[Senate Hearing 112-255]
[From the U.S. Government Publishing Office]
S. Hrg. 112-255
ENSURING QUALITY AND OVERSIGHT IN ASSISTED LIVING
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HEARING
BEFORE THE
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
WASHINGTON, DC
__________
NOVEMBER 2, 2011
__________
Serial No. 112-10
Printed for the use of the Special Committee on Aging
Available via the World Wide Web: http://www.fdsys.gov
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SPECIAL COMMITTEE ON AGING
HERB KOHL, Wisconsin, Chairman
RON WYDEN, Oregon BOB CORKER, Tennessee
BILL NELSON, Florida SUSAN COLLINS, Maine
BOB CASEY, Pennsylvania ORRIN HATCH, Utah
CLAIRE McCASKILL, Missouri MARK KIRK III, Illnois
SHELDON WHITEHOUSE, Rhode Island DEAN HELLER, Nevada
MARK UDALL, Colorado JERRY MORAN, Kansas
MICHAEL BENNET, Colorado RONALD H. JOHNSON, Wisconsin
KRISTEN GILLIBRAND, New York RICHARD SHELBY, Alabama
JOE MANCHIN III, West Virginia LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut SAXBY CHAMBLISS, Georgia
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Debra Whitman, Majority Staff Director
Michael Bassett, Ranking Member Staff Director
CONTENTS
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Page
Opening Statement of Senator Kohl................................ 1
Statement of Senator Bill Nelson................................. 2
PANEL OF WITNESSES
Statement of Barbara Edwards, Director of the Disabled and
Elderly Health Programs Group, Centers for Medicare and
Medicaid Services, US Department of Health and Human Services,
Washington, DC................................................. 4
Statement of Martha Roherty, M.P.P., Executive Director, National
Association of States United for Aging and Disabilities,
Washington, DC................................................. 6
Statement of Larry Polivka, Ph.D., Scholar in Residence, Claude
Pepper Foundation, Florida State University, Tallahassee, FL... 8
Statement of Alfredo Navas, Private Citizen, Cutler Bay, FL...... 10
Statement of Steve Maag, J.D., Director, Residential Communities,
Leading Age, Washington, DC.................................... 12
Statement of Robert Jenkens, Director, Green House Project, NCB
Capital Impact, Arlington, VA.................................. 15
APPENDIX
Witness Statements for the Record
Barbara Edwards, Director, Disabled & Elderly Health Programs
Group, the Centers for Medicare & Medicaid Services (CMS),
Washington, DC................................................. 36
Martha Roherty, Executive Director, National Association of
States United for Aging and Disabilities (NASUAD), Washington,
DC............................................................. 48
Alfredo Navas, private citizen, Cutler Bay, Florida.............. 58
Steve Maag, J.D., Director, Resident Communities, LeadingAge,
Washington, DC................................................. 62
Robert Jenkens, Director, Green House Project, NCB Capital
Impact, Arlington, VA.......................................... 70
Additional Material Requested for the Record
July 16, 2011 Miami Herald Article ``Assisted-living facility
blamed in woman's drowning death''............................. 73
CMS's identification of some states with best practices in
quality improvement............................................ 77
Additional Statement Submitted for the Record
American Seniors Housing Association, Washington, DC............. 78
Assisted Living Consumer Alliance, Washington, DC................ 83
Assisted Living Federation of America, Alexandria, VA............ 89
Families for Better Care, Tallahassee, FL........................ 93
Florida Agency for Health Care Administration, Tallahassee, FL... 96
National Association of State Long-Term Care Ombudsman Programs,
Sacramento, CA................................................. 122
National Center for Assisted Living, Washington, DC.............. 124
Voices for Quality Care, Leonardtown, MD......................... 142
.................................................................
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ENSURING QUALITY AND OVERSIGHT IN ASSISTED LIVING
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WEDNESDAY, NOVEMBER 2, 2011
U.S. Senate,
Special Committee on Aging,
Washington, DC.
The Committee met, pursuant to notice, at 2:03 p.m. in Room
SD-G50, Dirksen Senate Office Building, Hon. Bill Nelson,
presiding.
Present: Senators Kohl, Nelson [presiding], Whitehouse,
Manchin, and Corker.
OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN
The Chairman. Good afternoon, and we thank you all for
being here today. We're very pleased to have Senator Bill
Nelson, a longtime member of this committee, chair this
hearing. He's a committed and hard-working member of this
panel. Senator Nelson's great state of Florida is home to the
largest number of seniors in our country and a leader among
states in trends that shape long-term care, including assisted
living.
We've also paid a great deal of attention to long-term care
in Wisconsin. In fact, two years ago, we reached a point where
the number of people living in assisted living residences
exceeded the number living in Wisconsin's nursing homes. More
and more older Americans are looking for options that let them
stay within their community and allow them to remain as
independent as possible for as long as possible.
Recognizing the growing importance of assisted living, the
Aging Committee hosted a roundtable in March when Senator
Corker and I gathered 19 talented experts to discuss a wide
range of topics, including ways to address the need for more
affordable assisted living and how to deal with consumers who
can no longer afford to pay for their care. So this afternoon,
we're looking to this panel to help us craft solutions in two
key areas, quality assurance and oversight.
Assisted living encompasses a large variety of residential
options and levels of care that vary from state to state and
even within states. Despite the many differences, we need some
level of consistency in the quality of service and safety
standards that all providers should be expected to meet.
We also need to understand how best to enforce these
standards and at what level of government. And we need to
provide much more transparency about quality and foster a
better dialog between residents, their families, and providers
so that tragedies like the one that Mr. Navas will relate are
prevented.
We look forward to hearing from all of you, and we thank
you again for coming. With that, I turn to my very good friend
and a great, great senator, Bill Nelson, who has been deeply
involved in this very important issue.
Senator Nelson.
STATEMENT OF SENATOR BILL NELSON
Senator Nelson [presiding]. Mr. Chairman, thank you, and
thank you for giving me the privilege of chairing this hearing
today on an extremely timely topic, Ensuring Quality and
Oversight in Assisted Living.
This spring, the Miami Herald--it had a three-part series,
``Neglected to Death.'' It reported on abuses at several of
Florida's assisted living facilities. And the report found that
70 people had died from abuse or neglect since 2002; that 1,732
homes were caught using illegal restraints like ropes, locking
residents in closets, and tranquilizing drugs. And the state
caught providers falsifying records--and that included medical
records--in death cases 181 times.
These stories, unfortunately, are not just limited to
Florida. In Pennsylvania, emergency room workers removed 50
maggots from a resident's open facial wound. And in New York, a
senior died after caretakers mistakenly gave her someone else's
prescription. In Virginia, police responded to a 911 call and
found one resident lying on the floor calling for help while
another was struggling with a catheter.
Now, it doesn't mean that assisted living facilities across
the country are failing. I know of many in my state that are
honest providers, genuinely caring for residents and operating
high-quality homes. And that's what we would hope for any of
our family members, and we have high-quality ALFs across the
country. But even one case of misconduct is one too many, and
both consumers and providers want to prevent these kinds of
abuses.
The chairman's Aging Committee has always been very
involved in promoting quality in assisted living. In 2001, this
committee examined the role of assisted living in the 21st
Century, and it focused on consumer protection, staff training,
and assistance with medications.
And after that hearing back in 2001, a group of nearly 50
national groups representing providers, consumers, long-term
care professionals, and regulators came together to develop
recommendations on improving the quality and presented those
recommendations in 2003. And just this year, Chairman Kohl and
Ranking Member Corker organized a roundtable, as the chairman
had mentioned, of 20 assisted living professionals to tackle
three major issues facing us today--quality, affordability, and
creating aging in place environments--so older and disabled
adults could continue to live independently.
