[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
IN THE HANDS OF STRANGERS: ARE NURSING HOME SAFEGUARDS WORKING?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
MAY 15, 2008
__________
Serial No. 110-116
Printed for the use of the Committee on Energy and Commerce
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COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey CLIFF STEARNS, Florida
BART GORDON, Tennessee NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois ED WHITFIELD, Kentucky
ANNA G. ESHOO, California BARBARA CUBIN, Wyoming
BART STUPAK, Michigan JOHN SHIMKUS, Illinois
ELIOT L. ENGEL, New York HEATHER WILSON, New Mexico
ALBERT R. WYNN, Maryland JOHN B. SHADEGG, Arizona
GENE GREEN, Texas CHARLES W. ``CHIP'' PICKERING,
DIANA DeGETTE, Colorado Mississippi
Vice Chairman VITO FOSSELLA, New York
LOIS CAPPS, California STEVE BUYER, Indiana
MICHAEL F. DOYLE, Pennsylvania GEORGE RADANOVICH, California
JANE HARMAN, California JOSEPH R. PITTS, Pennsylvania
TOM ALLEN, Maine MARY BONO MACK, California
JAN SCHAKOWSKY, Illinois GREG WALDEN, Oregon
HILDA L. SOLIS, California LEE TERRY, Nebraska
CHARLES A. GONZALEZ, Texas MIKE FERGUSON, New Jersey
JAY INSLEE, Washington MIKE ROGERS, Michigan
TAMMY BALDWIN, Wisconsin SUE WILKINS MYRICK, North Carolina
MIKE ROSS, Arkansas JOHN SULLIVAN, Oklahoma
DARLENE HOOLEY, Oregon TIM MURPHY, Pennsylvania
ANTHONY D. WEINER, New York MICHAEL C. BURGESS, Texas
JIM MATHESON, Utah MARSHA BLACKBURN, Tennessee
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Professional Staff
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
David L. Cavicke, Minority Staff Director
7_____
Subcommittee on Oversight and Investigations
BART STUPAK, Michigan, Chairman
DIANA DeGETTE, Colorado ED WHITFIELD, Kentucky
CHARLIE MELANCON, Louisiana Ranking Member
Vice Chairman GREG WALDEN, Oregon
HENRY A. WAXMAN, California MIKE FERGUSON, New Jersey
GENE GREEN, Texas TIM MURPHY, Pennsylvania
MIKE DOYLE, Pennsylvania MICHAEL C. BURGESS, Texas
JAN SCHAKOWSKY, Illinois MARSHA BLACKBURN, Tennessee
JAY INSLEE, Washington JOE BARTON, Texas (ex officio)
JOHN D. DINGELL, Michigan (ex
officio)
(ii)
C O N T E N T S
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Page
Hon. Bart Stupak, a Representative in Congress from the State of
Michigan, opening statement.................................... 1
Hon. John Shimkus, a Representative in Congress from the State of
Illinois, opening statement.................................... 3
Hon. John D. Dingell, a Representative in Congress from the State
of Michigan, prepared statement................................ 5
Hon. Marsha Blackburn, a Representative in Congress from the
State of Tennessee, opening statement.......................... 7
Hon. Gene Green, a Representative in Congress from the State of
Texas, opening statement....................................... 8
Prepared statement........................................... 9
Hon. Michael C. Burgess, a Representative in Congress from the
State of Texas, opening statement.............................. 10
Hon. Joe Barton, a Representative in Congress from the State of
Texas, prepared statement...................................... 12
Hon. Jan Schakowsky, a Representative in Congress from the State
of Illinois, prepared statement................................ 204
Witnesses
Lewis Morris, Chief Counsel to the Inspector General, Office of
the Inspector General, U.S. Department of Health and Human
Services....................................................... 13
Prepared statement........................................... 16
Richard Blumenthal, Attorney General, State of Connecticut....... 32
Prepared statement........................................... 35
Susana Aceituno.................................................. 52
Prepared statement........................................... 54
Thomas DeBruin, president, Pennsylvania Service Employees
International Union............................................ 86
Prepared statement........................................... 88
David Zimmerman, Ph.D., director, Center for Health Systems
Research and Analysis, University of Wisconsin-Madison......... 93
Prepared statement........................................... 95
Andrew Kramer, M.D., head, professor of medicine, Division of
Health Care Policy and Research, University of Colorado-Denver. 103
Prepared statement........................................... 105
Neil L. Pruitt, Jr., chairman and chief executive officer, UHS-
Pruitt Corporation............................................. 121
Prepared statement........................................... 124
Mary Jane Koren, M.D., M.P.H., assistant vice president, The
Commonwealth Fund.............................................. 137
Prepared statement........................................... 140
Kerry Weems, Acting Administrator, Centers for Medicare and
Medicaid Services, U.S. Department of Health and Human Services 183
Prepared statement........................................... 185
Answers to submitted questions............................... 210
Submitted Material
Presentation accompanying Dr. Koren's testimony.................. 148
Haven Nursing Facilities and Affiliated Entities Organizational
Chart.......................................................... 206
Definitions of terms used in hearing............................. 208
Chart entitled, ``CMS Nursing Home Quality Milestones, 2007-
2008''......................................................... 209
Subcommittee exhibit binder...................................... 223
IN THE HANDS OF STRANGERS: ARE NURSING HOME SAFEGUARDS WORKING?
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THURSDAY, MAY 15, 2008
House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Energy and Commerce,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:03 a.m., in
room 2123 of the Rayburn House Office Building, Hon. Bart
Stupak (chairman) presiding.
Members present: Representatives Stupak, Green, Schakowsky,
Dingell (ex officio), Shimkus, Whitfield, Walden, Murphy,
Burgess, Blackburn, and Barton (ex officio).
Staff present: Scott Schloegel, John Sopko, Kristine
Blackwood, Michael Heaney, Voncille Hines, Kyle Chapman, Alan
Slobodin, Peter Spencer, and Whitney Drew.
Mr. Stupak. This meeting will come to order.
Today we have a hearing entitled ``In the Hands of
Strangers: Are Nursing Home Safeguards Working?''
Each member will be recognized for an opening statement. I
will begin.
OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Stupak. This is National Nursing Home Week, which makes
today's hearing quite timely. Surprisingly, this subcommittee
has not held an oversight hearing on nursing home care since
1977. The make-up of the nursing home industry and its
clientele has radically changed over the past 31 years.
The last significant change in nursing home regulations
came 21 years ago in the Nursing Home Reform Act, which was
passed as part of the Omnibus Budget Reconciliation Act of
1987, or OBRA 87. In that act, Congress established standards
for quality of care and quality of life that nursing homes must
meet in order to receive payment from Medicare and Medicaid.
Now, 21 years later, we are examining whether these standards
continue to provide an appropriate level of patient care and
protect the residents of nursing homes.
Some of our most frail, elderly, disabled citizens live in
nursing homes either for a short time for rehabilitation or for
long periods, when it becomes their final resting home. Many
are completely dependent on others for everything from eating
to bathing, turning them over in bed, and pain management.
Government regulations require that a base level of care be
provided to nursing home residents, not only because this
vulnerable population cannot speak for themselves but also
because taxpayer-funded programs like Medicaid and Medicare pay
for the vast majority of the care provided at nursing homes.
The Centers for Medicare and Medicaid Services, CMS,
enforces these minimum standards by contracting with each state
to conduct annual inspections or surveys of nursing homes. If
state surveyors identify a problem, called a deficiency, they
can recommend various sanctions to CMS, ranging from civil
monetary penalties to the rarely used ultimate sanction of
termination from participation in the Medicare and Medicaid
programs. CMS and state surveyors strive hard to look beyond a
nursing home's walls to see whether the fragile nursing home
residents are receiving all the care they need. However,
surveys often fail to identify serious problems that threaten
residents. Moreover, when the surveyors do identify problems,
the penalties imposed by CMS can be so weak that they fail to
bring about sustainable improvement in the practices of the
facilities.
The day-to-day responsibility for the difficult task of
care in nursing homes falls on dedicated and hardworking nurse
aides, skilled nurse professional and industry owners and
operators. We entrust our loved ones often only as a last
resort to the hands of these strangers to care for our
grandparents and parents. In most cases, these strangers become
a second family for us and our loved one, and they care for our
family member with the same love and attention as if he or she
were part of their own family. These dedicated, devoted
caregivers and many of the companies that employ and manage
them deserve our profound thanks for their commitment and
leadership in the daunting task of caring for an increasingly
fragile and medically complex patient population.
In the past few years, a wave of new owners and investors
have begun purchasing nursing home chains, both small and
large, successful and unsuccessful chains. These firms are
private, unregulated, and new to the nursing home market. Many
worry that the top priority for these new owners will be
profits rather than providing for staffing and resources
necessary to ensure top quality care for our loved ones.
Frequently, they use complex corporate structures separating
the nursing home real estate from the operating companies and
putting multiple layers of limited liability partnerships
between themselves and the day-to-day operations of the nursing
home.
The impact of these new owners on the quality of care and
safety of nursing home residents is still unclear. Some
companies reinvest their profits into the facilities and focus
on quality of patient care. Others unfortunately skim off the
profits to line the pockets of investors or plow the money into
separate ventures that have nothing to do with nursing home
care. What is certain, however, is that CMS and the States lack
the tools to keep up with the rapid change in the industry, to
know who actually owns the country's nursing homes and who
should be held accountable for residents in their care.
When Congress passed the OBRA 87 safeguards, the typical
nursing home was owned by a sole proprietor or family and not
part of a chain. Now over 50 percent of nursing homes are part
of a chain and many of those are in the hands of private equity
investors. Chain ownership has the potential to improve quality
of care by allowing the sharing of resources and expertise
across their facilities. At the same time, chains have the
potential to hide common problems and obscure responsibility
for inadequate care. The Centers for Medicare and Medicaid
Services, CMS, needs to weigh these concerns to a greater
degree in its enforcement.
Today's hearing will examine the challenges posed for the
Federal, State, and local government, individual families,
resident advocates and family members and the industry as the
face of nursing home ownership rapidly changes. We will hear
from witnesses reflecting a variety of perspectives including
government leaders, academic experts, industry leaders, and
organized labor representing nursing home workers, and the
Centers for Medicare and Medicaid Services. We will also hear
an example of a troubled nursing home chain in New England
whose homes have been fined more than 45 times in the last 3
years for patient care problems that have had tragic results
such as organ failure, amputation of limbs, paralysis, and
death. The chain is now in bankruptcy and on the brink of sale
to a private equity firm. Clearly, this example is the
exception rather than the rule when it comes to nursing home
care. Our goal here today is to be sure that these such
examples become more and more rare or disappear altogether.
I look forward to hearing from our witnesses today. We owe
this hearing to the industry, nursing home staffs and the
nursing home residents to ensure that Congress is doing all we
can to see that Federal nursing home regulations are adequate.
Mr. Stupak. I would now like to now turn to my colleague,
Mr. Shimkus, for his opening statement.
Before I do so, we should take note of the fact that Mr.
Shimkus retired last night after 32 years of service in the
military in the Army as a ranger, and I want to thank him for
his service to our country, and I really do enjoy having him as
my ranking member and a friend, but thank you for your service
to our country, John, and look forward to your opening
statement.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Shimkus. Thank you, Mr. Chairman. Thank you for coming
last night, and the flashback was 1977. I was a freshman at
West Point, so 31 years ago was the last time we had a hearing
on this industry, and that is too long and so it is appropriate
that we do this.
Today's hearing will expose the issues and practices
surrounding the critical Federal safeguards for ensuring
quality of care at nursing homes across the country. This
bipartisan oversight examination is necessary to ensure these
safeguards are up-to-date and effective.
Today's hearing topic is an intensely personal one for many
people. Many Americans already or will have to entrust a
mother, father or spouse-- for me, grandparents--at certain
times of their life at the most vulnerable to the care of a
nursing home. In fact, my grandmother was a dementia patient
and was in 10 years before she passed away, and I remember that
well. When entrusting our most vulnerable citizens, our loved
ones, to the care of strangers, there is a fundamental need to
know that they are in good hands.
The nursing home industry is a complex and diverse industry
extending to some 16,000 individual facilities, serving 3
million people per year. This industry has been rapidly
changing over 2 decades, and the question is: how have these
changes affected the quality of care?
From the available evidence, improvements in nursing home
quality have improved in some ways over the past 2 decades but
more should be done to assure quality of care, quality of life,
and the safety in nursing homes. We know there are chronic bad
actors. The GAO reported last year, and we just have a new GAO
report that we need to go over, just released, which we have
not--I have not. So my comments really are directed to the
previous one until staff reads it real quick, the new one.
Despite positive efforts by the Centers for Medicare and
Medicaid Services to improve quality of care, roughly 20
percent of nursing homes nationwide each year are cited for
serious deficiencies, and a portion of these homes are
chronically deficient.
The GAO also reported shortcomings in the survey and
standard enforcement system used to identify problem homes.
Government and academic witnesses will testify today about the
uneven quality of nursing home inspections and what that means
for consumers and regulators.
Witnesses will also testify knowledgably about what more
might be done to improve the information supplied to regulators
through a survey process and related industry oversight
activities. Some developments to improve the quality of
information look encouraging. New inspection approaches appear
to take a more systematic look at nursing home quality. I look
forward to learning how rapidly these can be implemented and
how these measures can improve consumer ability to identify
quality homes and information and knowledge is power, and I
think when people are given a choice, if they have more
information, the better. The problem is, in rural America,
there are not a lot of choices. Chairman Stupak knows that from
his area and I definitely know that in mine.
I also look forward to discussing what Federal officials
believe is necessary to strengthen Federal oversight in light
of industry trends. There are 100,000 fewer beds today than 10
years ago and nearly 2,000 fewer facilities before
bankruptcies, malpractice litigation pressures, and new models
of caregiving transformed the industry, according to an HHS
study. I have followed the continuing care debate about
residential living, then assisted living and then long-term
skilled nursing facility and all combined into one, which is, I
think, a positive movement in the direction by the industry.
Today, half the nursing homes are part of a chain, a rate that
has declined from 10 years ago. Over this period there has been
corporate restructuring and more focus on regional chains with
some new corporate ownership arrangements, and we will hear
this morning, it may be difficult to identify how those
ultimately accountable for quality-of-care decisions are
affecting care. More sunlight on these arrangements may make
sense.
The Connecticut attorney general will testify about one
troubled chain in Connecticut which continued to operate
despite what has been reported as a history of poor care. I
look forward to what he found were problems in Connecticut's
experience with this chain. Let me note too that Mrs. Aceituno,
whose husband suffered while in the care of one of the chain's
homes, will tell us her story this morning. Please accept mine
and my colleagues' sympathies, and thank you for testifying.
Your testimony is very important for us.
I am pleased to learn of the vigorous enforcement HHS
Inspector General's Office and the Department of Justice have
pursued in recent years--a positive story. In 2007 alone, the
HHS IG's Office helped to work 534 cases and the DOJ has
already netted $16.6 million in restitution and settlements and
false claim act cases that mostly involve nursing homes. We
have to ensure we are getting rid of bad actors and encouraging
quality improvement, but as we discuss enforcement, we should
also focus on what more can be done to identify and address
problems before they result in quality care deficiencies.
This brings me to the industry's role in quality
safeguards. On that subject, the buck stops with the industry,
and so I am eager to learn what steps the industry is taking to
set standards, to self-police, to improve quality, and improve
quality not just at the margins among minimum standards but at
all levels of performance. We need competition for quality. We
can drive consumer decisions and improve care for all.
I went over time, Mr. Chairman. Thank you very much, and I
yield back.
Mr. Stupak. I thank the gentleman.
Mr. Chairman Dingell of the full committee for an opening
statement, sir.
OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Dingell. Mr. Chairman, I thank you. I want to commend
you for this hearing, which is a very important one. This is a
hearing which is going to build on work done by this committee
and this subcommittee over many years.
Today we focus on the quality of nursing homes and how new
types of ownership may affect this vital industry. As an
original sponsor of the 1987 Nursing Home Reform Act, which
originated in this committee as a result of hearings held in
this subcommittee, I want this critical law to effectively
support and protect those who must live in nursing homes, and
again, Mr. Chairman, I commend you for holding this hearing
today. There is much that needs to be done here with regard to
this industry and with the laws affecting it because it has
undergone radical changes since the 1987 law was enacted and
there is real need to go into these matters.
Nursing homes are an industry with which new investors and
new financing structures unknown to us are beginning to impact
significantly on how the healthcare is afforded to our senior
citizens and others who are not able to any longer protect
themselves without the assistance of this kind of help. This
new dynamic raises serious questions about whether profits are
being placed before the needs of nursing home residents, and if
so, what needs to be done by this committee and by the Congress
since the law has not been reviewed for a number of years.
I look forward to the testimony of Acting Administrator
Weems of the Centers for Medicare and Medicaid Services and
about what CMS needs in order to better oversee and improve the
quality of nursing homes. I will note parenthetically that I am
not very well satisfied with the behavior of that agency and
with the judgments that they have been making about healthcare
in this country. I am hopeful that this hearing will evoke
greater cooperation from that agency and perhaps some
manifestation of a better philosophy of government inside that
agency.
In some ways, the quality of care in our Nation's nursing
homes has improved over 20 years but it must be observed there
is still a way to go. More than 20 years ago, Congress sought
to establish minimum standards for care and quality of life for
every nursing home resident. It is disturbing that a subset of
today's nursing homes appears to be unable to avoid harm to its
residents. That is a curious repetition of events of 20, 30,
and 40 years ago when fires, substandard housing conditions,
poor treatment of patients in nursing homes, dangers to them
and to their health because of improper care and inadequate
staffing, were causing significant problems. This hearing is
going to receive testimony from Federal, State and municipal
authorities about the failure of some nursing homes to meet the
basic standards and why they cannot be held accountable.
Clearly, there is much to be said on both sides of this.
There are things to be said on the side of the nursing homes if
they are not being adequately and properly paid and properly
treated by the government. It is also to be said that the
government is not engaged in proper supervision or, very
frankly, proper reporting to the Congress about the situation
that exists in this particular industry.
I want to express my thanks to Connecticut Attorney General
Richard Blumenthal for being here. General, thank you for being
with us. Mr. Blumenthal will testify about a New England
nursing home chain with a troubled history of understaffing,
poor care, and unpaid debts. I am sure that is replicated in
other places. Also testifying today will be the inspector
general for HHS, who will identify ways CMS can more
effectively protect nursing home residents. This will be a
matter of considerable concern and interest to the Committee.
The day-to-day care for the frail, elderly and disabled is
a difficult and, quite frankly, often thankless job. It is
complicated by the inadequacy of payment by the Federal
Government on these matters. It takes a special person to care
for those who cannot care for themselves. No one knows this
better than the 500,000 dedicated nursing home workers of the
Service Employees International Union, SEIU, and the Nation
owes them a great debt for their efforts, and I thank them
myself, and for leading the fight for ensuring quality
healthcare for every American, they are owed the thanks of all
of us.
I also applaud those industry leaders who have advocated
higher standards. I particularly want to recognize my friend
Bruce Yarwood, president of the American Health Care
Association, AHCA, as one of those leaders who has set the bar
high through the ``Advancing Excellence'' campaign.
Finally, I welcome Mrs. Aceituno, who will share the story
about her husband's experience in a facility that she trusted
would keep him safe. Mr. Aceituno became paralyzed while a
resident of this facility and is now confined to a wheelchair.
This is of course not easy for Mrs. Aceituno, but we are
grateful to her for putting a human face on what can happen
when nursing home owners place profits before people in their
care.
Mr. Chairman, the proceeding of this committee is a very
important one. The facts to be gleaned are extremely important.
The information is going to enable us to look to see what
action this committee and this Congress should take with regard
to protecting not only the public interest but the inmates of
the nursing homes. It also will help us understand what changes
in the laws are needed, and I commend you for your leadership
in this.
Thank you, Mr. Chairman.
Mr. Stupak. Thank you, Mr. Dingell.
Ms. Blackburn for an opening statement, please.
OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Ms. Blackburn. Thank you, Mr. Chairman, and you all were
talking about 1977 being the last benchmark. The last time we
had a hearing, and I have a benchmark for that year of my own,
my first child was born in 1977, and on Monday she gave birth
to my first grandchild. So I hope that we have good nursing
home care for people like me. But I do thank you for holding
the hearing and for taking the time to review long-term quality
care in our Nation's nursing facilities.
Whenever I talk about healthcare with my constituents, my
top concern is preserving and enhancing access to quality care
and doing it in an affordable manner. That is what our
constituents want. And as our Nation's population ages, more
Americans are looking at options for elder care, and since my
days in the Tennessee State Senate, I have had a record of
supporting long-term care options for seniors, whether it is
found in nursing homes, long-term care hospitals, or additional
options that they want to have to meet their needs.
I would also like to say, my district is home to Advocate,
a provider of long-term care services for patients in nursing
homes in eight States, primarily in the southeast, and I know
this is a highly regulated industry and Advocate and many of
their competitors have shown a commitment to transparency, and
we appreciate that because we have learned a few things and I
think one of those, Mr. Chairman, is that it is important that
reported quality-related data be meaningful and useful, not
only to consumers but to us as lawmakers and to care providers.
