[Senate Hearing 108-226]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 108-226
 
            ELDER JUSTICE AND PROTECTION: STOPPING THE ABUSE

=======================================================================

                                HEARING

                               BEFORE THE

                         SUBCOMMITTEE ON AGING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   ON

   EXAMINING THE SERIOUS PROBLEM OF ELDER ABUSE, DETERMINING WAYS OF 
 PREVENTION AND ENSURING THAT CRIMES AGAINST THE ELDERLY ARE REPORTED 
                  AND THOSE RESPONSIBLE ARE PROSECUTED

                               __________

                   AUGUST 19, 2003 (KANSAS CITY, MO)

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions





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                            WASHINGTON : 2003
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  JUDD GREGG, New Hampshire, Chairman

BILL FRIST, Tennessee                EDWARD M. KENNEDY, Massachusetts
MICHAEL B. ENZI, Wyoming             CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee           TOM HARKIN, Iowa
CHRISTOPHER S. BOND, Missouri        BARBARA A. MIKULSKI, Maryland
MIKE DeWINE, Ohio                    JAMES M. JEFFORDS (I), Vermont
PAT ROBERTS, Kansas                  JEFF BINGAMAN, New Mexico
JEFF SESSIONS, Alabama               PATTY MURRAY, Washington
JOHN ENSIGN, Nevada                  JACK REED, Rhode Island
LINDSEY O. GRAHAM, South Carolina    JOHN EDWARDS, North Carolina
JOHN W. WARNER, Virginia             HILLARY RODHAM CLINTON, New York

                  Sharon R. Soderstrom, Staff Director

      J. Michael Myers, Minority Staff Director and Chief Counsel

                                 ______

                         Subcommittee on Aging

                CHRISTOPHER S. BOND, Missouri, Chairman

LAMAR ALEXANDER, Tennessee           BARBARA A. MIKULSKI, Maryland
MIKE DeWINE, Ohio                    EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas                  PATTY MURRAY, Washington
JOHN ENSIGN, Nevada                  JOHN EDWARDS, North Carolina
JOHN W. WARNER, Virginia             HILLARY RODHAM CLINTON, New York

                    Kara R. Vlasaty, Staff Director

                Rhonda Richards, Minority Staff Director

                                  (ii)






                            C O N T E N T S

                               __________

                               STATEMENTS

                        Tuesday, August 19, 2003

                                                                   Page
Bond, Hon. Christopher S., a U.S. Senator from the State of 
  Missouri.......................................................     1
Klammer, Tom, representative of Walter Leonard Klammer, Advocate, 
  Kansas City, MO................................................     3
DeWitt, Anthony L., attorney with Bartimus, Frickleton, Robertson 
  & Obetz, PC., Jefferson City, MO...............................     6
Graves, U.S. Attorney, Western District of Missouri, Kansas City, 
  MO.............................................................    10
Vescovo, Paul, Clay County Sheriffs Department, Liberty, MO......    13
Collins, Norma, Associate State Director for Advocacy, AARP, 
  Kansas City, MO................................................    14

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Tom Klammer..................................................    22
    Anthony L. DeWitt............................................    23
    Todd P. Graves...............................................    28
    Paul C. Vescovo III..........................................    29
    Norma Collins................................................    30
    Betty Willson................................................    32
    Joe Maxwell..................................................    34

                                 (iii)


            ELDER JUSTICE AND PROTECTION: STOPPING THE ABUSE

                              ----------                              


                        TUESDAY, AUGUST 19, 2003

                               U.S. Senate,
                      Subcommittee on Aging, of the
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:30 p.m., in 
Room 7D, Whittaker Federal Courthouse, 400 E. 9th Street, 
Kansas City, MO, Senator Bond presiding.
    Present: Senator Bond.

                   Opening Statement of Senator Bond

    Senator Bond. Ladies and gentlemen, the special hearing of 
the Aging Subcommittee of the Health, Education, Labor and 
Pensions Committee will come to order. We appreciate very much 
being able to use the fine facilities of the Whittaker 
Courthouse and thank our witnesses and our guests for coming 
out today to talk about something that is very, very important.
    As I trust all of us here today know, abuse, neglect and 
exploitation of seniors is an all too tragic issue. We simply 
cannot afford to look the other way and sweep the problem under 
the rug. However unthinkable these crimes against vulnerable 
seniors are, they really do occur. And we cannot pretend that 
they do not exist.
    Tragically, some of the worst instances we hear about are 
not isolated. And the number of victims will only continue to 
increase as our population ages, unless we take decisive and 
effective steps to prevent the abuse from occurring in the 
first place.
    Abuse and mistreatment of our seniors takes many forms. It 
can physical, sexual, psychological or financial. The 
perpetrator may be a stranger, an acquaintance, a paid 
caregiver, a spouse, another family member, or a corporation. 
And elder abuse happens everywhere. In poor, in middle class 
and in upper income households. In cities, in suburbs and in 
rural areas. In the homes as well as in institutions.
    Elder abuse does not discriminate. It knows no demographic 
or geographic boundaries. Some abusers are criminals who prey 
on the elderly. Others are caregivers or relatives pushed to 
the brink because they are overwhelmed. Some are institutions 
that do not provide residents the care they need. Some are scam 
artists who profit at the expense of seniors.
    There are studies that report that 4 to 6 percent of 
America's seniors may at some time become victims of some form 
of abuse or neglect. Others estimate there are anywhere from 
500,000 to 5 million potential victims each year. Because the 
research is inconclusive, we do not know just how many seniors 
have been victimized, but we do know that this issue has not 
received the type of attention it deserves.
    Experts agree that we have only scratched the surface. 
There is one authoritative study that estimates that 84 percent 
of all cases of elder abuse are never even reported. Despite 
the scarcity of reliable research, we do know one thing. Elder 
abuse and neglect shortens the victim's life and often triggers 
a downward spiral that has devastating consequences for an 
otherwise productive, self-sufficient life.
    In large part, societies are judged by how well they care 
for those who cannot care for themselves, the young, the old, 
the disabled. In a modern and humane society, we simply cannot 
sit idly by and let some seniors suffer from harm and neglect 
instead of the attentive and protective care they need and 
deserve.
    The studies and statistics on this issue, though 
incomplete, are judgment enough. No longer can we avoid the 
problem. We have to confront it and take appropriate steps 
necessary to deal with these issues that touch every community. 
Most importantly, we have a moral obligation to move beyond the 
statistics and look at the human beings beyond them, our 
mothers, fathers, grandmothers, grandfathers.
    Abuse and neglect of an elderly, frail individual is no 
different than neglecting a child. Both are defenseless and 
lack a strong voice. Both are vulnerable and suffer at the hand 
of those who are nothing more than cowards and criminals. Abuse 
of the elderly should be treated no differently than abuse of 
children. A crime is a crime is a crime, whether the victim is 
5 years old or eighty-5 years old.
    Congress has embraced initiatives to guard against child 
abuse and domestic violence, and rightly so. But there is been 
no comparable effort to protect seniors from elder abuse, and 
that is why we are here today. We have to ensure that crimes 
against the elderly are reported and those responsible are 
prosecuted. Most importantly, we need to do everything we can 
to prevent the abuse before it has the opportunity to occur in 
the first place.
    That is why I am an original co-sponsor of something called 
the Elderly Justice Act, S333. It is a first comprehensive 
Federal effort to address the issue combining law enforcement 
and public health to study, detect, treat, prosecute and 
prevent elder abuse, neglect and exploitation.
    The measure is based on a successful approach that has been 
applied to combat child abuse and violence against women. It 
creates Federal leadership and resources to assist families, 
communities and states in the fight against elder abuse. It 
coordinates Federal, State and local elder abuse prevention 
efforts, establishes new programs to assist victims, provides 
grants for education and training of law enforcement, and 
facilitates background checks to elder care employees.
    The challenges we face in fighting elder abuse are 
formidable. The public, in part, is unaware of the problem. 
State efforts to address elder abuse are too often underfunded. 
The perpetrators are too seldomly prosecuted. And front line 
responders often lack training and expertise to identify the 
problem. And we do not always have government agencies working 
together. And I think the Elder Justice Act is an important 
step.
    I welcome our witnesses here today who have come to share 
their stories and I thank all of you for coming. Testimony 
today will focus on abuse that occurs in some nursing homes. 
But it is important to remember that elder abuse is not 
confined to institutions.
    Right here in Kansas City we have heard the chilling story 
of a woman whose husband has now been charged. According to the 
Kansas City Star, when police arrived at her home, they found a 
65 pound woman covered with large, deep bed sores lying 
motionless on her living room floor barely able to speak, 
suffering from malnutrition and dehydration. She told 
authorities her husband left her on the floor when he went to 
work. According to court records, she was covered with large 
infected bed sores infested with maggots and the carpet was 
embedded in her skin and part of her flesh stuck to the floor 
where she had been lying.
    This is a horrific reminder of abuse that can occur at 
home. Whether it occurs in a nursing home or in a home, elder 
abuse has been ignored for far too long.
    The purpose of today's hearing is bring awareness of the 
problem and provide an opportunity to hear testimony of victims 
of elder abuse and their advocates who will speak about the 
causes and the problems.
    I thank you all for being here today, and I assure our 
witnesses that your full statement will be included as part of 
the record. If you could keep your statements perhaps to five 
minutes, we will have time for questions. I have read the 
testimony and have questions for all of you.
    Senator Bond. So with that, our first panel is Tom Klammer, 
who is a representative of Walter Leonard Klammer. He is an 
advocate, comes from Kansas City, MO. Tony DeWitt, an attorney 
with Bartimus, Frickleton, Robertson & Obetz, PC of Jefferson 
City, MO, a former healthcare workers who has become an 
attorney representing some of these victims.
    Now, for the testimony, let us begin with Mr. Klammer.

  STATEMENT OF TOM KLAMMER, REPRESENTATIVE OF WALTER LEONARD 
               KLAMMER, ADVOCATE, KANSAS CITY, MO

    Mr. Klammer. Mr. Chairman, members of the committee, thank 
you for giving me the opportunity to speak today. I have no 
formal credentials related to elder care, but I work with a 
small local group that advocates improved quality in Missouri 
nursing homes. Several of these people are here today.
    We have held public meetings with area prosecutors and 
other speakers urging the public to call 911 in cases of elder 
abuse and write letters to State legislatures. Currently, we 
are preparing to listen to focus groups in order to get 
suggestions for reducing neglect and abuse for Missouri 
citizens who have had loved ones in nursing homes.
    We also meet with State legislators. And while I believe 
all of these things are very important, I think there are major 
systemic national problems. My father went into a nursing home 
in 1998 after a series of strokes left him seriously impaired 
with dementia.
    Our experience with an HCR Manor Care facility are 
recounted in some detail in testimony before the Senate Special 
Committee in Aging in 1999. But I will just say the care was 
not good, vital medications were allowed to run out with no 
notification to anyone. State agencies were of little or no 
help, and when I complained widely about the poor care, a Manor 
Care vice president found the time to call me at home and 
threaten me with a lawsuit if I did not stop.
    I am still complaining and Manor Care, one of the largest 
nursing home corporations in the country is still providing 
poor care in many of its facilities. Among many examples I 
could cite, the company was featured prominently in the 
Pittsburgh Post Gazette last year for major and numerous 
problems in its 47 Pennsylvania homes. It was singled out for 
poor care by an official with the State of Iowa, and entered 
into a consent order with the Federal government in a case 
alleging violation of the False Claims Act. Recently the Kansas 
City Fox TV affiliate featured the facility my father was in 
when it did a piece on area homes with the highest numbers of 
deficiencies on their inspection reports.
    The next facility we put my father in was, for a time, 
wonderful. But this facility was purchased by another national 
chain, Alterra, and almost immediately things went bad. The 
administrator was forced out, aides were fired or had their 
hours and benefits cut until they quit, and agency staff that 
did not know the facility or the residents were brought in to 
replace them. Confused residents, including my father, eloped 
undetected to wander along a very busy street until someone by 
chance brought them back. We found another facility to place my 
father, but not until after he had mysteriously acquired five 
broken ribs. Alterra facilities have also been prominently 
featured in the press for major problems.
    Immediately after getting my father out of Manor Care, I 
began researching that company and the other big players in 
long-term, and what I found then was Enron and WorldCom and 
Arthur Andersen. I looked at the SEC filing for the half dozen 
giants in the field and found that they all lavished 
multimillion dollar compensation packages on their CEOs and 
other top executives.
    Integrated Health Services sought a 50 to 60 million dollar 
golden parachute for departing CEO, Dr. Robert Elkins, who had 
led them to bankruptcy, and a Federal bankruptcy judge approved 
it. In addition to lavish salary and bonuses, HCR Manor Care 
CEO, Paul Ormond, realized a gain of 23.7 million dollars from 
stock options exercised in fiscal 2001.
    Seems like all these companies have money to burn, yet they 
continue to work together to lobby for more money, with no 
strings attached, wrapping themselves in a phoney free market 
flag while typically getting 70 percent or more of their 
billions of dollars of total revenues from tax dollars and 
Medicare and Medicaid.
    In 1999, I found Gail Wilensky, then head of the 
Congressionally mandated Medicare Payment Advisory Commission, 
was also serving on the board--and I will correct her, it was 
the audit committee, not the compensation committee of HCR 
Manor Care--as well as on the boards of a health care related 
companies. She later resigned from MedPAC due to the appearance 
of conflict of interest.
    But today we have former For Profit hospital lobbyist, Tom 
Scully; he is the administrator of Centers for Medicare and 
Medicaid Services. It seems all the corporate interests are 
always very well represented.
    A Health and Human Services study released in 2002 
concluded that 90 percent of nursing homes in the U.S. have 
staffing levels too low to provide adequate care. Inadequate 
staffing contributes minimally to problems of bad care, abuse 
and neglect.
    The nursing home chains continue to cry poverty, but an 
analysis last year by U.S. News debunked that claim and also 
said that, ``Even when they received higher payments, staffing 
actually went down rather than up. They spent it on executive 
port union investing consultants, lobbyists, and expensive 
campaign to spread specious arguments for so-called tort reform 
to further limit their accountability in an environment that 
already has the deck highly stacked in their favor.''
    Anything but more staff at McDonalds level wages. When I 
asked Administrator Scully on a national call in radio program 
about tying future increases in payments to staffing mandates, 
he said, We do not believe in staffing ratios.
    Early on, I had heard some advocates refer to the treatment 
of the Nation's elderly with terms like holocaust, and I 
thought at the time that this was a bit of shrill if 
understandable exaggeration. I no longer think that. We are not 
talking about isolated incidents in a system that is generally 
working well.
    People like Tom Brokaw piously write about the greatest 
generation waving the flag and praising their service in and 
out of uniform during World War II. Then we turn our backs as 
many die untimely and needlessly miserable deaths in nursing 
homes. I am troubled by how decisions are made to put our 
military personnel at risk, but I salute, Senator Bond, your 
efforts to see that Veterans and others are properly cared for.
    Still, too many of the greatest generation starve in 
nursing homes, some are beaten, some suffer pressure ulcers 
with flesh rotted to the bone, and some, as in a St. Louis 
suburb case, that I am sure most of the people here today are 
aware of, were allowed to cook to death one after another until 
paramedics returned and refused to leave the facility. Many 
more suffer less traumatic misery, like spending hours in wet 
diapers.
    Companies like Manor Care continue year after year to 
operate facilities with major problems related to quality care, 
accepting the imposition of fines and settling of lawsuits as a 
cost of doing business. CEOs like Paul Ormond, certainly aware 
of these continuing problems, continue year after year to 
pocket the big bucks rather than fix the problems and provide 
the care they are being paid to provide.
    Given the political and social realities we live in, I do 
not expect to see it happen, but I can conceive of no logical, 
moral or ethical, or even legal arguments against criminally 
prosecuting these people at the top and sentencing them to hard 
time followed by a sort of parole as very closely supervised 
nursing home aides.
    Thank you for your time.
    Senator Bond. Thank you very much, Mr. Klammer.
    [The prepared statement of Mr. Klammer may be found in 
additional material.]
    Senator Bond. Mr. DeWitt.