So it's fitting that we're here today to continue this
important discussion and to turn our focus to quality and
oversight. About 1 million Americans make their home in
assisted living, and among that is about 131,000 Medicaid
recipients. Most assisted living is privately funded, but more
and more Medicaid dollars are going to assisted living.
Assisted living is growing at a faster rate than institutional
care, institutional care like nursing homes. Medicaid
participants in assisted living grew 43 percent in the seven
years from 2002 up, while nursing home spending only increased
about 10 percent.
The federal investment in assisted living will continue to
grow as states and consumers look for alternatives to
institutional settings. This doesn't only have implications for
Medicaid, but there are many indirect costs to Medicare as
well. So the people in long-term care facilities often make up
a large share of Medicare spending. They have high rates of
hospital and emergency room visits. Many of these visits can be
prevented if caretakers are properly equipped with the skills
and tools they need to serve our seniors.
But how do people know if the assisted living facility
they're choosing is properly equipped? How can individuals and
their families make the right decision on the best environment?
And that's one of the big challenges.
There's no single definition of what an assisted living
facility is, and every state regulates them in a different way.
And because of this variety, residents and their families often
rely on information from the facilities themselves, and every
state has different requirements on what kind of information
the providers are required to disclose. Some states don't even
have any disclosure requirements.
All Americans, no matter what state they live in, should
have the tools that they need to make the right choice. So even
though this isn't a new issue--and this committee discussed
this lack of disclosure back in 2001, and the GAO noted the
lack of consumer education in reports going back to 1999 and
2004.
So we're going to have to ask ourselves in this hearing if
we've been talking about the same problem for over 10 years,
why are we still talking about it? What are the solutions? We
all know that disclosure isn't the only solution. And when
something goes wrong, folks need to know that their complaints
will be heard and that someone will be held accountable.
Every American, no matter what the state is that they live
in, should be afforded some basic protections. And most states
require that facilities be inspected every one or two years.
But there are even some states that it's once every four years.
California only requires inspections every five years, and
Texas requires inspections when they're deemed appropriate.
Inspection reports are public in almost all of the states,
but 23 states only make these reports available upon request.
And many states are struggling to inspect more and more
facilities with limited resources. So that's what we're going
to dig into today, and we're fortunate to have several experts.
The first witness, Barbara Edwards, serves as the Director
of the Disabled and Elderly Health Programs Group in the Center
for Medicaid and CHIP Services at CMS. Ms. Edwards has almost
30 years of public and private sector experience in healthcare
financing and its nationally recognized--she is a nationally
recognized expert.
Ms. Martha Roherty is the Executive Director of the
National Association of States United for Aging and
Disabilities. And that represents the nation's 56 state and
territorial agencies on aging and disabilities.
Dr. Larry Polivka.
Dr. Polivka. Correct.
Senator Nelson. Polivka. Well, that's because you're at
FSU.
He's the Executive Director of the Claude Pepper Center at
Florida State University and was Director of the Florida Policy
Center on Aging until 2009.
Alfredo Navas is a resident of Florida and is here to share
the story of his mother, Aurora Navas, who passed away due to
the negligence at an assisted living facility.
Steve Maag--the Director of Residential Communities at
Leading Age, an organization of non-profit, long-term care
providers. Mr. Maag is responsible for developing and
implementing public policy, including assisted living,
continuing care, retirement communities, and senior housing.
And Robert Jenkens is the Director of the Green House
Project, a nursing home alternative that offers independence
and dignity to residents. He's also vice president at NCB
Capital Impact, where he provides policy and development
consulting to states and organizations interested in promoting
quality assisted living.
So thank you all for being here. We'll just go right down
in the order. See if you can confine your comments to five
minutes, and then we'll get into a lot of questions.
Mr. Chairman, did you have anything else? Okay.
Please, Ms. Edwards.
STATEMENT OF BARBARA EDWARDS, DIRECTOR OF THE DISABLED AND
ELDERLY HEALTH PROGRAMS GROUP, CENTERS FOR MEDICARE AND
MEDICAID SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, WASHINGTON, DC
Ms. Edwards. Senator Nelson, Chairman Kohl, Ranking Member
Corker, and members of the committee, thank you for the
invitation to discuss how the Centers for Medicare and Medicaid
Services can support states in offering long-term care options
that promote independence and choice and assure that Medicaid
beneficiaries have the opportunity to live and fully
participate in their communities.
Medicaid is the largest purchaser of long-term services and
supports in the nation. State-designed Medicaid programs offer
long-term care services to elderly and younger Americans with
significant physical and cognitive impairments through both
institutional settings, such as nursing homes, and home and
community-based settings.
Assisted living facilities are one of many settings in
which home and community-based services, or HCBS, may be
provided. And assisted living facilities are often identified
as providers of HCBS, including personal care supports,
homemaker chore services, and assistance with activities of
daily living, among others.
Unlike nursing home care, which states are required to
provide under federal Medicaid law, state Medicaid programs are
not required to cover services offered at assisted living
facilities, even for residents who are otherwise covered by
Medicaid. Also in contrast to nursing home services, Medicaid
does not cover the cost of room and board in any assisted
living facility or other community-based residential setting.
However, the vast majority of home and community-based
services are provided under what are called 1915(c)--Section
1915(c) of the Social Security Act, which authorizes the
secretary to waive certain statutory Medicaid requirements to
allow states to provide alternatives to institutional care.
Forty-eight states and the District of Columbia offer services
through more than 320 active, home and community-based waiver
programs, and the two other states provide similar services
through a Section 1115 waiver. So all states are providing home
and community-based services to Medicaid consumers.
Defining, licensing, and oversight of most HCBS providers,
including assisted living facilities, is largely a state
responsibility. CMS does not define what qualifies as an
assisted living facility, nor are there federally established
conditions of participation in Medicaid, again unlike nursing
homes where there is both federal law and regulation with
regard to the operation of nursing homes.
Depending on the state, assisted living facilities may take
the form of group homes, adult day or foster care settings, or
senior living communities. Assisted living facilities,
therefore, can vary in the population they serve, in their
size, and, as Mr. Nelson was describing, their payer mix.
Medicaid is typically not a major participant in the financial
support for residents of assisted living facilities.
While there is no specific federal licensure requirements
for HCBS providers, Section 1915(c) statute and regulations
require that the state demonstrate several assurances regarding
its waiver programs, including assurances related to
participant health and wellbeing. CMS requires a state to
specify the services to be offered through a waiver, identify
the qualifications of service providers, and identify the
standards required for settings in which care is delivered.
A state must demonstrate that it is prepared to protect
participants in a number of ways, assuring that providers and
settings meet the specified qualifications set by the state,
assuring that individuals receive the services identified in a
person centered plan of care, monitoring participant health and
wellbeing, and identifying and responding to allegations of
abuse that involve waiver participants. In addition, a state
must submit a quality improvement strategy that identifies,
addresses, and seeks to prevent poor outcomes or abuse and
neglect.
To satisfy federal monitoring requirements, states must
submit evidence that they are meeting the assurances, including
a final report in the year prior to the expiration of the
state's three or five-year waiver period. Continuation of a
waiver requires a determination by CMS that the state has met
the waiver assurances and other federal requirements.
At present, if CMS identifies serious quality issues, such
as potential harm to the health and wellbeing of waiver
participants, CMS can conduct special onsite reviews, offer
technical assistance from a national quality improvement
contractor, require a corrective action plan, or even terminate
or refuse to renew the state's waiver. CMS is currently
developing updated regulations regarding Section 1915(c) that
could enable CMS to employ additional strategies to ensure
state compliance with the requirements of a waiver, short of
waiver termination or non-renewal, which can have pretty
significant detrimental impact on individuals in the state.
The proposed regulations would also standardize and improve
person-centered planning and establish standards regarding the
characteristics of settings of care to better assure that
individuals receive waiver services in settings that are home-
like and provide a true alternative to institutional living.