I am looking forward to testimony from today's witnesses
regarding opportunities to revise and improve quality of care,
quality of life, and staffing data collection when treating the
elderly. Instead of placing additional regulation on the
industry, it is prudent to improve the quality and nature of
information currently reported to the government and, I think
also, Mr. Chairman, for us to establish a matrix whereby
evaluated data provides insight into the outcomes that are
provided for care. Bad actors are found in every single
industry that there is, and I caution against holding the good
actors responsible for poor performers. In addition, I am
concerned about the public perception of some of the hearings
that we have and how they can create public fear. I do
appreciate an open and honest debate and warn against opening
the doors to trial lawyers who may want to police the long-term
care industry.
As a baby boomer, as I said earlier, and now a grandmamma,
I recognize that the Nation's healthcare sector is evolving to
meet the needs of an aging population. Everyone wants assurance
that the elder care industry works to improve the quality of
long-term care for the benefit of every American retiree today
and in the years and decades ahead.
I yield back.
Mr. Stupak. I thank the gentlewoman.
The audience should note that there is another hearing
going on upstairs in the Health Subcommittee so members will be
bouncing back and forth throughout this hearing.
Mr. Green for an opening statement, please.
OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Green. Thank you, Mr. Chairman, and thank you for
holding this hearing, and like a lot of members, I am also on
the Health Subcommittee and I am going to go up there in a few
minutes, but I want to thank our witnesses for being here and
thank you for calling this hearing.
Like my colleague from Tennessee, for many years I was a
State legislator in Texas, and nursing home regulation was
something we dealt with every session, but since 1987, a more
aggressive effort. It is interesting, though. I always thought
it was regulated on the State level but since most of the
Medicaid money is from the Federal Government, 60 percent
typically, it was often difficult, because I know in Texas our
Medicaid program is not as rich as some other States, but it is
such a big part of our Medicaid dollar in Texas.
The decision to take a loved one to a nursing home is a
difficult decision, and I have not known anyone who would not
rather have their family member remain independent or at home
with them and not make that decision. In fact, I want to
welcome Mrs. Aceituno because a number of years ago my wife and
I had to make that same decision. Her mother was diagnosed in
1995 with Alzheimer's, and we didn't go to a nursing home but
we kept her independent as long as we could but then to an
Alzheimer's center, which is like a nursing home but set up for
Alzheimer's patients. Ultimately she passed away in a nursing
home but it was really hospice care because it used to be
hospice was separate but now they are also part of nursing home
facilities in Christmas of 2006, and a lot of people think
elected officials, we don't experience the same things
everybody does, but we do. Our family went through that illness
for 10 years, and I know members of Congress who are on our
full committee who are going through it right now with their
families. So it is a difficult decision, and I am glad you are
willing to come and testify.
I have to admit, we had problems in Texas and Louisiana
with hurricanes 3 years ago, and my mother-in-law was under
hospice care, and when Rita was coming into, we thought
Houston, but it ended up going to Beaumont just to the east,
and we had had a terrible experience in Louisiana with nursing
home patients not having evacuation procedures, and our office
actually checked every one of ours, and while everybody was
stuck on the freeway leaving Houston, I went to the one where
my mother-in-law was at and was really proud that they had cots
on the floor for the staff, they had brought in staff to make
sure they would be there. We only lived 2 miles from them so I
was going to go over there and be there anyway, but in that
case, and it was a chain nursing home, was very well prepared
to deal with the patients at that facility, and again she was
part of the hospice facility on that.
When we do have to make those decisions as families, people
turn to nursing homes to give their loved ones the type of care
they cannot provide. They entrust those nursing homes with
their family members, and again, the squeaky wheel gets the oil
whether you are here in government or in the private sector,
and if you are there all the time, you keep on it, you will
actually see because oftentimes the understaffing, I know the
requirements by statute and by regulation but oftentimes it is
difficult so families have to stay involved. But in the past,
nursing homes were mainly mom-and-pop institutions and we have
those in my district too, but times have changed and now we
have the larger chain nursing homes in multiple States, and
this corporate structure of nursing homes is sometimes a
tangled web of finances that at times requires a forensic
accountant to figure out who actually owns a specific nursing
home. In instances where complaints have been made against the
home where tragedies have resulted from abuse or mistreatment,
it is often difficult for CMS to deal with this new system of
nursing homes to levy fines or enforcement penalties, and that
is what this hearing is about today.
Mr. Chairman, I would like the remainder of my statement to
be placed in the record so we can go forward with the hearing,
but I appreciate your calling this hearing.
[The prepared statement of Mr. Green follows:]
Statement of Hon. Gene Green
Mr. Chairman, I want to thank you for holding this hearing
today on nursing home safeguards.
The decision to take a loved one to a nursing home facility
is often a difficult decision. I don't know anyone who wouldn't
rather have their family member remain independent or at home
with them.
Sometimes the circumstances do not allow for families to
have their loved ones stay with them. Oftentimes, individuals
need a quality of care and around the clock monitoring that
families cannot provide.
When this happens, most people turn to nursing homes to
give their loved ones the type of care they cannot provide.
They entrust nursing homes with their family members, hoping
they will receive quality care.
In the past many nursing homes were mom and pop
institutions, but times have changed and now most nursing homes
are part of a larger chain of nursing homes, sometimes
throughout multiple states.
Along with this new corporate structure of nursing homes
has come a tangled web of finances that at times has required a
forensic accountant to figure out just who owns a specific
nursing home.
In instances where complaints have been made against the
home or tragedies have resulted from abuse or mistreatment, it
is often difficult for CMS to deal with this new system of
nursing homes to levy fines or enforce penalties.
We have found that CMS sometimes does not know who owns a
nursing home or even if one nursing home is part of a larger
chain. Right now, CMS has a survey and enforcement system that
was never designed to identify chain-wide or systematic
problems.
We cannot allow this to happen, and clearly a new
enforcement system must be put into place that will give
greater transparency to the system and we need a system that
will allow CMS to know who the facility operator is.
We need to know when we put our loved ones into a nursing
home facility they will be safe and well taken care of.
I am hopeful this hearing today will shed some light on the
problems with nursing home safeguards nationwide and action
congress can take to help give families a greater piece of mind
and patients the protections they deserve.
Thank you Mr. Chairman, I yield back my time.
----------
Mr. Stupak. I thank the gentleman and look forward to his
participation throughout the morning.
Mr. Burgess for an opening statement.
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. Burgess. Thank you, Mr. Chairman, and I too appreciate
you holding this hearing. I note the chairman of the full
committee said he was looking forward to hearing the testimony
of Administrator Kerry Weems. I am as well. Unfortunately, we
will have to wait until the end of this hearing to hear that
testimony, and once again, we are in the awkward position of
tying up the head of a large Federal agency for the better part
of a day when we know they have other important things on their
plate. You know this is an issue that bothers me and I do wish
the committee would approach this with a little more
sensitivity.
Representative Blackburn talked about long-term care
insurance, and I know that is not the purpose of this hearing
today but I do also want to mention just a little bit about
long-term care insurance. I was at the Alzheimer's Association
fundraiser last night, the banquet that they have, and it
really is apparent to me that we are not as a body talking
about long-term care insurance and the availability of long-
term care insurance nearly enough with the American people that
it even pops up on their radar screen. When I turned 50 years
old, which was unfortunately some time ago, my mother, in fact,
one of the last pieces of advice my mother gave to me was to
consider buying long-term care insurance because she told me if
you don't buy it when you are 50, you won't be able to afford
it when you are 75 or 80, and truly that was good advice and I
do want us to use our opportunities with the ability to inform
the American people that the availability and the cost of long-
term care insurance in midlife is an affordable option that
people ought to consider. Yes, the Medicaid program will pick
up the cost of your nursing home expense but at least in my
home State of Texas, they are only obligated to place you
within 500 miles of your home. That means for someone living in
Louisville, Texas, as I do, they might be placed in a nursing
home in Paris, Texas, and if you think--Representative
Blackburn is gone, but if you think it is hard to get your
grandkids to visit you when you only live a few miles away, try
living 500 miles away. So it is something that is important. I
do want this committee to focus on that.
There are so many issues involved in the topic at hand
today. I am glad to see we are focusing on this issue. I do
hope that the panel before us today will focus specifically on
some issues related to transparency and the type of
transparency that is needed in the industry. Perhaps the best
information we can give consumers is information about not just
the cost of the stay in the nursing home, and I would prefer
that we call them residents of the nursing home rather than
inmates, but cost as well as things like infection rates,
things like the availability of occupational and physical
therapy. The problem is, I am afraid this hearing is going to
get bogged down in trying to figure out who owns what and who
has done what to whom.
I have always been a strong advocate of transparency in the
medical and nursing community, and recently introduced a bill
about greater transparency in health information technology in
the health industry. H.R. 5885, for anyone keeping score at
home, would allow hospitals and physicians' offices to
integrate information technology in a much more seamless manner
than they are able to do currently, and this issue seems on
point for this hearing today because it appears that a major
problem of monitoring and enforcement and regulation of nursing
homes is the lack of integrated information being supplied to
people like Administrator Weems at the Center for Medicare and
Medicaid Services.
I still wonder if the larger problem lies not with a
general lack of transparency but with the lack of consistent
and uniform enforcement. So often we are seeing good nursing
homes found deficient and given fines because of a regulator
who was sent to their facility perhaps in a somewhat
overzealous manner. Meanwhile, nursing homes that have a poor
indicator of quality are given a seal of approval because the
regulator sent to check up on them employed a much more laid-
back approach. I am interested in learning about the
effectiveness of the Quality Indicator Survey pilot program and
how it can effectively work on a nationwide scale.
And finally, I can't help but notice the recent New York
Times article that focused on this topic and noted the
frustration of our friends on the trial bar, personal injury
lawyers who are having a hard time figuring out whom to sue,
and while I feel their pain, one of the problems that we are
facing today, we are critical of large chains that have
acquired a larger and larger ownership share of nursing homes
but we have sued and regulated and underfunded the smaller
owner of the nursing home just completely out of existence in
the past 10 years, and while some of that fault perhaps lies at
the State level, a good deal of that blame lies here on the
doorstep of the United States House of Representatives, so I do
hope that rather just simply focusing on whom to blame in this
discussion today, we might be able to focus on a few solutions
because after all, that is what the American people sent us
here for.
I will yield back the balance of my time, Mr. Chairman.
Mr. Stupak. I thank the gentleman.
I want to compliment Administrator Weems for being here and
sitting through this. He was given the option, if he so chose,
to have a staff person sit and take notes and come down when
his panel appeared. To his credit, he stayed, and I appreciate
him being here, especially since it has been 31 years since
Congress has looked at this issue. I think there are things we
can all learn from this hearing today. So I welcome his
participation and his willingness to be with us at this
hearing.
Next I would turn to Mr. Barton for an opening statement,
sir.
Mr. Barton. Mr. Chairman, I will put my opening statement
formally in the record. I do want to say, though I think this
is a very good hearing. We haven't done oversight on the
nursing home industry in a number of years and so I think you
and Mr. Dingell are to be commended for doing this, and we will
work with you in a bipartisan basis to uncover the facts, and
if actions are necessary after we uncover the facts, to
implement those actions, so we appreciate the hearing.
[The prepared statement of Mr. Barton follows:]
Statement of Hon. Joe Barton
Chairman Stupak and Ranking Member Shimkus, thank you for
convening this important hearing. Good nursing home care is
very important to the three million Americans who are receiving
care this year in the 16,000 federally certified nursing homes.
One measure of a society is how it cares for its elderly.
Some of us here today aren't too far from finding out directly,
and many of us have aging parents or grandparents who already
know. Over the past few decades, Americans have relied more and
more upon skilled nursing facilities to care for those we love,
usually in the most fragile and vulnerable moments of their
lives. Nearly two-thirds of all nursing home care is paid by
Federal, State and local taxpayers, and it cost them more than
$78 billion in 2006.
The challenges to maintaining quality care are great. And
we must be vigilant to find ways to improve the safeguards we
have established through legislation like the Nursing Home
Reform Act that was part of what is known as OBRA 87. So this
subcommittee's oversight work is vital to fulfilling our
congressional responsibility to protect the interests and lives
of our elderly.
The nursing home industry is complex and it changes
rapidly. This industry has expanded to include national and
regional chains, small groups, non-profits, and for-profits.
There are even some mom-and-pop nursing homes. And there are
facilities that specialize in certain types of care, such as
rehab or helping people with Alzheimer's disease.
The industry has long suffered a mixed reputation. Most
folks in the business are decent people who mean well and work
hard every day to provide care to our loved ones, but some of
the unhappy reputation is deserved. According to the GAO and to
the inspector general of HHS, nursing home operations also give
rise to bad players and scofflaws.
Rules need to be vigorously enforced to rid the industry of
its scofflaws and to deter anyone who would skimp on care in
order to swell an illegitimate profit. A bright dose of
sunshine into nursing home practices may be needed to expose
offensive acts and discourage bad behavior. We will hear about
transparency today. That is a good thing and I think it should
be encouraged. More information helps families make good
choices and helps regulators identify bad operators.
But as we talk about safeguards, we should remember the law
of unintended consequences so we do not hinder more than we
help. I think we have to be wary of one-size-fits all solutions
and the kind of rigid, made-in-Washington policies that never
seem to work.
It's also important to recognize that this is not your
grandfather's nursing home industry. In recent years, some
publicly owned chains have gone private, and others have been
transformed by complex new ownership structures. I have
questions about some of these operating arrangements,
especially where the property is owned by one firm and the care
is delivered by another.
There is not clear evidence yet that these changes are bad
or good. Some may actually provide more focused resources that
result in improved care.
I believe that we need a strong and flexible regulatory
system to ensure folks are meeting applicable standards, and
that encourages accountability and quality innovation.
I look forward to hearing from our witnesses today about
systems for addressing quality and anticipating problems. These
are areas where industry really can improve, and I hope we
learn that they are ready to do so.
# # #
----------
Mr. Stupak. Thank you, Mr. Chairman.
Ms. Schakowsky was here but she must have stepped out. She
probably ran upstairs, because I know she is on the Health
Subcommittee also.
So let us conclude the opening statements by members and
let us turn to our first panel of witnesses. On our first
panel, we have Mr. Lewis Morris, the Chief Counsel to the
Inspector General for the U.S. Department of Health and Human
Services; the Hon. Richard Blumenthal, Attorney General for the
State of Connecticut; Luis Navas-Migueloa, long-term care
ombudsman for the city of Baltimore; and Ms. Susana Aceituno,
the wife of the Connecticut man who broke his back and was
paralyzed at the nursing home. So we welcome all of our
witnesses. Thank you for being here.
It is the policy of this subcommittee to take all testimony
under oath. Please be advised that witnesses have the right
under the Rules of the House to be advised by counsel during
their testimony. Do any of our four witnesses wish to be
advised by counsel during their testimony? The indication is
no. Therefore, I am going to ask to please rise, raise your
right hand, and to take the oath.
[Witnesses sworn.]
Mr. Stupak. Let the record reflect that the witnesses
replied in the affirmative. You are all under oath.
I will begin opening statements. I am going to ask Mr.
Morris to begin with the opening statements. We will go right
down the line, 5-minute opening statements. If you have a
longer statement, we will insert it in the record. Mr. Morris,
if you would begin, please.
STATEMENT OF LEWIS MORRIS, CHIEF COUNSEL TO THE INSPECTOR
GENERAL, OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Mr. Morris. Good morning, Chairman Stupak and distinguished
members of the Committee. My name is Lewis Morris. I am Chief
Counsel in the Office of the Inspector General at the
Department of Health and Human Services.
As a result of congressional action and efforts by CMS and
the nursing home industry, important steps have been taken to
improve residents' health and quality of life. Unfortunately,
not all nursing homes consistently provide the level and amount
of care that the residents require. In 2006, almost one in five
nursing homes was cited for deficiencies that caused actual
harm or placed residents in immediate jeopardy.
OIG affirmatively addresses nursing home vulnerabilities in
three ways: oversight, enforcement, and guidance. First, in our
oversight role, OIG has conducted approximately 90 evaluations
of the nursing home program since major nursing home reforms of
2 decades ago. One of our recommendations was the development
of a national abuse registry for long-term care employees. We
have found that without accurate and accessible background
information, nursing homes may hire individuals who could place
residents at considerable risk.
In our enforcement role, OIG has investigated cases of
egregiously substandard care in nursing homes and pursued
criminal, civil, and administrative remedies against those who
harm our beneficiaries. We have collaborated extensively with
the Department of Justice and State Medicaid fraud control
units to successfully prosecute nursing homes and caregivers
for failing to provide basic levels of care including cases of
residents suffering from preventable pressure sores, untreated
broken bones, drug overdoses, and death. OIG has excluded from
participation in Federal healthcare programs caregivers who
have abused or neglected residents as well as nursing home
administrators and operators for systemic failures. In these
cases, we may not exclude the facilities providing bad care if
we believe it is in the best interest of the residents. As an
alternative, we negotiate corporate integrity agreements which
establish comprehensive compliance programs and require
appointment of an independent quality monitor. The monitor has
extensive access to all aspects of the organization and makes
recommendations to address underlying deficiencies. These
compliance programs have been instrumental in improving the
quality of care.
As a third initiative, we promote compliance with our
program requirements and greater awareness of quality-of-care
issues. For example, we recently published a draft supplemental
guidance that discusses the fraud and abuse risks that nursing
homes should address when implementing a compliance program.
OIG also is working to increase awareness by stakeholders of
the importance of delivering quality of care. For example, we
recently co-authored a Healthcare Board of Directors Resources
Guide. Last year we met with nursing home representatives from
across the country to explore how to better inform their boards
about the quality of care provided in their facilities.
Consumers should also have reliable, user-friendly data on
nursing home quality to make informed choices for family
members.
OIG makes three recommendations we believe will contribute
to improving the quality of care that residents receive in
nursing homes. First, create a nationwide centralized database
to improve screening of nursing home staff. That database could
merge the OIG's exclusion database, State nurse aide registries
and disciplinary actions by licensure boards. We believe such a
database would reduce the risk that potentially abusive
caregivers will be employed to care for this vulnerable
population.
Second, direct CMS to create demonstration projects to
establish mandatory compliance programs for nursing homes.
Effective compliance programs can help reduce fraud and abuse,
enhance operational functions, and improve the quality of
healthcare services.
And third, enhance the quality of data made available to
the nursing home industry and to the public. CMS's Nursing Home
Compare Web site offers consumers and the nursing home industry
a good base of information on the quality of nursing homes.
However, the Web site can be improved by adding data that
provides a clearer and more comprehensive picture of the
specific facility as well as the performance of the nursing
home chain.
Thank you for the opportunity to testify today, and that
concludes my remarks. I look forward to your questions.
[The prepared statement of Mr. Morris follows:]
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Mr. Stupak. Thank you, Mr. Morris.
Mr. Attorney General, Mr. Blumenthal, your opening
statement, please, sir.
STATEMENT OF RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE OF
CONNECTICUT
Mr. Blumenthal. Thank you, Mr. Chairman, and I want to join
in thanking you for holding this hearing and members of the
Committee for devoting their time and effort, and I want to
also make the point, although it probably need not be made,
that we are talking about a small number of nursing homes,
still a minority in this industry which is composed of many
hardworking, honest, caring owners and others, and I want to
make the point particularly as to those others, the staff and
caregivers who work in these nursing homes. They have been not
only an extraordinary and profoundly important source of care
for individuals in Connecticut who are in these homes but they
have also provided my investigation with exceptionally
important information. They are very, very important to our
investigation, whether it is the nurses or the food preparers
or the maintenance workers. They have given us firsthand
knowledge about the problems at Haven Health Care and similar
kinds of problems throughout our nursing home industry in
Connecticut.
Connecticut's very frustrating and frightening experience
with Haven Health Care and it has been mentioned already, is
symptomatic of a crisis that is really spreading across the
Nation. It provides a clear clarion call for reform. Our
present system of scrutiny is ineffective and inconsistent. It
fails on two principal counts: information and enforcement. Mr.
Morris has just made some very pertinent and significant
recommendations as to how to improve the information
availability and flow, and my testimony is about that area of
concern but also about enforcement because my job as attorney
general is to enforce the laws, and that is really how we
became involved in the Haven Health Care problem. What it
showed me very dramatically is that our current regulatory
system is mired in a past era when nursing homes were owned by
small, local companies or even individuals, and that regulatory
system is simply inadequate, impotent to address the larger
problems and challenges posed by mammoth, multi-State
companies, not because they are big but because they employ an
interlocking constellation of ownership, a maze of different
corporate entities in different States that can be shielded
from accountability, and so I have actually attached to my
testimony the corporate organization chart of just one of these
chains, Haven Health Care, which when it filed for bankruptcy
filed individual actions for every one of the 44 entities.
Mr. Stupak. Can you put that on the screen so others can
see it?
Mr. Blumenthal. It is attached to my testimony so anyone
who wants it, we would be happy to make it available.
Mr. Stupak. Thank you.
Mr. Blumenthal. Haven Health Care is really a poster child
for the perils of concentrated ownership and power because that
consolidation of financial control enables the kind of self-
dealing and self-aggrandizement for purposes unrelated to the
care of patients that occurred at Haven Health Care. To put it
very simply, what we found was that the ownership and
management of Haven Health Care was using its resources, either
directly or as collateral for loans, to completely unrelated
commercial enterprises, almost $9 million invested in a record
company in Nashville, a purchase of a building there for $2.1
million, the purchase of a lakefront home in Connecticut in the
town of Middlefield for close to half a million dollars, all at
a time when Haven Health Care owed its vendors close to $13
million. When we talk about vendors, we are talking about
companies and individuals who are essential to the quality of
care at these facilities, 15 nursing homes in Connecticut, 10
in other New England States, vendors such as pharmaceutical
companies, equipment suppliers, even utilities that went unpaid
so that in one of them, when heating oil ran out, the
individuals in the home suffered from literally freezing cold
and another where electricity almost was cut off by the power
company.