    STATEMENT BY ANTHONY L. DeWITT, ATTORNEY WITH BARTIMUS, 
     FRICKLETON, ROBERTSON & OBETZ, PC., JEFFERSON CITY, MO

    Mr. DeWitt. Senator Bond, members of the committee, thank 
you very much for asking me to be here today. I will try to hit 
the highlights of my somewhat extended remarks that I submitted 
to the committee.
    Senator Bond. I appreciate that.
    Mr. DeWitt. A little background. I am a Registered 
Respiratory Therapist. I hold that credential from the National 
Board for Respiratory Care. And for 13 years before going to 
law school, I worked in hospitals across the United States, and 
I also worked in the long-term industry in St. Louis for about 
a year while I was attending law school. Currently, I work as 
an advocate for victims of nursing home abuse and neglect and 
my fondest hope, Senator Bond, is that you will put me out of 
business. And I want to be put out of business because the care 
improves. That is what I would view as the best of all possible 
alternatives.
    I have had the opportunity to assist numerous victims in 
obtaining redress through the courts and I have to tell you, it 
is a pale victory for these folks because all we ever get is 
money. We do not usually get the opportunity to prevent the 
abuse.
    I am here today to talk about two issues that are central 
to me. First of all, the scope of the problem of elder abuse 
and the lack of adequate remedies for seniors. I think, as you 
pointed out in your opening remarks, Senator Bond, it is a real 
and serious issue affecting the life and health of all of our 
nations senators. As Violet King, an advocate for the elderly 
in the St. Louis area is fond of saying, We are but a stroke 
away from spending time in the nursing home.
    These folks are particularly vulnerable to the abuses that 
are heaped upon them by virtue of having little practical 
remedy. Root causes of rampant abuse in nursing homes and 
elsewhere, even in the home care industry, are insufficient 
staffing and low wages paid to workers. As a respiratory 
therapist, I had the opportunity--no, make that the privilege--
to care for some very sick people during my time in the 
hospitals and health care environment.
    I never went in to a hospital without the belief that 
somebody was going to go out that day feeling better because I 
was there. I call that the clinician's ethic. True clinicians 
go to work every day with the idea that somebody will be 
feeling better when they leave. Unfortunately, in the long-term 
care industry, that attitude, that ethic is missing.
    I want to tell you real briefly about Katie Misuraca and 
Thelma Magruder. Katie called me to tell me that she was being 
denied visitation in a nursing home in St. Charles, MO. I tried 
first to work with the administrator by making him aware of 42 
C.F.R. 483.10, the Federal regulation that mandates 24 hour a 
day, 7 days a week visitation for family members. This fell on 
deaf ears.
    I pointed out that the doctor had written a specific order 
granting Ms. Misuraca a 24 hour a day, 7 day a week access. He 
told me they could not meet the needs of the resident and that 
we should move the resident. Katie was very concerned about 
transfer trauma, as her grandmother had a very severe case of 
Alzheimer's disease. So I went to St. Charles Circuit Court and 
sought a protective injunction and the Circuit Court granted me 
that injunction.
    Six days after that injunction was made permanent, Senator 
Bond, Thelma was found in the facility by her granddaughter 
with four broken ribs, three crushed vertebrae, and shoe shaped 
bruise in the middle of her back. She never recovered from 
those injuries and ultimately she died.
    This sort of underscores my concept here that residents and 
heirs have a remedy of law, but it is often difficult to prove. 
In just this year, we have seen, with the HIPPA regulations 
coming out, nursing homes continually stonewalling. They simply 
will not turn over records to family members, irrespective of 
the mandate in the Code of Federal Regulations to do so, 
because the fact is, there is no real sanction if they do not.
    As a result, when people come to me, I am always in the 
position of closing the barn door after the horse is gone. I do 
not get involved until after someone has been grievously 
injured or neglected for a long period of time. And that is a 
tragic situation. I have had to sit with family members and 
have them tell me the story of going in and finding armed 
dislocated or shoulders dislocated.
    A good example of why these records are important, we had 
patient named Marshall Rhodes at the facility in Clay West in 
St. Charles. It was an Alzheimer's patient who was beaten to 
death by a man wanted in the State of Mississippi for a drive 
by shooting. The Elder Justice Act improves the ability the get 
background checks on individuals like the man who beat this man 
to death. And I think that is a very important step in the 
right direction.
    This facility was warned of the violent behavior 2 weeks 
before the death and they told the family, when they asked what 
happened to their loved one, that he had simply fallen out of 
bed, when they knew, in fact, that he had been beaten and it 
was obvious to everyone who had seen him.
    Well, there are a lot of other things that happen in 
nursing homes. As I mentioned before, I have seen shoulder 
joints yanked out their sockets. I had a patient who was 
allowed to linger with an oxygen saturation of 79 percent for 
eight hours. Seventy-nine percent is a great test score on a 
final exam, but it is not such a great saturation indicating, 
as it does to me, that this patient was at or near the point of 
death for at least eight hours before intervention.
    I had one patient who had her cane and glasses taken away, 
even though she needed them to see and to walk. She fell, she 
broke her hip and ultimately she died. I have seen the most 
horrible forms of abuse against residents, and I want to show a 
clip for the committee that is both sad and shocking, and I 
would caution those who are listening and watching, that this 
is not pleasant and you may want not to listen to it. The nurse 
who is testifying here is Glenda Cushing, who is a charge nurse 
at Clay West.
    [Video shown.]
    Mr. DeWitt. No, it should not. And yet that was sort of the 
norm at Clay West. I am here to ask for better resources for 
the states. I would like to see the Federal regulations amended 
to provide access by family members to medical records after 
death. I think the mandates from the Federal government need to 
be clearer.
    And I do not know if Mr. Graves, who testifies later, will 
agree with me, but I would like to see a Federal regulation 
that says that if you are continually caught with deficiencies 
by State investigators and State surveyors, that those 
constitute false claims and those are actionable under the 
False Claims Act. I think we need definitive information in 
that regard.
    Finally, I would like to see license revocation procedures 
and imposition of fines be swift, and where warranted, painful. 
During the entire period of time that Clay West was under a 
mandate to improve its staffing, it never really had to worry 
about losing its license because the numerous appeal processes 
that are in place in the State of Missouri to allow it to 
continue operating placed a higher premium on having it retain 
its license than on protecting the seniors who were there. And 
I think that is something that needs to be remedied.
    Senator Bond, I thank you and your staff for inviting me to 
come and present today.
    Senator Bond. Mr. DeWitt, thank you very much.
    [The prepared statement of Mr. DeWitt may be found in 
additional material.]
    Senator Bond. Very chilling testimony both of you provided. 
Let me ask just a couple of questions of Mr. Klammer. In light 
of your experiences, what kind of advice would you give to 
people in Missouri, anywhere across the Nation, if they are 
faced with placing a loved one in a nursing home. And that is a 
picture of your father, I believe----
    Mr. Klammer. Yes.
    Senator Bond. --back in better days.
    Mr. Klammer. Yes, sir.
    Senator Bond. If you wanted to care for a person, what 
would you do before you placed them in a nursing home?
    Mr. Klammer. Well, and I do not mean to be frivolous here, 
but I did say in the Kansas City Business Journal some years 
ago that, if it happened to me, I hope somebody put a bullet in 
my head. I do not mean to lightly answer your question, but, go 
often, go at different times, once your loved one is in a 
facility. They will take better care of the person if they know 
that there is somebody----
    Senator Bond. Somebody is watching.
    Mr. Klammer. --out there that cares. In selecting one, I 
mean, go several times. Take the canned tour, but also go 
unannounced at different times and let them know that somebody 
is watching. There are some wonderful places, there are some 
wonderful people, but the way the whole environment system is, 
there are all too many bad places and you need to keep an eagle 
eye on them.
    Senator Bond. What kind of effect did this experience with 
your father's maltreatment have on you and your family?
    Mr. Klammer. It was very stressful, depressing. It caused--
you know, and I am very fortunate in that my father has a lady 
friend that watches for him and is, you know, very much a 
lovely lady in all respects except she is a bulldog in terms of 
tenacity and making sure my father is cared for.
    And I have siblings, and one of them handles most of the 
red tape, and the couple of years it took us to get him on 
Medicaid with spend-downs and so forth. I cannot imagine how it 
is for a single caregiver dealing with this with all the 
strange and unknowable red tape of rules and how hospitals and 
nursing homes cherry-pick people that they can make the most 
money off of and whatnot.
    And I have read recently of a study that there is long-term 
physical effects on the caregiver that can persist for years, 
and I believe that now. It is depressing; it is physically 
debilitating and, like I said, I am very lucky because I have 
had a lot of help that a lot of people do not have.
    Senator Bond. Mr. DeWitt, you mentioned a number of things, 
criminal background checks, license revocation without numerous 
appeal, you suggested that damage remedies were not enough. Is 
there more equitable relief, or what other things could you 
recommend that we do to help residents and their families that 
were most in need?
    Mr. DeWitt. Well, Senator Bond, I have had the opportunity 
to work a lot with the ombudsman's office up in northwest 
Missouri. I have been involved with them. I think if the 
ombudsmans are truly independent and are armed and cloaked with 
some responsibility and given some funding and some training, 
that they would be a good resource. I think if you talked to 
some of the advocates who have--that they are sort of a mixed 
bag of--I have an ombudsman--and that the results have been 
sporadic.
    But my work with the ombudsman up in northwest Missouri has 
been very rewarding. I have worked with some ombudsmen up in 
the Kirksville area and had some good results with them. I 
believe, by and large, that many of those people are very 
caring and very concerned.
    The problem for them is that, because their status is sort 
of unique, a lot of times they wind up being rendered 
ineffective by virtue of nursing homes deciding that they do 
not want the ombudsmen to come in. So there are some problems 
there.
    Senator Bond. Yes.
    Mr. DeWitt. In addition to the ombudsmen, I think the 
courts are a bad place to deal with this. There needs to be 
some type of functional alternate dispute resolution procedure 
to deal with the issues like I raised with Katie Misuraca where 
the facility believes that it should not be allowed or should 
be allowed not to let somebody in. There just needs to be 
somebody to take a hard look at how families and facilities can 
work better together. I do not think the resident committees 
and I do not think the sort of mechanisms that are built into 
the CFR are working very well.
    Senator Bond. That is an interesting point. I talked this 
morning with an ombudsman from southwest Missouri and I think 
finding a quicker, more effective way of getting a resolution 
of this is that is something we need to explore and I 
appreciate that.
    Most effective way of improving justice for elders, would 
you say an alternative dispute resolution----
    Mr. DeWitt. In terms of the civil side of things, before 
anyone has been harmed, yes. I think if you have got an issue 
with the nursing home and the nursing home is not responding, 
then, yes, there might be something we can do with ADR that 
would make that better. Unfortunately, until such time as there 
really is an improvement in the accountability, I think we need 
to preserve the right to go to court to seek a damages remedy 
because, unfortunately, the industry does not seem to listen.
    We sued American Health Care Management, which was the 
parent company for Clay West, two or three times and you would 
have thought that that would have caused them to immediately 
rewrite their policies and try and improve their care. I 
believe we are close to 20 lawsuits against that entity between 
1999 and 2001. Ultimately, that entity went out of business 
because it could not longer afford insurance. And it is 
difficult to think of my profession as sort of the 
opportunistic packaging in the industry. But to a certain 
extent, we do serve a purpose in putting entities that have no 
business providing that care out of business. And I would just 
say that I will be more than happy to work with anyone to try 
and improve justice for elders. And the other person I know 
that--Mr. Gregory is going to speak before the committee in St. 
Louis tomorrow, and I think that he has a lot to say and his 
testimony will be very valuable to the committee.
    Senator Bond. Well, thank you very much. And I very much 
appreciated your opening statement that you want to be put out 
of business by seeing the care problems dealt with. That would 
require a very effective State or State and Federal entity that 
was actually doing something, was out on the forefront 
responding to these horrible cases.
    I appreciate very much the testimony that both of you 
provided. This will be available for my colleagues on the full 
committee, the Health, Education, Labor and Pensions Committee. 
If you have any further thoughts, please do not hesitate to 
share them with us. And for those who are here as guests 
listening, we would welcome and we will take for the record any 
statements or additional thoughts that you have.
    So, Mr. Klammer, Mr. DeWitt, thank you very much.
    Mr. Klammer. Thank you.
    Mr. DeWitt. Thank you, Senator Bond.
    Senator Bond. Now, I would like to call up Todd Graves, 
United States Attorney for the Western District of Missouri; 
Sheriff Paul Vescovo of the Clay County Sheriffs Department; 
and Ms. Norma Collins, who is Associate State Director for 
Advocacy for the AARP. [Pause.]
    Senator Bond. All right. Todd, if you begin please?