Thank you for the opportunity to draw attention to CMS's
efforts to provide Medicaid beneficiaries with quality services
in their homes and communities, including in assisted living
environments. CMS is committed to continuing our efforts to
engage consumers, caregivers, providers, and states to better
support the design and delivery of long-term care services that
enable individuals with cognitive and physical impairments to
have access to quality long-term care in their homes and
communities.
[The prepared statement of Barbara Edwards appears in the
Appendix on page 36.]
Senator Nelson. Thank you, Ms. Edwards.
Senator Corker, a statement?
Senator Corker. I don't normally make statements, but I
want to thank you for having the hearing. I know you've had
some things, especially in your state, that raised alarms, and
I appreciate you bringing it to our attention. Thank you.
Senator Nelson. Ms. Roherty.
STATEMENT OF MARTHA ROHERTY, M.P.P., EXECUTIVE DIRECTOR,
NATIONAL ASSOCIATION OF STATES UNITED FOR AGING AND
DISABILITIES, WASHINGTON, DC
Ms. Roherty. Senator Nelson, Chairman Kohl, and Ranking
Member Corker, on behalf of the National Association of States
United for Aging and Disabilities, I would like to thank the
Senate Committee on Aging for the opportunity to testify at
today's hearing on assisted living facilities.
Assuring quality across the continuum of home and
community-based services is a key priority for our association.
NASUAD represents the nation's 56 state and territorial
agencies on aging and disabilities which play a variety of
roles with respect to assisted living. Some of our member
agencies collaborate with their partners in the Medicaid agency
to develop and operate Medicaid financed assisted living
services, while others oversee assisted living operations in
the context of the Medicaid quality monitoring strategies.
Additionally, many NASUAD members are responsible for the
Adult Protective Services Program in their state, and most also
administer the State Long-Term Care Ombudsman Program, as well
as the information and referral agencies, including the Aging
and Disability Resource Centers. Increasingly, individuals that
need the long-term services and supports are choosing to live
in residential settings such as assisted living facilities
instead of nursing homes. Accordingly, over the past several
years, the number of beds in nursing homes has been on the
decline while the number of beds in other residential settings
has been steadily growing.
As this trend continues, so do the opportunities for us to
work together to enhance the quality of care across the home
and community-based continuum. As Barb mentioned, the only
federal requirements for state oversight and monitoring of
assisted living facilities exist in the context of the Section
1915(c) Medicaid waivers.
However, Medicaid licensed units comprise only a small
portion of assisted living facilities. And there's no federal
guidance outlining or enforcing a state's role in the oversight
and monitoring of the private pay assisted living facilities
which make up the majority of the marketplace.
In my formal written statement, I outline in more detail
the core quality and oversight components that states deliver.
But in my oral statement today, I'll focus on the five key
recommendations supported by our members.
The first is building on the recommendations made by the
Senate Aging Work Group that Senator Nelson talked about.
NASUAD's first recommendation is for the development of a
federal framework to help standardize the requirements for the
Resident's Bill of Rights and a Disclosure Statement.
Currently, about half of the states have requirements for
residents' rights and virtually all have a disclosure
statement, though the content varies considerably from state to
state.
Federal guidance in this area along with suggested tools to
help the states ensure compliance would promote national
standards for assisted living residents while offering
prospective assisted living residents and their families a
consistent format for comparing assisted living options. NASUAD
members also support an increased federal investment in options
counseling, including counseling service delivered by the
information and referral staff and the Aging and Disability
Resource Centers.
Potential residents of assisted living, particularly those
who could quickly exhaust their resources and turn to the
Medicaid program, need objective third-party assistance with
understanding their options, including what they can afford and
for how long. Even with the federal support for this program
that you're already giving us, states report that they do not
have adequate funding to meet the demand for these services.
Our third recommendation is increasing the federal funding
for state programs that provide resident advocacy services,
including Adult Protective Services and the State Long-Term
Care Ombudsman Program. Through a regular presence in assisted
living facilities, ombudsmen are uniquely positioned to both
monitor a facility's quality and address resident complaints.
An increased federal investment would increase the program's
ability to provide and ensure quality.
Given the responsive nature of adult protective workers who
conduct investigations when they receive a formal complaint
report, a federal funding stream dedicated to APS would
similarly allow these workers to increase the program's
existing capacity and better protect residents of assisted
living facilities. Specifically, increased and dedicated
funding would enable APS and ombudsmen to leverage their
authorized access which they currently have to assisted living
facilities by allowing them to conduct more visits, both
scheduled and unannounced, and these programs would be better
able to supplement the work of the state survey and licensure
agencies, which generally survey assisted living facilities
once a year.
Fully funding the Elder Justice Act is the fourth NASUAD
member recommendation. As the number of aging consumers grows,
so does the need to protect the most vulnerable among us, in
part, by improving the quality and accessibility of resources
regarding long-term care, including assisted living.
The Elder Justice Act provides such consumer safeguards and
protections, but does not provide funding to carry out the
duties it was assigned. That is why, in addition to increasing
the funding for the Ombudsman Program and dedicated federal
dollars to the provision of Adult Protective Services, an
adequate investment is also needed to implement the Elder
Justice Act.
Finally, NASUAD members support a broad federal definition
for assisted living that's based on the core principles of
assisted living that were developed by the committee's work
group in 2003. There is tremendous variation among the states
in their assisted living definitions, and, therefore, the
federal framework must be broad enough to account for the wide
array of state models while still addressing the autonomy,
choice, privacy, and dignity of all assisted living residents.
So thank you again, Senator Kohl, Senator Corker, and
Senator Nelson, for your leadership on these important issues
and for the invitation to testify here today. I welcome your
questions and comments and look forward to continuing to work
together to improve the quality of life for older adults and
individuals with disabilities in whatever place they call home.
[The prepared statement of Martha Roherty appears in the
Appendix on page 48.]
Senator Nelson. Thank you, Ms. Roherty.
Dr. Polivka.
STATEMENT OF LARRY POLIVKA, PH.D., SCHOLAR IN RESIDENCE, CLAUDE
PEPPER FOUNDATION, FLORIDA STATE UNIVERSITY, TALLAHASSEE, FL
Dr. Polivka. Thank you, Senators.
I'm going to talk about three areas primarily regarding the
assisted living situation in Florida. One is the origins of the
governor's Assisted Living Work Group that I am the chairman
of. Two is the mission of that work group. And three is current
status and future plans.
The work group essentially came from concern about the
reports in the Miami Herald that Senator Nelson referred to
earlier in May and June of this year. Beyond that, however,
there was also, I think, a general perception in the assisted
living community, in the advocacy community, and among policy
makers that we have not looked at assisted living in several
years in Florida. And I imagine that's probably true in many
states.
During that time, the program has virtually doubled in
size. In terms of the population, it now has more--we now have
more beds in assisted living than in nursing homes, about
82,000. We have almost 3,000 facilities. And that's over about
a 10 or 12-year period. We project at least that much growth in
the next 10 years.
And so I think there was a general perception that it was
time to take a systematic look at what we were doing in
assisted living, both from a general policy perspective and
from a regulatory perspective, to deal with some of the issues
that have emerged over the last 10 years. And that, in some
ways, culminated in the Miami Herald series.
And it's also true that we have had a huge growth in the
Medicaid population in assisted living in Florida. Now, you
mentioned, I think, Senator, there's about 130,000 people--
maybe, Barbara, it's more than that at this point, because
we've got somewhere in the neighborhood of 30,000 Medicaid
supported people in assisted living in Florida. If you count
the waivers, if you count the Assisted Services State Plan
Program, it's getting over 30,000 in one state.
So, you know----
Senator Nelson. That's because there are a lot more
assisted living in Florida, proportionately.