So the impact of fiscal mismanagement is very direct and
real on patient care, and in fact, the Haven Health Care
situation I think is symptomatic of exactly that phenomenon and
the reason why I recommended very specific fiscal management,
and scrutiny, methods of imposing it to our State legislature,
which now are the basis of what I am recommending that the
Federal Government ought to require of all States. I am not
going to go through in detail what they are because they are in
my testimony, and I know in the interests of time, some reserve
is better than full explanation, but I just want to make the
point that patient and resident quality of care are profoundly
at risk but we are also taking about literally billions of
taxpayer dollars. In the case of Haven Health Care, $130
million in Medicare and Medicaid payments annually. In
Connecticut, we are talking about $1.3 billion spent in
taxpayer dollars on nursing homes, obviously billions
nationwide. So we owe it to taxpayers, even if they have no
direct family stake as many of the Congressmen who talked about
their personal experience obviously do, as we at this table do,
as many in the audience do, as citizens countless of them
across the country have a direct stake in the quality of care
through family members, but fiscal controls are a matter of
governmental responsibility and how we spend these dollars.
Let me just say finally that I strongly support the kind of
information database that has been suggested by Mr. Morris and
in addition I have proposed a strike force composed of Federal
and State representatives that could not only monitor but take
swift, strong action as well as conditions to be imposed on the
States that would require State systems for monitoring fiscal
mismanagement and integrity and as well prevent corporate
bleeding of nursing home finances, require regulation of
nursing home owners and management companies, establish minimum
insurance requirements, a number of other conditions that by
the end of this decade I think the Federal Government should
impose on all States as a condition for governmental aid.
Where we are now with Haven Health Care is that we have
restored stability, we have assured patient care. The entire
interlocking corporate structure is in bankruptcy court under
the jurisdiction of the judge. We have a restructuring officer
and a patient care officer who have in effect taken over
operation, and it will be shortly sold after an auction to a
new owner. It has been a long and hard struggle but Haven
Health care has been very far from a haven. It has been in
effect a house of horrors for many of the families who
entrusted their loved ones to its care. It has certainly been a
fiscal nightmare and a quality-of-care conundrum for all of us
who have sought to pick up the pieces and restore stability and
integrity, and I want to thank our State agencies, the
Department of Social Services, which has been integral to this
effort, as well as Federal authorities, the Office of Inspector
General has been a strong partner as has been the United States
Attorney.
Thank you.
[The prepared statement of Mr. Blumenthal follows:]
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Mr. Shimkus. Thank you.
Mr. Navas-Migueloa of the Long-Term Care Ombudsman program
for the city of Baltimore, please, your opening statement.
STATEMENT OF LUIS NAVAS-MIGUELOA, LONG-TERM CARE OMBUDSMAN;
COMMISSION ON AGING AND RETIREMENT EDUCATION, CITY OF BALTIMORE
Mr. Navas-Migueloa. Good morning, distinguished members of
the subcommittee, thank you for having me. It is actually quite
an honor to be here. I am a long-term care ombudsman for
Baltimore City. There are four of us in our office, and we
advocate for the rights of residents in 31 nursing homes and
over 300 assisted living facilities.
I was asked to come here and testify before you and give
you some examples of how we face difficulties when coming
against nursing homes who are not very transparent in their
ownership. In Baltimore City, I have experienced firsthand the
difficulty in helping not only the residents but also the
nursing homes in solving problems which affect the care of the
residents. When I am asked whether I prefer the corporate
nursing home or the privately owned nursing home, I can only
answer with a question, and that is, what would you rather--
where would you rather go have a nice dinner, a chain
restaurant or a restaurant where the chef is the owner? We
encounter problems such as mouse infestations. I have actually
been meeting with residents in a room where a mouse has climbed
up my leg. I have seen nursing homes where there is a total of
four floors in the nursing home and three of them have no
working showers for the residents. I have seen nursing homes
just like the attorney general mentioned where the boiler had
been broken for months during the winter and the nursing home
administrator had to go and buy space heaters for the
residents' rooms, which are completely against COMAR
regulations here in Maryland.
The difficulty that we face is that from my experience,
there is a lack of human touch in the corporate nursing homes
for the most part. When I go to a nursing home that is
privately owned and I go up to the administrator, who is my go-
to person, and I say, we have a situation, can we fix it, more
often than not, the problem has either been addressed or solved
before I leave the doors of that nursing home. In the less
transparent ownership nursing homes, the nursing home
administrator takes the role of almost like a buffer. It seems
to me like there is a shield where he is either hiding problems
from whoever he answers to or there is a reluctance to do a
larger effort, to make a larger effort to solve the problems. I
have witnessed in one nursing home four nursing assistants
smoking what appeared to be marijuana and the smoke was coming
into one of the resident's rooms where I was standing, and when
I approached the administrator, at first he seemed very
responsive and proactive about it, and after taking a minute to
think, he said, why don't you call me tomorrow and we will
follow up. The next day I was completely shut down from any
further information. This nursing home in particular is owned
by one of those large companies based out of Louisiana, I
believe, and those are the challenges that we face, the lack of
human touch. You sometimes wonder if the owners have actually
seen the nursing home before, and I think that is a shame
because they are dealing with people and these people need help
and they are not there on vacation. They live there. I hope it
would be better.
Thank you.
[The prepared statement of Mr. Navas-Migueloa follows:]
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Mr. Stupak. Thank you.
Mrs. Aceituno, would you like to testify at this point in
time?
Ms. Aceituno. Yes.
Mr. Stupak. You are recognized then, if you would please.
STATEMENT OF SUSANA ACEITUNO
Ms. Aceituno. Good morning. My name is Susana Aceituno. I
was born in Buenos Aires, Argentina, January 27, 1933. My
husband, Oscar, was born on April 1, 1929, in Buenos Aires,
Argentina. We met in 1950, and after courting for some time, we
got married on January 27, 1955, in Buenos Aires.
Oscar would always travel all over Europe and the States,
so when we decided to leave Argentina because of personal
circumstances, Oscar said we should move to the United States.
In January 1966, we moved to the United States. We settled in
Pleasantville, New York, with our three beautiful daughters:
Laura, 8 years old; Sandra, 5 years old; and Patricia, 2 months
old; and $200 in our pocket. And after much working and saving,
in 1975 we were able to buy our home in White Plains, New York.
Throughout his life, Oscar was an active man. He went to
Air Force school in Cordoba for 2 years, and, as I say, he
would travel. He loved to play the guitar and dance the tango.
He was always doing something. We never had to call a carpenter
or a plumber to do anything in the house. He would garden. His
life was breathing, walking, and working. He would walk many
miles. He loved to walk. He would read the newspaper every day.
He was never sick, very healthy, and always there for me and my
girls. My nickname for him was Tarzan. He was one of the most
honest human beings that I have ever known.
When he was 65 years old, he was first diagnosed with
Alzheimer's. One of the signs of this illness was that he began
wandering from the house. I realized how great a danger he was
in when we found him in the middle of the Bronx River Parkway
walking. That is when we knew we could not keep him home. It
was a heart-wrenching decision but one that we took
responsibly. We began researching and touring several
facilities. We had Oscar examined by our doctor and by visiting
nurses.
We went to Haven Health Care of Greenwich and met with the
administrator. She specifically said to me, don't worry, we
will take care of him. Very secure. So in May 14, 2004, Oscar
became a resident of Haven Health Care. We danced a tango for
the other residents and they thought we were professional
dancers. The same morning, Oscar wandered out of the building
one time and went outside. That afternoon at my visit, I was
told by the nurse that he refused to wear the wander guard
bracelet and that he wandered but they told me not to worry
because they will take care of him.
For the next 2 weeks, I visited him every day with my
daughters. We would eat together, we would walk outside, and we
would take to other residents and staff.
In the first 4 days that he was at Haven Health Care, Oscar
was allowed to leave the facility 10 times. He was not allowed.
He escaped from the facility. I was told that he continued to
wander throughout the day and evening and removed his wander
guard bracelet at least five times. It seemed like he was being
allowed to wander. I made arrangements to move Oscar to another
facility across the street. But on May 18, 2004, on Oscar's
fourth day at Haven Health, I met with the administrator and
she told me that Oscar was adjusting well to Haven Health and
that we should let him stay there instead of transferring him.
She said to give them another opportunity.
From that meeting on May 18 to May 30, I was never told
anything about Oscar wandering. On May 30, 2004, at about 7:30
p.m., he was seen having escaped the building along with
another resident and he was returned to his room. Twenty
minutes later, he could not be located. He was found outside
the health center about a mile down the road, at the side of
the road at the bottom of an embankment with his face covered
in mud. He was then taken to a local hospital by ambulance.
Unfortunately, the hospital did not take any X-rays of
Oscar, for what reason, I don't know. They sent him back to
Haven Health Center. Oscar had a bruise on his spine from
falling down the embankment. The bruise was from the inside and
it got swollen and cut off all his nerves in his spine. The
doctors say he is a quadriplegic.
Oscar went into Haven Health Center as a strong and proud
man. Since this happened, he doesn't walk, doesn't talk. He has
to be fed because his hands don't work and he has had to wear
diapers. I look in his eyes but he doesn't look at me. When the
administrator at Haven Health came to the hospital to see
Oscar, I said to her, ``This is what you gave me back.''
The Connecticut Department of Health investigated my
husband's care and found errors committed by Haven Health Care.
They were fined $615 for not looking after Oscar, but because
Haven Health Care said that would be a financial hardship for
them, they sent the State a check for $1.
I am happy to answer your questions and provide more
information if you need it. I would like for what happened to
us for something good to come out so that other people do not
go through what we have gone through. Thank you very much.
[The prepared statement of Mrs. Aceituno follows:]
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Mr. Stupak. Thank you, and thank you for your testimony. We
know how difficult it was for you.
We will begin with questions here. Mr. Morris, if I may, I
will begin with you, a couple questions, if I may. Is it fair
to say that information about who owns and controls a hospital
is helpful to regulators at all levels in the government?
Mr. Morris. Information about ownership is critical to both
promoting compliance and our enforcement efforts. Our
experience has been that when we are looking into substandard
care provided by nursing homes, one of the enormous challenges
we face is navigating through the corporate structure that is
put up to deflect responsibility from those who have made
resource decisions. I would suggest that while transparency is
a critical part of improving care and supporting our
enforcement efforts, it is a means to an end. The end is
improving quality. And so we would submit that a compliance
program which gets critical information up to decision makers,
up to shareholders and those who actually are controlling the
resources of a chain, is essential. Knowing who they are is
critically important. Getting them that information so they can
be held accountable if they don't act on it is equally
important.
Mr. Stupak. CMS has undertaken a program called PECOS,
which should help to ensure ownership accountability. Has your
agency looked at PECOS and its implementation and has it
achieved its goals?
Mr. Morris. We have not recently looked at PECOS as part of
our evaluative effort. I believe one of the concerns that we
have with PECOS is how many layers of accountability it
captures, and we have seen in our investigations and some of
the investigative journalism reports, there are so many layers
between the individual facility with which CMS has its provider
agreement and those who are really calling the shots, PECOS
does not capture that number of different indirect owners. So
it is part of the solution but it is not a comprehensive
solution.
Mr. Stupak. Let me ask you this question. How do compliance
programs work in conjunction with a voluntary industry
standard? I know the nursing homes have been doing an
``Advancing Excellence'' campaign. How do you look at that with
your compliance as a regulator? Do they complement each other?
Can it help? Explain that a little bit.
Mr. Morris. Certainly. They certainly can complement each
other. The nursing home industry should be applauded for the
steps it has taken to promote voluntary efforts to improve
care. In our experience, a compliance program has as its
cornerstone integrity, financial integrity, and integrity over
clinical care. That is what makes a compliance program such a
powerful tool. I would suggest the next step towards advancing
care, is that you mandate certain components of a compliance
program. You empower a compliance officer to, if you will,
speak truth to power. You build in internal systems to get the
root cause analysis. To come back to the transparency point,
you empower the compliance officer to bring that information to
those who actually make resource decisions. So while we applaud
what the nursing home industry has done, we think much more can
be done to promote quality through compliance programs.
Mr. Stupak. Let me ask you----
Mr. Morris. We would suggest, for example, that a
demonstration project mandating compliance programs would be a
good start.
Mr. Stupak. Let me ask you, because you testified that the
OIG is continuing its oversight of the use of antipsychotic
drugs in nursing homes. Has your investigation--what has your
investigation found? More use, less use? What have you found?
And it is ongoing, I take it?
Mr. Morris. That work is still ongoing so it would be
premature for me to report on its results. We would be pleased
to come back to you once that work is completed.
Mr. Stupak. Mr. Attorney General, you have recommended the
creation of a national clearinghouse of nursing home
information. Why isn't the current information which CMS
maintains on nursing homes adequate?
Mr. Blumenthal. Mr. Chairman, I think it is inadequate
because of a number of factors, first of all, because it is
incomplete in many respects, it fails to encompass or capture
the real owners of nursing homes. The kind of labyrinthine maze
of corporate structure that many of the chains now have
prevents that database from being fully current or accurate.
But equally important, there are issues about its availability
to the States, the access that State regulators may have to it.
For example, our Department of Public Health, our Department of
Social Services may not have full, current information about
citations, investigations, license denials, disciplinary
proceedings, simply because it fails to capture all that data
or make it available in a timely way to the States. So I think
the States should be a partner in that kind of national
clearinghouse rather than just a bystander. In the case of
Haven Health Care, for example, numerous violations occurred,
repeated in some of the nursing homes, 45 in the course of 3
years involving very severe issues of patient care. I am
doubtful that any of those kinds of citations or incidents
appeared in the database that exists now even though Haven
Health Care was operating 10 nursing homes in other New England
States. So I think that again coming back to the present perils
of concentrated ownership and power, we need a different
paradigm to deal with them in terms of information gathering
and enforcement.
Mr. Stupak. Well, you are the top law enforcement agent in
the State of Connecticut and you have been there longer than
Haven has had ownership of these; was there no central base for
you to go to as the chief law enforcement officer of
Connecticut to look to as you began your investigation in Haven
to say, gee, we have a problem here and this is the exception,
not the rule for--how did you gather the information about the
45 violations over 3 years? Did you have to go back and hand-
create that database?
Mr. Blumenthal. Well, we were aware of the problems that
Haven Health Care, certainly the financial problems and some of
the healthcare issues, and one of the recommendations that I
have made is that fiscal problems and gross mismanagement be
sufficient reason in effect to intervene and establish a
receiver under State court proceedings. Present laws simply
fail to give law enforcement the power it needs to prevent the
recurrence of these problems. Fines and penalties are all too
often simply regarded as a cost of doing business, and very
often, as happened in Haven Health Care and Ms. Aceituno's
case, the nursing home operator will make the case to
regulators that a financial penalty will actually diminish the
quality of healthcare because it diminishes the resources
available for healthcare. And so my pitch to the committee
basically is, we need stronger means of preventing gross
mismanagement or self-dealing and bleeding of resources before
it occurs because, as happened with Haven Health Care, we were
aware of its problems back in 2006. We urged the Department of
Social Services to seek a receiver. It had reasons for
declining our recommendation. But we would have been probably
better off with earlier intervention, a better standard, a
better means of imposing control such as a receiver or joint
Federal-State action.
Mr. Stupak. And Haven Health Care is the exception, not the
rule of nursing homes, I think you said in your testimony. Is
that the case?
Mr. Blumenthal. Well, it is an exception. You know, we have
intervened and we have done in our State criminal prosecutions
of fraud. We have also done receivers for other nursing homes.
We just, as a matter of fact, established a receiver for a
nursing home chain called Marathon, which has a number of homes
both in Connecticut and Massachusetts, which then went to
bankruptcy court, and very often the bankruptcy court structure
itself can impose delay and confusion on the process. It took
us literally months of a team of our lawyers, three or four of
our lawyers, going to repeated bankruptcy court proceedings,
working with creditors, secured creditors, a very complicated
process but I think what we will find is that more and more
these nursing homes will seek the refuge of bankruptcy court,
as they are legally entitled to do, in order to avoid more
effective State intervention unless this committee establishes
some of the recommendations that are being made.
Mr. Stupak. Thank you, and I am over my time, and we will
go for a second round of questions.
Mr. Shimkus for questions, please.
Mr. Shimkus. Thank you, Mr. Chairman.
Mrs. Aceituno, thank you for sharing your story. You said
you had shopped around for a nursing home for your husband,
Oscar. In that searching, were there any signs that this
particular nursing home--I mean, talk through that process. The
whole issue is information, so were you concerned? Again, in
rural America they may only have one choice and there may be--
--
Ms. Aceituno. No, I liked the nursing home because it was a
small one like a home. So the big, big nursing home, I didn't
know too much about them. I guess I should have found
something, you know, more important what happened in the
nursing home. Today I open my eyes more because I know what is
going on. But I liked the place because it was like home. It
was close to my house too. I used to visit him every day
together with my daughters. I never expected that to happen.
Mr. Shimkus. CMS, and we hope they elaborate more. We are
trying to get more information. There is a Web site. I think
there is going to be a question about how much information is
available, what is accessible for the consumers, what might be
accessible in addition to for local law enforcement or
inspector generals or AGs of various States.
Mr. Morris, can you talk about the Web site and information
about maybe information that is available that is not available
to everybody?
Mr. Morris. I would be glad to, and I would also note that
Dr. David Zimmerman will be appearing on the next panel, who
has a great depth of expertise around the quality indicators
and how they can be used effectively. The suggestions coming
from the inspector general are aimed at putting the information
that is available in context so that a consumer or an
enforcement agency and, equally important, the industry itself
can look at the information, see how a facility is doing
relative to its peers so there is a context, so consumers can
read the information and understand what the deficiencies mean
in the context of overall care. And equally important, provide
consumers and the industry with trending information so you
know how this facility and the chain it is a part of has done
over time. One of the things we have seen is that many
facilities are what are called yo-yo facilities that come in
and out of compliance. So if you happen to take a snapshot
while they are in compliance, it may not tell you everything
you need to know.
Mr. Shimkus. And I think we have experienced that quite a
bit, especially in the inspection regime based upon a pop
inspection versus one that somehow they know is coming. There
are preparatory actions. You know, we did that in the military
when we knew our IG was coming around. And that is what we need
to address too is this yo-yo effect.
Mrs. Aceituno, you testified about the penalty and that the
company only had to pay $1. Based upon your experience, what
should have happened to that nursing home?
Ms. Aceituno. What should happen?
Mr. Shimkus. Yes. I mean, they were fined $615. I think
that my perspective would be, that is small, and then they only
paid $1, which is even less.
Ms. Aceituno. He was a $1 man. I think people should have
more information about what they expect from the nursing home
and what they require from the nursing home. And I really hope
you can change the law and be a little more tough about this. I
not only lost my husband but the father of my daughters, a
grandfather. He was a great man. He was very, very happy to be
an American. Nobody could say anything about America because he
would turn around and say listen, the airport is open; if you
don't like America, go home. That was my husband.
Mr. Shimkus. Yes, I wish I would have had a chance to meet
him. I think I would have been proud to welcome him here.
Mr. Blumenthal, in this briefing book there is a lot of
different tabs and stuff and one talks about the Hartford
Current doing a story on the nursing home in 2006. I guess the
question--and you kind of raised it with the chairman, with all
these signals being raised, what could you all have done more?
Was there more that you could do just in the State with State
rules and State laws?
Mr. Blumenthal. Even with existing State law, to be very
blunt, we could have sought a receiver, that is, a State
takeover through a State court action earlier than we did, and
it is now a matter of public record that my office recommended
a State takeover earlier than was done, and our State
Department of Social Services, which has the ultimate authority
through its approval process to undertake that action, declined
to adopt the recommendation. But the Hartford Current article
has certainly performed an enormously important service in
raising public awareness about these problems.
Mr. Shimkus. Yes, and I appreciate--we are just trying to
follow the facts to help us in the public policy arena, and
raise education, even among public policy people in the
executive branch so they do the job, and this is obviously one
that could have been done better by a lot of people.
Let me just raise, because this is a concern in Illinois
right now, and first I will start with Mr. Blumenthal because I
don't know what the State FMAP is, which the FMAP is the
percentage of reimbursement versus what we pay on Medicaid.
Illinois is a 50/50 State. Other States, their share is
different, and I have a big beef about that, to begin with. But
being a 50/50 State, there are two problems. One, and a lot of
care in these facilities are Medicaid recipients, if we do not
fund based upon a percentage, then what Illinois has to do is,
we have to find the loopholes to game the system to try to
bring more money in. So I don't know what Connecticut's is.
That is the first question. The second question is, we have a
particular problem in Illinois because the State is the payer.
They get the money back. They get their portion back. But if
they delay payment, in some cases right now in the State of
Illinois for 4, 5, 6 months, that really kills financially some
of these facilities because then they are trying to--how do you
run a business when you have this delay in payment? So do you
know--I am not trying to put you on the spot. Do you know the
State's rate?
Mr. Blumenthal. If I may answer your question, we have, I
believe, as well a 50/50 match.
