlier, and I 
wanted to address that question, when you talked about how do 
you know where the quality nursing homes are. Is there a 
listing, if I wanted to look at a data base or whatever?
    I can tell you that in other States--and we are going to 
start doing this in New York State. In other States, what they 
have done is they have taken the survey reports and in their 
annual report they list the top 10 nursing homes in terms of 
compliance. You know, they have been complying, but they also 
list the top 10 worst in terms of compliance.
    You will be amazed at how many people want to get on the 
top 10 list; and that automatically will start having 
facilities raise their standards to not just minimum standards, 
not just compliance. What we are talking about is a good 
nursing home goes above minimum standards. They say, we don't 
just need to be in compliance. We need to provide quality care 
to people. We go above that standard.
    Ms. Canja. I did want to comment. I can tell you in Florida 
that nursing homes are rated and that their compliance record 
has to be posted for residents and families to see.
    Ms. Fish. We do have in New York State, too. They do have 
to post it in the nursing home.
    Ms. Safford. The last survey has to be available. We have 
about 2,000 calls a month. We tell them to go to the facility 
and ask for that survey, take a look at it.
    Mr. Shays. It wouldn't be on the Internet?
    Ms. Safford. No, no, the survey of each individual 
facility. You know, all 1,450 have to make them available.
    Mr. Shays. Why wouldn't there be one central source that 
someone could just turn to?
    Ms. Safford. It would be 25, 30 pages for each facility. We 
put it on the Internet. The State doesn't.
    Mr. Shays. That is what I say. It is on the Internet, 
though?
    Ms. Safford. The survey results?
    Mr. Shays. Yours.
    Ms. Safford. In Department of Health Services? Ours are, 
yes--I am sorry--but the results from the Department of Health 
services are not. They are just in each facility.
    Ms. Fish. But the interesting think about that is that in 
New York State, I think it is, there is a one-page compliance 
report that is supposed to be posted; but unless you know you 
would never know to go over to the administrator and say, can I 
see the entire report. You have to be informed to know that. 
That is part of what the ombudsman does, is to inform them.
    Mr. Towns. Last quick question. Ms. Safford, Operation 
Restore Trust, has it made any difference in California?
    Ms. Safford. Well, I was just talking with Ms. Buto 
earlier. I will give you an example. When I get calls that 
involve Medicare fraud--I have several pending right now--it 
has to go to the carrier. An insurance carrier investigates it.
    One case in point. A man in Orange County, who is very 
motivated to get this investigated, has made 10 calls, but 
Mutual of Omaha is the carrier. They have not been able to make 
contact. Ms. Buto said that is going to change. They are going 
to have new investigators. But, right now, it is a real problem 
to get the consumer, who does want to complain, to get the 
person together with an investigator. That has been our 
experience.
    Mr. Shays. I just have one question before our vote, and I 
am not looking for a long answer. Just give me a few key 
characteristics of a good nursing home.
    Ms. Fish. Well, OK. I will go back to a statement I made 
earlier.
    To me, in my experience, 31 years experience, my definition 
of a good nursing home is not--when you are looking at 
regulations and you want to make sure you are compliant to each 
and every regulation when the survey agency comes, that is one 
thing. It doesn't necessarily mean you are a good facility.
    A good facility rises above that. A good facility says, how 
are we going to go above the minimum, the very, very, very 
minimum qualifications? How are we going to do that? And there 
are many facilities who do that in New York State and all over.
    Mr. Shays. Ms. Safford.
    Ms. Safford. Looking to patient care, No. 1, as a mandate 
for your operation and profit being--coming in second is a key 
to us. When you are looking at the net profit first, patient 
care generally suffers. You can see that again and again. So it 
is what your focus is. Are you looking at providing care or 
looking at making big bucks?
    Ms. Canja. I would say all of that. If a nursing home goes 
in with a real concern for the dignity of their patients, a lot 
of other things fall in place.
    Mr. Shays. You opened the door for us to just see and to 
understand more about ombudsmen and what they do. It is just an 
extraordinary thing in this country I think; and it is very 
moving to think that there are so many people who are willing 
to, in fact, volunteer and commit to being somewhere at a 
certain time and doing it on a weekly basis. I really am 
surprised that I wasn't more aware of this.
    So we will be doing a little more work here in seeing how 
we can use the ombudsmen more effectively in dealing with 
waste, fraud and abuse as well as quality care. Thank you very 
much.
    This hearing is adjourned.
    [Whereupon, at 12:45 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
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