Dr. Polivka. And there's been this huge growth in 10 years.
So with that as kind of the basis of concern and interest, the
work group was formed by Governor Scott. It has 15 members. I
am chair. And I think there's been some concern about
representation, but we've had two meetings, and in my judgment,
based on the discussion that has occurred within that work
group and the interaction with the people providing public
testimony, it's pretty representative, in my judgment. We'll
see. I mean, we'll see what the outcome is over the next two
weeks.
The mission was essentially to address any area that the
work group decided was important, especially in response to
some of the findings from the Miami Herald article related to
the question of whether or not we have adequate rules and regs,
sufficiency of enforcement, adequacy of qualifications and
training among providers and administrators in assisted living.
We're covering about 14 areas, and that's over a three-month
period.
In terms of current status, as I mentioned, we've had two
meetings. We've had many, many hours of public testimony that's
been very useful in the forming. We have our last meeting
Monday and Tuesday in Miami where we're going to consider a
range of recommendations that we're going to report for the
governor and the legislature by the end of November for
consideration in the session that begins in January.
I have included, I think, in the materials that your staff
has disseminated a number of recommendations that I'm making as
a member of the work group--as just one member. We'll see what
the other folks come up with. As a matter of fact, you can see
them as of this morning. There are 14 or 15 pages of
recommendations that are coming from work group members and
from other organizations that are on the Medicaid web site in
Florida since this morning, if you want to take a look at them.
I am also suggesting, though, that we have a Phase 2 of the
work group. We have really had to scramble to cover areas that
we thought were of most critical concern for the short term
since August. There are a number of other issues that we have
not had enough time to really address thoroughly and
effectively, one of which, in my judgment, is do we have the
right regulatory scheme in place in Florida.
It has been my perception--and it's spelled out in an issue
paper that I sent to the staff earlier today from 2006--that
while we really need to detect and rid the system of
chronically poor performers in assisted living, I think we also
need to take a somewhat different approach when it comes to
dealing with the regulation of most providers in assisted
living. And sometimes that's referred to as a collaborative
consultative approach. I refer to it as a collaborative
consultative approach with a hammer, as far as bad performers
are concerned.
And I would hope that we would have a chance in Phase 2 of
the work group to look at this broader regulatory picture,
because assisted living is an enormous resource. It's
incredibly valuable, and, if anything, it's going to be more
valuable 10 years from now than it is today. But we can't
afford to have the whole thing undermined by 5 or 10 percent of
the providers who are not performing and are not being
regulated effectively.
Senator Nelson. And later on, when we get into questions--
if you'll share some of your recommendations. Thank you.
Mr. Navas.
STATEMENT OF ALFREDO NAVAS, PRIVATE CITIZEN, CUTLER BAY, FL
Mr. Navas. Honorable Chairman and committee members, thank
you for inviting me to share with you and the public the
terrible, terrible accident due to negligence suffered by my
mother. My name is Alfredo Navas. I am the youngest son of
Aurora Navas. She was 85 years old when she accidentally died
due to negligence at an assisted living facility in Miami,
Florida.
My mom was always a hard-working lady. She was a strong
lady. She was the pillar of our family. But she also had some
weaknesses, which--as I speak to you, you'll realize why some
of these things just don't add up. She was always--and I
remember as a child how scared she was of water. She would
panic when my kids would be in the pool playing. She would
panic when we went to the beach.
And as she got older, later on in life, she was also very
afraid of being in the dark. Even though she lived alone, she
had night lights in every room so she was never in the dark.
After she became ill with this horrible disease of
Alzheimer's, she was placed in an assisted living facility in
Miami, Florida, where my sister lived. This made it convenient
for her to visit her regularly. I lived in Tampa, so I had to
commute and travel to see her as often as I could. And it was
very difficult for my brother living in the panhandle.
But the first time, I remember, when I visited the
facility, I walked in, and I wanted to make sure that my mother
was in a good facility. I looked at the cleanliness. I looked
up as I walked in. There was a camera there that would capture
the entire movement of that home from that single position.
Nobody could come out of the bedrooms, nobody could come in
from the outside, nobody could move into the television room or
the dining room or the kitchen or the living room or the back
room without passing in front of that camera.
There was also a safety gate on the kitchen, where nobody
could go in the kitchen other than the people working there. I
also noticed the lake in the back. You could see the lake from
inside the home, and I was concerned. I've heard of accidental
drownings before, and I've read those in the newspapers, and I
inquired about that. And I was told there's absolutely no way
that they can get out there because the gates are locked.
I saw that the facility wasn't locked. Obviously, this was
during the late afternoon hours, when I was able to visit,
because that's the time when dinner was served and they were
back from the activities that they did during the day. And I
noticed the double door--the double knobs on the door. I
inquired about that. Why is the facility open? Anybody can walk
in.
I was told, ``Well, those are safety features that we have
on the doors. There's two knobs. One turns to the left and one
turns to the right, and that's a safety, and we cannot lock the
doors because of fire code regulations.'' I was also informed
that they had alarms on the doors that they would set after a
certain time of the night, that if anybody opened it, they
would go off.
Well, unfortunately, about--the very early morning hours of
January 27th, I received a very, very disturbing phone call
from my sister. She was in a panic. She said that there was a
terrible accident at the home and that mom had passed away.
I couldn't believe this. It can't be. So I rushed over
there, and as I got there, just--reality sets in. Everything is
taped off. We can't go in. The police are not telling us
anything. So we had to wait. It was a dark, dreary, moist, and
cold January morning, and I'll never forget it. I had a jacket
on. We even had to sit in the cars with our heaters. It was so
cold.
Well, after we saw the coroner's van come in and take my
mother's body away, a police detective approached us and told
us that--well, he walked us into the facility, into the entry
way and told us what had happened, that mom had drowned in the
lake, that she had walked out and she had drowned. And from his
perspective, it was clear negligence, based on the fact that
the alarm on the doors wasn't set, the gates weren't locked.
But there were a lot of questions raised after we received
the reports. Now, we didn't get anything from any of the
government agencies. We didn't get a report from the police. We
didn't get an autopsy report. Nobody called us. So we named a
lawyer, and through the lawyer, we managed to get copies of all
the reports. And all that did was raise a million questions.
My mother's slipper was found in the kitchen on the floor.
She went through those double door--with double handle doors.
The alarm didn't go off. There was no rails on the two steps
coming off the back of--the side of the home. My mother needed
assistance to get into my car, in and out, but she managed to
walk out in her nightgown on a very cold night, go at least 75
feet to the gate.
Her second slipper was found by the lake, and then they
found her in 16 inches of water where she drowned. The autopsy
reports--this is a drainage pond, as I call it, for the
neighborhood, for the subdivision. And knowing how those
drainage ponds are, as soon as you walk in, the mud and the
silt and all of that gets disturbed, much less falling in,
drowning--if I was drowning, I'd be flailing, and that mud
would be stirred up. My mother had clean water in her stomach
but not in her lungs.
So it raised a lot of questions. We never received anything
from the police, absolutely nothing. I know the--we find out
that AHCA, which is the state agency that regulates the
healthcare facilities in Florida, never even investigated.
So my questions are: How can a homicide detective conclude
it was clear negligence and never pass it on to the state's
attorney for further investigation? And where is AHCA? How is
that connected to the legal side?
We did file a civil suit. We settled, but to my shock and
amazement, Florida law requires a $25,000 policy for these
regulators--these facility operators. It required a small air
conditioning contractor to carry $250,000 liability insurance.
And an air conditioning contractor does not deal with people's
lives. These operators deal with people's lives. They've taken
people's lives due to their negligence, yet we have a big
disconnect, big disparity--and I apologize. I think I'm going
over quite a bit.