Mr. Shimkus. You know, there are some States that have 70/
30?
Mr. Blumenthal. Right, and I think that observation, and I
think it is a very pertinent one on your part, emphasizes the
importance of our working together and recognizing the
complexities of these issues. I have recommended, for example,
in my testimony that a 10 percent change in beneficial
ownership trigger additional monitoring or review. If that
process had been in effect when Ray Termini, who came to be the
owner, took over, it would have been found that he had no
experience in this industry other than repairing the roofs on
some of the facilities. It would have prompted stronger
oversight and monitoring, which I believe is necessary, and you
are absolutely right that suspending or withholding money may
be problematic for some of these institutions, which is why----
Mr. Shimkus. Do you know the State's time frame of payment?
I will stop with that one, Mr. Chairman. Do you know how long
it is that the State of Connecticut pays on the obligation for
Medicaid for long-term care?
Mr. Blumenthal. How long it----
Mr. Shimkus. Well, again, I only know my State. We are
probably 4 months behind.
Mr. Blumenthal. I feel a little insecure answering. I
believe----
Mr. Shimkus. That is fine. I am not trying to put you on
the spot. I am just----
Mr. Blumenthal. I believe we are current.
Mr. Shimkus. It is a problem in this industry and
throughout healthcare across the Nation when reimbursements are
not made in a timely manner. I am indicting my own State
because of my State's failure. I just don't know how prevalent
it is in some of the other States.
Thank you, Mr. Chairman.
Mr. Blumenthal. I don't know what the experience in
Illinois is but let me just make a very important point to you,
that very often these institutions in financial trouble are
advanced money, not suspended by advanced money, and I would
wager that happens in a lot of other States as well and the
critical decision that our agency would have to make is whether
to advance more money, in other words, throw good money after
bad, good money being for the care of patients, but possibly
for exploitation as well.
Mr. Stupak. I thank the gentleman.
Ms. Schakowsky for questions. Your opening will be made
part of the record. I noted earlier you were here and you were
bouncing back and forth between the Health Subcommittee, so we
appreciate you being here.
Ms. Schakowsky. Thank you so much, and I do apologize for
not having been here for the testimony. I have looked at the
testimony and my staff is here and I was able to get the end of
Ms. Aceituno's testimony, which was very, very moving.
Mr. Morris, isn't it the case that CMS currently has no
centralized database from which State officials can easily find
information about nursing home companies moving into their
States?
Mr. Morris. I couldn't speak to that directly. I believe
Acting Administrator Weems will be testifying later. There is
data available through PECOS which identifies immediate owners
of facilities. As we were discussing a couple of moments ago,
the big difficulty is being able to follow that ownership
upstream through multiple----
Ms. Schakowsky. Well, let me ask you this, then. I think we
are going to hear later from CMS that they only have
information on about 70 percent of nursing home providers in
the country and they are going to tell us that it focuses on
the quality of care nursing home residents receive without
regard to ownership. What difference does it make whether CMS
has complete information about corporate ownership of a nursing
home chain?
Mr. Morris. I think it makes a difference because the
government should know who it is doing business with, and if
the benefit of the bargain, the money we pay for services, is
not being met, we should be able to go to those who have
received our money through ownership interests and hidden
shells and be able to have a conversation with them and hold
them accountable if they don't improve the care of the
residents for whom we are charged with looking after. So I
think it makes it a huge amount of difference.
Ms. Schakowsky. So would everyone on the panel agree that
that information should be part of the searchable database?
Does anybody want to comment? No? OK.
Let me ask Mr. Blumenthal, the owner of Haven Health Care,
Ray Termini, borrowed against the equity value of the real
estate in his nursing home to finance really extravagant
ventures such as the purchase of a recording studio in
Nashville, Tennessee. Why do owners such as Mr. Termini attempt
to separate the ownership and operators of a nursing home? What
is the economic rationale?
Mr. Blumenthal. For permitting them to have ownership or
for his doing what he did?
Ms. Schakowsky. His doing what he did, really.
Mr. Blumenthal. Well, you are asking the wrong person for a
defense here.
Ms. Schakowsky. Well, let me ask you this. Is it a problem
for an owner to use a nursing home's equity to finance non-
healthcare-related ventures, in your view?
Mr. Blumenthal. And I apologize. I didn't mean to be
facetious. It is a very serious question, and for us, a very
real one, and in fact, we are continuing our investigation.
There has been public mention, I can't comment on it, that
Federal authorities may be involved as well, but the use of
that money for unrelated purposes raises very serious and
significant legal exposure for him, and in my view, there is
simply no rationale for it. There is no excusable reason for
resources to be taken from a nursing home enterprise, as we
alleged he did, for a recording company or a private home or
other unrelated ventures, whether extravagant or not, and
risking the financial liability of the nursing home.
Ms. Schakowsky. And then to claim that $651 or whatever it
was is just too much for him to pay, I think that is a pretty
insulting fine to begin with but to send $1 is absolutely
despicable, in my view.
Mr. Blumenthal. And your question goes exactly--I think it
is a very good illustration of the practical consequences of
the separation of these different entities into different
corporate structures so that they can be insulated from
accountability, and I know that Ms. Aceituno's attorneys are
here today, they are seeking recovery, and by the way, others
have sought recovery through malpractice actions, and one of my
recommendations is that there be minimum insurance requirements
so that people who are in this situation can hold accountable
these----
Ms. Schakowsky. There are no minimum insurance requirements
at all now?
Mr. Blumenthal. They differ from State to State and they
are inadequate in most States.
Ms. Schakowsky. Well, thank you for that suggestion.
I want to ask Mr. Navas-Migueloa, you indicate in your
testimony when nursing home ownership is transparent, it is
easy for the ombudsman--and I really appreciate the work of
ombudsmen, we have some in our community--to prompt improvement
in a nursing home. How often do you find that non-transparency
is a problem in the homes that you visit?
Mr. Navas-Migueloa. Non-transparency?
Ms. Schakowsky. Yes.
Mr. Navas-Migueloa. I would say between a handful and a
dozen nursing homes out of 31 are difficult to intertwine who
runs it. In some nursing homes, you have a conglomerate, it is
a mesh. You have an administrator, a CEO, a board of directors,
some management company from out of state, et cetera, et
cetera, et cetera.
Ms. Schakowsky. So if you encounter a non-transparent home,
what steps does your office take to determine who the owner is?
Mr. Navas-Migueloa. From our office ourselves, we do all
the research we can do from calling the administrator to trying
to decipher who owns the place. In some cases the administrator
will actually look at you and say I am not quite sure, I think
they are a company out of Chicago but we also have a CEO who
may be able to help you, and it is quite frustrating and I
understand that they are running a business, for better or
worse, and I know that my role is in the trenches and I
understand that there is bigger agencies involved and I hope
that somebody knows.
Ms. Schakowsky. Well, Mr. Chairman, may I ask a couple more
questions?
Mr. Stupak. Yes, a few more.
Ms. Schakowsky. Thank you.
If you are dealing with a nursing home that had a record of
poor performance in another State, would you have any way of
finding out, and how would you do it now?
Mr. Navas-Migueloa. Unless there was a warning, I wouldn't
know.
Ms. Schakowsky. You wouldn't know, and is there any way you
could find out?
Mr. Navas-Migueloa. I am not terribly sure.
Ms. Schakowsky. What has your experience been with nursing
homes that are purchased by companies that are based out of
your State? Is there any difference in the quality of care that
you have noticed?
Mr. Navas-Migueloa. The quality of care, I guess that is a
question that the residents should answer. I am not one to say
that quality of care is better than this one. I guess it
depends on what the resident expects is quality of care.
Ms. Schakowsky. Well, you do have a standard, I hope, of--
--
Mr. Navas-Migueloa. Sure, but I am not going to put words
in the residents' mouths.
Ms. Schakowsky. No, but I mean, do you find--well, this is
an important issue.
Mr. Navas-Migueloa. Sure, absolutely.
Ms. Schakowsky. I mean, do you find more substandard care?
Have you noticed any difference between those that are part of
an outside of your State chain?
Mr. Navas-Migueloa. Yes.
Ms. Schakowsky. What kind of steps do you think that
Federal regulators could take to most assist your work in
dealing with non-transparent nursing homes? This is my last
question.
Mr. Navas-Migueloa. Allowing us to know who to go to,
allowing us to know who the owners are so that if we have to go
far and beyond the administrator who is our contact person, we
know where to go, we know who to call, we know who to approach
to solve a problem, like not having showers in the nursing
home.
Ms. Schakowsky. Let me just ask Mr. Blumenthal to answer
that too.
Mr. Blumenthal. As you just heard, the information sharing
is completely inadequate, and what I would like to see is that
the Federal Government establish a clearinghouse, a database
that is freely accessible to regulators and perhaps even
proactively warns State regulators about owners, operators,
managers who have encountered problems. You know, we are not
talking about rocket science, to use an overused term. It is a
very simple concept that this information be freely available
and that there be joint State-Federal enforcement and that the
Federal Government absolutely require as a precondition for
providing all those billions of dollars that you do, that the
State do an adequate job of monitoring, that it require people,
adequate numbers of inspectors and the kind of enforcers who
will protect again the Haven Health Care kind of situation.
Thank you.
Mr. Stupak. Mr. Whitfield for questions, please. If you run
over, that is fine. We have five votes coming up but go ahead
and get started.
Mr. Whitfield. Mr. Chairman, thank you, and I certainly
want to thank the panel for being with us today.
Mr. Morris, I was just glancing at the New York Times
coverage today of this hearing, and it says that there is
widespread understatement of deficiencies in the nursing home
business, and then you are quoted also as saying, ``We found
nursing home residents who are grossly dehydrated or
malnourished. We found maggot infestations in wounds and dead
flesh,'' and so forth, and I was just wondering, Number one, in
conducting this report or submitting this report, how many
States did you go in and look at nursing homes in those States,
and from your perspective, what portion of nursing homes do you
feel are not meeting minimum standards in our country today?
Mr. Morris. Let me try to answer the question this way. I
believe the Times article you are referring to, today's
article, was actually talking about a report issued by the GAO
today so we were not part of that evaluative effort. However,
as part of our audits and evaluations, we look at facilities
throughout the country, all 50 States and use those to base our
findings and recommendations. In the particular matters that
you are addressing, we work very close with State and Federal
law enforcement officials in every State. We work with the
State Medicaid fraud control units. They are really on the
front line of these enforcement efforts. So we bring all of
that enforcement information as well as our evaluative work.
To the question of how many facilities, how many chains are
providing substandard care, we would note that the empirical
evidence suggests about one in five is providing care that puts
residents in harm's way, either putting them in jeopardy or
providing actual harm. We would also note that many of these
facilities yo-yo in and out of compliance with program
requirements so the magnitude of the problem when looked over a
multi-year period is probably more dramatic than that.
Mr. Whitfield. So you are saying that 20 percent of the
nursing homes in the country are endangering the patients today
in the care that they are providing?
Mr. Morris. Based on the survey information coming out of
both the State and Federal surveyors, yes.
Mr. Whitfield. Now, when we talk about Federal standards,
meeting Federal standards, what does that term actually mean?
Can you delineate some of the different types of standards that
we are referring to?
Mr. Morris. Well, the Centers for Medicare and Medicaid
Services have conditions of participation which specify both
patient care as well as life safety requirements that nursing
homes are required to meet in order to participate in our
program, and those are the standards from which we in the
Federal Government and then our partners in the State use to
evaluate whether a particular facility is in compliance. There
is a State survey process by which each facility is subject to
on average about 15 months of survey reviews and then the
Federal surveyors go back and review some portion of that work
to see whether the quality of those surveys is adequate and
consistent.
Mr. Whitfield. Now, I want to go back to this owners issue
for just a minute. A nursing home is either meeting the
requirements or it is not. It is either providing care at a
certain standard or it is not. So why is the ownership aspect
of it so important?
Mr. Morris. The ownership aspect is important because care
is delivered through a range of different mediums and the
quality of care varies throughout the week and year. When we
see systemic failures of care, it means something is wrong with
how that nursing home is delivering care not to just one
individual but across the board. When we in the enforcement
community and the compliance improvement community want to have
a conversation about how to improve care, we need to find who
has got control of the resources. Our experience has been that
when a facility is under the control of a large corporation
which has put multiple layers of accountability between
decision makers and the facility, resources are drained away
from care so we need to be able to have transparency and
accountability with those who actually make the resource
decisions. As was alluded to in this panel, many times when we
speak to the head of the facility, they don't know who is in
charge. They don't know how to respond to an ombudsman's
concern or a State surveyor's concern. It is always passed
uphill. They may not know who has got control over those
resources, and as I said, I think if we are pouring billions of
dollars into this industry, we ought to know who we are giving
that money to.
Mr. Whitfield. One other question, Attorney General
Blumenthal. As attorney general of Connecticut, do you have the
authority yourself to close down a nursing home if it is
providing substandard care?
Mr. Blumenthal. I do not alone. I can act only when the
experts--I am not a healthcare expert, I am not a doc, I am not
a trained medical person nor is anyone on my staff. I depend on
the Department of Social Services to go through a proceeding
and that happened in this instance eventually and we did go to
court, but I cannot unilaterally do so, but I want to come
back--I think you have asked an excellent question, why do we
care about ownership? Well, if you take the case that you just
heard about, Oscar Aceituno suffered huge harm and that
facility should have been held accountable, and it was not
because it said we don't have resources. So they sent $1. If
they had known who the owner was and been able to go after him
and hold him accountable, he would not have been using those
resources to buy a record company in Tennessee or a house on
the front of a lake. Now, that is an extreme example. The
resources were there but the chain of command and control was
so complex that it couldn't be held accountable.
Mr. Whitfield. Thank you, Mr. Chairman.
Mr. Stupak. Let me just briefly follow up on that, if I
may, and if anyone wants to jump in, go ahead. We only have a
few minutes. We are going to break for votes. Even though you
may know who the owner is and they may be out of State and you
can follow the money, that still doesn't require or make
certain that the nursing home is--that money is going into the
nursing home. They have a right after they pay whatever they
do, whatever money left over to use how they want. It doesn't
necessarily guarantee an improvement for those residents. So
other than your surety bond or your insurance proposal, minimum
insurance liability proposal, how do you get them to do the
right thing in this case? Because we pay $78 billion a year in
direct costs. That is not counting all the other parts of
Medicare which are doled out to nursing homes for therapy and
drugs and other things.
Mr. Blumenthal. Well, that question, which is an excellent
one, goes to some of the other suggestions I have made.
Information sharing would presumably alert a regulator in
Illinois or Michigan or Vermont or New Hampshire about an
individual in Connecticut who was betraying the public trust,
and it is a trust. People are entrusted to the care of this
institution, and if there were the kind of pattern of
violations, citations, findings in Connecticut that were
established there, it could be made available to others and
eventually even in Connecticut, action could be taken against
him.
Mr. Stupak. So that minimal insurance policy, the more
violations you have, should you tie bar it to that and make
sure insurance liability then go up?
Mr. Blumenthal. It could and should be raised, and if it
applied uniformly across the country as a condition of Federal
Medicare or Medicaid aid, it would be even more effective. But
some of the proposals I have made have to do with greater
cooperation among the States, which I think has to happen.
Mr. Stupak. Sure. Mr. Morris, did you want to say something
quickly and then I am going to go to Mr. Shimkus for a
question.
Mr. Morris. Yes. Just to elaborate, that not only
information sharing among States but actually information
sharing with those in command and control. If we can establish
that those who control the resources know of the substandard
care being provided at the facility level, it increases
accountability and may draw their attention to fixing those
problems.
Mr. Stupak. So as our ombudsman, he is our first line of
defense in a way?
Mr. Morris. The ombudsman, but also going upstream in the
corporation so you don't get the defense of, ``I had no idea
what was going on; you can't hold me personally accountable.''
Mr. Blumenthal. If I may----
Mr. Shimkus. We are really running out of time and I need
to get this going.
Mr. Stupak. Go ahead.
Mr. Shimkus. We have got 4 minutes to get to the floor for
the vote. Because Mr. Weems is going to testify on the last
panel. He states in his testimony, ``Nursing homes are required
to submit updates to their existing provider enrollment when
they have a change in information, such as ownership, which
then populates the PECOS database. Using PECOS, CMS has the
ability to better track ownership and changes in ownership.''
Mr. Morris, do you want to respond to that?
Mr. Morris. As I believe I said earlier, the challenge is
getting to multiple tiers of ownership. My understanding is,
PECOS actually only addresses direct----
Mr. Shimkus. Does CMS have the authority? The question is
legislation, or do they have already have the authority to
force this?
Mr. Morris. I don't know the answer to that.
Mr. Shimkus. We need to find out that answer, Mr. Chairman.
Mr. Stupak. OK. Thanks. We are going to excuse this panel.
We may follow up with other written questions because I know I
want a couple more questions, and we have five votes, and we
are going to recess until 12:30, and I don't want to keep you
here until 12:30 for a few more quick questions. So we will
dismiss this panel. We will recess. We will back at 12:30 for
our second panel.
Thank you all for being here. Mrs. Aceituno, thank you
especially for your difficult testimony, and I thank each one
of you for what you try to do to bring some enforcement to this
industry.
[Recess.]
Mr. Stupak. We are going to reconvene this hearing. I see
our second panel. Is Mr. DeBruin here? Does anyone have any
idea where he is at? I hate to go through and swear in the
witnesses and have to do it again. Well, let us begin.
On the second panel, we have Dr. David Zimmerman, who is
the Director of the Center for Health Systems Research and
Analysis at the University of Wisconsin-Madison; Dr. Andrew
Kramer, who is Professor of Medicine and Head of Colorado
Division of Health Care at the University of Colorado; Mr. Neil
Pruitt, Jr., who is the Chairman and CEO of the UHS-Pruitt
Corporation, a large nursing home chain headquartered in
Georgia; and Dr. Mary Jane Koren, who is Chair of the American
Healthcare Association's Advancing Excellence campaign. And Mr.
DeBruin, we will wait for you, who is a former nursing home
worker and president of Pennsylvania Service Employees
International Union.
As you know, it is the policy of this subcommittee to take
all testimony under oath. Please be advised that witnesses have
the right under the Rules of the House to be represented by
counsel. Do any of you wish to be represented by counsel during
your testimony? Everyone seems to be shaking their heads no. I
will take it as a no. Therefore, I am going to ask to please
rise, raise your right hand, and take the oath.
[Witnesses sworn.]
Mr. Stupak. Let the record reflect that each witness
answered in the affirmative. Therefore, you are under oath as
you give your opening statement.
We will begin with you, Mr. DeBruin, for a 5-minute opening
statement. If you have a longer statement, we will make it part
of the record but we will go 5 minutes with your opening. If
you would begin, sir. Make sure that light is on and pull it
fairly close so we can hear you.
STATEMENT OF THOMAS DEBRUIN, PRESIDENT, PENNSYLVANIA SERVICE
EMPLOYEES INTERNATIONAL UNION
Mr. DeBruin. Chairman Stupak, Ranking Member Shimkus and
honorable members of the subcommittee, I thank you for the
opportunity to testify today. I am the president of SEIU Health
Care Pennsylvania, and I am here today speaking on behalf of
SEIU's 1.9 million members, including 150,000 nursing home
workers.
Nearly 35 years ago, I began my working life as a nursing
assistant in a large public nursing home. Even today, I can
remember my first day on the job, the challenge of providing
quality, compassionate care and support for the frail, elderly
residents entrusted to me. I have seen a great deal of progress
since that time but I am here today out of a great concern
about our ability to continue that progress.
A new player has entered the nursing home world: private
equity firms. SEIU is deeply concerned that the private equity
business model, which seeks to make extreme profit, will
operate at the expense of nursing home residents, their
families, caregivers, and taxpayers. Buyout firms operate
behind a veil of secrecy that allows them to conceal virtually
all aspects of their business from regulators and affected
stakeholders.
Others have testified today and at other congressional
hearings about the tragedies that occur too often in nursing
homes. These tragedies will only continue because Federal laws
and regulations have failed to keep pace with the trends in
nursing home ownership and financing, which are placing many
homes in financial jeopardy while making it increasingly
difficult to hold them accountable for patient care problems.
The industry has moved towards increasingly complex corporate
structures and highly leveraged buyouts. For example, last
year, the Carlyle Group completed a $6.6 billion leveraged
buyout of Manor Care. It remains unclear how Carlyle Manor Care
will service such high debt without some effect on care. Plain
common sense suggests that there is reason to be worried about
cost-cutting pressure at a company that has just taken on
almost $5.5 billion in new debt. Are we really to believe
Carlyle's investment plan for Manor Care is to drive a
profitable company deeply into the red and not cut costs, of
which staffing is one of the largest, to keep its investment
profitable?
There is a real concern that nursing homes involved in
highly leveraged buyouts will cut staffing to pay off debt.
This raises concern both about the safety of residents and
about the value taxpayers are getting for Medicare and Medicaid
dollars.
In addition to the concern of inadequate staffing, there is
a fundamental lack of transparency in the nursing home
industry. Nursing homes today employ ownership structures that
obscure who is actually responsible for decisions that impact
the quality of care in the facility. Buyout firms set up
layered entities. Sometimes there are hundreds of entities
involved to run their nursing homes and avoid liability, often
separating the real estate asset holdings from the operations.