 STATEMENT OF TODD GRAVES, U.S. ATTORNEY, WESTERN DISTRICT OF 
                   MISSOURI, KANSAS CITY, MO

    Mr. Graves. It is going to take some getting used to. I am 
not used to being allowed to sit down while I speak in this 
room, but----
    Senator Bond. I am not used to being on this side of the 
bench either. I have spent a little time out in the no-man's 
land out where you are. It is a different experience, so if you 
feel awkward, how do you think I feel?
    Mr. Graves. Mr. Chairman, I want to thank you for your 
invitation to appear today and testify on my office's 
experience regarding elder abuse. I appreciate the 
subcommittee's attention to these issues, specifically to 
nursing home abuse and neglect. As a Missourian, I know that 
you, Senator Bond, have been a leader on the health care issues 
and elder issues in this State.
    Two cases successfully handled by the United State 
Attorney's office for the Western District of Missouri may 
serve to illustrate the nature of this issue. Both cases 
involve egregious instances of painful injuries and unhealthy 
conditions suffered by elderly residents as a result of gross 
neglect on the part of nursing home operators.
    To address these cases, we took an innovative approach, 
filing civil actions against the operators under the Federal 
False Claims Act. In April 2000, we filed a civil lawsuit 
against NHC Healthcare Corporation, the corporate operator of a 
nursing home in Joplin, MO. This lawsuit was filed after a 149 
page statement of deficiencies had been prepared by the 
Missouri Division of Aging, which cataloged numerous violations 
that threatened the health and safety of the nursing home 
residents.
    The Division of Aging survey found repeated instances in 
which patients developed pressure sores, lost significant 
amounts of weight, and were left lying naked and unattended in 
their own urine while smeared with their own feces. At least 
two patients eventually died as a result of this neglect.
    Our lawsuit alleged that these instances of patient harm 
and abuse were attributable, in large part, to NHC's failure to 
provide adequate staff to meet the needs of nursing home 
residents. NHC was so severely understaffed that it could not 
possibly have provided the level of patient care it was 
obligated to provide for reimbursement under the Medicare and 
Medicaid programs.
    Aware of these staff shortages, yet still billing Medicare 
and Medicaid for services it clearly had not adequately 
provided, NHC was knowingly submitting false and fraudulent 
claims to the Medicare and Medicaid programs and thus violating 
the Federal False Claims Act.
    In other words, we prosecuted a civil fraud against the 
government, rather than actual elder abuse because there is no 
actual elder abuse law at the Federal level. At the time, there 
was no precedent in the 8th Circuit for this use of the False 
Claims Act and very little case law from other circuits.
    But a series of ground breaking rulings by Judge Fetera 
[ph], the district court in this district upheld the use of the 
False Claims Act to enforce quality of care standards in 
nursing homes. And I have got those two opinions, I will 
provide them to your staff later if you want to have them. As a 
result, NHC agreed to pay a $250,000 fine and submit to ongoing 
monitoring to settle the suit.
    In a second case, Woodbine Healthcare and Rehabilitation 
Center in Gladstone, MO agreed in December of 2002 to pay the 
United States $25,000 to resolve allegations that it failed to 
provide necessary services to its residents. Our lawsuit 
alleged that Woodbine's failure to care for its patients led 
to, for example, repeated maggot infestations in one patient, 
and the development of penile gangrene in pressure sores in 
another resident.
    Both nursing home operators, as part of their agreement, 
also submitted to corporate integrity agreements requiring them 
to perform audits and reviews to determine whether residents 
were receiving care that meets Federal quality of care 
standards.
    The difficult of the approach of the False Claims Act 
arises in establishing when a nursing home fails to provide the 
services for which it is reimbursed by Medicare and Medicaid. 
As I stated, these programs reimburse the nursing homes on a 
per-diem basis for the general care rather than according to 
specific services. The specific services, essentially, are left 
up to them. For that reason, the Federal False Claims Act is 
ill suited for ensuring adequate care for most nursing home 
residents.
    In the two examples I have shared, both nursing homes 
failed so egregiously to provide even a minimal quality of care 
that there was no question they fell far below any reasonable 
standard, and thus we were successful in our civil actions 
against them.
    But in many cases, it is likely that even a deficient 
quality of care would fall into what the court--and the court 
talked about this quite a bit in its opinions--described as a 
``gray area''. In fact, the court opined that the point of 
which the over all quality of care crosses the line from what 
is required for Medicare and Medicaid reimbursement, to be no 
negligent, that those claims are fraudulent is ``a very blurry 
point''. The Court further noted that somewhere ``between gross 
neglect and perfect care lies an amorphous standard in need of 
further clarification''. There is a large gray area under the 
False Claims Act.
    Our prosecution of NHC was initially launched as a parallel 
proceeding, which means that we were pursuing both criminal and 
civil alternatives, and some of those alternatives would 
include mail/wire-fraud statutes, which we use in many areas, 
health care fraud statutes, and, of course, the Federal False 
Claims Act.
    But due to the nature of the nursing home industry in which 
the billing function is separated from the provision and care, 
that a separate staff is responsible for these functions and 
they may even be housed in separate buildings or work for 
separate corporations. It can be very difficult to bring a 
successful criminal action against the responsible parties.
    Again, the focus of what we can do at the Federal level is 
a fraud focus. It is the fraud against the government, or in 
some cases, against those paying the insurance companies, not a 
crime directed specifically on what is done to the patient.
    With that, I will wrap up and I want to thank you, Mr. 
Chairman, for your invitation and for your attention to these 
issues, and I look forward to answering your questions.
    Senator Bond. Thank you, Mr. Graves, and thank you for a 
very innovative and ground breaking approach to getting at this 
problem.
    [The prepared statement of Mr. Graves may be found in 
additional material]
    Senator Bond. Sheriff Vescovo, I welcome your testimony, 
sir.

  STATEMENT OF PAUL VESCOVO, CLAY COUNTY SHERIFFS DEPARTMENT, 
                          LIBERTY, MO

    Mr. Vescovo. Thank you. Mr. Chairman, I would like to thank 
you for giving me the opportunity to address the issue of elder 
abuse and neglect. As the population of older Americans grows, 
so does the hidden problem of elder abuse and neglect.
    Every year, an estimated 2.1 million older Americans are 
victims of physical abuse and neglect, however, those 
statistics do not tell the whole story, because for every case 
of elder abuse that is reported to authorities, it is estimated 
there may be as many as five cases that have not been reported.
    Elder abuse is a complex problem and it is easy for people 
to have misconceptions about it. For many people, when the 
subject of elder abuse comes up, they think it is about older 
people living in nursing homes or elderly people living alone 
and never having visitors. Actually, most instances of elder 
abuse do not occur in nursing homes. Only about 4 percent of 
older adults live in nursing homes, and the majority of these 
residents are having their physical needs met without 
experiencing abuse or neglect.
    Most elder abuse takes place at home. The great majority of 
older people live on their own or they are with spouses, 
children or other relatives, not in nursing homes. When elder 
abuse happens, most often it is family or paid care givers who 
are usually the abusers.
    Investigating cases of elder abuse poses unique challenges 
for law enforcement. As I mentioned earlier, elder abuse is a 
complex problem which calls for comprehensive training for law 
enforcement officers so that elder abuse incidents can be 
effectively investigated.
    Elder abuse is largely a hidden problem in our society that 
only recently has received attention from the criminal justice 
system. Training will increase the awareness of this unique 
problem and allow us to more effectively respond to elder abuse 
incidents.
    A concern that I have as a law enforcement leader, when it 
comes to the issue of elder abuse, is the ability of social 
agencies to assist law enforcement in adequately responding in 
cases of elder abuse. Successful investigation and resolution 
of elder abuse cases requires a collaborative and support from 
adult protective services.
    Intervention by law enforcement in instances of elder abuse 
almost always results in police agencies accessing social 
service agencies to assist the victim. Due to recent budget 
shortfalls and declining revenues, cuts in social service 
fundings are inevitable. Without adequate funding to support 
those social service agencies, we in law enforcement will find 
it increasingly difficult to assist victims of elder abuse and 
neglect in obtaining the support and care that they need.
    Social service agencies also provide counseling for 
behavioral or personal problems in the family, which can play a 
significant role in preventing violence against older family 
members.
    I also feel that education of the public on elder abuse and 
neglect would go a long way toward preventing elder abuse. 
Public education and media coverage concerning domestic 
violence and child abuse has made the public more knowledgeable 
and proactive in the reporting of such abuse, and has garnered 
support for the funding of programs to combat such abuse.
    Because most abuse occurs in the home by family members or 
care givers, their needs to be a concerted effort to educate 
the public about the special needs and problems of the elderly.
    I would again like to thank you and this committee for 
inviting me to voice my thoughts on this issue.
    [The prepared statement of Mr. Vescovo may be found in 
additional material.]
    Senator Bond. Well, thank you for your very thoughtful 
analysis. I have some questions for you about the law 
enforcement side of it.
    Ms. Collins, thank you very much for being here. We 
certainly appreciate the support of the AARP and the great 
amount of work that you have done in this area. You speak with 
a great deal of knowledge on this issue.