But I'm real disappointed in AHCA. I am very, very grateful
to the Miami Herald for bringing all these abuses, this
neglect, to the forefront and making our communities aware and
making you, our elected officials, aware that we have a great
problem in Florida and most likely in every state where ALFs
operate. I'm not saying that all are bad. But our senior
community is growing by leaps and bounds as we, including
myself, will be considered a senior person here in a few years,
if not already.
Senator Nelson. Thank you, Mr. Navas.
Mr. Navas. Thank you.
[The prepared statement of Alfredo Navas appears in the
Appendix on page 58.]
Senator Nelson. Thank you very much for your very heartfelt
testimony.
Mr. Maag.
STATEMENT OF STEVE MAAG, J.D., DIRECTOR, RESIDENTIAL
COMMUNITIES, LEADING AGE, WASHINGTON, DC
Mr. Maag. Thank you, Chairman Kohl, Ranking Member Senator
Corker, Senator Nelson, and Senator Manchin. I have submitted
my written testimony. I'll briefly summarize that for the
committee.
Leading Age, formerly AAHSA, represents almost 5,700 not-
for-profit members who provide care and services to over 1
million seniors on a daily basis. Many of our members provide
services which would fall under the broad category of assisted
living. And I'm here today to provide the perspective of our
members and other assisted living providers on the issues the
committee is exploring.
First and foremost, I want to state that while I'm not
personally familiar with the circumstances detailed in the
Miami Herald, members of Leading Age and all assisted living
providers across the country were horrified to read the
examples of the terrible care cited in the articles. I can
assure you that the vast majority of assisted living providers
work very hard to provide excellent care to their residents
they serve, and the circumstances cited in the articles are the
exception.
I'll address two issues: quality of care and consumer
disclosure. As assisted living has become a larger player in
the array of long-term care services for seniors, the efforts
to improve care have increased as well. The information,
educational opportunities, and resources available to assisted
living providers are far greater than I could begin to list.
However, I would like to highlight a few.
The provider associations have long been working with their
members to provide them with education, resources, and tools to
improve quality care and services. Leading Age's own Quality
First is an example. Quality First is a comprehensive plan many
of our members use to maintain excellence in care and services.
Other examples are the National Center for Assisted Living's
Guiding Principles for Assisting Living and Quality Performance
in Assisted Living and the Assisted Living Federation of
America's Care Principles.
I would be remiss and would incur the wrath of my fellow
board members if I didn't also highlight the Center for
Excellence in Assisted Living. CEAL is the outgrowth of the
efforts of this committee, as the senator mentioned, 10 years
ago which resulted in the Assisted Living Work Group. CEAL was
formed in 2004 and comprises 11 stakeholder organizations. We
also have an advisory council of 27 additional stakeholders,
federal agencies, and individuals which serves as a resource
for CEAL.
The mission of CEAL is to foster high-quality assisted
living by bringing together diverse stakeholders to bridge
research, policy, and practice; facilitate quality improvements
in assisted living; identify gaps in research and promote
research to support quality practices; and promote access to
high-quality assisted living for low and moderate income
seniors.
The accomplishments of CEAL over the last seven years are
too numerous to list. But they include establishing an
information clearing house with almost 800 discreet items on
almost every aspect of assisted living; developing the
Excellence in Assisted Living Awards to highlight and
disseminate best practices in five different practice areas;
publish--and publishing last summer ``The Person Centered Care
in Assisted Living: An Information Guide.''
Lastly, I should also point out that there are resources
directed at consumers of assisted living services, the
residents and their families. One such is the Consumer
Consortium on Assisted Living. Their web site has a huge amount
of information, all geared to the consumer. I would suggest the
use of these resources may have prevented the quality of care
issues raised by the Miami Herald.
While I recognize some officials may look to more
regulation to address the bad acts of providers, I urge the
committee and others not to look for more regulation. For those
few providers who do have quality of care issues, state
licensure officials should use the authority they already have
to require poor performing communities to seek and implement
the programs and resources that they need to raise their level
of care to that of the rest of the assisted living providers.
I'd like to note that Wisconsin, Senator Kohl, has done an
excellent job in advancing that perspective.
Now, I'm not naive enough and I've got enough gray hair to
understand that there--and not to suggest that there isn't a
major role for regulatory oversight in assisted living. It
already occurs in all 50 states, and Leading Age and the other
provider associations strongly support regulatory frameworks.
I recognize there are occasional quality of care concerns
in assisted living communities in all parts of the country.
However, my experience and the experience of many in the long-
term care services and support sector have not seen additional
regulation as the best way to improve quality of care.
Turning to consumer awareness and disclosure, there's
clearly a need for increased resources for consumers to
understand what assisted living is and is not, as well as an
understanding of which assisted living provider may be right
for them or their loved ones. They often lump assisted living
in with nursing homes. They are distinctly different, as we all
know.
States are taking significant steps to address consumer
issues. Thirty-seven states have some form of disclosure
statement or requirement for the assisted living provider to
make information available to prospective residents and their
families. Forty-nine states have regulatory requirements for
residency agreements mandating that they contain certain
consumer protections. Several states have web-based
information. There's many organizations I've previously
mentioned, such as CCAL, which have a wealth of information,
and there's also commercial sources, such as Snap for Seniors
and New Life Styles.
This is one area where we think that providers, state
regulators, and agencies like the U.S. Administration on Aging
and the Office of Long-Term Care Ombudsman Program could work
together to find ways to increase consumer awareness. Better
educated consumers are in everybody's best interest and is
something that the provider community strongly supports.
Lastly, an example of this kind of effort is the Assisted
Living Disclosure Collaborative that the Agency for Healthcare
Research and Quality launched three years ago in conjunction
with CEAL. This collaborative brought together almost 30
stakeholders and technical experts in an effort to create a
uniform disclosure tool which could be used by consumers, state
agencies, and others to inform consumers about the services
provided at an individual assisted living community.
The goal is to have an easy to understand method to compare
the services and amenities of one assisted living community to
another in a standardized format. This disclosure tool has been
developed and will be undergoing field testing in eight states
and in over 100 communities after OMB clearance.
Thank you for this opportunity to testify on these
important issues.
[The prepared statement of Steve Maag appears in the
Appendix on page 62.]
Senator Nelson. Thank you, Mr. Maag.
Mr. Jenkens.
STATEMENT OF ROBERT JENKENS, DIRECTOR, GREEN HOUSE PROJECT, NCB
CAPITAL IMPACT, ARLINGTON, VA
Mr. Jenkens. Thank you, Senator Nelson, Chairman Kohl,
Ranking Member Corker, and other members of the committee. As
Senator Nelson mentioned, I am the Director of the Green House
Project, a partnership between NCB Capital Impact, the Robert
Wood Johnson Foundation, Dr. Bill Thomas, and the pioneering
states and providers who have joined with us.
The Green House Project assists organizations to implement
a radically different approach to long-term care, one that
truly operationalizes the founding values of assisted living,
autonomy, dignity, and privacy. Prior to the Green House
Project, I directed the Coming Home Program. The Coming Home
Program worked with nine state partners to implement and refine
Medicaid waiver regulatory and housing finance programs for
assisted living projects serving Medicaid eligible individuals.
Through the Coming Home Program and the Green House
Project, I have learned just how good assisted living can be.
So how do we square the successes I have seen created through
committed public-private partnerships with the horrific stories
bravely brought to life by the Miami Herald? How can we think
about these opposites and use the successes to inform us on how
to prevent abuses without stifling innovation?
Four observations from my experience: First, as the Miami
Herald found, the incidents of significant abuse and neglect
are limited to a small fraction of the providers operating in
Florida. This is good, because it means that most organizations
can be part of the solution.
Second, the existing state complaint and review process
appears not to have been followed or enforced. The Herald
coverage suggests that if the complaints had been pursued, some
of the worst outcomes may have been avoided. While the lack of
enforcement is troubling, it means the elements of a solution
may already be in place.