Such diffuse structures become even more complex when
employed by large chains, which may create multiple layers of
corporate shields that stand between the ultimate parent
company and the facility-level LLCs. Nursing home chains have
used such structures in the past to frustrate efforts by
regulators to hold parent companies accountable for the care
provided in their facilities and to obscure transactions and
self-dealing between related parties. CMS has previously
testified that they do not know who owns all nursing homes in
this country. This despite the fact that the nursing home
industry receives $75 billion a year from Medicare and
Medicaid. How can Congress accept this?
Twenty years ago, it was at the urging of courageous
reformers like Chairman Dingell and Pennsylvania's Republican
Senator, the late John Heinz, that Congress passed landmark
nursing home reform legislation. The real question before you
is whether Congress will show the political courage today to
once again pass significant nursing home reform. In February,
Senators Grassley and Kohl introduced the bipartisan bill S.
2641, the Nursing Home Transparency and Improvement Act, and
Representatives Stark and Schakowsky have indicated that they
will introduce similar legislation soon.
Congress will likely pass a Medicare bill this year. The
Senate is currently negotiating legislation which means there
is an opportunity to attach S. 2641, a no-cost bill, and I
invite the industry to work with us to pass S. 2641. We commend
many in the industry who have recognized the need for greater
transparency. However, the for-profit industry appears to be
blocking this legislation. We stand ready to work with them,
but if they choose to continue lobbying against this bill, then
I urge Congress to stand up to the industry pressure and stand
with the vulnerable seniors who count on their members of
Congress to represent their interests. Hearings are not enough.
Your constituents want to take real action and not simply talk
about the problem.
Taxpayers trust that Medicare and Medicaid dollars will go
toward providing seniors with quality care they deserve and
will not become profit at the expense of nursing home
residents. Congress must exercise its oversight authority to
ensure that Medicare and Medicaid dollars are spent as
intended, to provide high-quality care. We must not fail to
protect our seniors and we cannot allow the bad actors in the
for-profit nursing home industry to continue to let our seniors
down and block attempts to pass meaningful reform. With S. 2641
and the Stark-Schakowsky bill soon to be introduced, you have a
great opportunity before you and we urge you to seize it.
I thank you very much for inviting me here to testify.
[The prepared statement of Mr. DeBruin follows:]
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Mr. Stupak. Thank you, Mr. DeBruin.
Dr. Zimmerman, if you would, please, for your opening
statement, sir.
STATEMENT OF DAVID ZIMMERMAN, PH.D., DIRECTOR, CENTER FOR
HEALTH SYSTEMS RESEARCH AND ANALYSIS, UNIVERSITY OF WISCONSIN-
MADISON
Dr. Zimmerman. Good afternoon, Mr. Chairman. As a fellow
UPR--that would be Dollar Bay, Michigan--I am especially
pleased to be here this afternoon. My name is David Zimmerman.
I am a professor of health systems engineering at the
University of Wisconsin-Madison, and I am the director of the
Center for Health Systems Research and analysis at UW Madison.
I am also the president of the Long Term Care Institute, a
nonprofit organization created to assist in the monitoring of
quality of nursing home care in organizations with corporate
integrity agreements with the Office of the Inspector General
within the Department of Health and Human Services.
As researchers and monitors, our clinicians and analysts
have conducted visits to more than 1,000 nursing homes in the
past 8 years. We have observed or participated in more than 100
quality improvement meetings, including more than 30 such
sessions at the corporate level of organizations. I have spoken
to at least 15 corporate boards or board committees and met
with individual board members about quality of care issues. So
we have been observing and analyzing the care of nursing home
residents and the systems that govern this care from the
bedside to the boardroom.
What are some of the things we have learned from this rich
field experience? One thing that is very clear from our
experience is that there is tremendous variation in the quality
of care by facility, by unit and area of care within a
facility, by district and region and across nursing home
corporations as a whole. Even the best performing organizations
have pockets of mediocrity in performance, and even in the
worst performing organizations, there are facilities that
deliver good care. It is this inconsistency that represents one
of the most difficult challenges to overcome, and yet it also
represents a significant opportunity to take a systems approach
to improving nursing home quality of care.
Frankly, another thing that comes out loud and clear from
our field experience is that there is an unarguable need for
transparency in the provision of nursing home care. Others have
spoken to this issue, and frankly, I am astonished that it
still is even a subject of debate.
What else have we learned? Well, we have some pretty solid
preliminary evidence that monitoring has had a positive impact
on improvement in regulatory outcomes, at least for the
national and regional corporations that have been the subject
of our work and our analysis. The initial findings are also
quite positive in terms of the effect of monitoring on reducing
excessive rates of resident functional and clinical impairment.
In addition, we have substantial anecdotal evidence, including
feedback from the providers themselves, that monitoring has had
a productive impact on their quality assurance and quality
improvement initiatives.
How does monitoring help? We believe the presence of
monitors and monitoring activities has elevated the importance
of the internal compliance function within the organization
themselves and it is difficult to exaggerate the importance of
this. Having a more important and a more prominent compliance
function within the facility and the organization not only
improves the quality of care but imbues the organization with
an enhanced culture of quality by making compliance a more
visible and integral part of the leadership and management of
the organization. Our experience has been that this increased
presence and visibility as well as the existence of a more
direct line of communication between compliance and top
leadership including the board can lead directly to improved
care and it can help put quality of care on an equal footing
with financial stewardship within the organization.
Another advantage of the monitoring process is it can help
to expand the quality assurance function beyond individual
facilities to levels of organization that can more effectively
make things happen to implement quality initiatives and help to
sustain them throughout the organization.
Another important contribution, and one which we stress
greatly in all of our work, is the emphasis on systems of care
and quality assurance at all levels of the organization.
Probably the single most important insight from our monitoring
work has been the importance of developing and sustaining
effective systems of care which along with good policies and
procedures can promote more consistent care across units,
facilities, districts and regions of organizations. Too often
we find that such consistency is lacking and it was through
continuous interaction with the organization including at the
top levels that this commitment to consistency and capability
to bring about consistency was achieved.
A critical corollary point is that implementing and
sustaining good systems of care and quality assurance demands
loyalty to what we have come to refer to as the V word,
validation. Too many times we have found that those responsible
for the oversight of quality in monitored organizations would
accept without validation assurances of compliance with policy
or that care protocols were being carried out as documented or
reported yet validation did not confirm that this was true.
When quality assurance efforts include validation, that what
was said was happening was indeed happening consistently, then
care improved markedly. Validation must be a fundamental part
of any effective quality oversight function or any quality
initiative that the industry or the regulatory community
undertakes. This of course includes validation of staffing
levels and staff competencies.
So in conclusion, we believe that the internal compliance
function is absolutely essential to meaningful quality
improvement and quality assurance. It can work side by side
with the regulatory community to bring about lasting quality of
care for nursing home residents.
Thank you.
[The prepared statement of Mr. Zimmerman follows:]
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Mr. Stupak. Thank you, and everything is fine in Dollar
Bay.
Dr. Kramer, your opening, please, sir.
STATEMENT OF ANDREW KRAMER, M.D., HEAD, PROFESSOR OF MEDICINE,
DIVISION OF HEALTH CARE POLICY AND RESEARCH, UNIVERSITY OF
COLORADO-DENVER
Dr. Kramer. Good afternoon, Mr. Chairman, Mr. Shimkus,
members of the Committee. I am a physician and a professor of
medicine and health policy, and about 10 years ago I was over
at the Hart Building and gave testimony similar to this before
the Senate Special Committee on Aging. Chairman Grassley asked
me, how come the methods I use in research are not currently
being used in the survey process, because I had testified about
problems with subjectivity and inconsistency in the survey
process. My response was that I didn't know. And then in 1998
they began the QIS initiative, starting with a development
contract. Dr. Zimmerman and I led the team on that early
development of QIS.
So 10 years later, where are we? Well, we still have very
good nursing homes out there, we have not so good ones, and we
have poor ones. And the problem is that today you still can't
tell from the information that is publicly reported or the
information in the survey process which nursing homes fall in
which categories. You can't tell. You know, I can't even tell
from the information that is available. And that is a serious
problem. We have enforcement problems because we don't have a
system that surveyors are confident about, which my team has
shown in some recent case study work. And we don't even have a
national standard that is widely recognized, indicating what is
quality for providers. But we are making some progress and we
are making some progress in six States that have now
implemented the Quality Indicator Survey. And I want to tell
you a little bit about that progress we have made because I
think it is very important for today's discussion. CMS is
moving toward a national rollout of QIS, but it is very, very
slow.
So the QIS, how is it different from the traditional
survey? The QIS involves much larger samples of residents and
facilities, people who are currently residing in the facility
and recent admissions. And as somebody said earlier, in the QIS
survey you talk to the residents. You talk to 40 of them. You
ask them questions. You ask them, do you have choice about when
you get up in the morning. You ask them whether they have oral
pain. You find out about their nutrition. You ask them all
sorts of questions. You make structured observations. You pull
information from records. You pull weights out of charts. You
ask them if they are on a weight-loss program. There are 162
indicators that are used in the first 2 days of QIS that cover
the Code of Regulations. And that is what the QIS is based on:
the regulations.
There is another aspect of the process very exciting: the
data. It is very structured and very data driven and so at the
end you can audit what surveyors are doing with all that
information. In June we are actually training the regional
office oversight people to use that same information in their
oversight process.
So let us talk for a minute about what the impacts of QIS
have been. First of all, the surveys. There have been over 700
surveys that are QIS. There are over 200 surveyors trained in
QIS. Of these the surveyors, 80-plus percent of them said they
would never go back to the traditional process. Now, there are
those that don't like this imposed structure. Deficiencies--we
are finding deficiencies that are in the Code of Regulations
that were never identified before. These deficiencies are in
dental health and oral pain, because surveyors ask people about
oral pain. There are programs in a couple of the QIS states
that are being led by the Provider associations, working with
the State Dental Associations, to start providing oral
healthcare inside nursing facilities. Hospitalization, quality
of life, and choices are the kinds of problems cited in QIS.
The culture change movement has embraced QIS because of the
importance of these areas.
There is another impact, consistency. When I first went to
one of these QIS States, a group of providers came up to me and
they said Dr. Kramer, we are getting a large increase in
deficiencies in our district office. Guess what? This was a
district office that had a long history of low deficiencies
because the process was not consistent.
There has been one more impact of QIS and that is on
providers. Providers have started to embrace and use the tools
of QIS for quality improvement. Some are proactive whereas
others receive a bad QIS survey, and then they use the tools
for quality improvement.
And so the next question is, why has it taken 10 years to
roll QIS out in six States? First of all, development.
Development took many years. We had to build new systems under
CMS contract to support QIS, so there was a great deal of
development work. There was an evaluation that took twice as
long as was expected, and that slowed things down. Secondly,
everybody criticizes the survey process, but there is
reluctance to change it. There is reluctance and we have worked
together. At this stage there is a core group in CMS of about
eight people that are very strong advocates of QIS, but it has
taken some time.
And then the final issue is budget. Thirteen States applied
to be QIS states after the demonstration. One of them was
chosen, Minnesota. For the other States, CMS did not have
budget to roll it out. And that has been the biggest problem,
the budget has been uncertain. The budget commitment has been
uncertain. It would take $20 million, one time, to roll QIS out
in every one of the other States over the next several years,
and that is the one recommendation I have to make.
Thank you.
[The prepared statement of Dr. Kramer follows:]
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Mr. Stupak. Thank you.
Mr. Pruitt, your opening, please.
STATEMENT OF NEIL L. PRUITT, JR., CHAIRMAN AND CEO, UHS-PRUITT
CORPORATION
Mr. Pruitt. Thank you, Chairman Stupak, Ranking Member
Shimkus and members of the committee. I am Neil Pruitt and I am
chairman and CEO of UHS-Pruitt Corporation. I am grateful for
the opportunity to be here on behalf of the American Health
Care Association to offer perspective on the success and
remaining challenges we face in ensuring quality nursing home
care.
For nearly 40 years, my family-owned company has been
providing professional healthcare services throughout the
Southeast. With nearly 8,000 employees, we touch the lives of
more than 18,000 individuals daily and we have a longstanding
tradition of quality and a commitment to caring. I am proud of
the advances our profession has made in delivering high-quality
care, and we remain committed to sustaining these gains in the
future when demand for care will dramatically increase.
Data tracked by CMS clearly illustrates improvements in
patients' outcomes, increase in overall direct care staffing
levels and significant decreases in quality of care survey
deficiencies in our Nation's skilled nursing facilities.
Positive trends are also evidenced by initiatives including
Quality First and the Advancing Excellence in America's Nursing
Homes campaign, which are having a significant impact on the
quality of care provided. The Advancing Excellence campaign is
a coordinated initiative among providers, caregivers,
consumers, CMS and others that promotes quality and encourages
best practices and evidence-based processes. This voluntary
initiative is working and outcomes and processes are improving.
We remain committed to building upon quality improvements for
the future.
Twenty-one years ago, passage of OBRA 87 brought forth
significant changes in our approach to patient care. Today we
are in danger of abandoning the original intent of OBRA 87 in
favor of a regulatory system that defines quality in a context
that is often measured by fines and violations rather than by
quality of care, or quality of life as was originally intended.
We believe that a reformed and effective survey process should
embody three guiding principles. The survey should be fair,
accurate and consistent; protect the health and safety of the
residents; and should focus on areas requiring improvement in
problem. We must revamp the system to ensure that quality of
life is emphasized consistent with the intent of OBRA 87.
We know the vast majority of nursing homes provide high-
quality, compassionate care that patients and their families
want and deserve. However, we recognize there is a very small
fraction of facilities that do not meet these high standards of
quality care. There should be incentives rather than current
disincentives for new operators to take over troubled
facilities and improve the care of the patients.
UHS-Pruitt has a history of purchasing facilities that have
had troubled survey records and turning them into top-tier
performing nursing facilities. We have been successful in
working with the regulatory agencies in Georgia, North
Carolina, and South Carolina to improve the quality of care
delivered to those that we serve. I am proud of our
organization's ability to improve underperforming facilities
and make them a better place for our patients.
However, these efforts do not come without risk or
difficulties. Last year we purchased a facility in Monks
Corner, South Carolina. This was a facility with the SFF
designation, which needed significant investment to reform it
into a better environment that embraces the constructs of
culture change, implements advances including information
technologies, and has increased staffing levels. Prior to our
purchase, this facility had been issued a Medicare notice of
termination and efforts were underway to relocate more than 130
patients. Further, the center was one of the first to enter
into a settlement agreement with CMS. Upon transfer of
ownership, this agreement was renamed a systems improvement
agreement. I believe that this type of agreement is a model for
government-provider collaboration to improve care in
underperforming nursing centers.
Before purchase, we presented a performance improvement
plan to CMS and the South Carolina Department of Health and
Environmental Control. Both the regulatory agencies offered
valuable feedback on the past performance of the facility and
the likely effectiveness of our plan to address past
performance deficiencies. Our team holds periodic briefings
with both agencies. These briefings are honest and open and are
focused in achieving outcomes that will benefit patient care.
While I am the first to admit the facility is still far from
perfect, we are proud of our efforts and outcomes we have seen.
This facility has had significant improvement and been publicly
recognized by CMS regarding our intervention and success in
improving this facility. It has been almost 8 months since we
acquired the property. Over this time we have made considerable
investment to improve the facility. However, we have still not
been approved for Medicare certification and thus have not
received any Medicare payments for the improved care and
services we continue to provide.
We know that encouraging the purchase of troubled
facilities can help patient care but there remain significant
barriers with the current change of ownership process. This
must be recognized and changed. There are ways to improve the
regulatory process and ensure the current safeguards are
adequate and appropriate. One inherent flaw with the current
survey process is that it is incredibly subjective by nature.
This is because the review relies upon the individual
interpretation. There is, however, one system that has been
mentioned that shows promise in reducing the human
interpretation and subjectivity: the Quality Indicator Survey.
We applaud CMS's latest attempt to minimize human variability.
Although it is too early to draw conclusions on QIS, AHCA is
cautiously optimistic that the process will help correct some
of the inadequacies of the current system.
While I have provided a more thorough list of
recommendations for a smarter oversight system in my written
statement, some ideas include Congress to establish a pilot
program in a few States that would require funds collected
through civil monetary penalties to be put back into the system
to improve quality care. Congress should create a national
commission that includes all long-term care stakeholders to
best determine what information would provide assistance to
consumers and how it should be made available. Encourage the
posting of more complete staffing data on Nursing Home Compare.
We also urge Congress to pass the Long-Term Care Quality and
Modernization Act of 2007.
We are proud of the advances we have made in delivering
high-quality long-term care and we remain committed to
sustaining these gains in the years and decades to come.
I thank you for the opportunity to offer these comments and
I look forward to answering your questions.
[The prepared statement of Mr. Pruitt follows:]
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Mr. Stupak. Thank you, Mr. Pruitt.
Dr. Koren, your opening statement, please.
STATEMENT OF MARY JANE KOREN, M.D., M.P.H., ASSISTANT VICE
PRESIDENT, THE COMMONWEALTH FUND
Dr. Koren. Thank you, Mr. Chairman, for inviting me to
testify. I am Dr. Mary Jane Koren. I am a geriatrician and I am
here to testify on my own behalf as an expert in this field.
Besides having been a nursing home physician and having had a
father in a nursing home, from 1987 to 1992 I was the director
for survey and certification for New York State. I have also
been privileged to be a member of the National Commission on
Quality Long-Term Care, which was chaired by former Senator Bob
Kerrey, and former House Speaker Newt Gingrich.
Currently, I am an assistant vice president of the
Commonwealth Fund, where I direct a program to improve nursing
home quality, and I have the honor to be this year's chair of
the steering committee, which, if I may comment, is actually an
independent coalition of stakeholder groups and is really not
sponsored by any one given organization.
This Advancing Excellence so far has over 43 percent of the
nursing homes in the country as participants. I would like to
thank you, Chairman Stupak and also Ranking Member Shimkus and
every member of the committee for conducting these hearings
today since recent events have brought to light important
issues with the nursing home oversight system and how quality
may be achieved in the Nation's nursing homes. I would like to
tell you about some of the positive changes that have been
occurring and that continue to spread.
I believe that survey and enforcement is a critically
important undertaking because it really sets a floor of what we
expect all nursing homes should be doing. I also think it
should be easy to find out where the buck really stops when
there are problems so that they can be fixed expeditiously and
permanently. However, while I agree that our current survey
system of oversight could and should be improved, I don't think
we should rely on the regulatory process to improve quality of
care alone and we certainly shouldn't ask our surveyors to
become consultants to the industry.
There are other ways government can help improve nursing
homes. For example, Washington State has a quality assurance
nurse program as a separate and distinct unit from its survey
agency. In addition, a federally supported quality improvement
organization program could be charged to help nursing homes
come into compliance after survey and continue to work
collaboratively with voluntary efforts such as happening now
with two initiatives which I would like to tell you about
briefly.
The first is called Culture Change. It is a grassroots
movement which began about 15 years ago when a number of people
suddenly tapped into OBRA 87's potential to promote resident-
centered care and to really try to turn nursing homes into
homes. Picture a nursing home where you can stay up to watch
the end of the ballgame, you can get yourself a midnight snack
and then you are helped to bed by somebody who actually knows
you and all your little quirks. This is light years away from
business as usual but it is something that is happening more
and more. It is applicable whether you stay in a nursing home
for 5 days or whether you stay there for 500 days. Findings
from a recent national survey of nursing homes supported by the
Commonwealth Fund showed that over half the facilities in the
field say that they are either doing something to try to make
themselves more resident-centered or that their leadership is
committed to the principles of resident-centered care and that
they will begin shortly.
Likewise, the survey found that adopters are beginning to
see a positive impact on their bottom line. The Quality
Improvement Organization program's 8th Scope of Work borrowed
from the culture change movement to target things like how to
retain staff and ways to help staff really get to know their
residents and to test resident satisfaction. This boosted
interest across the industry in resident-centered care. At the
same time, CMS's Office of Survey and Certification has been
trying to ensure that the survey process itself not become a
barrier to innovation.
The other positive development is Advancing Excellence,
which several of you here have mentioned today. This effort is
less than 2 years old. The campaign's national steering
committee which, as I said, I do chair, is made up of an
unprecedented coalition of 30 organizations including provider
associations, health professionals, unions, consumer advocacy
groups, and representatives from CMS. The collaborative spirit
of the group itself deserves to be counted as one of its most
noteworthy accomplishments. The campaign has been very
successful so far. It has opened all nursing homes, not just
those in the association. It also seeks support and
participation from consumers and frontline staff. We are
tracking the clinical goals and results already show that it is
working. Participant homes are improving at a faster rate for
the clinical goals than homes which have not yet joined. Forty-
nine State-level networks have been established that are very
efficient ways to get good ideas out there and provide
technical assistance to homes. One call that we had, we have
over 10 percent of the industry actually on that call to hear
about evidence-based ways to improve performance in taking care
of pressure ulcers.
In addition, I would like to conclude my remarks by
observing that there are a number of steps Congress could take
that would really support current voluntary efforts while at
the same time improving transparency and the regulatory
process. They include the CMS Web site, Nursing Home Compare,
include information on multiple staffing characteristics and
the rate of consistent assignment, and also perhaps whether or
not a nursing home is participating in Advancing Excellence.