   STATEMENT OF NORMA COLLINS, ASSOCIATE STATE DIRECTOR FOR 
                ADVOCACY, AARP, KANSAS CITY, MO

    Ms. Collins. Thank you, Mr. Chairman, panelists and other 
guests. On behalf of 740,000 AARP in Missouri, I want to thank 
Senator Bond for convening this hearing on S333, the Elder 
Justice Act. State and national attention to elder abuse 
concerns is highly valued by AARP members and America's older 
population generally.
    Our members tell us that protecting themselves and their 
loved ones from abuse and fraud is one of their major concerns. 
The risk of harm is real, and that risk is growing with the 
dramatic increase in the number of people living into advanced 
old age. Engaging all sectors of society in the fight against 
abuse, neglect and exploitation is essential.
    Elder abuse is a hidden problem. Only the most visible and 
recurring cases get reported. Like an iceberg, the bulk of the 
problem remains hidden from view. Despite under reporting, 
there has been a very substantial increase in the number of 
official reports of domestic elder abuse. Between 1986 and 
1996, the number of reports rose from 117,000 to 293,000, an 
increase of 150 percent. This number is expected to continue to 
rise in the future. In Missouri, the census projects the 
population group aged 65 plus to increase from 755,000 in 2000 
to 1,258,000 in the year 2025.
    Developing the support services and enforcement network to 
meet the needs of the larger number of potentially vulnerable 
persons poses a significant challenge. Current laws addressing 
elder abuse in our system of protective services are far from 
perfect.
    Not too long ago, it was difficult, if not impossible, to 
get an abuse case investigating and prosecuted. Fortunately, 
that situation has changed, but there still is a great need for 
specialized knowledge that will allow successful prosecutions 
and encourage further development of case law.
    I refer you to my full statement for examples of the many 
gaps in the network of services for abused and vulnerable 
adults. Recognizing the need for a coordinated approach to the 
problems of abuse and neglect, AARP joined a number of 
organizations in supporting the Elder Justice Act of 2003. This 
legislation would greatly enhance the Federal government's 
ability to partner with states and communities to develop the 
tools needed to ensure the safety of their most vulnerable 
citizens.
    Again, I refer you to my full statement for the specific 
provisions of the proposed legislation. While advocating 
strongly for Federal proposals like the Elder Justice Act, AARP 
recognizes the need for ongoing efforts at the State level to 
improve public awareness, the quality of investigations and 
enforcement in cases of abuse and neglect. These efforts are 
particularly important, as Missouri and other states struggle 
with a likely prolonged period of fiscal austerity.
    Enforcement and prosecution play a key role in redressing 
abuse and neglect after they have occurred. But just as 
important is the role of prevention. Early detection of warning 
signs through the encouragement of wider reporting and 
community policing can make a critical difference.
    Also, AARP has historically been concerned about financial 
fraud, the fastest growing form of abuse. The main hurdles to 
successful prosecution of these crimes, are getting the cases 
reported to law enforcement, having them thoroughly 
investigated, and obtaining timely and appropriate prosecution.
    Senator Bond, AARP appreciates your leadership in efforts 
to ensure the safety and well being of older Missourians and 
all American citizens. We look forward to working with you 
toward that end.
    Thank you again, and I would be more than happy to answer 
any questions you might have.
    [The prepared statement of Ms. Collins may be found in 
additional material.]
    Senator Bond. Well, thank you very much, Ms. Collins, and 
the testimony of all five have been very helpful.
    Mr. Graves, obviously, you were stretching a little bit and 
reaching to get the False Claims Act to apply to nursing home 
inadequate care or abuse. Were you one of the first in the 8th 
Circuit to use this, and what other challenges did you face in 
trying to make this fit into a False Claim action?
    Mr. Graves. Well, certainly there were other districts in 
the country that had done this and were leaders in this area. I 
believe we were one of the first in the 8th Circuit, not the 
first, the opinions did not have any case law to address for 
the 8th Circuit.
    But, again, the real challenge is that you have to show--it 
is essentially a common law standard rather than having clear 
statutory standards.
    It is being developed by common law, which is slower and 
less effective. What they did fell so far below the standard, 
that essentially the government got nothing for its money. Not 
that the government got--you know, and where is that break? Is 
it they got 10 percent of what they paid for? Clearly, that 
would fit in the False Claims Act, if the government only got 
10 percent and therefore the patient was not cared for.
    If they got 50 percent, now you are starting to get into a 
gray area, and although the patient was not cared for, was it 
so bad that we could prove to a judge or a jury that they did 
not do anything. And you have to be able to show that their 
staffing is so low or something that rises all the way to the 
top of the organization that they have to know that it is going 
on and not just an isolated incident.
    Senator Bond. Is this initiative of yours something from 
your office or is the national Department of Justice pursing 
this?
    Mr. Graves. Nationally, the False Claims Act cases are 
being pursued across the country, but, again, our ability to 
pursue is limited by what we have to work with.
    Senator Bond. What other efforts are you doing working with 
other agencies, collaborating with regulatory or other advocacy 
groups--what are you doing? Making any efforts there?
    Mr. Graves. Well, with investigative agencies, when the 
Missouri Division of Agents submits a notice of deficiency, we 
receive that as well as the Department of Health and Human 
Services receive that. And if something gets kicked off, if we 
are both working parallel--we have a very good working 
relationship with the Missouri authorities and prosecutors.
    But what we do not have is--if you asked me what kind of 
working relationship I had say in drug crimes, I know that, you 
know, there are cops out there that I could work with, State 
cops or Federal agents, but in this area, there are not really 
a lot of cops that get called out or investigators that get 
called out. We do not necessarily work with State investigators 
in the same way in this area as we would in a drug case.
    Senator Bond. For your legal background and training, what 
tools or training or resources do you think would be most 
helpful for your office to be able to make a difference? What 
do we need to do? We need to make additions or modifications to 
the Elder Justice Act?
    Mr. Graves. Well, just speaking broadly, and not speaking 
on behalf of the Department, I can only speak to my experience 
in this office, of course, we have to be cognizant of the 
difference between what should be handled at the Federal level 
and what should be handled at the State level. But with that in 
mind, if this is a problem that rises to the Federal level, 
then we need to have something that addresses what is actually 
going on. Rather than a fraud theory, we need to have something 
that addresses the patient is a victim rather than the 
government is a victim.
    Senator Bond. All right. What about the idea that Mr. 
DeWitt had, some kind of alternative dispute resolution. He was 
talking about something quicker, something proactive and 
preventive. What would you see in that area?
    Mr. Graves. Well, that is something I think can be handled 
at the regulatory level through the Health and Human Services, 
and I think can be very helpful. I do not see that our office 
would necessarily have a role in that.
    Senator Bond. Well, I was just asking your advice, from 
your knowledge of the justice system. So you think this could 
well be in the regulatory area?
    Mr. Graves. Sure.
    Senator Bond. All right. Sheriff, you have obviously done a 
lot of thinking, a lot of work on this issue. You say that for 
every case that is reported, five may go unreported. What is 
the reason? What can you do to get more reporting? How can we 
get a better handle on this?
    Mr. Vescovo. Well, as I mentioned in my testimony, I think 
that there needs to be not only more training for law 
enforcement officers concerning the issue of elder abuse and 
neglect, but public education. As I stated earlier, the issues 
of domestic violence and child abuse, those are very hot button 
issues, and justifiably so.
    But when you talk to someone about elder abuse, again, they 
think of something, well, someone is not getting the best of 
care in a nursing home or their locked up by themselves at home 
and no one is visiting them. Those are two areas that I think 
that would help immensely in bringing this issue to the fore 
front.
    Senator Bond. There is a real challenge when abuse occurs 
in the home. Getting that reported, I guess, is the number one 
problem. But finding out how and why it is happening, how do 
you get information on that?
    Mr. Vescovo. Yes, Senator, but also, in the event that an 
officer is dispatched to the home, it is very difficult for 
that officer, who has no medical training, no background 
training--you have a victim that claims that they are being 
malnourished and not being taken care of. Well, are they 
malnourished or do they have some type of debilitative disease 
which is causing them to lose weight?
    Obviously, very blatant issues of abuse that just recently 
occurred here in Clay County, it is very obvious that it was 
abuse and neglect. At times it would be very difficult for a 
law enforcement officer to make a decision with really no 
medical background, except maybe basic first aid.
    And that is why when I said that these investigations are a 
collaborative effort, it is a collaboration between the medical 
professions to diagnose whether it is abuse or neglect, as well 
as the social service agencies being able to assist a victim of 
elder abuse.
    Senator Bond. Well, so training and perhaps one or two 
specialized personnel in the Department who would have specific 
training as you have people trained specifically for 
methamphetamine busts and so forth would be helpful.
    Mr. Vescovo. Right.
    Senator Bond. You know, one of the interesting concerns I 
have heard today that--it apparently is not a problem in your 
area--one representative of the area agency on aging said, Oh, 
we cannot get anybody to prosecute these things.
    The victims of elders abuse do not want to prosecute. We 
ought to be talking to the law enforcement and prosecutory 
officials because there may be many circumstances where an 
abused elderly victim really is frightened to death of the 
abuser and would not say, oh, yeah, go ahead and prosecute this 
person, they may be stuck with them.
    Do you have any problem taking action, law enforcement 
action, when somebody will not file a complaint, if the victim 
will not file a complaint?
    Mr. Vescovo. Well, although I am not a prosecutor, I think 
some of the hurdles, particularly in prosecuting elder abuse 
cases is that, just as you mentioned, they do not really want 
to testify against someone because that is probably all they 
have. Also, a number of times you are dealing with elderly 
people that have a diminished mental capacity, and I am not an 
attorney, but I would assume how good a witness is this 
individual is going to be because of their mental diminishment? 
That is also a hurdle.
    Senator Bond. I might refer back to the U.S. Attorney, Mr. 
Graves, on that because that is more of a prosecutorial 
question.
    Mr. Graves. Well, speaking as a former State prosecutor in 
my role that I had there, I mean, that sounds -- those two 
arguments are exactly the same argument that you deal with in 
child abuse and spouse abuse. Three year olds do not make good 
witnesses, but you still do the case, if it is important. And 
that is because society and the system has conveyed that 
message to law enforcement and given them training, and 
prosecutors training.
    And in spouse abuse, in most of your cases, the spouse does 
not want to go forward with the prosecution for the same 
reasons. And most offices now have a No Drop policy. They go 
forward with or without the spouse and that takes that off of 
them. You know, what we have been taught in the spouse abuse 
arena is, the worst thing you could do is, in front of the 
perpetrator and go to the victim and say, do you want to 
prosecute? Well, you know what the answer is going to be. And 
so you do not ask the question.
    And so both of those issues--again, from speaking as a 
former State prosecutor--training and leadership in that area 
could address both of those issues I think.
    Senator Bond. All right, we need to get you to talk to some 
of your former brethren and sisteren in southwest Missouri, 
because that, to me, was shocking because the same thought 
occurred to me, I mean, this is an area where I could see a 
great deal of reluctance of the victim to come forward. That 
may be the only person they see every day.
    You talked about collaboration, Sheriff, social services 
agencies, law enforcement, anything we can do to assist in that 
collaboration other than perhaps some training? What could we 
do through our Elder Justice Act to improve on it?
    Mr. Vescovo. Well, as I stated earlier in my testimony, we 
were rely heavily on the social service agencies. In fact, I 
think it was about 3 weeks ago, our detective unit, one of my 
investigators got a call on an issue of an elderly person that 
it was probably neglect, but not neglect on purpose. They just 
did not have the resources to take care of this woman. And we 
referred them to the Division of Aging in the State of Missouri 
and they handled it from there.
    But without that support, we are, for the most part, and 
particularly in those type of issues, which are not really 
something where you are going to charge someone because it was 
not intentional, that we rely heavily on those agencies, so I 
would say support of those social agencies would be a big help.
    Senator Bond. Yes, that and trying to avoid the problem so 
it does not get to a criminal prosecution is ought to be the 
goal and certainly that has been the theme here.
    Now, Ms. Collins, you mentioned the other groups coming 
together along with the AARP. I bet in my last count I think 
there were over 190 organizations, and we very much appreciate 
your support and leadership on the legislation.
    Do you hear from your members what--based on your 
membership, how important, how widespread do you think this 
problem is in Missouri?
    Ms. Collins. Well, let me just share with you, Senator 
Bond, that the importance and relevance of this issue is 
supported by our membership data. Thirty-seven percent are 
extremely interested in protecting themselves or loved ones 
from elder abuse. Fifty-four percent are extremely interested 
in protecting themselves from consumer fraud, which is ranked 
higher than Medicare, Social Security or staying healthy.
    Now, let me also share with you that two of the five top 
concerns of African-Americans are fraud and abuse. Sixty-four 
percent for protection from consumer fraud, and fifty-eight 
percent for protection from elder abuse. And then thirty-two 
percent are interested in receiving information on services on 
protection from financial fraud.
    So I think that those statistics can go to show you that 
our membership data supports this issue as being very relevant 
and important.
    Senator Bond. You know, I am interested because, obviously, 
one of the abuses that I mentioned earlier was financial abuse, 
and a long, long, long time ago I used to be in the consumer 
fraud racket, and fighting consumer fraud in the attorney 
general's office, and I guess we did not get the problem solved 
before I left.
    Would your members tell you if they have been the victim of 
either physical abuse, or financial abuse?
    Ms. Collins. Senator Bond, some of our members will share 
that with us, but many of them are very embarrassed. And these 
are not just people who might be low income or just do not 
know.
    These are people who are very highly educated, who are just 
embarrassed to tell you, look, I have been bilked out of 
$80,000 because this telemarketer kept calling me, or whatever. 
So we do not have as many people expressing that publically as 
we would like. So it is something we need to continue to work 
on.
    Senator Bond. Yes, well, the first time I went to a county 
fair and a sharp operator bilked me out of my week's allowance, 
I was too embarrassed to tell my parents I had blown the whole 
two dollars. And the guy plucked me like a chicken, so I could 
see that problem.
    You mentioned the importance of prevention, and that is 
really what we keep circulating around here. We talked about 
lawsuits, we talked about criminal prosecution, the False 
Claims Act, what do you see as the best way to prevent this in 
the first place? If prevention does not work, we need to have 
the legal remedies on the civil side, and, I think, on the 
criminal side.
    But, going back up stream, what are the most important 
things we can do to really reduce the number of incidences?
    Ms. Collins. I have made some notes on some things that 
AARP has been involved in and sent some of current investments 
and they include, AARP policy has supported a comprehensive 
range of elder justice positions, that is nursing home quality 
care, financial security and personal and legal rights.
    And, in case you do not know, AARP was very actively 
involved at the State level this year in getting a very 
comprehensive nursing home bill passed. And we worked along 
with the governor, lieutenant governor, and a bipartisan group 
of legislators. AARP for many years received a grant from the 
administration on aging to provide national support, training 
and technical assistance on protective services issues, 
including elder abuse.
    AARP was invited as a participant in the 2001 national 
summit on elder abuse, which produced a blueprint for action 
that included a priority to support a national elder abuse act 
and the recommendations in that priority are addressed in your 
bill that was recently introduced in Congress.
    We had been a leading advocate in the development of State 
laws on elder abuse. We have been most prominent in developing 
national and State policy and programs addressing financial 
abuse in conjunction with the Administration on Aging, 
Department of Justice, the National Association of Attorneys 
General, and Health and Human Services and a broad compliment 
of law enforcement and consumer organizations.
    Now, also, for more than a decade, AARP, through its 
consumer affairs, consumer protection unit, has concentrated on 
financial exploitation of older persons. Several years ago, the 
former Womens Initiative Department that we had at AARP, took 
the national lead on domestic violence and older women.
    And right now, their ongoing current investments that 
include Federal regulatory, programmatic and legal advocacy 
with the Department of Justice, State Attorneys Generals, 
Federal and State agency officials and State courts. And this 
includes 17 states, which Missouri is one of them, and the U.S. 
Supreme Court and several international countries.
    So, we are still working on this issue. It is a very 
important issue to us, as well as our members.
    Senator Bond. Well, we certainly appreciate your testimony 
and we look forward to working with all of you and with those 
of you here as we seek to find ways to prevent this. There is 
no question that elder abuse is something that is very personal 
to all of use. It can affect our husbands, wives, grandmothers, 
grandfathers, family, friends, and ourselves down the road, so 
I appreciate the witnesses sharing the stories from their 
personal experience.
    And no family should have to endure the unspeakable acts of 
abuse that we have heard of today. And, as I said in my 
opening, elder abuse touches every community, no demographic or 
geographic boundaries and because the number of those of us who 
are getting older is growing, there is a growing target for 
neglect, exploitation and abuse.
    We have to recognize and address the problems in a system 
that too often has left our citizens susceptible to some of the 
worst kinds of abuse. The harm or the threat of harm is real 
and the need is clear.
    As I said earlier, Congress has focused a lot of attention 
on guarding against child abuse and domestic violence, and 
rightly so, but it is time that we mounted a comparable effort 
to do something about elder abuse.
    And they are, as you all have said, multifaceted problems, 
multiagencies, public health, social service, law enforcement. 
There needs to be Federal funding, there needs to be Federal 
leadership. I like the idea of establishing a dispute 
resolution system, strengthening the ombudsman role.
    These ideas are all very helpful, and we will be working on 
these as the Bill gets marked up, and it is in the Finance 
Committee, but we will be holding a hearing on it and providing 
insights to the Finance Committee.
    And I thank you again for coming. As I said earlier, we 
will keep the record open if you wish to submit further 
statements or if testimony by others today have spurred ideas, 
please feel free to address us in Washington DC.
    I can give you the number. It is 202-228-4838. Just call 
the committee up. Thank you all very much.
    Ms. Collins. Thank you.
    Senator Bond. The committee is closed. Thank you.
    [Additional material follows:]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Tom Klammer

    Mr. Chairman and Members of the Committee, thank you for giving me 
the opportunity to speak today.
    I have no formal credentials related to elder care, but I work with 
a small, local group that advocates improved quality in Missouri 
nursing homes. We have held public meetings with area prosecutors, and 
others as speakers, urging the public to call 911 in cases of elder 
abuse, and to write letters to State legislators. Currently, we're 
preparing to listen to focus groups in order to get suggestions for 
reducing neglect and abuse from Missouri citizens who have had loved 
ones in nursing homes. We also meet with State legislators. While I 
believe all of these things are very important, I also think there are 
major systemic national problems.
    My father went into a nursing home in 1998 after a series of 
strokes left him seriously impaired with dementia. Our experience with 
an HCR ManorCare facility is recounted in some detail in testimony 
before the Senate Special Committee on Aging in 1999, but I will just 
say that the care was not good, vital medications were allowed to run 
out with no notification to anyone, State agencies were of little or no 
help, and when I complained widely about the poor care, a ManorCare 
vice president found the time to call me at home and threaten me with a 
lawsuit if I didn't stop. I am still complaining. And HCR ManorCare, 
one of the largest nursing home corporations in the country is still 
providing poor care in many of its facilities. Among many examples I 
could cite, the company was featured prominently in the Pittsburgh Post 
Gazette last year for major and numerous problems in it's 47 
Pennsylvania homes, was singled out for poor care by an official with 
the State of Iowa, and entered into a consent order with the Federal 
Government in a case alleging violation of the False Claims Act. 
Recently the Kansas City Fox TV affiliate featured the facility my 
father was in when it did a piece on the area homes with the highest 
numbers of deficiencies on their inspection reports.
    The next facility we put my father in was, for a time, wonderful. 
But this facility was purchased by another national chain, Alterra, and 
almost immediately things went bad. The administrator was forced out, 
aides were fired, or had their hours and benefits cut until they quit, 
and agency staff that didn't know the facility or the residents were 
brought in to replace them. Confused residents, including my father, 
eloped undetected to wander along a very busy street until someone by 
chance brought them back. We found another facility to place my father, 
but not until after he had mysteriously acquired 5 broken ribs. Alterra 
facilities have also been prominently featured in the press for major 
problems.
    Immediately after getting my father out of ManorCare, I began 
researching that company and the other big players in long term care. 
What I found was Enron and Worldcom. I looked at the SEC filings for 
the half dozen giants in the field and found that they all lavished 
multi-million dollar compensation packages on their CEO's and other top 
executives. Integrated Health Services sought a $50-$60 million dollar 
golden parachute for departing CEO Dr. Robert Elkins who had led them 
to bankruptcy, and a Federal bankruptcy judge approved it. In addition 
to lavish salary and bonuses, HCR ManorCare CEO Paul Ormond realized a 
gain of $23.7 million from stock options exercised in fiscal 2001. They 
all seem to have money to burn yet they continue to work together to 
lobby for more money with no strings attached, wrapping themselves in a 
phony free market flag while getting typically 70 percent or more of 
their billions of dollars of total revenues from tax dollars.
    In 1999, I found that Gail Wilensky, then head of the 
congressionally mandated Medicare Payment Advisory Commission was also 
serving on the board and the compensation committee of HCR ManorCare, 
as well as on the boards of a whole list of healthcare related 
companies. She later resigned from MedPAC due to the appearance of 
conflict of interest. But today we have former for-profit Hospital 
lobbyist Tom Scully as the Administrator of CMS. It seems all the 
corporate interests are very well represented.
    An HHS study released in 2002 concluded that 90 percent of nursing 
homes in the U.S. have staffing levels too low to provide adequate 
care. Inadequate staffing contributes mightily to problems of bad care, 
abuse and neglect. The nursing home chains continue to cry poverty, but 
an analysis last year by US News debunked that claim and also said that 
even when they received higher payments staffing actually went down 
rather than up. They spent it on executive pork, union busting 
consultants, lobbyists, an expensive campaign to spread specious 
arguments for so-called tort ``reform'' to further limit their 
accountability in an environment that already has the deck highly 
stacked in their favor--anything but more staff at McDonald's level 
wages. When I asked Administrator Scully on a national call-in radio 
program about tying future increases in payments to staffing mandates 
he said, ``we don't believe in staffing ratios.''
    Early on, I heard some advocates refer to the treatment of the 
nation's elderly with terms like ``holocaust.'' I thought then that 
this was a bit of shrill, if understandable, exaggeration. I no longer 
think that. We are not talking about isolated incidents in a system 
that is generally working well. People like Tom Brokaw piously write 
about the ``greatest generation'', waving the flag and praising their 
service in and out of uniform during World War II, but then we turn our 
backs as many die untimely and needlessly miserable deaths in nursing 
homes. I am troubled by how decisions are made to put our military 
personnel at risk, but I salute Senator Bond's efforts to see that 
veterans and others are properly cared for. Still, too many of the 
greatest generation starve in nursing homes, some are beaten, some 
suffer pressure ulcers with flesh rotted to the bone and some, as in a 
St. Louis suburb case that I'm sure most of you are aware of, were 
allowed to cook to death one after another until paramedics refused to 
leave the facility. Many more suffer less dramatic misery, like 
spending hours in wet diapers.
    Companies like ManorCare continue year after year to operate 
facilities with major problems related to quality care, accepting the 
imposition of fines and settling of lawsuits as a cost of doing 
business. CEO's like Paul Ormond, certainly aware of these problems, 
continue year after year to pocket the big bucks rather than fix the 
problems and provide the care they are being paid to provide.
    Given the political and social realities we live in I don't expect 
to see it happen, but I can conceive of no logical, moral, or ethical 
arguments against criminally prosecuting these people at the top, and 
sentencing them to hard time followed by a sort of parole as very 
closely supervised nursing home aides.
    Thank you for your time.