Third, this regulatory failure and similar failures in
other states suggest that financial and political pressures
sometimes prevent the implementation of sound state quality
assurance systems. This is an area where we can foster
significant improvement.
And, fourth, it's important to note that assisted living
quality is not a federal or state versus provider problem. The
providers and trade associations I work with daily are united
in their calls for abuse and neglect to be punished swiftly and
fully. This is motivated by their personal missions and
business interests. This motivation is important because it
means that their interests are largely aligned with consumers,
regulators, and providers.
So what should be done? Do we need more state action? Is
there a different federal role needed? I think the answer to
each of these questions is yes. I believe strongly that the
goals of quality assurance, innovation, and cost effectiveness
are not mutually exclusive. In fact, I think they are necessary
complements and that we already have the overall state and
federal regulatory framework in place that we need. We simply
need to refine and bolster the framework to allow it to fulfill
its intended purpose.
My first recommendation is to refine the balance between
state flexibility and accountability. Currently, the federal
Medicaid waiver approval process allows states to propose
quality standards and systems. While this is the right place to
start, clear federal expectations should form the foundation of
any state proposal. It's not enough to defer to a state's
process entirely where federal funds are involved.
To create appropriate guidelines, standards that make sense
to advocates, consumers, and providers, the Centers for
Medicare and Medicaid Services, CMS, should be asked to develop
these guidelines through an inclusive stakeholder initiative.
This stakeholder initiative should be modeled on the successful
Assisted Living Work Group formed in response to this
committee's challenge in 2001, or the more recent 2011 efforts
of the successor organization, the Center for Excellence in
Assisted Living.
Building on the process and recommendations from both of
these groups and with the assistance of a team of CMS advisors,
strong guidelines could be developed over the next six months.
At the direction of Congress, these guidelines could form the
firm basis on which CMS evaluates, renews, and approves states'
quality assurance proposals.
My second recommendation is targeted at accountability. The
severity and duration of the quality crisis uncovered by the
Herald provides evidence that CMS's oversight role in the
waiver program is not yet sufficient. We know this is not
because CMS staff do not care enough, but rather because they
lack the tools and resources to effectively monitor and enforce
waiver performance.
CMS does not have the necessary staff or structure to
verify state quality assurance for home and community-based
waivers. We need something more than we have. The work group
brought together to develop guidelines could also make
recommendations on a more effective federal monitoring and
enforcement role, including intermediate sanctions. Congress
could then elevate these recommendations--evaluate these
recommendations and direct CMS to implement selected
enhancements and provide additional funding as required to
assure that beneficiaries of this essential industry do not
suffer due to lax oversight.
Thank you again for this opportunity to testify today. I
look forward to your questions.
[The prepared statement of Robert Jenkens appears in the
Appendix on page 70.]
Senator Nelson. Thank you, Mr. Jenkens.
Mr. Chairman, since you have another commitment, we want to
thank you for the privilege of holding this hearing. And we
want to give special credit to the Miami Herald for the
extensive three-part series that they did on this subject.
Senator Corker.
Senator Corker. Thank you, Mr. Chairman, Acting Chairman. I
appreciate you bringing this to our attention and all of you
for your contributions today.
Mr. Navas, in particular, I thank you for coming and
sharing your personal story. And, you know, it always makes a
major difference in any of these hearings or in our offices
when someone like you has been affected this way. So I thank
you for having the courage to be here and for telling your
story, and for all of you for your contributions.
And it's really interesting--Mr. Jenkens' testimony here at
the end, I guess, brings me to my first question, and I'll be
brief with all of these. I used to be a commissioner of finance
for the state of Tennessee and was constantly dealing with the
waiver processes. And, you know, we wanted to--we were actually
hugely progressive in doing a lot of things as it relates to
covering people, but constantly having difficulties with CMS
and the waiver process. And I understand, as he mentioned, that
there's a lot of staffing issues and that kind of thing.
Tennessee has sent you a letter recently, on August the
25th, requesting guidance on a maintenance of effort
requirement in PPACA. And it's really holding them up from
being able to move ahead for their long-term care efforts under
something called TennCare Choices. Again, I think Tennessee has
been a leader in many of these things.
And I just was hoping you might let me know when you expect
they might have a response, Ms. Edwards--really, right along
the same lines of Mr. Jenkens' testimony.
Ms. Edwards. Mr. Corker, I appreciate your question.
Tennessee, in fact, is considered a national leader,
particularly in terms of thinking about ways to make community-
based services a first choice for individuals who need long-
term services and supports. We've really admired the work
they've done and the way they've done it in collaboration with
their advocacy and stakeholder communities in the state. We
hold them up as a model frequently.
We are looking carefully at Tennessee's request. We do
understand the urgency for them. We have a team of folks who
are looking very hard, and the challenge is, of course, that
the Affordable Care Act does have pretty specific provisions
with regard to maintenance of effort. And because eligibility
for long-term services is frequently intertwined with
eligibility for Medicaid itself, there are issues that get
raised in the proposals that Tennessee has put forward.
I can't give you a specific date, but I will tell you it is
a very high priority for us. We're working on it as we speak.
And my boss, Cindy Mann, and others throughout the agency are
very focused on this issue. So I think Tennessee will have an
answer soon.
Senator Corker. Thank you. And I appreciate your focus on
that, which brings me to Mr. Polivka.
There's been a movement to look at some greater regulation
of assisted living within states. And yet at the same time, we
constantly have this rub that exists. I mean, the federal
government has regulations. It ends up, especially with good
actors in states, in many ways holding them back from doing
things that are better for their population they're trying to
serve. And so I'm very resistant to that type of thing as a
result.
And back to the state of Florida, we heard the incident--I
mean, what kind of state regulatory process does exist in the
state of Florida? How focused is it? How powerful is it? How do
you feel about the situation right now as it relates to
assisted living in Florida?
Dr. Polivka. I think that part of the problem was the one I
mentioned earlier, that is, we--and that's everybody in the
state, policy makers, providers, everybody, the media--have not
paid as much attention to assisted living as we should have
over the past several years. As the program grew, as it became
much more common for people with Medicaid funding to be placed
in assisted living, we didn't keep up with the process.
The program grew. Some of the issues became more
complicated, and there was not an adequate kind of policy
regulatory response to those developments over a period of five
to 10 years. I think that there has been a major upgrade in
regulatory activity in AHCA, the Agency for Health Care
Administration, which is the Medicaid program for Florida, over
the last six months and especially since May and the Miami
Herald series.
I think it also comes in part with the new administration.
Secretary--the new secretary has--began to prioritize enhanced
regulation, or more effective regulation----
Senator Corker. Just for--they only give me a limited
amount of time, and I very much----
Dr. Polivka. Sure.
Senator Corker. I sort of got the history of it, but,
apparently, there's not much of a regulatory process is what
you're, I think, getting at.
Dr. Polivka. No. I would say that it was not sufficient.
And I would say that the effort has been accelerated over the
past three months, four months, and that with the work group,
it will be accelerated further in several significant ways.
Senator Corker. And, again, not being critical in any way--
I know you all are new to the job. Is Governor Scott asking for
federal regulation over assisted living in the state of
Florida?
Dr. Polivka. Not that I'm aware of.
Senator Corker. And I would think there would be a lot of
states that would not want to see that happen. I know there is,
again, through the application process, some things that CMS
does in that regard. On the other hand, in Florida, it seems
that a large part of your assisted living--or a portion of your
assisted living population is actually younger people with
mental illness, which is kind of unusual. Do you want to speak
to that?
Dr. Polivka. Yes. That was one of the issues I thought we
might get to later in more detail. One of the major issues in
the Miami Herald series related to what's called limited mental
health license facilities. And somewhere in the neighborhood of
maybe 40 percent of the people in assisted living who are
publicly supported are people who have mental health issues.