Also, CMS should be charged with developing payment methods
that would reward nursing homes participating in the campaign
or achieving results on adopting resident-centered care
practices. Also, CMS should be encouraged to continue to make
long-term commitments to supporting Advancing Excellence and
similar efforts at quality improvement. Perhaps also we should
direct CMS to fund and conduct a demonstration to pilot other
ways to provide technical assistance that could be linked to
the survey process but not be provided by the survey agency.
And lastly, that CMS be directed to continue to vigorously
pursue its work on using resident input to improve the
assessment, the care planning and the survey processes.
Thank you.
[The prepared statement of Dr. Koren follows:]
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Mr. Stupak. Thank you. Thank you all for your testimony. We
will begin questions.
Dr. Kramer, I understand you are one of the authors of the
report commissioned by CMS titled ``Improving Nursing Home
Enforcement'' and that report was completed about March of
2007?
Dr. Kramer. Correct, yes.
Mr. Stupak. And it has not been made public yet by CMS?
Dr. Kramer. I understand that, yes.
Mr. Stupak. Do you know any reason why it would not be made
public?
Dr. Kramer. I actually do not know the reason why it is not
public.
Mr. Stupak. In this report, it shows that the survey system
as it is currently administered significantly underestimates
the deficiencies present in most nursing homes. In fact, there
is a GAO report out that basically echoed those findings. The
report shows only about a quarter of the deficiencies practiced
are detected by the surveyors. Why is that?
Dr. Kramer. Well, that report was based on going to nursing
facilities and using the methods that are used in the Quality
Indicator Survey concurrently with surveys. This was done in 26
facilities, and one of the things that was very evident is that
without the structure of something like a Quality Indicator
Survey, the surveyors are faced with this morass of regulations
that they are trying to interpret. They have interpretative
guidance to do this, but there is no structure to follow. And
in the end, the documentation that comes out of it is not
strong enough for them to trust. The QIS approach that was used
in these case studies is a much more methodical, replicable
process.
Mr. Stupak. You have QIS and then you have other, the
current way they do the surveys. I take it the current way of
doing the surveys, as I have heard from Mr. Pruitt, Dr. Koren
and others, that it is basically more subjective than the QIS?
Dr. Kramer. Yes, that is what the case studies showed and
that is what----
Mr. Stupak. Is that the inconsistency then in enforcement
depending on the----
Dr. Kramer. Well, the enforcement is at the end. But
enforcement actually can get watered down if you don't have
really clear evidence of the problem and good documentation.
And the problem is that in the traditional survey process they
invest a lot of resources in but because that structure is not
there, they don't always get all the information that is
needed.
Mr. Stupak. On the QIS, again, that CMS commission and
evaluation, that was completed in December--do you know of any
reason why that has not been released?
Dr. Kramer. I don't know why that is not released.
Mr. Stupak. Are there any independent conducted surveys
that document the superiority of the QIS over the current
survey system?
Dr. Kramer. Independent--like what are you----
Mr. Stupak. Well, other than the one that you were
commissioned to do to complete the survey for CMS, is there
anything else that has taken the same factors of the Quality
Indicator Survey, the QIS, and to show that it works better
than the current system we have?
Dr. Kramer. OK, so the evidence we have--the case studies
are one example. We went in and used QIS methods and then the
surveyors used the traditional process, and there were pretty
dramatic differences in the problems identified. The other
evidence is what you hear from the surveyors. They all say it
is more consistent, more objective. That is why the States are
lining up to do it. And what is very interesting is that there
is another group that is starting to support it and that is the
provider community because they also find it more objective.
Even though there are more deficiencies in QIS and in different
areas and in some new areas, there is support there among
providers.
Mr. Stupak. Dr. Koren mentioned the Advancing Excellence
program that nursing homes are voluntary doing. Are you
familiar with that program?
Dr. Kramer. I am familiar with that program.
Mr. Stupak. How does that relate to the QIS?
Dr. Kramer. At this stage, because QIS is not rolled out
nationally, it is not integrated with that Advancing Excellence
activity.
Mr. Stupak. Could it be integrated?
Dr. Kramer. It could be fully integrated and broaden that
initiative so that you could target the full range of the Code
of Federal Regulations instead of more narrowly targeted areas.
Mr. Stupak. You mentioned $20 million to get the other
States into it. Were those the States that were first selected
as the pilot States or are you talking about nationwide?
Dr. Kramer. We could do it nationally for $20 million. The
pilot States are in it. There are three more being rolled out
this year. With $20 million, it could be rolled out to every
State in the country.
Mr. Stupak. Dr. Zimmerman, you mentioned your group had
looked at 1,000 nursing homes. Is it fair to say that CMS's
regulatory framework is not equipped to address the
contemporary challenges posed by chain ownerships that we heard
about in the earlier panel?
Dr. Zimmerman. Well, I think that the regulatory process as
it currently exists is to some extent limited by the fact that
the contracting agencies that actually carry out the surveys
are the State survey agencies, they are State agencies, and to
my knowledge, there has been very little thus far. Now, I am
not privy to a lot of the information within CMS so I would
defer to Administrator Weems on this, but to my knowledge,
there hasn't been a lot of activity that enables survey
agencies to cross State lines, and so if you have a corporation
that has facilities across a variety of States or regions, it
is somewhat difficult within that regulatory community to be
able to do this. So that is one issue. The other issue is that
I think that the internal compliance function within
corporations as well as looking at the systems of care is
something that the regulatory process right now is not that
equipped to do. That is not to say that there is not a
prominent role for it but I think it has limitations in terms
of looking at systemic changes that can be brought about.
Mr. Stupak. As we look at these private equity firms, and I
think in my opening I said more than 50 percent of the nursing
homes now are owned by private equity firms, I got the distinct
impression in listening to the earlier panel that while the
nursing home administrator who would be there when the surveys
are going on would like to do the right thing but who do they
turn to to get the resources to do it or to make those policy
decisions? In your surveys, did you see that when you did a
nursing home that was locally or privately owned as opposed to
those that are part of a chain in a private equity firm?
Dr. Zimmerman. Well, we certainly saw the phenomenon of
facility leadership wanting to engage in more resources. This
phenomenon was not universal but we saw quite a bit of it. I
don't--I am not prepared to say that that was systematically
different between private equity firms and other organizations,
Number one, and Number two, it is also true that in some cases,
the reversed phenomenon took place, which is that there were
district and regional folks within a corporation that wanted to
engage in quality initiatives and there was some resistance. So
this is a complicated problem.
Mr. Stupak. I have one last question and then I will turn
to Mr. Shimkus. Dr. Kramer, you said $20 million for full
funding the national rollout of the QIS. You also said industry
is now supporting the QIS. Has there been any discussion about
maybe having industry help provide some of that $20 million to
roll out the program?
Dr. Kramer. I haven't been privy to those discussions but--
--
Mr. Stupak. I thought I would throw it out there.
Dr. Kramer. That is an interesting----
Mr. Stupak. How about you, Mr. Pruitt? Do you think
industry should provide some of that $20 million?
Mr. Pruitt. I am not aware of any discussions within our
association to offer to help defray the cost.
Mr. Stupak. Do you think it is a good idea?
Mr. Pruitt. I believe that we need to address our current
funding issues before we spend our resources on rolling out
that initiative.
Mr. Stupak. Dr. Koren, do you want to say anything on that?
Dr. Koren. No.
Mr. Stupak. OK. Mr. Shimkus for questions.
Mr. Shimkus. Thank you, Mr. Chairman. The $20 million, in
the numbers that we deal here in Washington, it didn't seem
like an awful lot of dollars. It is interesting how we do it
and how it gets applied. This is a very good hearing and I
appreciate all the testimony.
Mr. Pruitt, you operate in three States. Is that correct?
Mr. Pruitt. Four States.
Mr. Shimkus. Four States. Do you know--the question I had
asked earlier on the--you may not see it because you just see
the reimbursement from the State on Medicaid services, but do
you know the individual States' FMAP from the four States that
you service?
Mr. Pruitt. I have a general idea but I would be afraid to
quote those FMAP statistics to you. I can get that for you at a
later date.
Mr. Shimkus. It would just be interesting in your service
area whether you have one 50/50 State, one 60/40, one--I really
dislike this FMAP, and when we talk about the reimbursement for
services and care, it is just--if you can get funded, it might
help people do cost shifting. But I also observed, I think all
of us who have had loved ones have observed the change in care
and the continuum of care, as I mentioned before, and I think
the continuum of care probably can help. Those who are moving
to this continuum of care are probably more--I shouldn't just
be generalizing but it is our own experiences as Members of
Congress, we go into nursing facilities, we visit all these
different aspects, and then--but the newer ones--what I want to
focus on is the debate now is this QIS and what the industry is
doing on its own, and there was a percentage of 43 percent, Dr.
Koren mentioned 43 percent participants. The debate is, how do
you get the 57 percent to get to 100 percent and do you do it
regulatory? And then the debate is, if you have the
information, then how do you follow up the ladder? If it is
voluntary, then where is the ability of government to step in?
So why don't you answer that question? I think I want to go to
Mr. DeBruin for hopefully a segue into it after I get--how do
we get the other 57 percent to be involved?
Mr. Pruitt. The Advancing Excellence campaign has been a
tremendous success, and as was mentioned earlier, it is 2 years
old. During that time, we have seen participation dramatically
increase. From my own organization's experience, all of our
facilities participate in Advancing Excellence. The American
Health Care Association has publicly stated that it encourages
all members to participate in the campaign. One of the ongoing
industry efforts is, we are collecting quality statistics about
our members and where there are deficiencies in practices, we
are offering resources to help them improve.
Mr. Shimkus. Before I go to Mr. DeBruin, Mr. Zimmerman, how
does this program affect the internal compliance issues that
you've discussed or does it not? Is there a connection? Have we
got three different things going in different directions?
Dr. Zimmerman. Well, I don't think they are completely
independent at all. I think that the Advancing Excellence
campaign is really an initiative, a quality improvement
initiative that has taken on aggregating importance throughout
the industry and I think that is very important. It can be very
complementary to internal compliance functions. Frankly,
internal compliance is just good management and so if you are
engaged in good management, you are going to look for quality
improvement programs as well. I would suggest that what we need
to do, as any good manager would do, is to make sure that we
validate that what we are being told in terms of some of the
outcomes, in terms of some of the processes is happening as we
are told it is happening, and I am not suggesting that we need
to do that because we don't automatically believe somebody but
it is just good oversight and management to make sure that we
validate these quality improvement efforts. So I think they can
be very complementary.
Mr. Shimkus. And what is the number of nursing homes that
are involved in internal compliance issues?
Dr. Zimmerman. Well, I am aware--I am not sure I have this
correct but I think that with respect to the corporate
integrity agreements, there probably are anywhere from 1,000
nursing homes to 1,200 nursing homes that have been part of
corporate integrity agreements with the Office of the Inspector
General. The OIG also has corporate compliance agreements with
probably another 1,000, I would bet, but at any rate--so that
would represent a little over 10 percent of the industry.
Mr. Shimkus. The mandatory versus voluntary, what about
voluntary?
Dr. Zimmerman. I am not actually that familiar with the
voluntary ones because we don't get involved as outside
monitors in this process, so I would have to defer to actually
Mr. Morris, who was on the previous panel.
Mr. Shimkus. Mr. Pruitt, do you have a compliance program?
Mr. Pruitt. We have a voluntary--well, before our purchase
of the Monks Corner facility, we were not required to have a
compliance program. Once we purchased that facility, they
wanted us to maintain the quality of care compliance program.
That was 8 months ago. Prior to--since 2002, we have had a
voluntary compliance program that is extremely effective within
our organization. We have used it to improve quality and ensure
that we are in compliance with all Federal laws and
regulations.
Mr. Shimkus. How does that help you? I mean, you said it
helps you. How?
Mr. Pruitt. We have a corporate compliance officer, who is
also trained in Six Sigma. She has a staff that analyzes our
data. When there are issues, we identify them internally and
disclose them when necessary to government authorities. This,
by being proactive, we are able to catch problems before they
become a large event in our corporation.
Mr. Shimkus. Thank you, and I have been meaning to get to
Mr. DeBruin. The first panel dealt with Connecticut and the sad
state of affairs, so what I am trying to do is connect the dots
and I am trying to say OK, we need to have information. We have
got Dr. Kramer's system that sounds like it is pretty good. We
have got industry working on its own. The State still has a
major role to play with licensing and the attorney general, and
we saw in the Connecticut issue, that there was a problem
identified and there was a couple steps that had failed within
the States. My issue is, how much--if we are going to re-look
at this, we also have to look at the ability of the States to
carry their share of the load as far as laws on the books to
help us in this process and segue more of this information into
that arena. Would you agree?
Mr. DeBruin. Absolutely I agree. I think States obviously
play a major role, I think. I agree that voluntary programs are
very important. In fact, the Advancing Excellence program is a
program that we as a union are very involved in and support and
I think that the questions you are asking go right to the heart
of the issue here, which is there are many of the providers--
most of the providers that our union represents are very good
providers that do volunteer and do very good work to comply.
The problem is with those who don't and that, as Mr. Morris
testified earlier, based on recent surveys and information that
is available, if 20 percent of the nursing homes in this
country are actually putting nursing home residents at risk by
not being involved in these voluntary programs and not
complying, that is--of 1.5 million residents in nursing homes,
that is 300,000 people, and that is really, I think what
regulation is needed for, is to hold those providers
accountable.
Mr. Shimkus. And again, I will just end up by saying
because of the way the industry has changed in rural small town
America, there are still probably in the model of care from 20,
25 years ago where they haven't done this expansion or capital
because the numbers are there not to, and it is going to be
interesting to see how we segue because they are needed. That
is why I am so hot on the FMAP, and I will end on that.
Mr. Stupak. Mr. Walden for questions, please.
Mr. Walden. Yes. Thank you very much, Mr. Chairman. I want
to take issue with my colleague from Illinois, who suggests
that we are all headed toward the nursing home. I have no plans
to run for the United States Senate.
I want to touch on a couple of issues from a serious
standpoint now, because I have actually spent more time in the
nursing home in the last year than I would have liked. My
brother was nearly killed in a motorcycle accident in August.
My mother-in-law actually just passed away this morning. And so
there are some real-life issues I think many of us deal with
and have questions with and some of them, frankly, are the
stupid regulations that are on the books today, and I wish I
could have been here for the earlier part of the panel but I
wasn't able to. In my brother's case, he is now fortunately
mostly recovered. He went into a veterans' nursing home, which
was terrific except that there is a regulation that says you
can't put up the little bar there on the side of the bed
because it is considered a restraint. So you know what they
did? They lowered the bed as far as they could to the floor and
put a plastic mat out with a sensor so when he would roll out
of the bed, he would roll onto a mat, because there is a
regulation or a law that says oh, no, you can't restrain
somebody like that. I mean, that is pretty darned stupid out
there, and I just wonder, we all talk in these terms of quality
assurance and yada, yada, yada. I want to get to the real-life
problems that you all are dealing with and that we as family
members deal with. And then I read about, the issue here is the
State inspectors apparently aren't doing their jobs, and I am
wondering, do we need a new law or do we just need to bring the
States up short and say do your job, do the inspection, report
back.
The other issue, and I know this came up in earlier
discussion about access to ownership. I was a licensee of the
Federal Communications Commission for more than 20 years. We
had to file annual ownership reports and I believe those were
available on the Internet. How hard is this with today's
technology to do that? And if there is a change in ownership,
you are required to file or you don't get paid. It is real
simple. And so it just strikes me, there are some of these
things that don't make a lot of sense, and I have seen really
good treatment and I have seen some real bonehead mistakes. My
mother-in-law was gluten intolerant, allergic to wheat. Two
mornings in the same week they tried to feed her Cream of Wheat
for breakfast. They ground up pills that were time-release
because she was having trouble swallowing. We ended up hiring
private care to be in the room to make sure those things didn't
happen.
So, I mean, I have seen all sides on this industry. I have
also seen when my mother was in her final years, a decade or
more ago, that the staff was so burdened with the paperwork
requirements of the government that they didn't have time to do
the care they were trained to do. And so I don't want to see us
go to the point where we just add a whole new layer of rules
and regulations, some of which, as I have said, don't make any
sense to me as a layperson here. I talked to a nursing home
administrator who manages some homes that deal specifically
with those who have mental deficiencies and they are required
under the rules in this particular State, not my own, that all
those people have access to anything anybody else has access
to, and he said, that means if we have drain cleaner, they can
get access to it and we can't lock it up. I mean, it just makes
no--there are some commonsense things here. We cannot
micromanage. We have to have responsible people and then we
have to have quality assurance programs that enshrine that
commonsense piece.
Can any of you explain to me why we would have a rule on
the books that says if somebody is rolling out of bed
repeatedly, you can't have one of those bars you put up like
you do if you have a baby? Dr. Kramer?
Dr. Kramer. Why don't I talk about it?
Mr. Walden. And who is doing something about it?
Dr. Kramer. So here is the dilemma. There is a code of
regulations.
Mr. Walden. Oh, I know.
Dr. Kramer. And that code of regulations are quite
nonspecific, and the issue with physical restraints is, there
are cases where somebody is truly at risk and there is no other
way but some form of a system for helping them preventing
falls. But there are all sorts of ways of doing that, and the
trick is, how do you apply these regulations in individual
cases. And that is why you need a structured process. You
mentioned that you don't think the surveyors are doing their
job.
Mr. Walden. No, I am just saying what is in the press
reports here and----
Dr. Kramer. Well, the thing about the surveyors is, I don't
think in the current process they have the tools always to do
the jobs and help them work through the decision process in
order to apply those many regulations. Those regulations make a
lot of sense in many, many cases and you just have to figure
out how to apply those regulations to individual cases.
Mr. Walden. Somewhere, though, we have lost common sense
and there has to be a threat of the person running the
operation that says if I do anything, I am going to get sued or
I am going to get fined. Tell me then why they couldn't put, or
I was going to go put the bar up on the bed. I mean, every
hospital bed has one of those.
Dr. Kramer. That actually doesn't have the impact that
everybody thinks it is going to have in terms of prevention
because there is some danger associated at times with those
bars. People can get----
Mr. Walden. I could give you two pages to tell you how many
times he rolled out on the floor.
Dr. Kramer. Well, that is a problem. He shouldn't be
rolling out of bed.
Dr. Zimmerman. Actually, let me supplement what Dr. Kramer
says.
Mr. Walden. He wasn't injured. They had a nice pad and a
little device that went off every time he rolled out.
Dr. Zimmerman. Our monitors have seen at least 50 cases in
which people have strangled themselves in side rails. They have
seen cases in which people have climbed over the side rails
because they were in danger of falling, and they could get over
the side rails just as easily as they could fall without the
side rails. So that is the reason for the----
Mr. Walden. You can't redesign side rails? We have done
cribs, redesigned those.
Dr. Zimmerman. That is exactly right. There are ways to
design restraints that would keep somebody from falling out of
bed without having it be side rails, some of which can kill
people. So I think that is what Dr. Kramer is saying. There is
common sense that needs to be provided, and the application of
a rule which is blind to the context in which it is being
applied is agreed to be bad.
Mr. Walden. That is the issue.
Dr. Zimmerman. And yet there are ways in which we can do
this without having to put somebody in the kind of jeopardy
that we have just discussed. So yes, there is a solution to
your problem.
Dr. Kramer. And every one of those things have a risk----
Mr. Walden. Of course they do.
Dr. Kramer [continuing]. Associated with them and so the
application of all these regulations has to be done with care,
and side rails turns out to be a reasonable regulation. The
issue is to approach it and make sure that people aren't
falling out of bed. There are other ways to approach that kind
of issue and----
Mr. Walden. Mr. Pruitt?
Mr. Pruitt. If I can answer from a provider's perspective,
AHCA has encouraged the creation of a commission to examine
issues such as that. The restraints is a quality measure that
we do measure on a periodic basis but all of the quality
measures need to be examined. For instance, high-risk pressure
ulcers is one of the Advancing Excellence initiatives that is
publicly tracked. What is an issue with this indicator is that
you don't count the indicator on the initial assessment, so if
I met a patient with a high-risk pressure ulcer on day 5 when I
do my initial assessment, that doesn't count against me. But if
I haven't healed that pressure ulcer by the 14-day assessment,
it goes on my record as a deficient practice if you measure
that in terms of quality indicators. AHCA believes we need to
examine quality measures and come up with a smarter way of
looking at the measurements of quality.
Mr. Walden. Anybody else?
Thank you, Mr. Chairman.
Mr. Stupak. Thank you.
Let us go another round with this panel here. It is a good
panel. We have had some good discussions.
Mr. Pruitt, if I was going to go into the nursing home
business and we have these private equity firms moving in
there, if you take a nursing home, how much should I be able to
expect on return on my investment? Is there a rule of thumb
that you look at?
Mr. Pruitt. There is no real rule of thumb. I can only
speak to how we look at a facility when we look at purchasing
one. We look at the long-term value that it can create, and a
lot of it has to do with our social mission as well as how we
feel that will fit into our model of care, which also involves
community services. So we look at a center-by-center basis. We
plug in the staffing levels that we would provide, which
typically is more than the seller provided, and we look at our
ability to operate that center and achieve the type of care we
want to achieve.
Mr. Stupak. The private equity firms, Carlyle, and I think
Mr. DeBruin mentioned they got a $5.5 billion return they have
to make up. When you buy a number of centers, as you said,
there has to be some kind of expected return on it, otherwise
you wouldn't do it, and especially private equity firms who are
in the business of making money. So I am just a little bothered
with that.