                Prepared Statement of Anthony L. DeWitt

    Mr. Chairman and Members of the Committee, I am honored to have 
been asked to address this Committee on an issue of great importance to 
me, and to every American. Each of us is only a stroke away from a long 
stay in long term care, and the system is failing. I know this as a 
clinician. I know it as an attorney. I have seen its impact on the 
lives of my clients, and I am here today to argue in favor of 
increasing the protections available to our nations seniors.
    Perhaps some background on me will be helpful for the committee. 
Upon leaving military service in 1980, I became a respiratory 
therapist, achieving the highest credential in Respiratory Care, that 
of Registered Respiratory Therapist bestowed by the National Board for 
Respiratory Care, in 1982. I worked as a critical care therapist in 
hospitals in the Midwest and Florida until 1983, when I became a 
department manager in the best hospital in the United States, Blessing 
Hospital, Quincy, Illinois. I worked there for 5 years before going to 
Mt. Sinai in Hartford, Connecticut, and to St. Charles Hospital in 
Oregon, Ohio. When I decided to become an attorney, I practiced as a 
therapist while in law school at the Vencor Hospital (essentially a 
long-term-care facility for ventilator patients).
    It is a difficult world for clinicians who care for the elderly. 
Clinicians who care for the elderly have a calling more noble than 
most, and duties far more difficult than most-people realize. Wiping 
bottoms and changing beds is physically taxi and mentally emending 
work. Unfortunately, because facilities gouge extreme pro--its by doing 
so, these physically demanding and mentally taxi tasks are often very 
poorly compensated. A nurse or certified nurses aide in a Skilled 
Nursing Facility is often paid a disproportionately low wage compared 
to the administrators and financiers who profit from their toil. As a 
result, simple economics tell us that the highest quality people tend 
to go where the wages are highest. The result in the long term care 
industry is that the truly excellent caregivers, those with compassion, 
caring, and a sense of duty to the patient, frequently don't last in 
the nursing homes.
    Why? Because they know that a certain number of people are needed 
on all shifts and at all times to safely care for the residents. \1\ 
They know that the work of the CNAs in turning, repositioning, 
cleaning, and feeding the residents is back-breakingly brutal work. 
They know that caring for the residents means going the extra mile, and 
without sufficient staff, you often can't even go a few extra feet. As 
a result, because they can make more money nursing in the hospital or 
home care industry, they leave the nursing homes, and the nurses and 
CNAs that remain are often those who do not view caring for the elderly 
as a calling, but simply as a means to pay the mortgage.
---------------------------------------------------------------------------
    \1\ As the horrific fire in Hartford, CT, showed, bad things happen 
in nursing homes, and insufficient staffing during a fur is a recipe 
for patient deaths.
---------------------------------------------------------------------------
    As a clinician at Vencor I saw patients mistreated by clinicians 
(and I use that term charitably) who were only there to work their 
eight or twelve hour shift and go home. These caregivers didn't care 
about the patient, about the resident's disease processes, or about the 
needs of the residents and their families. Instead, they cared about 
their meal break, their smoking breaks, and the numerous opportunities 
the would get to sleep during a shift. I saw patients made to he in 
dirty and wet belly ding because the nurse had changed their bed only 
four hours earlier, and decided to leave the next cleanup to the next 
shift. I saw patients in need of comfort who were ignored. I saw 
patients punished by withholding personal items. I saw aides go through 
patient drawers and personal items looking for valuables that might be 
easily pilfered. \2\
---------------------------------------------------------------------------
    \2\ To be fair, I also saw many good clinicians who did care about 
the patients. By and large many of these caregivers only stayed a week 
or two after realizing that the culture of the facility did not support 
or encourage excellence.
---------------------------------------------------------------------------
    When I saw these things, I reported them to management. I saw my 
hours shrink. Was there a correlation? I do not know if there was or 
not, but it seemed so to me. \3\
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    \3\ When our firm depose nurses at Claywest, in St. Charles, 
Missouri, we found that nearly all of them knew that a report of abuse 
or neglect to management might be tolerated on an odd occasion, but a 
report to the State entity, the Division of Aging, would be grounds for 
dismissal.
---------------------------------------------------------------------------
    My job, as a therapist at Vencor, was to care for life support 
equipment. Most of the nurses and aides did not understand the 
equipment, and wanted no part of it. Now, with the PPS system in the 
long term care industry aimed at reducing rampant fraud, the sad effect 
on nursing home care is to have removed from the nursing homes another 
set of eyes and ears that kept patients safe. As a Fellow of the 
American Association of Respiratory Care, I urge the committee to 
Consider improving the care of elders by requiring nursing homes to 
have an on-call respiratory care practitioner to assist, advise, and 
where applicable, to treat respiratory ailments in the nursing home. 
\4\ The AARC has been trying to have its message heard in Washington. I 
would urge this committee to invite testimony from them on this 
subject.
---------------------------------------------------------------------------
    \4\ Of the wrongful deaths that occurred at Claywest from 1999 to 
2001, at least three could have been prevented had respiratory 
therapists been available and in attendance to care for nursing home 
patients. The failure to have these caregivers is proving deadly for 
patients.
---------------------------------------------------------------------------
    With my background as a clinician, you may think I came to my job 
as an advocate for the elderly in nursing home abuse and neglect cases 
by virtue of my clinical experiences in long term care. But that would 
only be partially the case. I became a nursing home attorney quite by 
accident.
    In late August of 1999 I was approached by a lovely woman named 
Bonnie Thorpe. Bonnie had gotten my name from Violette King, a vocal 
and tireless advocate for the elderly. Bonnie asked me if I could tell 
her why her mother had died of pneumonia in the Claywest Nursing Home. 
I told her I would look at the chart and let her know. After all, I was 
a respiratory therapist, and if anyone could tell why a patient might 
have developed pneumonia, I figured it would be me.
    I learned from a review of the record and from looking at the 
paramedic call records that Bonnie's mother (Edyth) had not been fed 
for 7 days prior to her untimely passing. For 5 of those days her chart 
was completely devoid of any nursing notes. Although her chart 
indicated that she had eaten ``good'' [sic] at all three meals for the 
prior 7 days, the same chart showed no stools or other output. \5\ The 
paramedics reported to the hospital that Claywest staff had told them 
she ``hadn't eaten or drank [sic] anything in a week.''
---------------------------------------------------------------------------
    \5\ It is a matter of common understanding that if a patient eats 
regularly, they eliminate regularly. There was no record of 
elimination.
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    As I was trying to get to the bottom of Edyth's death, Bonnie 
introduced me to another woman, Katie Misuraca, and her grandmother, 
Thelma Magruder. With Bonnie and Katie, two caring and compassionate 
women, I found my calling. And I started out simply by trying to help 
Katie get access to her grandmother at Claywest.
    Katie wanted nothing more than to be able to continue to visit her 
grandmother in the nursing home. There is a Federal regulation that 
requires nursing homes to permit 24-hour a day, 7-day-a-week access by 
family members. Were that Federal mandate not enough, the resident had 
a written physician's order mandating hour visitation. In spite of 
these two clear mandates, the nursing home call the police and had 
Katie escorted off the premises whenever she came to visit her 
grandmother after official visiting hours were over. They told Katie 
that she should move her grandmother because they couldn't meet her 
needs by providing 24-hour a day access.
    Was Katie disrupting the facility? Was she causing patient injury? 
Was she in some way interfering with the giving of care? No. What Katie 
was doing, while visit her grandmother to make sure that no harm came 
to her, was handing out, to residents and family members that wanted 
them, a flyer on resident's rights produced by the Missouri Division of 
Aging. Of much greater concern to the facility staff, however, Katie 
was documenting, in a notebook, when it would take upwards of 3 weeks 
for a patient's linens to be changed on their beds, when there was 
insufficient staffing to meet the needs of the patients, and when she 
would find patients in a compromised state. She was telling staff when 
patients had fallen, or were calling out for help, or hadn't been able 
to find their call lights. Katie was trying to make things better for 
her grandmother, and the other residents, and for this she was 
retaliated against by trespassing complaints made to the local police.
    I sought a Court order from the Circuit Court of St. Charles 
County, and the circuit court issued a temporary injunction granting 
her visitation twenty-four-seven. Incredibly, after serving a copy of 
that court order on the facility, the facility called the police to 
come escort Katie off the grounds. \6\ That order was made permanent 
and official on October 1, 1999. On October 6, 1999, Katie came into 
the facility to see her grandmother. Her grandmother was slumped over 
in a wheelchair, in obvious physical discomfort.
---------------------------------------------------------------------------
    \6\ I provided the police with a copy of the temporary restraining 
order, and they refused to honor the request of the facility. At no 
time did the St. Charles Police Department ever act in an inappropriate 
manner.
---------------------------------------------------------------------------
    ``What's the matter,'' she asked her grandmother. ``Katie, I fell 
out of bed,'' Thelma explained.
    At this point a nurse came by, explained that Thelma had ``dreamed 
she fell out of bed,'' and that she had been given a Tylenol for her 
pain.
    Katie asked if x-rays had been obtained. They hadn't. She took her 
grandmother in her car to a local hospital. When the results of the 
examination were in, Katie learned that the ``dreamed fall'' had been a 
horrifying reality. Four rib fractures and three crushed vertebrae were 
detected by radiograph The doctor later told us that there had been a 
``shoe-shaped bruise'' in the middle of Thelma's back. Thelma never 
recovered from her injuries.
    I had to stand at the foot of Thelma's bed and explain to my client 
why the injunction had not been enough to ensure her Grandmother's 
safety. Even though I know I did my best, I will never stop feeling 
responsible for that woman's pain and suffering.
    Starting in 1999, and continuing forward through this past month, I 
have been actively engaged in litigating nearly a score of abuse and 
neglect cases against Claywest, its corporate parent American 
Healthcare Management, Inc., and its affiliated nursing homes and 
companies.
    Some of the cases are so outrageous they may seem hard to believe. 
But let me tell you some of the things we learned about Claywest and 
American Healthcare Management, Inc., during the litigation:
    American Healthcare Management and Claywest hired a man wanted for 
a drive-by shooting in Mississippi.
    An employee at the facility knew of the man's criminal record, but 
said nothing.
    Nurses at the facility noted that he was abusing and harassing 
patients, and reported his behavior. Nursing and facility management 
did nothing.
    In July, 1999, he beat a resident to death.
    The nursing home reported that the resident fell out of his bed, 
and was later convicted for failing to report the abuse.
    One resident, a paralyzed veteran, was smothered when he tried to 
prevent his personal items from being stolen.
    Another resident had her shoulder yanked from its socket.
    One resident had her cane and eyeglasses taken despite two pleas 
from family members to keep them with her so she could see and 
ambulate. She fell and broke her hip, dying after only 7 days in the 
facility.
    One nurses aide was placed on the locked Alzheimer's wing with 
residents but given no training and provided no supervision.
    One resident was allowed to die from malnutrition.
    Another resident was taken off lifesaving kidney medication and 
allowed to die from kidney failure.
    One resident was shut in her room with the door closed when she 
complained of intense abdominal pain, and she died in her clothes 
sitting in her wheelchair.
    When Claywest ran short of help they would take their bus to the 
Salvation Army Homeless Shelter and recruit ten homeless people to work 
in the facility as nurses aides.
    Virginia Bryant, a lovely woman who started the first food pantry 
in St. Charles County, was allowed to go more than 8 hours with an 
oxygen saturation of 77 percent. That saturation manifests a degree of 
oxygen starvation so profound that if it occurred in a hospital most 
clinicians would have activated the emergency system (code blue). As a 
result of there being no respiratory care provider in the facility, the 
patient ultimately suffered such severe cardiac injury that she died.
    One patient, a mother, suffering from dementia, died strangling in 
her restraints on Mother's day. The family was told she passed away 
quietly in her sleep.
    Administrators at all AHM facilities were held to a budget of 40 
percent of the amount paid by Medicaid for staffing. \7\
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    \7\ In most health care facilities the average cost of human 
resources is about 70 percent of the facility budget. At Claywest it 
was 40 percent, and that proved fatal for many of my clients.
---------------------------------------------------------------------------
    These are only some of the problems. I have brought today a video 
clip that I would like to pray for the Committee. For ease of 
transcription, the text of this sworn testimony by a Claywest charge 
nurse is set forth below. I caution the faint of heart that this video 
clip is unsettling and may cause you nightmares; it did me:
    25 Q. (By Mr. Dollar) The ant problem you saw in this facility was 
worse than any other situation?
    A. Than I had ever seen. I've never seen--
    MR. WENDLER: Oh, okay. I'll agree with that.
    A. I never seen ants like that crawling on anybody.
    Q. (By Mr. Dollar) And when we're talking about Ruth Cawthon, we're 
talking about a situation in which she was literally covered in ants?
    A. Covered.
    Q. From head to toe?
    A. Yes. She had ants everywhere.
    Q. They were swarming all over her body?
    A. Yeah.
    Q. Is that right?
    A. Uh-huh. That's true.
    Q. And are you aware that her daughters came into the facility to 
visit their mother and walked into the room and found their mother 
completely covered in ants?
    (Objection Omitted)
    A. It's gross.
    Q. (By Mr. Dollar) It's what?
    A. It's gross. I mean they were crawling in areas that theatrics 
were needed.
    Q. Well, tell me about that. What do you mean?
    A. It was bad.
    Q. What do you mean?
    A. They were crawling in and out of--by her vagina. They were on 
her face, around her ears. I mean that was really bad. It was bad. I 
didn't know the family had found her like that. I just know that the 
time they had come and said, ``Well, what do we do.''
    I said, ``One, get her out of the room. If you have to, bathe her. 
You know, get rid of them.''
    This was the norm at Claywest. Sharon Patton, an LPN, testified at 
length that before American Healthcare Management took over Claywest, 
it was a good home with adequate staffing and caring management. After 
the takeover the facility was stripped of staff and patient care 
routinely suffered. Unfortunately, this tendency toward taking over a 
facility, stripping its staff to the bare bones, and milking the 
facility for all the profits a corporation can take out of it, is 
becoming the norm all over the country. As budgets become tighter, 
facilities will continue to squeeze staff and the result will be 
similar horror stories.
    And don't expect nursing homes to voluntarily disclose their non-
compliance. Armed with HIPPA guidelines, nursing homes are now refusing 
to produce medical records in response to requests from next of kin. 
Claiming that HIPPA prevents it, nursing facilities now regularly 
refuse to comply with the mandate of 42 CFR 483.10 to provide medical 
records to the legal representative of the resident. Claiming that the 
next of kin, the individuals with the legal authority to bring a 
wrongful death claim, lack standing to obtain medical records, the 
nursing homes simply refuse to provide the records. In order to find 
the true cause of a patient's death, family members must open an estate 
and petition for letters. This paces a $500 to $700 administrative 
burden on the family just to obtain the records. It is an effective 
shield against most lawsuits because the facility simply stonewalls 
until the family forgets. This issue should be one of immediate concern 
for the committee. HHS should be directed to reform 42 CFR 483.10 to 
state that the ``legal representative'' includes a member of the class 
of persons authorized by statute to bring an action for wrongful death.
    I urge this committee to adopt standards for nursing staffing and 
standards for nursing care that are enforceable, not only by attorneys 
like me after the fact, but by surveyors in the field and county 
prosecutors. It is my understanding that this committee will hear 
testimony from one such courageous prosecutor, Jim Gregory, who 
prosecuted the management of Claywest for its failure to report abuse. 
Isn't it sad that where patients were left to lie in their own urine 
and feces for hours at a time, where they were allowed to serve as a 
feeding ground for ants, and where residents were beaten to death by 
wanted felons, that the only thing that could be done to the facility, 
and its management, under State law, was to punish them for lying about 
what caused a patient's death? Why couldn't the facility be prosecuted 
for the horrors it inflicted on the elderly? I hope you will ask Mr. 
Gregory that question, and I hope you will listen carefully to his 
answers and address them. \8\
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    \8\ Mr. Gregory undertook a prosecution that other prosecutors have 
shied away from. When four residents of the Leland Care Center in St. 
Louis County died from heat injuries, the St. Louis County Prosecutor 
failed to get indictments against the facility for an act of abuse and 
neglect.
---------------------------------------------------------------------------
    This past week I have spent investigating a claim of abuse and 
neglect where the majority of the investigation was done by the State 
by telephone. State agencies are strapped for cash and have had 
positions eliminated because of budget cuts. This has not escaped 
notice in the nursing home industry. The nursing homes are using that 
lack of State resources to their advantage. I know that Shane McClain 
at the Missouri Department of Health and Senior Services is doing the 
best job he can with the resources he has, but he needs more resources 
to protect the elderly, and States need to be able to impose the 
equivalent of the death penalty on a nursing home when it flaunts its 
regulatory non-compliance.
    I would urge this committee to give Federal law enforcement 
agencies like the HHS OIG and the U.S. Attorney clear direction by 
establishing mandates and standards for the nursing home industry that 
can be used to prosecute claims of abuse and neglect. These standards 
should err on the side of protecting the residents, and not on the side 
of giving the nursing home corporations lengthy appeals processes that 
effectively allow them to circumvent the regulations. \9\
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    \9\ Although Federal surveyors recommended penalties against 
Claywest approaching $300,000 for acts of abuse and neglect in 1999, 
the government settled this matter and imposed a cloak of 
confidentiality on the settlement amount. It took intervention by 
Senator Grassley's office to bring the matter into the sunshine.
---------------------------------------------------------------------------
    Right now under Missouri law, even Class I violations, violations 
so serious that life and health are jeopardized, may not be enough to 
bring a licensure revocation proceeding. The fact is that while 
Claywest was neglecting residents right and left in 1998 and 1999, and 
while it was being cited with over 300 regulatory violations during 
that period of time, it never had to worry about losing its license 
because it knew how to play the system.
    That process should be reviewed, revised, and made summary. I 
believe a corporation is as entitled to due process as is an 
individual, but that right to due process should take a back seat to 
protecting the elderly. When the needs of the elderly residents, almost 
all of whom have no effective advocate unless they are seriously 
injured or killed, are weighed in the balance against the corporate 
right to continue operations, the margin for error should be on the 
side of protecting the residents. It should not be on the side of 
protecting the profits of the corporations. These corporate entities 
annually drain billions from the Federal budget while delivering care 
so substandard that many advocates have compared them to prison camps. 
Nationally the U.S. Attorney, including the U.S. Attorney here in 
Kansas City, has been active in using the False Claims Act to go after 
this grossly substandard care. But the standards under the False Claims 
Act are vague, and special legislation is needed to hold corporate 
entities responsible for proving slipshod care.
    As our firm learned when it undertook the Claywest litigation, the 
only effective means of inducing any corporate change is to impact the 
corporate pocketbook. \10\
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    \10\ After nearly a score of lawsuits in 2 years against its 
facilities, American Healthcare Management, Inc., left the nursing home 
business in 2001. It was a victory for patient care.
---------------------------------------------------------------------------
    There need to incentives and mechanisms where caregivers can alert 
the Federal and State governments to unsafe staffing conditions and 
violations without fear of retribution. While an anonymous hotline 
exists, very few clinicians use it because any activation of that 
hotline inevitably leads to termination. Now, that termination is never 
``because of the hotline report-it is always for tardiness, or 
insubordination, or some other purported work rule violation. But the 
clinicians know that a phone call to the hotline will be quickly 
followed by a phone call to Employment Security. This is a subject that 
requires further study, and I hope the committee will undertake it.
    Many of the men and women whose family I have served as an advocate 
were caring, compassionate folks. Many were veterans and members of 
that Greatest Generation. They did not deserve to die alone and 
neglected in a nursing home. Over the last 3 years I have worked 
steadfastly on behalf of these men and women, trying very hard to see 
the wrongs righted. I have stood with my clients and listened to them 
cry as they told their stories. I have held the hands of the elderly 
nursing home residents I have helped and seen the fear in their eyes. I 
have seen the genuine joy in the eyes of a son or a daughter who 
received the satisfaction of knowing that a nursing home had been held 
accountable.
    This is my chosen career. It is how I justify my existence. I love 
my job because, like my job as a respiratory therapist, I get to help 
people who truly need my help every day. But the reason I have a job is 
because nursing homes, many owned by large for-profit entities that 
seek profits over patient care, are injuring and killing the elderly. 
The problem continues to grow. There has been a 22 percent increase in 
the number of healthcare organizations and healthcare executives who 
have been convicted of health care fraud, according to the HHS OIG. As 
I view the long term care landscape today, I see no end in sight to the 
abuse and neglect.
    This committee has the power to change that. This committee should 
seize the day and take action to stop abuse and neglect.
    Nothing would please me so much as to be put out of a job in that 
fashion.