And those facilities seem to be at greater risk of problems of
the kind that were described in the Miami Herald than ALFs that
do not have people who have mental health problems and who have
a limited mental health license.
So my impression is that in the meeting Monday and Tuesday
of next week, a good portion of our time and the
recommendations will focus on those mental health residents and
mental health license facilities. It's become one of the major
housing options and has been for over 20 years for publicly
supported people with mental health problems in Florida. I'm
not sure how this is handled in other states, but you're right.
It's a big issue in Florida and has been for a long time.
Senator Corker. Mr. Chairman, thank you. Just in closing, I
know Governor Scott, and he obviously was actually involved in
Tennessee and was a provider to much of the Medicaid population
there through the company that he was CEO of. But what happens,
I guess, in states, if states don't do the things themselves
that ought to be done--and it sounds like in the state of
Florida--and, again, I know you all are new to the process and
I'm not in any way casting blame on you.
The state of Florida, it sounds like, has a lot of work to
do. And when there ends up being especially such a high
concentration of people, as the senator has mentioned, in
assisted living, and then bad things happen, there happens to
be sort of a whiplash effect in Washington, and Washington
tends to want to then put in place federal regulations that
sort of end up being one size fits all and can actually, in
some cases, hurt the system, not help it.
So I would hope that you guys would recognize that and
would not cause actions in Florida to end up having negative
activity, from my perspective, occur across the country.
Dr. Polivka. Senator, we're working on that. We're doing
our best. I'm optimistic about some of the changes, both short-
term and longer-term. But we'll see what actually happens. And
let me say that the recommendations that Robert made and that
Barbara was talking about in terms of the CMS role, I think
have lots of merit in terms of oversight and waiver approval
and critique. There's real potential there.
Senator Corker. Thank you. Thank you very much.
Senator Nelson. I'm going to turn to Senator Manchin,
former governor, who had to do this from his perspective as the
chief executive. But we're picking up a thread here that these
ALFs are really starting to take the place of nursing homes, it
sounds like, in some of these, and that's not supposed to be
the theory. The theory is supposed to be that there's
independence of living, and that they just get assistance.
We'll come back to that.
Senator.
Senator Manchin. Thank you, Mr. Chairman. And to follow up
on what Senator Corker had been talking about in Tennessee--and
being a former governor, we worked on all of these things.
You're right. It's mostly up to the states or states' rights to
take this responsibility, and it should be a moral
responsibility.
So West Virginia, I think, if I'm not mistaken, is the
second largest concentration of aged people. I think Florida is
first and we're second. And with that being said, we know that
we have our challenges also. But I would just ask--and, Ms.
Edwards, if you would--to a couple of these things here.
Senator Corker makes a good point, and we're afraid, you
know--we don't do anything ``a little bit'' up here. I've only
been--I'm the newest guy on the block--one year. I can tell you
when they want to make a change, it's a big change, and there's
concern. So what happens sometimes--we might not do anything
for the sake of trying to do too much.
Now, with that being said, there's got to be a happy
medium. But I can't understand why we can't at least have
reporting. Is there registration? Is there licensing in
Florida? I'm not sure if you all--since there's no Medicaid or
Medicare money, do you have ombudsmen that go into these places
that look at all these things? And I'm sure that you have a
very active and aggressive trial lawyers association that
watches you very close or watches this organization or these
homes very close. Maybe that's the check and balance. I'm not
sure.
But we, basically, put them in categories, six or fewer,
depending on the size of the homes that we had. As far as those
growing more, we've had a moratorium on nursing homes for quite
some time because the expense--and if you know, the expensive
nursing home. And then when you look in most states, 80 percent
of the occupants is paid through Medicaid.
So, you know, people have learned how to divert their
assets and their income, and they become wards of the state.
That's why you haven't seen nursing homes flourishing and
growing and expanding. So this is an alternative. But
something's going to have to be done. And maybe from your
standpoint, what you think we could--in a reasonable manner to
get a better handle of what's happening right now.
Ms. Edwards. Senator, I want to start by being clear that
CMS does not have a position seeking additional federal
oversight or additional licensure requirements at this point.
What we are committed to doing is using the tools that we do
have, as was mentioned earlier by another panelist, to do the
best that we can to help states assure that people have good
systems and people are being protected in terms of their health
and their wellbeing.
What we do in our waiver programs, which is where most of
these services that Medicaid funds are funded through, is we
ask states as a part of the application to tell us what the
services are going to be--lots of flexibility in waivers, as
you know--what the services are going to be, what the
population that's targeted for those waiver services may be,
where individuals can be and receive those services, what
standards the state has established for those settings of care,
and who the providers can be of those services and what
standards the state has set for those providers.
What we even require states to do is to report to us on how
they are overseeing their own system of oversight and
regulation. We ask states to do sampling of members who are
receiving services; to report on whether or not people are
getting level of care determinations; whether or not they have
a plan of care; whether or not that plan of care is being
followed; whether or not there are instances of abuse and
neglect and, if so, how has the state responded to that. So we
are----
Senator Manchin. What are you able to do as far as----
Ms. Edwards [continuing]. Asking for reports.
Senator Manchin. But what is the hammer? You've got the
carrot. What's the--you don't have a carrot or a hammer.
Ms. Edwards. You've put your finger on it. In fact, the
only real hammer that Medicaid has is to deny the waiver. So we
can--we could--quit funding the services. We have found that to
be--I mean, most states want to do a good job. So states are
usually willing to work with us, develop plans of correction if
they find problems in their system or if we find them.
But we really don't have a lot of interim steps. One of the
things that we have proposed in a Notice of Proposed Rulemaking
that went out in April was to create some additional
intermediate steps that we could take if, in fact, states are
not coming to the table in good intention to make corrections.
For example, withholding some funds for the waiver program, all
of them, that sort of thing ----
Senator Manchin. Let me ask this question, because we're
running out of time. I'm so sorry, but we're going to be
running out of time. Like in our state, if we know that someone
is Medicaid eligible, and they're not really nursing home
needed--they don't have the need of a nursing home, skilled--
but they need that assisted living, we will offset the
difference in our state, because it's much more, I think, the
right thing to do, and it's much more cost effective for us to
do that. I don't know if other states are doing that or they'd
like to do that, to pay the difference and help Medicaid.
Ms. Edwards. Very popular--some states will pay the
difference. You're talking about room and board, I think.
Senator Manchin. Right.
Ms. Edwards. You're helping to subsidize the cost of room
and board.
Senator Manchin. Yes.
Ms. Edwards. It varies widely across the state whether or
not there is any subsidy available.
Senator Manchin. Let me just say this. I just want to
applaud Senator Nelson, because I know with his state and the
aged population--and he's concerned about Florida. I can tell
you that. We talk about it every day--but bringing this to our
attention, because we all face it, and we're going to be facing
it in greater numbers than we've ever faced it before. I think
there's thousands of people going into the need of care on a
daily basis. We're all growing a little older every day. That's
the good part. The next part is we need someone to help us.
So with that, if we could find something--and, Senator, I
applaud--and I'd work with you--that doesn't overreach, but
basically gives a guideline of just moral care, and it gives
you all the ability to go in.
If you send an ombudsman in, what do they report back to,
and what can they do, other than saying, ``We think there's a
problem here.'' And if I can--if I may--are you able to pull a
license from an assisted--in Florida right now, if you find
that the person is not--I know with the sprinkling systems and
if they're able to have access and things of that sort--but
what allows you--I mean, could you toughen that up a little bit
there, to pull a license if needed?