Let me ask this question. The Advancing Excellence, does it
cost more to implement it or is it commonsense things you
should be doing and you make up for deficiencies elsewhere
within the home and you eliminate those deficiencies so in the
long run it is profitable?
Mr. Pruitt. What Advancing Excellence has allowed us to do
is concentrate our resources and moving certain indicators. In
my opinion, it does not cost more to implement the initiative.
In fact, it saved money on the back end. If we can identify
problems and as an industry share best practices, we are more
than likely to decrease the cost of care. If we can prevent a
wound, it is going to be cheaper than if we have to treat a
wound, and I believe Advancing Excellence encourages us to do
what is right in the first place.
Mr. Stupak. Well, then, Dr. Koren, why wouldn't more
centers come into your Advancing Excellence? We are at 43
percent. I think Mr. Shimkus said what about the other 57
percent. How do we get them there?
Dr. Koren. Well, remember, we have only been doing this now
for less than 2 years, and it is a voluntary effort and I don't
think you will ever get 100 percent of people to volunteer for
something like this. But what we are hoping to do is, we are
hoping to reach out to people and start to show the advantages
of improvement. As Mr. Pruitt said, one of the things, one of
our targets is trying to increase staff retention. The cost to
a nursing home of high staff turnover is profound, and here is
a way that you can both improve quality and save costs, and we
are trying to show those kinds of things so that we have people
come into the campaign and kind of join it. We are going to
continue it. We are looking to use our local area network to
continue to recruit.
Mr. Stupak. So basically your quality program here, your
Advancing Excellence, while there can be some beneficial, as
Mr. Pruitt said, it is easier to prevent the wound, the open
wound as opposed to treat it. That is the incentive, right,
better quality care? Maybe you can cut down your costs. But
there is nothing mandatory, there is no enforcement. If I am in
it, I am participating and I think this is just too much a
hassle and I drop out, there is no mechanism or no punishment
for doing that, is there?
Dr. Koren. No, this a completely voluntary campaign, and so
it has that limitation as well as that advantage.
Mr. Stupak. All right. Let me ask this question. It came up
in the last panel, besides ownership, one of the things that
they were talking about was a database, and Mrs. Aceituno, who
testified about her husband there, she felt like she didn't get
enough information about the quality of care that was provided
by that center that her husband was at and she said if there is
one thing she wanted to see was a more comprehensive report or
patient information before you put your loved one in a nursing
home or a center. Any problem with that, like identifying who
the owners are, what are your rights before you enter into a
center? Do either Mr. Pruitt, Dr. Koren or anyone else want to
comment on that?
Dr. Koren. I think that one of the big problems, first of
all, as we know, the nursing home compare site just has a very
limited amount of information and a lot more could be put on
there in order to help people make the decision. But I think we
should also realize the discharge planners, and most people who
end up in nursing homes come from a hospital, don't tell people
to go look at it. So one of the things we have got to do is
work collaboratively with the hospital side to ensure that
people know where to go to get information.
Mr. Stupak. How about online information? We are suggesting
that be done in our Food and Drug bill that we are moving on so
someone--you would know where to go to have that information as
to the ownership, what is its quality assurance or Advancing
Excellence, if they are a member of that program or not. Just
trying to get more information online, would that be
appropriate?
Dr. Koren. I think it would be critical. I had to choose a
nursing home for my father, and while I was able to go to
Nursing Home Compare because I knew about it although the
discharge planner didn't tell me about it, it provided enough
information that I knew what nursing homes were in his area and
I could start to narrow my search. But it certainly didn't
provide enough information to be able to go and say I know this
one is a good one and this one isn't.
Mr. Stupak. So you would have no objection to an online
program or some universal database nationwide?
Dr. Koren. No.
Mr. Stupak. Mr. Pruitt?
Dr. Zimmerman. Mr. Chairman, one other point about this is
that----
Mr. Stupak. Sure, and then I will go to Mr. Pruitt. Go
ahead, Mr. Zimmerman--Dr. Zimmerman. I am sorry.
Dr. Zimmerman. The issue--two other points about the
Nursing Home Compare and that information. First of all, we
actually were engaged in a project that was funded by the
Commonwealth Fund to engage folks in using some of this
information, using the data on the quality indicators and the
deficiencies, et cetera. It turned out that one of the most
difficult groups to engage in this process was hospital
discharge planners, and it is not clear even to this day why it
was somewhat difficult to get them to be engaged but I think in
fact they probably had a lot of other things to do and felt
that they might have had sufficient information. So we have to
make sure that those professionals who are responsible for the
reference to nursing homes are going to be using this
information.
Secondly, I think one of the opportunities we are really
missing in this information is that it is not just the
selection of the nursing home that means that you can use this
information, because as several of you have mentioned and
several panel members, frankly, the selection of a nursing home
is very limited. It is extremely limited in rural areas. There
just aren't that many options, and you have a very traumatic
situation. What I am talking about is using this information
after the selection to make sure that you can monitor how well
the nursing home is taking care of your mother, which I think
would suggest a somewhat different way of putting the
information together.
Mr. Stupak. Mr. Pruitt, you had wanted to say something?
Mr. Pruitt. I would mention on the transparency aspect of
our industry, many corporations including myself and including
those that are involved in private equity do release voluntary
quality reports that report on our indicators, many of which
are the same as the Advancing Excellence campaign. The American
Health Care Association supports transparency but I urge the
Committee to be careful that we don't restrict capital in our
profession, in our industry. We are serving our patients and
our residents in outdated buildings, many of which were built
in the 1960s and 1970s. If we disclose all relationships, we
may discourage banks which lend our corporation money and have
really no say-so in our operations from investing in our
industry.
Mr. Stupak. I think what we are trying to say is, we need
to know who do you go to, and not have to discover which shell
the pea is under. You know, if your number of entities limited
liability corporations, fine. Someone is in charge of making
decisions about that facility; who is it. That is who we need
to know so the ombudsmen can do their job without having to go
to litigation. Mr. Kramer?
Dr. Kramer. I would just like to say that I concur with the
notion of transparency and that there ought to be much more
information available to residents and to discharge planners
and people making these decisions. One of the things I think we
need to keep working on is the breadth of that information, and
again, I come back to QIS because of the breadth. It covers
quality-of-life issues and a full range of the regulatory
areas. It turns out that a lot of times the issues that are
most important to residents are things like self-determination,
somebody waking you up at 5 in the morning versus getting up,
things that Dr. Koren talked about. That information is not
very available, and there are some very important things that
we need to make available and I think we can do that with a
much broader array of information than we currently provide
people.
Mr. Stupak. We ask for transparency from the ownership and
from the nursing homes but we still need transparency from CMS
on the Kramer report and the QIS report, and we are still
waiting on that.
Dr. Kramer. I mistakenly did not comment about the QIS
evaluation report and I should just tell you something about it
since I do know about it. One of the reasons it hasn't been
released is that it is inconclusive. It took a long time to do.
They actually only went on 10 QIS surveys, and in their own
words, they qualify these findings by noting, ``the comparisons
between QIS and standard surveys were limited by sample size,
thus the data we provide are best used for survey improvement
purposes rather than to inform decisions about what type of
process.'' So they ended up with a very modest study that
wasn't actually conclusive and didn't really address the
consistency issue. So I know there is a lot that needs to be
done to put that in context and say how CMS is going to address
the concerns here but move forward. And they all recommended to
move forward with QIS and so that is why CMS has moved forward.
Mr. Stupak. Mr. Shimkus.
Mr. Shimkus. Thank you, Mr. Chairman. I don't really have a
lot more but I do want to follow up. You may not have the
answer, but it is my understanding that hospitals provide more
information. The irony behind this is that hospitals have to
provide more information. Then you have the discharge planner
who is not really requiring or helping in sending someone to a
facility. We all know the recidivism aspect. I don't know if
that is the right word. But if you go to a place where the care
is not great, you could be bounced back to the hospital. So the
whole aspect of--you would hope, if you are concerned about the
patients and the wellness that the discharge planner would want
to encourage care to a proper provider. Maybe there is concerns
about--I don't know. Why wouldn't they--Dr. Zimmerman, it looks
like you want to respond.
Dr. Zimmerman. Well, I am not sure why they would not want
to know. I think that there hasn't been a really organized way
of providing the information, et cetera, but frankly, the
transition of care between settings is, to put it bluntly, one
of the scariest aspects of our care problem now with the
elderly. It is abysmally bad in terms of the transfer of
information from the acute care setting to just about any other
setting, whether it is home care, whether it is skilled nursing
facilities, whether it is a hospice, whether it is a long-term
acute care hospital, et cetera. In my testimony, I said the
following, which I can repeat very quickly if you will permit
me. If we are truly to accomplish the goal of giving our
elderly citizens the care they so richly deserve, then we need
to expand our focus to include the other care provider settings
that feed into skilled nursing facilities. In particular, this
must include greater scrutiny of acute care hospitals whose
discharge practices have placed enormous pressures on skilled
nursing facilities because sometimes they will discharge folks
before they are ready to be discharged and sometimes the
hospital itself is inadequately prepared to provide the complex
care needed by elderly patients. We have some hospitals that
have a program called an ACE program, Acute Care for the
Elderly. About 40 hospitals around the country have this
program. But often they don't, and frankly, that is not their
business. That is not, as we say in economics, their
comparative advantage. And so I think we have to be very
careful to make sure that this setting transfer is handled more
carefully than it is now.
Mr. Shimkus. I appreciate those comments. It is kind of
scary and it is scary for families too as they are trying to
move people through the process. In some hospitals in southern
Illinois, because of the way just regular healthcare has
changed from inpatient to outpatient, they have beds and they
have segued into skilled nursing facilities. So I imagine in
that facility where you have limited choices, I would think and
I will go check with my local providers, that is not a big a
problem because you are just going from really one wing of the
hospital to another. But I just want to--I will make a comment
on the--I would think if I was a provider and I had my own
quality assurance program or the Advancing Excellence issue,
that is something I would be advertising and throwing
information out, as Dr. Zimmerman said. I mean, it is an aspect
of where you can get a competitive advantage as people are
looking for quality care.
This whole resident-centered care, which we all know is--we
all want to be individuals. We want individuals in education
planning. We don't want to be segmented into groups. That has
got to cost a little more, doesn't it?
Dr. Koren. What we are finding, at least what we found from
the survey that we just conducted, was that in fact there seems
to be a positive effect on the bottom line. It might be a
program that costs before it saves, but ultimately as you start
to empower staff, as you start to make them in charge of their
own residents and make it a better job, you have lower
turnover, you have happier residents, you have higher occupancy
rates, you have fewer lawsuits, you are not being dinged on
surveys. I mean, there are huge advantages to really
individualizing the care and taking care of those people, and
it is really trying to get people to understand that, that not
only is it a good way to do business but it is the right way to
do business.
Dr. Kramer. And I would concur with her. You know, the
problem is not a cost issue to start doing resident-centered
and culture change care. The issue has more to do with the
focus of our whole regulatory system and our whole quality-of-
care system. Quality of life has not been part of that focus
for a long time, and the amount of reliance on what residents
and families tell surveyors has not really been the focus. And
it is starting to become the focus and it needs to be the focus
of the regulatory process and the quality improvement process.
Mr. Pruitt. I would say as a provider, there are aspects of
resident-centered care which absolutely do not cost more. It is
instead a way of changing how you operate a building. For
instance, traditionally, nursing homes in many of our state
regulations require higher staffing on the first shift. Well,
many of our patients don't wish to be bathed or have their
activities of daily living performed on the first shift. They
may have done that traditionally at night. So as an operator,
as we have more consistent staffing across all shifts, it is a
reallocation of resources and it becomes more outcome driven,
more customer satisfaction driven than necessarily regulatory
driven.
Mr. Shimkus. I thank you very much.
Mr. Chairman, since I have no more questions for this
panel, I don't want to segue into the high cost of energy for
healthcare delivery. That is a debate for another time.
Mr. Stupak. I am always willing to have that debate with
you.
Residents at Pine Crest Medical Care Facility, which you
probably know in the Powers area, has opened a couple of these
residences and I was there 2 weeks ago as they cut the ribbon
and all this, and it was really interesting that these were
probably some of the most severely injured people but they were
so excited and they did one a year earlier so this would be
their second one, and I asked about the cost and the initial
cost to build the building with special features. There is a
cost there, but in the long run, happier, staff is happier and
the quality of life that you speak of was much greater. So I
think there are a lot of good things happening.
Let me ask you one question if I can. How often does a
hospital person call and say we are discharging such and such
who just had major surgery, can you handle them or what would
you recommend? Do you have that much interaction with a
hospital on a discharge or is it just the family heard about
you and showed up with their loved one?
Mr. Pruitt. We have tremendous interaction with the acute
care setting. The discharge planners in the hospital routinely
contact nursing facilities to understand their capabilities of
caring for patients. They will then find several options for
the family. They will inform the family of their choices. We
know from our satisfaction surveys that we conduct that our
family members visit several facilities before ultimately
deciding on ours so from our corporation standpoint, and I
believe I can say from the industry as a whole, there is
tremendous interaction with acute care settings.
Mr. Stupak. Let me thank this panel. It has been most
interesting, and thank you very much for your input into this
problem that it has been 31 years since this subcommittee has
visited it. We will keep on it, I can guarantee you. I think we
all have some personal experiences we can relate to and we
appreciate what you do and helping us understand it. Thank you.
As I call up our witness on the third panel, we have Mr.
Kerry Weems, who is the acting administrator at the Centers for
Medicare and Medicaid Services, CMS, as we call it, within the
Department of Health and Human Services, and we appreciate the
fact that you stayed with us all day today and have been
interacting as we had a chance to say hello out in the hall. It
is the policy of this subcommittee to take all testimony under
oath. Please be advised that witnesses have the right under the
Rules of the House to be advised by counsel during their
testimony. Do you wish to be advised by counsel during your
testimony, Mr. Weems?
Mr. Weems. No, sir.
Mr. Stupak. OK. Then I will ask you to please rise, raise
your right hand and take the oath.
[Witness sworn.]
Mr. Stupak. Thank you, sir. Let the record reflect that the
witness replied in the affirmative. He is now under oath. We
will begin with your opening statement, and again, 5-minute
opening statement. A lengthier statement can be submitted for
the record.
Mr. Weems.
STATEMENT OF KERRY WEEMS, ACTING ADMINISTRATOR, CENTERS FOR
MEDICARE AND MEDICAID SERVICES, U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Mr. Weems. Thank you very much, Mr. Chairman. Good
afternoon. Mr. Shimkus, good afternoon. Congratulations on your
decision to retire, which I guess we----
Mr. Shimkus. Yes, from the Army Reserves. My wife called
and said no, you are not leaving.
Mr. Weems. Congratulations on your service there.
Thank you for inviting me to testify today. Roughly 1\1/2\
million Americans reside in the Nation's 16,000 nursing homes
on any given day. More than 3 million rely on the services
provided by a nursing home at some point during the year. Those
individuals, their families and friends must be able to count
on nursing homes to provide reliable care of consistently high
quality.
Charged with overseeing the Medicare and Medicaid programs,
whose enrolled populations comprise the vast majority of home
residents, CMS takes nursing home quality very seriously. Our
efforts are broad including initiatives to enhance consumer
awareness, transparency, as well as vigorous survey enforcement
processes focused on safety and quality.
Consistent with statutory requirements, we conduct onsite
reviews of every nursing home in the country at least once
every 15 months, once a year on average. Surveys focus on the
quality of care experienced by facility residents regardless of
who owns the facilities. Our focus on actual outcomes ensures
that Medicare's quality assurance system does not depend on
particular ownership of a facility. We do continuously seek to
improve the effectiveness of both the survey process and the
enforcement of quality care requirements. An example of such
continuous improvement is our Special Focus Facilities
initiative, which addresses the issue of nursing homes that
persist in providing poor quality. This relatively new
initiative is just one of many efforts underway at CMS to
further improve nursing home quality.
I have brought a chart with me today that includes a set of
commitments I made last November before a Senate panel, and it
has been updated to show progress to date. Beginning with the
green checks, those represent actions completed. CMS
participation in leadership and Advancing Excellence in Nursing
Homes campaign continues. On November 29, 2007, we posed on our
Web site the Nursing Home Compare, the names of the Special
Focus Facilities, a major step forward in greater transparency
toward nursing home quality. We expanded the Quality Indicator
Survey pilot in February to include a sixth State, and we are
looking forward to more promising results. Last month CMS
cosponsored a well-attended national symposium on nursing home
culture change.
Now, moving to the work in front of us, which represents
actions in progress, I believe we are nearly ready to be able
to roll out a demonstration project focusing on value-based
purchasing for nursing homes, which would test payment
incentives to improve quality. We are also working on a final
evaluation of a 3-year pilot to test a system of criminal and
other background checks for perspective new hires in nursing
homes. Target release of this final report is this summer. In
June, we expect to publish results from an ongoing campaign to
reduce the incidence of pressure ulcers in nursing homes and to
reduce the use of restraints. In July we hope to publish new
guidance to surveyors on nutrition in nursing homes, the latest
of an ongoing CMS effort to improve the consistency and
effectiveness of the survey process.
In August, our new contract with the quality improvement
organizations will take effect. We plan to build into that
contract an ambitious, unprecedented 3-year agenda for QIOs to
work on nursing homes that have poor quality including those in
the Special Focus Facilities. Also in August, we plan to
release a final regulation on fire protection safety requiring
all nursing homes to be fully sprinkled by a phase-in period.
In September we hope to issue a report describing the
methods for improving the accuracy of staffing information
available for posting on the Nursing Home Compare site.
Finally, as I have stated previously, we would envision
supporting legislation to permit the collection and escrow
deposit of civil monetary penalties as soon as the penalties
are imposed.
In closing, I would like to again stress that regardless of
setting or ownership, quality health and long-term care for
Medicare and Medicaid beneficiaries is of utmost importance to
CMS.
I would be happy to answer your questions. Thank you for
the opportunity to appear today.
[The prepared statement of Mr. Weems follows:]
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Mr. Stupak. Well, thank you, and thank you again for being
with us.
Let me ask you, and I sort of ended the last panel with it,
and I think you heard Attorney General Blumenthal's call for a
national database to which State officials would have access
showing problem nursing home chains and facilities. What is
wrong with that idea? Doesn't CMS have an obligation to protect
those vulnerable patients in these homes? And why can't CMS
take the lead on sharing that type of information that would be
readily available to everybody?
Mr. Weems. Much of that information is available now so,
for instance, if you go to the Nursing Home Compare Web site,
the last three surveys taken are available--a summary of the
last three surveys taken are available on the nursing home----
Mr. Stupak. So for every nursing home, that is available?
Is that what you are saying?
Mr. Weems. For every nursing home, the last three--a
summary of the last three surveys are available on the Web
site.
Mr. Stupak. So what are there, 7,000 nursing homes or so?
Mr. Weems. Sixteen thousand, four hundred.
Mr. Stupak. Sixteen thousand. I am sorry. So you have 45,
almost 52,000 summaries out there?
Mr. Weems. Yes.
Mr. Stupak. Then why in the PECOS system--that is your
Provider Enrollment and Chain Ownership System, currently only
has 70 percent of the nursing home ownership information
database? Even if the Medicare provider discloses everything
requested on your enrollment forms, in PECOS, we are still
missing 30 percent as to ownership and other identifiable
features that would help people to know more about that nursing
home.
Mr. Weems. And that is a good question. First of all, I
think the thing that we need to understand, the CMS PECOS
initiative isn't just for nursing homes. It is for all
providers and so we enroll them at--all providers except one
particular type. We enroll them at a particular pace. That pace
is about 250,000 to 300,000 a year and so the 70 percent figure
represents the progress that we have made enrolling a very,
very large number of providers into the system.
Mr. Stupak. Well, they tell me that the ownership issue,
and I am focusing a little bit on that because that is what we
have sort of been talking about on the first panel, is really
not linked to the CMS Web site, to the Nursing Home Compare Web
site.
Mr. Weems. Right.
Mr. Stupak. So you almost have to go two different places
to even try to find it.
Mr. Weems. Yes, and one of the things that we focused on
for Nursing Home Compare are indicators that we believe that
would be useful in selecting a nursing home, so some of the
quality indicators, things like that. We are collecting the
ownership information as a matter of--as a data field in PECOS
and in fact we will collect it down to fractional ownership of
5 percent. I think the question that we all confront is, how
meaningful is that information in selecting a nursing home, to
put it on Nursing Home Compare? It may have other meaning.
Mr. Stupak. Right, but it wasn't just for a private family
to select a nursing home. It is also for the ombudsmen, so when
you have these corporate layers of corporate responsibility,
who does he go to? The facility manager wants to do the right
thing but they don't have the power so who do you go to, and
even the attorney general indicated he had trouble. And I think
Mr. Walden said in this modern era, data is available it seems
like sort of piecemeal here. We need a central location. We
sort of need to link the ownership database to a quality
database into one database so if we are looking for quality, if
we are looking for the family, if you are looking for who is in
charge to put a little pressure to clean up a matter at a
facility or the state attorney general has to do something like
Connecticut had to do, there is one place we can go.
Mr. Weems. Let me begin by agreeing with that but then let
us step back and think about how we make that information
useful. Is our goal to populate PECOS 100 percent? Having done
that, it is also our goal then to link that to the quality data
that we have. Let me tell you that yes, we do have that as a
goal. That will have some use. Let us separate that use,
however, from what is on Nursing Home Compare. Nursing Home
Compare, we want to make sure that we have information that is
usable in selecting a nursing home. So I am not sure that
integrating those two databases achieves the kind of objective
that you have in mind. I think we have different purposes for
different databases.