                  Prepared Statement of Todd P. Graves

    Mr. Chairman, and Members of the Subcommittee: Thank you 
for your invitation to appear today and testify on my 
experience regarding elder abuse. I appreciate the 
Subcommittee's attention to these issues specifically nursing 
home abuse and neglect.
    Two cases successfully handled by the United States 
Attorney's Office for the Western District of Missouri may 
serve to illustrate the nature of the issue. Both cases involve 
egregious instances of painful injuries and unhealthy 
conditions suffered by elderly residents as a result of gross 
neglect on the part of nursing home operators. To address these 
cases, we took an innovative approach, filing civil actions 
against the operators under the federal False Claims Act.
    In April 2000, we filed a civil lawsuit against NHC 
Healthcare Corporation, the corporate operator of a nursing 
home in Joplin, Mo. This lawsuit was filed after a 149-page 
statement of deficiencies had been prepared by the Missouri 
Division of Aging, which catalogued numerous violations that 
threatened the health and safety of the nursing home's 
residents. The Division of Aging survey found repeated 
instances in which patients developed pressure sores, lost 
significant amounts of weight, and were left lying naked and 
unattended in their own urine while smeared with their own 
feces. At least two patients eventually died as a result of 
this neglect.
    Our lawsuit alleged that these instances of patient harm 
and abuse were attributable in large part to NHC's failure to 
provide adequate staff to meet the needs of nursing home 
residents.
    We believe NHC was so severely understaffed that it could 
not possibly have provided the level of patient care it was 
obligated to provide for reimbursement under the Medicare and 
Medicaid programs. Aware of these staff shortages, yet billing 
Medicare and Medicaid for services it clearly had not 
adequately provided, NHC was knowingly submitting false and 
fraudulent claims to the Medicare and Medicaid programs and 
thus violating the False Claims Act. In other words, we 
prosecuted as civil fraud against the government, rather than 
as actual elder abuse.
    There, was no precedent in the Eighth Circuit for this use 
of the False Claims Act, and very little case law from the 
other circuits. But in a series of groundbreaking rulings, the 
district court upheld the use of the False Clams Act to enforce 
quality of care standards in nursing homes. As a result, NHC 
agreed to pay $250,000 and submit to ongoing monitoring to 
settle the civil suit.
    In the second case, Woodbine Healthcare and Rehabilitation 
Center in Gladstone, Mo., agreed in December, 2002 to pay the 
United States $25,000 to resolve allegations that it failed to 
provide necessary services to its residents. Our lawsuit 
alleged that Woodbine's failure to care for its patients led 
to, for example, repeated maggot infestations in one patient 
and the development of penile gangrene and pressure sores in 
another resident.
    Both nursing home operators also submitted to corporate 
integrity agreements requiring them to perform audits and 
reviews to deternmine whether residents are receiving care that 
meets federal quality of care standards.
    The difficulty with this approach arises in establishing 
whether a nursing home fails to provide the services for which 
it is reimbursed by Medicare and Medicaid. Those programs 
reimburse nursing homes on a per diem basis for general care, 
rather than according to specific services rendered, For that 
reason, the False Claims Act is ill-suited for insuring 
adequate care of nursing home residents.
    In the two examples I've shared, both nursing homes failed 
so egregiously to provide even a minimal quality of care that 
there was no question they fell far below any reasonable 
standard, and thus we were successful in our civil actions 
against them. But in many cases, it is likely that even a 
deficient quality of care would fall into what the court 
prescribed as a ``grey area.'' In fact, the court opined that 
the point at which the overall quality of care crosses the line 
from what is requited for Medicare and Medicaid reimbursement 
to being so negligent that those claims are fraudulent is ``a 
very blurry Joint.'' The court noted that somewhere ``between 
gross neglect and perfect care'' lies ``an amorphous standard 
in need of further clarification.''
    Our prosecution of NHC was initially launched as a parallel 
proceeding, pursuing both the criminal and civil alternatives, 
which include mail and wire fraud statutes, health care fraud 
statutes, and the False Claims Act. But due to the nature of 
the nursing home industry, in which the billing function is 
separate from the provision of care (that is, separate staffs 
are responsible for those functions, Sand they may even be 
housed in separate buildings or work for separate corporations) 
it can be very difficult to bring a successful criminal action 
against the responsible parties.
    Thank you again, Mr. Chairman, and Subcommittee Members, 
for your invitation and for your attention to this issue. I 
look forward to answering your questions.

               Prepared Statement of Paul C. Vescovo III

    Mr. Chairman, and Members of the Committee, I would like to thank 
this committee for giving me the opportunity to address the issue of 
elder abuse and neglect.
    As the population of older Americans grows, so does the hidden 
problem of elder abuse an neglect. Every year an estimated 2.1 million 
older Americans are victims of physical abuse and neglect. However, 
those statistics do not tell the whole story because for every case of 
elder abuse and neglect that is reported to authorities, it is 
estimated that there may be as many as five cases that have not been 
reported.
    Elder abuse is a complex problem and it's easy for people to have 
misconceptions about it. For many people when the subject of elder 
abuse comes up they think it's about older people living in nursing 
homes or elderly people living alone and never having visitors.
    Actually, most incidents of elder abuse don't occur in nursing 
homes. Only about 4 percent of older adults live in nursing homes and 
the majority of these residents are having their physical needs met 
without experiencing abuse or neglect. Most elder abuse takes pace at 
home. The great majority of older people live on their own, or with 
their spouses, children, or other relatives; not in nursing homes. When 
elder abuse happens most often it is family or paid caregivers who are 
usually the abusers.
    Investigating cases of elder abuse poses unique challenges for law 
enforcement. As I mentioned earlier, elder abuse is a complex problem 
which calls for comprehensive training for law enforcement officers so 
that elder abuse incidents can be effectively investigated. Elder abuse 
is a largely hidden problem in our society that only recently has 
received attention from the criminal justice system. Training will 
increase the awareness of this unique problem, and allow us to more 
effectively respond to elder abuse incidents.
    A concern that I have as a law enforcement leader when it comes to 
the issue of elder abuse, is the ability of social agencies to assist 
law enforcement in adequately responding to cases of elder abuse and 
neglect. Successful investigation and resolution of elder abuse cases 
requires collaboration and support from adult protective services.
    Intervention by law enforcement in instances of elder abuse almost 
always results in police agencies accessing social service agencies to 
assist the victim. Due to recent budget shortfalls and declining 
revenues, cuts in social service funding are inevitable. Without 
adequate funding to support these social service agencies, we in law 
enforcement will find it increasingly difficult to assist victims of 
elder abuse and neglect in obtaining the support and care they need.
    Social service agencies also provide counseling for behavioral or 
personal problems in the family, which can play a significant role in 
preventing violence against an older family member.
    I also feel that education of the public on elder abuse and neglect 
would go a long way toward preventing elder abuse. Public education and 
media coverage concerning domestic violence and child abuse has made 
the public knowledgeable and proactive in the reporting of such abuse 
and has garnered support for the funding of programs to combat such 
abuse. Because most abuse occurs in the home by family members or 
caregivers, there needs to be a concerted effort to educate the public 
about the special needs and problems of the elderly.
    I would again like to thank this committee for inviting me to voice 
my thoughts on this issue.

                  Prepared Statement of Norma Collins

    Mr. Chairman and Members of the Committee, on behalf of AARP 
members in Missouri, I want to thank Senator Bond for convening this 
hearing on service and commitment to protecting older and dependent 
adults from abuse and neglect through S. 333, The Elder Justice Act. 
State and national attention to elder abuse concerns is highly valued 
by AARP members and America's older population.
    Elder abuse is an issue of critical importance for AARP. Our 
members tell us that protecting themselves and their loved ones from 
abuse and fraud is one of their major concerns.
    The risk of harm is real as the number of people living into 
advanced old age increases dramatically. Fully mobilizing the law 
enforcement community and engaging all sectors of society in the fight 
against abuse, neglect, and exploitation is essential.

                     ELDER ABUSE--A HIDDEN PROBLEM

    Elder abuse, like other forms of domestic violence, is a hidden 
problem.
    It is not discussed because, in many cases, it's occurring within a 
family--90 percent of the abusers in domestic cases are relatives. Two-
thirds of these are adult children (47 percent) and spouses (19 
percent).
    The secrecy, personal embarrassment, and fear that surrounds abuse 
leads to significant under-reporting of incidents.
    The National Elder Abuse Incidence Study, commissioned by the U.S. 
Administration on Aging and released in 1998, provides a starting point 
for gauging the extent of the problem. The study estimated that in 
domestic settings, some 450,000 older persons, aged 60 and over, 
experienced abuse and neglect in 1996. The census projects the 
population group aged 65+ in Missouri to increase from 755,000 in 2000 
to 1,258,000 in 2025.
    Most significantly, the Study concluded that over five times as 
many incidents of elder abuse and neglect went unreported. Only the 
most visible and recurring cases get reported. Like an iceberg, the 
bulk of the problem remains hidden from view.
    The Study also confirmed reports by enforcement personnel across 
the nation with regard to the demographic characteristics of victims. 
The Study found:
    Persons 80 years of age or older are abused and neglected at rates 
two to three times their proportion in the older population.
    Women are disproportionately victims.
    Older persons with physical and mental frailty are more likely to 
suffer abuse and neglect. Over \3/4\ (77 percent) of victims of abuse 
are unable or only partially able to physically care for themselves. 
Sixty percent of abuse victims are suffering from some degree of 
confusion. Further, close to half of abused older persons exhibit 
depression.
    Other effects of abuse are helplessness, alienation, guilt, shame, 
fear, anxiety and denial.
    These characteristics have significant implications for the 
detection and successful prosecution of abuse cases. Older victims must 
be removed from an offender's reach to appropriate shelter. Specialized 
protocols are often required where victims are unable to testify on 
their own behalf due to cognitive impairments or poor physical health.
    Despite under-reporting, there has been a very substantial increase 
in the number of official reports of domestic elder abuse. Between 1986 
and 1996, the number of reports rose from 117,000 to 293,000, an 
increase of 150 percent. Indeed, a study in the Journal of the American 
Medical Association (1998) revealed that only 9 percent of abused 
elders survived beyond the 13-year study versus 40 percent of nonabused 
elders in the control group for the same period.
    In addition, a recent Congressional report found that 30 percent of 
all nursing homes between the years 1999 and 2001 were cited for an 
abuse violation that caused or had the potential to cause harm to a 
resident. The study also found that reported abuse violations in 
nursing homes had tripled between 1996 and 2001.
    These figures help to demonstrate the seriousness of today's 
problem. But dramatic changes in the older population portend a 
substantial increase in the number of abuse and neglect cases in the 
not too distant future.

                   MEETING THE DEMOGRAPHIC CHALLENGE

    By the year 2030, the number of people over 85 years of age--those 
most at risk of abuse--will more than double. This is the fastest 
growing segment of the older population. Developing the support 
services and enforcement network to meet the needs of a larger number 
of potentially vulnerable persons poses a significant challenge.
    Current laws addressing elder abuse and our system of protective 
services are far from perfect. Many State elder abuse statutes lack 
adequate provisions to encourage wider reporting of incidents and 
thorough investigation and prosecution of abuse cases. Not too long 
ago, it was difficult, if not impossible, to get an abuse case 
investigated and prosecuted. Fortunately, that situation has changed 
but there is still a great need for specialized knowledge that will 
allow successful prosecutions and encourage further development of case 
law.
    There are also many gaps in the network of services for abused and 
vulnerable adults. These include a lack of:
    Emergency temporary housing and in-home care for abuse victims;
    Responsible guardians to act on behalf of victims who lack the 
capacity to manage their own affairs;
    Training for adult protection, law enforcement, and prosecutorial 
staff;
    Coordination between Federal, State and local agencies; and
    Reliable national and State data.

                     THE ELDER JUSTICE ACT OF 2003

    Recognizing the need for a coordinated approach to the problems of 
abuse and neglect, AARP joined a number of organizations in supporting 
S. 333, the Elder Justice Act of 2003, which was recently introduced in 
Congress on a bipartisan basis. This legislation would greatly enhance 
the Federal Government's ability to partner with States and communities 
to develop the tools needed to ensure the safety of their most 
vulnerable citizens. A number of provisions are particularly relevant 
to the enforcement community. These include:
    Creation of an Office of Elder Justice within the U.S. Department 
of Justice, similar to the Department's Office of Juvenile Justice and 
Delinquency, to be responsible for developing a national strategy to 
improve the elder justice system in the United States.
    Creation of an Elder Justice Coordinating Council as a forum at the 
Federal level for States and private non-profit agencies working on 
abuse issues. The bill would also authorize funding for similar 
coordinating committees at the State level.
    Authorization of grants to establish forensic centers to enhance 
forensic expertise in the area of elder abuse. This would include 
development of forensic markers and methodologies to aid in the 
detection and diagnosis of abuse.
    Authorization of grants for multi-disciplinary response teams and 
training of professionals from a variety of disciplines including 
prosecutors, police and sheriffs, and adult protective services.
    Creation of a Center at the American Prosecutor Research Institute 
to provide support to local prosecutors working on elder abuse cases. 
(similar to the National Center for Prosecution of Child Abuse)
    Authorization of grants to develop community policing efforts 
designed to make communities safer for older persons living in all 
settings. Such efforts could include expanding the TRIAD program-a 
collaboration of the National Sheriffs Association and other entities-
to address not only street crime but abuse and neglect, particularly 
against older persons living in isolation.
    While advocating strongly for Federal proposals like the Elder 
Justice Act, AARP recognizes the need to encourage and support ongoing 
efforts at the State level to improve public awareness, the quality of 
investigations and enforcement in cases of abuse and neglect. These 
efforts are articularly Important as Missouri and other States struggle 
with a likely prolonged period of fiscal austerity.

                    FOSTERING COLLABORATIVE EFFORTS

    Enforcement and prosecution play a key role in redressing abuse and 
neglect after they have occurred. But just as important is the role of 
prevention. While research has indicated a number of potential risk 
factors for abuse--a history of marital abuse, financial dependency on 
the part of the abuser, and twing in isolation--we still do not know 
why abuse occurs in some instances, such as the recent Kansas City case 
covered in media reports, but not in others. Studies suggest that 
persons who are isolated and in declining health are more reluctant to 
report abuse or testify regarding their abuse.
    This situation makes early detection of warning signs through the 
encouragement of wider reporting and community policing extremely 
important. Similarly, prosecution of abuse draws a line in the sand and 
indicates that we, as a society, will not tolerate such conduct. 
Sending this message is especially critical because elder abuse is a 
crime that has long remained out of public view.
    AARP has historically been concerned about financial fraud-the 
predominant type of reported elder abuse after self-neglect, and the 
fastest growing form of abuse. The main hurdles to successful 
prosecution of these crimes are getting these cases reported to law 
enforcement, having them thoroughly investigate and having them 
prosecuted in a timely and appropriate manner.

                               CONCLUSION

    The challenges we face in stopping the abuse of our most vulnerable 
citizens are formidable. However, more efficient use of the talent and 
creativity of local, State and Federal protective services agencies and 
programs--as envisioned by S. 333, the Elder Justice Act--offers 
tremendous hope. Once again, AARP appreciates your leadership in 
efforts to assure the safety and well-being of older Missourians and 
all American citizens; we look forward to working with you toward that 
end. Thank you.

                  Prepared Statement of Betty Willson

    Dear Committee Members: I appreciate this opportunity to tell about 
my experience with nursing home abuse. My mother, who passed away in 
April, 2003, spent six years in our local Beverly, Inc. facility. It 
was a nightmare for both of us. It's not that we didn't make our 
problems known to State; we even formed a family Council to deal with 
the suffering and death we saw (see enclosed copy of a letter we wrote 
to State just last year). As usual, the State cited them for these 
serious problems, let the facility ``correct'' them, and did nothing 
else, even though the facility had a long history of being out-of-
compliance and should have been shut down.
    When my mother suffered two broken ribs and a chipped elbow, it 
could have been prevented by the facility which allowed trainee aides 
to transfer her and other residents over the objections of the CNA who 
reported it to his superiors. Since a monitor was in the facility at 
the time (because of many previous violations), they did not report my 
mother's injuries either to me or to the State. They tried to explain 
to me that she screamed and cried because she had osteoporosis or 
arthritis.
    I finally took her to the hospital myself for X-rays. They had 
plenty of time to send a nurse over to the ``facility friendly'' ER 
doctor to tell him what they had told me, so he told me that all he saw 
on the X-rays was ``some arthritis''. That evening, I got hold of Mom's 
family doctor. He saw the X-rays and made an appointment for Mom the 
next day with a bone specialist. He found two broken ribs and a chipped 
elbow. By this time, Mom had suffered seven pain for over 30 hours, 
with no treatment other than Tylenol.
    Later, a team from State came in, determined what had happened, 
validated my claim of abuse, cited the place for not reporting the 
injuries, and (guess what?) did nothing else. Even the monitor buried 
the incident in her weekly report with only eight words: ``One resident 
received multiple fractures of unknown origin''. We later discovered 
that this ``neutral'' monitor was a former employee of a Beverly 
facility.
    Most abuse is rooted in neglect, and neglect is exacerbated by 
understaffing, undertraining, and the nursing homes' blatant cover-ups 
because they do not fear getting penalties or fines. Facilities are 
almost always aware of imminent inspections, so they have time to bring 
in extra staff, cover up problems, and re-do records, in order to 
obtain good surveys.
    As for abuse, I have seen residents given the wrong medications, 
sitting or sleeping for hours in wheelchairs, falling and suffering 
injuries and even death, not being fed at mealtime, choking to death, 
going for days or weeks without showers or having their teeth brushed, 
teeth rotting out, eyeglasses and dentures lost but not replaced, etc. 
(See our Family Council letter enclosed.)
    The answer to abuse lies in having consistently and strictly 
enforced laws addressing minimum staffing, required training of aides, 
and penalties that fit the crime of elderly abuse. Until we achieve 
those goals, the suffering will go on and on and on . . .
                                 ______
                                 
                         Caregivers Family Council,
                                     Neosho, MO 64850-1726,
                                                     July, 3, 2002.
Mr. H. David Morgan,
Jefferson City, MO 65102-0570.

    Dear Mr. Morgan: Your letter of June 7 to Janet Clayton was 
recently shared with me because my name was mentioned in it. Since I am 
Chairman of our Family Council here at Beverly Healthcare of Neosho, I 
would appreciate it if you would review with me some of the statements 
made in the letter.
    In their May 2 survey, this facility was given two ``J'' tags for 
federal violations, which were dropped to ``H''s. Since they received 
two of these, plus an ``E'' and a ``G'' (plus yet another ``G'' for an 
accident investigation just two months before), we believe these 
violations warrant being moved to ``K''s rather than being dropped back 
to ``H''s. When nine out of 14 residents (60%) were assessed with Stage 
IV bedsores acquired after being admitted, and when the facility has a 
long history of being out of compliance (7 out of the last 8 years), we 
believe it is time to stop giving them more chances to ``correct'' 
their problems, only to repeat them again and again.
    All of their violations also received a State rating of Category 
II, which requires penalties of varying severity. We hope each of these 
violations will receive a penalty, with daily fines being imposed for 
the ``H''s. This facility has had several less stringent penalties in 
the past, but, to our knowledge, has never been given a fine. Such a 
monetary penalty would be the only way to get the attention of a huge 
corporation such as Beverly, Inc. As caregivers, we are convinced that 
daily fines would bring about faster results in obtaining better care 
for our loved ones.
    In paragraph three you stated that ``the pressure sores did not 
show signs of infection''. In the survey, they were described as 
``growing'', ``tunneling'', ``sloughing'', ``undermining tissue'', 
``macerated'', ``containing dead tissue'', etc. A Stage IV pressure 
sore is described on page 22 of the Survey as ``A full thickness of 
skin and subcutaneous tissue is lost, exposing muscle and/or bone''. 
Pressure sores are treatable and preventable and should never be 
allowed to reach this stage where they can cause agonizing pain, shock 
to the body, and death--whether or not the wounds are infected. This 
week, one resident died from the effects of her horrible Stage IV 
pressure sores. This is not the first time this has happened here, and 
we feel the facility should be held accountable.
    In paragraphs 7 and 8, you mentioned the list of concerns I 
presented to a surveyor on behalf of our Family Council at the January 
25 survey. You stated that ``we could not prove the allegations 
contained within Betty Willson's list, except to a sink having lukewarm 
water.'' Why, then, was the facility cited for two of the concerns--
cold water not only in the dining room sink, but also on one hall of 
the facility for weeks, as well as a lack of activities for residents. 
Five more of our concerns on the list became proveable and were cited 
on the 4/2 survey just 10 weeks later. (These were (1) understaffing, 
with aides working 12, 16, and 20 hour shifts; (2) Charts and records 
in disarray: (3) visible sores on patients (especially my mother), (4) 
Bottlenecks of wheelchairs after evening meals, causing late bedtimes 
for patients, and (5) Aides not using rubber gloves and/or handwashing 
between patients to prevent infection.
    I presented our other concerns also: (1) understaffed kitchen 
causing late meals and unbalanced menus consisting mainly of starches: 
(2) numerous serious injuries from falls; (3) wrong medications being 
given; and (4) the facilities apparent foreknowledge of the times of 
State visit plans. We felt that these complaints were evident at the 
time (1/25) we reported them. We do not understand why some could not 
be proved until 10 weeks later.
    At I left the surveyor, I told her CONFIDENTIALLY that there was a 
nurse who was willing to be contacted to verify, or add to, our list of 
concerns. I gave her telephone number, and the hours she could be 
reached. She waited for a call, but was not contacted during the entire 
time of the visit. After the team left, the administrator called her 
``on the carpet'' where she was accused of ``talking to state and to 
residents' caregivers about confidential matters''. Her hours were cut 
to only 8 per week and she was so upset she almost quit, even though 
she had been a loyal employee for over a decade. This incident 
undermined what little faith we had in our confidentiality being 
preserved.
    On January 30, I received a letter from Julie McCarty, the surveyor 
who recorded our list of concerns, stating that ``several residents, 
family members, and staff were interviewed'' (regarding our list). 
However, no member of our Family Council was interviewed, except 
myself. Nor was the nurse who volunteered to be interviewed. The letter 
said, ``records were reviewed'', but if they were, why didn't they 
discover how chaotic they were until 10 weeks later? The letter said 
that ``all shifts were observed'', but members of our Family Council 
were in the facility during the entire time (except for some of the 
late-night shifts) and none of them saw a surveyor in the facility 
after 7 p.m. The after-supper bottlenecks continued.

                   Prepared Statement of Joe Maxwell

    Thank you Senator Bond and Members of the Subcommittee on Aging for 
allowing me to submit written testimony in conjunction with the 
hearings held in Missouri to discuss the issue of nursing home reform 
and efforts at the federal level to pass legislation.
    As the state of Missouri's official advocate for the elderly, I 
would have appreciated the opportunity to testify in person at the 
hearings in Kansas City and St. Louis. In the future, please feel free 
to contact my office when you need assistance in addressing policies 
affecting Missouri seniors and their families.
    I have long advocated and fought for nursing home reform in our 
state. Unfortunately, it is long overdue. As Elderly Advocate, my 
office handles inquiries and concerns from seniors and their families 
on a daily basis. In the last two years, my staff and I have dealt with 
some horrific abuse and neglect cases--far too many of which have 
resulted in death. We've seen seniors who have suffered from severe 
bums or have choked to death due to a lack of proper supervision. We've 
seen far too many cases of sexual abuse. And we've seen bedsores so bad 
that amputation was the only remedy.
    This year, after three years of trying, we were finally able to 
pass meaningful nursing home reform with the passage of The Senior Care 
and Protection Act of 2003 (SB 556/311). This important legislation was 
the product of a bi-partisan effort that included a lot of hard work 
and negotiation on both sides of the aisle.
    The Senior Care and Protection Act of 2003 sought to rid our state 
of the ``bad actors'' in the nursing home industry by holding them 
accountable and making them pay the price for non-compliance, while at 
the same time creating provisions that support the majority of homes 
that do provide good, quality care. The major provisions in SB 556/311 
include:

    Increasing fines for violations and making them stick for the most 
serious violations (prior to this legislation, fines had not been 
increased in Missouri since 1979 and state regulators had not been able 
to collect fines that were levied)
    Increasing accountability for nursing home administrators by making 
it a Class D felony for those who conceal abuse or neglect
    Requiring criminal background checks for all employees, whether 
they live in or out of state
    Requiring background checks for owners by allowing the state to 
consider compliance history in other states before granting them a 
license to do business in Missouri
    Protecting nursing home employees from employer retaliation for 
reporting abuse and neglect

    SB 556 passed both houses of the general assembly with overwhelming 
bipartisan majorities, and enjoyed the strong support of senior 
advocates throughout the state. At the end of the day, the nursing home 
industry was divided among those who could support the bill (some 
reluctantly) and those who finally agreed they could ``live with the 
bill.''
    Missouri's new nursing home law goes into effect next week on 
August 28. I am confident that the laws enacted in this legislation 
will provide our seniors residing in nursing homes with greater 
protections against abuse and neglect.
    I encourage Members of the Committee to take a close look at 
nursing home reform legislation passed in Missouri and other states in 
order to ensure that any federal legislation supports, rather than 
hinders, reform efforts at the state level. I have attached a copy of 
SB 556/311 for your review and would be happy to respond to any 
questions you may have.
               Missouri Coalition For Quality Care,
                                 Jefferson City, MO, 61502,
                                                   August 21, 2003.
Hon. Kit Bond,
U.S. Senate,
Jefferson City, MO, 65101.