Mr. Stupak. Well, I guess that is the only place we can go
to really look to see where the bad actors in this field are. I
think the testimony has shown on the other panels, it is a
small number, but unfortunately, a small number when they do
are bad actors, it hurts, has tragic results. Let me ask you
this. CMS Special Focus Facilities program appears to be a
promising way to deal with nursing homes that have a record of
actually harming or jeopardizing patients. GAO has repeatedly
reported that about 20 percent of nursing homes have serious
problems and cycle in and out of compliance, and with the
figure you had, over 16,000 before, that would be about 3,200
facilities nationwide moving in and out of compliance yet only
a couple hundred of facilities are in the SFF program. Why
wouldn't that program be expanded to try to get at this total
20 percent?
Mr. Weems. We would like to expand the program. The program
right now has about 134, 135 facilities in it. It is a program
that is resource-intensive. It requires surveying at twice the
normal rate. Within the resources that we have, it is something
that we would look to expand.
Mr. Stupak. Let me ask this since I asked Dr. Kramer and I
would like to have your response on it. Dr. Kramer's group at
the University of Colorado, the report commonly referred to as
the Kramer report, which was completed March of last year,
2007, and it was approved by the project officer, so why hasn't
CMS released that report?
Mr. Weems. You heard Dr. Kramer say that it wasn't a
particular conclusive report.
Mr. Stupak. I thought that was the Quality Indicator
Survey, the QIS.
Mr. Weems. You are right.
Mr. Stupak. The Kramer report has been done for a long
time.
Mr. Weems. Right. Both of those reports we have. We are
reviewing. One of the things we like to do when we have a
report and when we release it is to have an action plan
associated with it. I would like to have both of those reports
out and available this summer. Rather than just releasing a
report, let us have an action plan. Let us see what we are
going to do about it.
Mr. Stupak. Well, I don't disagree necessarily with that
but does it take 15 months to develop an action plan? That is
how long the Kramer report has been done. QIS, I understand,
that has been 5 months but I don't think it would take 15, 16
months, 17 months to put forth an action plan.
Mr. Weems. It takes a while to go through a report, review
it and produce those things.
Mr. Stupak. Let me ask you this. The nursing home industry
presented a strong case here, and I would get from their
testimony, I would take away that voluntary quality initiatives
can take the place of regulation. At least that is what I heard
them say. But information about whether a chain or a facility
has achieved voluntary benchmarks is not public unless the
company chooses to make the information public. Do you believe
that this type of system can or should replace the current
regulatory system or QIS system?
Mr. Weems. I think it is something that is worth looking at
in a very serious way. I think going through the research,
being able to see if in fact it makes a difference, and I think
it is important to separate the regulatory system from the
enforcement system. I would be loathe to suggest that we need
to loosen up the enforcement system. Perhaps we can take
another look at the regulatory system. We are doing that,
seeing the cultural change, more person-centric care that we
are looking at. That can make a difference. We need to proceed
carefully down that path, maybe lift off some of the
regulations, keep the enforcement regimen in place.
Mr. Stupak. Thank you.
Mr. Shimkus.
Mr. Shimkus. Thank you for your testimony, and you kind of
really highlighted the challenge that a lot of us are trying to
get our hands around, which is the regulatory or enforcement,
and we keep bringing it up. There is a State responsibility
here too. There is licensing and there is what they have to do
to be involved with it. In my opening statement, I quoted the
fact that we have been successful to some extent in
unfortunately recovering millions of dollars in penalties for
noncompliance. Our hook in this debate is because we are big
payers. Isn't that right?
Mr. Weems. Correct.
Mr. Shimkus. And we are big payers because of the Medicare
and the Medicaid.
Mr. Weems. Yes.
Mr. Shimkus. So a lot of this debate is trying to follow,
you know, the money to the ultimate ownership for quality care
and really, is finding out the ownership--I can see how it is
beneficial but is it the end-all to improving quality care?
Mr. Weems. Let me tell you how we think about and our
thinking about ownership now. Currently CMS's relationship is
with the owner of the provider agreement so whoever has that
provider agreement is the entity with which we have the
relationship. So what would chain ownership or some other
ownership tell us? Looking, for instance, at the case the
Committee had in front of it this morning, so if you see a
couple of homes in a chain beginning to fail, what does that
tell you? And that is the thing we need to work on. So it is 2
of 20 then that would require an intervention or is that just
statistical chance as opposed to a corporate strategy? Is it
four, is it six? Those are the kinds of things that we need to
investigate with understanding ownership, distinguishing the
difference between does it matter or how it matters and when to
intervene.
Mr. Shimkus. Kind of following up on the same question, in
your testimony on page 8, you say that Medicare's quality
assurance system does not depend on any theory of ownership.
Mr. Weems. That is correct. Our relationship is with the
facility itself and the holder of the provider agreement in
that facility so----
Mr. Shimkus. You are saying because of this holder of the
provider agreement, but I guess part of the debate is, the
holder of the provider agreement may not be the final owner.
And so that is the disconnect that we are trying to clear up.
I think, Mr. Chairman, I am kind of out of questions, so I
will yield back to you for a while.
Mr. Stupak. Well, fine, jump in if you want.
Let me just follow up, just talking about ownership there.
Doesn't it follow then that irresponsible nursing home owners
can have a negative effect on the quality of their facilities?
If we take a look at what happened at the quality of care at
the Haven Health Care chain, didn't it make a difference who
owned the chain for the quality of care? Why should owners be
allowed to hide behind a complex web of limited liability
partnerships and not knowing who they are?
Mr. Weems. And they shouldn't. That is why our system will
capture ownership down to the fractional level of 5 percent.
Mr. Stupak. But see, that is why I want the data at one
place whether it is police, attorney generals or whatever,
enforcement, regulators, they got one place to go along with
the family so you can see what is happening at all aspects of
it.
You know, when you said chain ownership, that they have two
or three or four facilities going bad, where do you draw the
line? Where do you step in? Is it really the number of
facilities? Isn't it more the seriousness of the deficiency
which would say when you step in?
Mr. Weems. It would be both. I would say that we don't have
the research now to be able to separate, as we would say, the
signal from the noise, and it is a very serious question and
one that we should look at because there are varieties of
chains, varieties of types of ownership, and varieties of
numbers of facilities in a chain and varieties of size in a
chain. Each one of those could be a variable in what could be a
very complex equation. We want to proceed but we are just not
in a position now to be able to say, is it 2 in 100 of this
particular type of what.
Mr. Stupak. OK. I will give you that as far as the
ownership issue but where we should be going, the value of
these surveys, the information gleaned there from, I think has
sort of fallen on deaf ears at the CMS. Nineteen ninety-eight
was the last time GAO did a study and they just released
another one today, and I know you probably didn't have time to
take a look at it.
Mr. Weems. We commented on it.
Mr. Stupak. Yes, but if you take what happened in 1998 and
you go back to look what happened today, today's report from
the GAO really shows there are very serious problems with the
current nursing home survey system so we are not getting at the
deficiencies. I realize, like you said, you might not have had
a chance to read it all but they are similar to those of the
University of Colorado study which you have had for about 17
months and haven't released and to the OIG, Mr. Morris, who
testified, and again the 1998. So I look at the 1998, I look at
the one today. I had a chance to read it between votes, take a
look at a couple things. It is almost the same. You put that
with the Kramer report, as I call it, or the Kramer study from
Dr. Kramer of the University of Colorado, OIG, and it seems
like we are seeing the same thing: very serious problems with
the current system of nursing home survey system so today that
survey has failed to identify serious deficiency 25 percent or
more of the time. Even more troubling, in all but five States,
surveyors missed deficiencies at the lowest level of
compliance, and the lowest level of compliance, undetected care
problems at this level are a concern because they could become
more serious if nursing homes are not required to take
corrective action. So how will CMS remedy this situation?
Mr. Weems. Stepping back from that, first of all, one of
the first things that we would like to happen is, let us make
sure the survey gets done so that if you look at the record of
CMS from 2000 to today, 2000, 4 percent of surveys weren't
being done. We are down to about four-tenths of 1 percent
aren't being done. So as a first step, at least the surveys
themselves are being done.
Mr. Stupak. Sure, but surveys have to have quality. They
have to be quality surveys. I can go and give you every survey
you want and I can follow up on the phone and if it doesn't
affect even a minor deficiency, which have a tendency to grow
into majors. Go ahead.
Mr. Weems. Secondly, working through that, we need to make
sure that we educate the surveyors, and we have new guidance to
surveyors to improve their accuracy on items like pressure
ulcers, incontinence, quality assurance, making sure that they
are getting the medications they need. We are educating the
surveyors to make sure that that happens. Thirdly is the
Quality Indicator Survey. That will produce greater consistency
across surveys. You can see that we are undertaking that
effort. We will be in eight States this year and continuing to
expand that effort. That will give us more substantial
consistency across State surveys.
Mr. Stupak. Sure, and Dr. Kramer said that 80 percent of
the people who participated in the Quality Indicator Survey
were happy with it. They thought it was much more concrete and
it gave them more because if you go back to the GAO report, the
one that was released today, GAO found the reasons for
surveyors not identifying problems is that they lack, A,
investigative skills, and B, the ability to integrate and
analyze the information they collected to make an appropriate
deficiency determination. So QIS has to get out there and the
Kramer report has to get out there. So in the meantime, since
you are going to do an action plan, what does CMS do to train
these surveyors who are taking these surveys if we are missing
all this? What are we doing? You said only a few States are
using QIS so how current is CMS going to help surveyors using
the current system or should we start switching over to QIS
right now?
Mr. Weems. Well, we move QIS at a pace according to the
budgetary resources that we have, but what we are doing is
continuing to educate surveyors to produce a more consistent
result until those States come into the QIS program.
Mr. Stupak. Well, then, the QIS, is it a budgetary problem?
I think Dr. Kramer said it would be $20 million. The healthcare
folks, American Health Care Association, were a little
reluctant to say they would put in their private money to help
implement that $20 million to get it throughout but is $20
million really the issue? I think even Mr. Shimkus said the
numbers we deal with, $20 million doesn't seem too far of a
stretch when you are talking about 1.8, 1.5 million people in
nursing homes.
Mr. Weems. If I could adjust your question slightly, it
would be, is the budget a rate-limiting factor, and I would say
if you said today, Mr. Weems, we are going to give you $20
million and we expect to have this implemented in a year, I
would resist that for the reason that you roll something out
nationally, let us proceed carefully. We have learned a lot
from these eight States as we go along. We can pick up the pace
but this isn't a matter of going nationwide right away.
Mr. Stupak. But at the same time, if we say Mr. Weems, here
is your $20 million, you contract with States to do the
surveys, don't you? And therefore, the States would be getting
it. You would have the resources then to do adequate surveying
and do the training necessary. I guess I wouldn't be thinking
that $20 million would just go right to CMS and stay there but
would go to the States because you contract out to do the
surveys and then you follow up either by telephone or a couple
weeks later the Federal surveyors go in there, right?
Mr. Weems. Sure.
Mr. Stupak. So it wouldn't be that much of a burden then
to--you already have a system in place, but I guess the part
that really bothers us, $20 million but we want to make sure
the $20 million is going to surveyors who are doing a QIS and
it is being done accurately and they have the training to do it
so we can get accurate data and then it is going into one
central location so we can all find it.
Mr. Weems. And to make sure that we are doing QIS properly.
As I said, we are learning as we go. I really would want to
think carefully about doing 32 States, you know.
Mr. Stupak. Well, if you have had QIS since last December,
in your budget then, did you ask for money to help train people
to implement QIS?
Mr. Weems. We do have budgetary resources in our budget
request for QIS. It is a rate of two or three States a year
but----
Mr. Stupak. That is all, right? Two or three States?
Mr. Weems. Right. But having raised that, for the last 4
years in a row, CMS has not even achieved the President's
budget level for survey and certification and that is the
budget that comes out of.
Mr. Stupak. Mr. Shimkus?
Mr. Shimkus. Just a brief one. I just want to change kind
of the focus to this issue that you deal with Special Focus
Facilities, and we got 134 such entities in the program. My
perception is, there is a time lag when they are identified,
then you finally say let us bring in all these people to fix
this if it becomes Special Focus First of all, is that a wrong
observation, and if it is not, why don't we just go after the
root cause right when we have identified them in this Special
Focus arena?
Mr. Weems. When Special Focus Facilities are selected, they
are selected off of candidate lists that the States give us.
These are chronically underperforming facilities. Once they
enter the Special Focus Facility designation, they are then
surveyed at twice the rate that a normal facility is, and given
how they perform on those----
Mr. Shimkus. OK. But the issue is, why not send in--why
don't you just try to identify the root cause then? I mean,
they are already identified as problematic. Why not just say
let us go in and special investigative--yeah, I was going to
say a SWAT team evaluation.
Mr. Weems. When we have done root cause analyses and we
have worked with facilities to do that before, it can be quite
expensive.
Mr. Shimkus. OK. And I think we would--so you think by
upping the investigations, you move them into compliance. You
have the experience. I don't. You move them into compliance by
saying OK, we are going to come around and if you don't, then
we are going to bring in all these people to try to find the
root cause.
Mr. Weems. They are going to be on either a path of
improvement where they will graduate or they have shown some
improvement but they will still stay in the Special Focus
Facility program and continued to be surveyed every 6 months or
they will be on a path to termination. That is what it means to
be in that designation. We have also taken the step of putting
the Special Focus Facility designation on the Nursing Home
Compare Web site. If you go to the Nursing Home Compare Web
site, you can see that that home is on the Special Focus
Facilities. You can also see what the most recent update is,
whether or not they are on a path to improvement or whether
they are on the road to termination.
Mr. Shimkus. And my final question is, in the 2008 Action
Plan for Nursing Home Quality, CMS cites expansion of the
collaborative focus facility project. What is this project and
what homes does it cover?
Mr. Weems. In the most recent scope of work for the Quality
Improvement Organizations, we have designated special
facilities with specific problems for the Quality Improvement
Organizations to work with those facilities to produce specific
quality outcomes in those facilities.
Mr. Shimkus. And this kind of wraps up around the initial
question: Why not use these Quality Improvement Organizations
more extensively? Is it cost?
Mr. Weems. You know, Quality Improvement Organizations have
wide missions, including the PPS hospitals for which we gave
them specific quality improvement assignments this year as
well, so they have a very broad mission that extends just
beyond nursing homes.
Mr. Shimkus. That is all I have, Mr. Chairman.
Mr. Stupak. Well, thanks. Let me just summarize, and if I
may, with this question. We have an ownership issue. We have
deficiency. We have the GAO report again coming out today
saying we are not doing very well at surveys, it is still
deficient. OIG says the same thing. We talked about $20
million. If we got 1.7 million people in nursing homes or
centers, that is about $10 per person. I don't think that would
be a hurdle we should overcome because the problem is, as I see
it, and it has been a while since this committee has done
oversight in this area, but still, when you listen to Mrs.
Aceituno about what happened to her husband, there are reports
of death, you have people with wounds with maggots in dead
flesh, I just see the Kramer report which sort of outlines,
sort of like a blueprint for enforcement to improvement the
survey system and it is 15, 17 months, nothing is happening.
While we are not doing anything or rolling that out because you
don't have an action plan, I think the Kramer report sort of
gives you the action plan because we have people suffering and
we want to get this taken care of, and the industry as a whole
looks pretty good from what I am hearing today, but there is
that 20 percent that is repeat in and out of deficiencies, and
I think we need to do a quicker job of taking care of it, and
if it is $20 million, I am sure when you present it to people
that it is 10 bucks, maybe even the private nursing homes will
kick in to get this thing resolved.
I think we have to have more action as opposed to inaction
and maybe Congress shares some of that responsibility. Like I
said, it has been 31 years since this committee looked at it,
so I plan on staying on top of it. We will have another
hearing, I know, we are already talking about to follow this up
so we would hope you will take this Quality Indicator Survey,
the Kramer report, get your action plans done, let us get it
implemented and let us get a database we can draw from. I think
that is a fair assessment of where we have been today.
Any comments on that, Mr. Weems?
Mr. Weems. I thank you for your comments. The way that I
would characterize, first of all, what I have learned today, is
that improvement is multi-factorial. The chief counsel to the
Inspector General I think made an interesting suggestion about
maybe doing a demonstration project that really reaches to the
far reaches of ownership. Let us see if that makes a
difference. I think we need to look--one of the things that we
haven't spent time talking about today are financial incentives
in nursing homes. I think we need to move to the ability to pay
for quality. Right now, under Medicare, we pay under a
prospective payment system. Our payment system is quality
neutral. It doesn't make a difference. We need to change that.
We need to change that in the Medicaid world. We need more
consistency among the surveys. We need all of those things, Mr.
Chairman, so I agree with you, we shouldn't concentrate on a
few things. We make progress only by moving on many fronts.
Mr. Stupak. Well, moving on many fronts, and it is not just
you but some of the frustrations I see is, like I said, the
1998 report, the OIG report, we got another one out today, it
seems like this has repeated itself for the last 10 years and I
am sure it is before that too. Money tied just to quality, what
I am concerned about is people who do the work, those dedicated
workers who work day in, day out to take care of our loved
ones, who we entrust to them, these workers, a lot of times
they don't see that money. Many of these jobs are minimum wage-
paying jobs in certain States. I would look at or I would
suggest that if you are going to target a State for a
demonstration project, we should be able to put more than one
State as a demonstration project, Number one. But if we do, why
don't we do a demonstration project on a bad chain? We know
they are out there. Maybe we have an opportunity now with our
Carlyle Group buying out the Manor, which always had a good
reputation, maybe that is a demonstration project we could do
to make sure the quality stays up or improve underneath the
Carlyle Group because there is a concern, as we heard today,
that it is a $5.5 billion investment, they are going to have to
recoup their investment. So if you tie money to quality, hype
the reports on quality so we reap more money to pay down that
$5.5 billion debt, but in reality, because we don't have strong
surveys or accurate surveys who aren't catching deficiencies,
patient care is leaving or going down, not up.
We appreciate you being here. We appreciate the interaction
we have had with you and we look forward to working with you,
and we would like to see the Kramer report and the QIS rolled
out sooner. If it's a matter of resources, I think this
committee on both sides would like to see the resources because
you have heard every one of us have been affected by a family
member or someone who is at these centers or nursing home
facilities and we want to make sure that they have the quality
care that we all think they know and deserve. Thank you.
That concludes all questioning. I want to thank all of our
witnesses for coming today and for their testimony. I ask
unanimous consent that the hearing record will remain open for
30 days for additional questions for the record. Without
objection, the record will remain open.
I ask unanimous consent that the contents of our document
binder be entered into the record. Without objection, the
documents will be entered into the record.
That concludes our hearing. Without objection, the meeting
of the subcommittee is adjourned.
[Whereupon, at 2:38 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
Statement of Hon. Jan Schakowsky
Thank you very much, Mr. Chairman. I want to also welcome
our witnesses and thank each of them for being here today.
Mr. Chairman, it has been far too long--over 20 years in
fact--since we as a Congress turned a speculative eye towards
the nursing home industry. But now, just as we did prior to
passing OBRA '87, we must recognize the changing tides in this
industry and act to ensure the health and safety of all
residents who entrust their health and their lives to nursing
homes.
Though some progress has been made in improving quality
since OBRA '87, many of the same concerns we had back then
stubbornly persist in communities all across this country and
in fact, new and very serious concerns have come to light over
the past few years.
Between 1985 and 1990, I served as the Director of the
Illinois State Council of Senior Citizens, and in that role I
fought for better prescription drug prices and benefits for
seniors as well as financial protection for seniors and their
families. I also became keenly aware of the myriad of abuses
inflicted upon far too many of our family members and friends
who live in nursing homes.
I am sure that we will hear in greater detail how and why
those abuses occur from some of our witnesses, so I want to
specifically mention my concerns about the changing structure
and changing face of the nursing home industry over the past
few years. Not only has the number of national chains increased
to a point where over half of nursing homes are part of a
chain, but a new player has entered the ownership scene: large
private equity firms.
According to a New York Times article published in
September of 2007, these private groups have agreed to buy 6 of
the Nation's 10 largest nursing home chains in recent years.
Research from the same article found that at 60% of homes
bought by large private equity firms from 2000-2006, managers
cut the number of clinical registered nurses--in some cases, by
so much that they were below the level required by law.
This is a serious indicator of the decline in care at these
facilities, and unfortunately, staffing is just one area that
has suffered under this new regime of private investment
company ownership. The use of physical restraints, poor
nutrition, and neglect are just some of problems found at
higher rates in private equity facilities than publicly-owned
or nonprofit facilities.
But the fact is, we need more information from all nursing
home facilities. Though there are some that provide quality
care, there are others that most certainly don't. That's why I
am working with my colleague on the Ways and Means Committee,
Chairman Stark, on companion legislation to the bipartisan
proposal in the Senate that I think will greatly improve
oversight of the industry. By increasing transparency and
accountability across the board, but also specifically of
ownership structures, I believe this legislation will mark a
new turn in ensuring quality care for nursing home residents.
Mr. Chairman, I look forward to working with you and our
colleagues on the Committee on this legislation in the future,
and I thank you for giving this Subcommittee the opportunity to
take a closer look at these very important, very troubling
issues.
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