    Senator Bond: As a citizen of Missouri and officer of the Missouri 
Coalition for Quality Care (MCQC), I applaud you on your testimony 
before the Committee on Finance on July 17, 2003.
    This past week I was called by your staff to inquire if I would be 
interested in testifying at your field hearings in Kansas City on 
August 19. I was looking forward to this opportunity to express my 
opinions on the subject of elderly abuse and neglect but obviously the 
quota had been reached.
    I have over 15 years experience as a volunteer ombudsman, both in 
Iowa and Missouri. I resigned from the Missouri Ombudsman Program in 
1997 because my reports on serious complaints were not addressed and 
facilities were allowed to dictate the ombudsman's role and 
participation. I joined MCQC in 1998 and find that I can accomplish far 
more than being confined to an unsuccessful ombudsman program.
    The Long-Term Care Ombudsman Program was initiated in 1972, and 
today--31 years later--Missouri only has ombudsmen assigned to 312 
nursing homes out of 1,232 facilities. It is appalling that 920 
facilities (75%) are without an ombudsman who is defined as the primary 
facilitator throughout any complaint or grievance process on the behalf 
of residents. THIS IS A TRAGEDY!
    In your testimony you spoke of the tragic deaths of four elderly 
residents at Leland Health Care Center in University City, MO., in 
April of 2001. I am well aware of this catastrophe and the failure to 
prosecute those responsible. We at MCQC wrote many letters appealing 
for accountability measures. You know the outcome, you spoke of it in 
your testimony. A special MCQC recognition award was presented to the 
paramedics and fire-fighters who responded to the Leland call. It was 
chilling to hear the details of that tragedy. We were sorry you were 
unable to attend the ceremony.
    I've also encountered many heartbreaking, unresolved problems while 
serving as an ombudsman. It is incomprehensible that no one wanted to 
get involved when an elderly couple lost their substantial life 
savings, when they were forced to sell their last possession of 40 
acres for a measly sum of $3,000 so they could receive Medicaid, when 
the wife's guardian failed to enter funds from--sale of property into 
her records, when the gentleman had to wear the same colostomy pouch 
for three days and tie candy wrappers around it to prevent leaking, 
when the gentleman expressed a desire to move to another facility he 
was threatened that he would never see his, wife again because her 
guardian refused to let her move with him--and on, and on, and on. 
However, we took the guardian to court, the judge ruled that the wife 
of 65 years should be with her husband, and we moved this couple to 
another home. They have both passed away within the last two years. We 
saw to it they were not buried in a pauper's grave. They are buried at 
a beautiful country cemetery in Yarrow, MO., with a large granite 
headstone bearing the family name. This gentleman and his wife saved 
their money and planned well, never dreaming they would be so 
victimized.
    Senator Bond, I am proud that you represent us in the U.S. Senate 
and was delighted to hear you comment that nursing home residents and 
their families have suffered and been victimized by problem nursing 
homes for far too long.
    The Missouri Coalition for Quality Care will continue with our 
mission and goal to improve the quality of care and quality of life of 
residents in Missouri's long-term care facilities and recipients of in-
home care.
            Sincerely,
                                     Mrs. Phyllis Krambeck,
                                                    Vice President.
                                 ______
                                 
              Two Areas For Consideration--Henry Krambeck

1. Shortage of Volunteer Ombudsmen and Suggestion for Remediation.
    With the recent move to limit state inspections of nursing home 
facilities in Missouri from two per year to one (and in same instances 
none) it is crucial that all facilities have volunteer ombudsmen on 
board. However, recent statistics indicate that 75% of the nursing 
homes in Missouri do nat have ombudsmen serving in their facilities! 
This is a tragic situation. I believe the student ombudsman program 
implemented at Truman University in Kirksville, MO. (now in its third 
year) would dramatically impact the ombudsman program if duplicated 
state-wide. The accompanying materials explain the program and detail 
its success in this area: ``A Student Ombudsman Project--An Overview'', 
``Need An LTC Ombudsman? Consider This . . .'', ``Local Ombudsmen 
Highlighted in National Publication'' and ``A Success Story''. I hope 
you would have time to peruse these materials.

2. Nursing Home Bill Needed.
    It is a truism that some nursing home administrators do not want 
volunteer ombudsmen in their facility. This attitude immediately 
suggests that the facility is not operating efficiently. It is also a 
fact that some ombudsmen have been terminated by administrators despite 
the fact they were doing a good job of advocating for the residents. In 
many instances these terminations were without due process or just 
cause. Last year I suggested a Bill to Mr. Sam Berkowitz that would 
remedy this situation. Mr. Berkowitz was anxious to sponsor this Bill 
but lost his bid for a Senate seat. The Missouri Coalition for Quality 
Care (a non-profit advocacy group) of which I am a member, is currently 
looking for someone to sponsor the Bill. The Bill would make it 
mandatory for a nursing home to accept an ombudsman if one were. 
available. Further, the ombudsman could be recalled only by the 
regional ombudsman coordinator and only after due process and just 
cause.
    Thank you for your attention to these suggestions. I firmly believe 
that, if implemented, the two ideas stated above would have a profound, 
positive impact on the Missouri state ombudsman program. This would 
result in better care for nursing home residents as well as to provide 
a training vehicle for students planning a career in health services.

                                 ______
                                 
        Truman State University--``A Student Ombudsman Project''

    Eta Sigma Gamma is a national professional health education 
honorary established in 1967. There are approximately ninety-nine 
chapters nation wide. The only Missouri chapter is located at Truman 
State University in Kirksville and is coordinated by Dr. Carol Cox of 
the University. The three elements forming the basic purpose of the 
organization are teaching, research and service. The organization is 
designed specifically for professionals in health education. During the 
year 2001 Dr. Carol Cox came across an article in a periodical relating 
to the ombudsman program. Realizing this was a program that would fit 
well with the objectives of the Honorary, she called the toll free 
number listed in the article. After several subsequent calls she was 
put in contact with the Mark Twain Legal Services in Canton, Missouri 
which is the office of the Regional Ombudsman Coordinator for the area 
wherein the university is located. Arrangements were made for training 
the student participants and this was accomplished.
    On March 14, 2001 I received an email from Clare Wheeler of the 
Canton office requesting that I interact with the eight trained 
students and attempt to place them in suitable facilities in the local 
area. Realizing that time was of the essence (the school year was 
coming to a close) I decided on a plan that would result in maximum 
student placement and one that would provide an ongoing source of 
future participants. It was decided to place student ombudsmen in teams 
of two, preferably a male and female and to initially utilize juniors 
and seniors for obvious reasons. After gaining some experience and with 
the end of the school year in sight, it would be the responsibility of 
the ``experienced'' student ombudsmen to select and indoctrinate their 
successors. We used the analogy of a relay team on a track squad. This 
plan not only made use of a maximum number of students but afforded the 
chosen facilities an opportunity for increased resident/patient 
contacts. It should also be mentioned that some of the students were 
already certified CNA's. Initial placements were made at Northeast 
Regional Health Center and the Twin Pines Adult Care Center Both 
facilities were eager to participate in the program and placement was 
affected following a brief training session with the students and a 
placement staffing involving the students, myself and administrators/
staff of the facility. Although of short duration because of the school 
year, the plan worked well and one of the students elected to remain on 
the job during the summer. I prevailed upon my wife to act as ombudsman 
of the Twin Pines facility during the. summer. She was successful to 
the point that I was considering adding additional student ombudsman to 
that facility under her supervision this school year. Placing a student 
in each wing would make possible a contact with every resident once 
each week - an optimal situation. Unfortunately, recent events at Twin 
Pines relating to staff and communication problems with the facility 
Board of Directors has undermined this unique opportunity.
    Twelve students are participating this school year, four returning 
students and eight new candidates. They have completed training and we 
are in the process of placement. Recently I place two students with Mr. 
Karen Stone, administrator of the LaPlata facility. A few weeks after 
placement I followed up with Mr. Stone to determine if he was satisfied 
with the program and his reaction was immediate. He declared it a 
wonderful program not only for the facility and the residents but for 
the students as well. It is cooperation such as Mr. Stone's that result 
in approaching optimum care for our nursing home residents and hospital 
patients. Dr. Cox and I also have high praise and appreciation for the 
following people who eagerly participated in the initial program: 
Marilyn Powell, former administrator of Twin Pines; Louise Smith former 
social services coordinator of Twin Pines and=Beverly Howard on the 
staff at Northeast Regional Health Center.
    Finally, it should be evident to all concerned that this ``pilot 
program'' is deserving of further implementation and analysis. Dr. Cox, 
my wife and I have contended from the outset that such a program would 
be worthy of implementation state-wide if not nation-wide. Students 
would not necessarily have to be members of a health honorary. Most 
colleges and universities in Missouri have health programs or service 
programs from which these students could be selected. It would provide 
an ongoing source of young, energetic people who are interested in the 
health field for the ombudsman program. Students would benefit 
significantly from the experience, facilities would benefit from the 
additional help and, most of all, the residents/patients would be 
assured of receiving the highest level of care possible. Programs such 
as described above in conjunction with continuing improvement of the 
state-wide ombudsman program could result in significant benefits for 
all citizens.

                                 ______
                                 
               Need An LTC Ombudsman? Consider This . . .

    Are long term care ombudsman volunteers difficult to recruit in 
your area? Would a continuing source of trained ombudsmen volunteers be 
welcome in your community? If your answer to the above questions is a 
resounding ``yes'' you might consider developing a program similar to 
the one currently functioning in Kirksville, Missouri and the 
surrounding community.
    Based on the Truman State University campus in Kirksville, MO is a 
group of students who are members of Eta Sigma Gamma, a national 
professional health education honorary established in 1967. Totaling 
ninety-nine chapters nation wide, only one chapter is located in 
Missouri. Dr. Carol Cox of the university coordinates the program that 
is comprised of three basic elements i.e., teaching, research and 
service. Realizing that the Missouri State Ombudsman program would be a 
perfect vehicle to realize the basic purposes of the honorary, Dr. Cox 
made provisions for her students to receive the necessary training for 
placement as ombudsmen in the surrounding community. Assistance was 
provided by the Regional Ombudsman Coordinator housed in Canton, 
Missouri. Administrators of local Nursing Home facilities, Residential 
Care facilities and the N.E. Regional Health Center were contacted for 
possible placement opportunities. In almost every instance 
administrators were eager to participate in the program. Following a 
pre-placement orientation by a representative of the Canton office, 
students were presented to the facility administrator and staff for a 
placement orientation meeting. A supervised facility tour was then 
undertaken and arrangements made for continuing service. After the 
student ombudsmen achieve some experience a follow-up meeting is 
usually held to discuss any problems or concerns. Students are placed 
in teams of two where possible. Juniors and seniors are placed first 
for obvious reasons. The analogy of a relay team on a track squad is 
used in that student ombudsmen who graduate from the University have 
the responsibility of indoctrinating their successors thus creating a 
continuing source of trained student volunteers. At this date, all of 
the students in the program have been placed and are functioning 
successfully in local facilities within Kirksville and in the outlying 
communities of LaPlata and Queen City.
    It should be stated that the above program could be implemented 
anywhere in the country. Students would not necessarily have to be 
members of a health honorary. Most colleges and universities have 
health or organized programs that are service oriented. Projects 
similar to that described above would tend to keep interested students 
in the health field. (It should be noted that some of the students in 
the Truman project are already CNA's). Students would benefit 
significantly from the experience, facilities would benefit from the 
additional help and, most of all, the residents/patients would be 
assured of receiving the highest level of care possible.
    Finally, the following people should be acknowledged for their 
eager cooperation that led to the initial success of the Truman 
project: Marilyn Powell, former administrator of Twin Pines Adult Care 
Center; Louise Smith, former Social Service Director of that facility; 
Beverly Howard, Administrator with the N.E. Regional Health Center; Nan 
Blickhan, Director of Social Services for that facility and Karen 
Stone, administrator of the LaPlata Nursing Facility in LaPlata, MO.

                                 ______
                                 
          Local Ombudsmen Highlighted in National Publication

    Sara Clouse, Alan Toigo, Henry Krambeck BSwD, MA and Carolyn C. Cox 
PhD,CHES have recently published an article entitled, ``The Student 
Ombudsman Model'' in the nationally recognized journal, ``Annals of 
Long-Term Care - Clinical Care and Aging'' from the American Geriatrics 
Society May 2003 edition. Sara and Alan are both enrolled in the Health 
Science program at Truman University and are members of the national 
professional health and science honorary Eta Sigma Gamma. They 
currently serve as ombudsmen at the LaPlata Long-Term Care facility in 
LaPlata, MO. Mr. Krambeck is it former educational administrator and 
has functioned as an ombudsman in Iowa and Missouri since 1989. He 
currently assists Dr. Cox with the Student Ombudsman Program and serves 
as liaison person for MCQC (Missouri Coalition for Quality Care). MCQC 
has formed a partnership with the twenty member student group. Dr. 
Carolyn Cox is faculty advisor for the award winning Eta Sigma Gamma 
honorary. Dr. Cox originated the Student Ombudsman Model two years ago 
with assistance from Mr. Pat Wheeler and Clare Wheeler, regional 
ombudsman coordinators from Canton, MO. Now in the second year of the 
program, sixteen student ombudsmen serve all facilities in the area 
with one exception including LaPlata, Schuyler County, N.E. Regional 
Health Center, Manor Care and Kirksville Residential Care Center.

                                 ______
                                 
                            A Success Story

    MCQC's alliance with the Truman University Student Ombudsman Model 
continues along successful lines. The program, now in its third year, 
has received local, state and national recognition. Some recent 
accomplishments include: Student participation with the Coalition in 
legislative advocacy activities in Jefferson City; Conclusion of a 
state-wide study, ``Long-term Care Administrators' Perceptions of the 
Ombudsman Program in the State of Missouri'' (in review by the journal, 
The Director; Publication of the Model in the national professional 
journal, ``Annals of Long-Term Care''. In addition, the number of area 
ombudsmen increased six-fold over a two year period with volunteers 
making over two hundred visits to each area facility (Adair and 
surrounding counties), impacting 450. residents. All of the 
participating students have been trained and certified by the Arthritis 
Foundation as PACE (People with Arthritis Can Exercise) Instructors and 
teach senior exercise classes in the area (Adair County). 
Interestingly, some student ombudsmen have changed their major emphasis 
to Health Care Administration in hopes of becoming a nursing home 
administrator after graduation!
    Sadly, approximately 75% of nursing homes in the state do not have 
ombudsmen. With the recommended reduction of state nursing home 
inspections from two visits per year to only one it is critical that an 
ombudsman be an integral component in every facility. A statewide 
adoption of the Student Ombudsman Program as utilized in Kirksville 
could solve the problem. The student volunteers have enjoyed a unique 
bond with residents while positively impacting that individual's life. 
In the process, the students amass that body of knowledge necessary to 
become successful in their chosen career. These students are our health 
providers of tomorrow!

    [Whereupon, at 3:47 p.m., the committee was adjourned.]

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