Dr. Polivka. Yes, sir. That is an issue, in fact, that
we'll be discussing Monday and Tuesday. It's an issue related
to how much discretion should the regulator have. There needs
to be some, but it's a balancing act. And I think that there
will probably be a recommendation or two that may be adopted by
the work group related to reducing discretion on the part of
regulators, especially in cases of egregious injury or death in
a facility that would lead to quick revocation--if not
immediate, then within a time frame with some appeal, but it
would occur fast.
That has not been the case so far. This may be something
that we need at this point.
Senator Manchin. Thank you, Mr. Chairman.
Senator Nelson. Well, the states ought to have the
regulatory authority to enact whatever action under state law
that they deem appropriate to correct a particular activity.
Licenses is certainly one. But there's a multiplicity of other
things through the state agencies that oversee these
institutions.
Now, what is so revealing in the Miami Herald article is
example after example of egregious conduct on the part of the
facilities, and some of them didn't even get a slap on the
wrist. And from the federal standpoint, we require an
ombudsman, but the ombudsman is under, basically, the authority
of the governor. And so even though there is a watchdog that
the federal government requires, what that watchdog does is
entirely up to the state.
So we need to get this out in the open. And I'm going to
get to the disclosure in a minute, Mr. Navas. But let me first
turn to Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. I appreciate very
much that you are holding this hearing.
It's a pleasure to be sitting next to Senator Nelson. We
sat next to each other for four years on the Intelligence
Committee, and I had the chance there to see how extremely
tenacious the senator could be when the interests of a Florida
constituent were at stake.
There was a family that had--a Florida family that had lost
an individual, and some of our intelligence services were
facilitating the search for and efforts to rescue that
individual. And watching Senator Nelson at work, pounding on
the Intelligence Committee to make sure they left no stone
unturned and did every conceivable thing they could to help
this family, was a good lesson for a new senator on how hard to
fight for constituents.
I know this is part of that tradition. I appreciate it,
Bill.
Ms. Edwards, there is not much regulatory authority here
for the federal government. There are under Section 1915(c), I
believe, something called quality improvement strategies. I
believe that's a feature of the Affordable Care Act, if I'm not
mistaken. How useful is that tool at addressing a problem like
this? Or do you come back to what we were talking about just a
moment ago, which is that the only hammer is just statewide,
the waiver itself, and so it's one that you really can't use
with any precision?
Ms. Edwards. Thank you, Senator. The quality improvement
strategy that's a part of the 1915(c) program, as you noted, is
something we actually developed collaboratively with states and
began using back in 2002. There is a new requirement for
Medicaid to pursue quality improvement strategies more broadly
that was a feature of the Affordable Care Act, and the center
will be doing more work in that arena over the coming years.
We find the use of a quality improvement strategy is really
about paying attention to the health of the system that's in
place. We ask states to identify how they are making--how they
are going to assure that people have health and--or that their
health and welfare is protected, that their level of care is
determined, that the providers meet the qualifications the
state has established for them, and so forth.
States do sampling. States report to us. And from that
report, we work with the state at renewal to determine whether
or not the state has met its obligations or not to have the
waiver renewed.
Senator Whitehouse. That's operating at a level of----
Ms. Edwards. It is not useful to deal with a specific
assisted living facility that might not be meeting its state
licensure requirements.
Senator Whitehouse. It's system-wide rather than----
Ms. Edwards. It's a system-wide issue. That's right, sir.
Senator Whitehouse [continuing]. Institution by
institution.
Ms. Edwards. Right.
Senator Whitehouse. Well, the federal government probably
ends up picking up a measure of cost when there are problems
like this, not in every case, of course, but where--because
somebody has to be upgraded into a nursing home environment
that CMS has to pay for, or for whatever reasons--we could end
up at the federal level holding at least a piece of the bag
from this problem. So I suspect it's something you look at
fairly regularly.
In terms of which state has what best practices for trying
to encourage the best quality of care in assisted living
facilities, are there any standouts that you would flag for us?
Ms. Edwards. I think I am reluctant, Mr. Whitehouse, to
actually recommend any states to you, because Medicaid's
involvement with assisted living is really so narrowly focused
that I think we really are not the experts on that. We
certainly have--I think some states are doing a good job in
their approach to their quality improvement strategy. We're
actually committed right now to working with the states to
actually do quality improvement on our quality improvement
process.
So we're examining that process right now and hope to work
with states to better focus it and make it more effective. But
I do think that--you know, I'd be happy to work with my staff
and see if we could identify some states for the committee that
we think are doing a particularly good job with quality
improvement. We'd be happy to share that with you.
Senator Whitehouse. That would be helpful. I'd appreciate
it.
Senator Whitehouse. Ms. Roherty, I'm from Rhode Island. In
Rhode Island, our state regulation for these assisted living
facilities has a section called ``Rights of Residents.'' And it
lays out consumer rights for assisted living residents,
including the right to be free from verbal, physical, and
mental abuse; to have medical information protected; to have
visitors at their discretion; and to have access to the state
ombudsperson, among others.
And you advocated here for a federal assisted living Bill
of Rights. Would that--how would that relate to what we have in
Rhode Island? Would you consider that to be the type of bill
you are talking about?
Ms. Roherty. As I said, about half the states have a
similar thing to what Rhode Island has, and it would
incorporate what Rhode Island has in place. I think that would
be very helpful.
Senator Whitehouse. I don't know if anybody knows the
answer to this question. Is it customary in contracts for
assisted living services for the providers to put into the
contract requirements that people go to arbitration and so
forth rather than--do you have to give up your rights to a jury
as part of this ordinarily?
We've had some hearings about how--you know, you try to get
your cell phone contract, and it's take it or leave it, and you
don't have any choice. And buried in the fine print is, ``Oh,
and by the way, despite the fact that you're an American,
despite the fact that the jury is in the Constitution and Bill
of Rights not once but three times, congratulations, you just
gave it up''--ditto with credit card agreements and various
other consumer contracts. And I'm wondering if this falls into
that same pitfall.
Mr. Maag. Senator Whitehouse----
Senator Whitehouse. Mr. Maag.
Mr. Maag [continuing]. I was an attorney representing
providers in a prior life and had considerable experience with
this. My experience with arbitration agreements is that it's
been an evolving practice. And I think most provider
associations and Leading Age certainly provides that
arbitration is an acceptable option for a contract provision if
all parties agree to it, and that there is full disclosure and
they understand what the ramifications are.
Arbitration, historically, as a preferred public policy is
also something that can be the benefit to both consumers and
providers in quicker resolution to issues, more certainty to
issues, a much less expensive process. But having said that, we
don't support a situation where the arbitration is a mandatory
provision of the contract; it's something that's forced on
consumers. We think that that should be a separate part of the
admission agreement. And if the consumer decides that they
don't feel comfortable signing an arbitration agreement, they
shouldn't be required to and it shouldn't be a condition of the
contract.
Senator Whitehouse. Yes, that seems like a reasonable way
to proceed. Clearly, there are benefits to arbitration, but
it's the sort of thing that should only be undertaken
knowingly, particularly given the history we've had in this
country where the largest private arbitration firm proved to be
a racket run specifically to defeat consumers and had to be
shut down by the state attorneys general for that reason. So
it's something to be watchful of, and I appreciate your
attention to it.
Thanks very much, Chairman. Thank you for your energy in
this area.
Senator Nelson. Lest, say, for Mr. Navas' testimony about
the tragedy involving his mother, lest this hearing be too
sanitized, I want to directly quote from this Miami Herald
article so we know--and it's part of the record. And, of
course, the Miami Herald article will be entered in the record
as part of the record. But I just want everybody to hear this.
``One of them in the Panhandle was like a prison camp--
powerful tranquilizers, beating them. The conditions in the
facility were not fit for a dog. Regulators had shut it down
but then allowed it to keep open for five years with the
continuous abuses.
``One woman was thrown to the ground, forced to sleep on
the box springs because she had urinated on her covers. A 71-
year-old woman wandered and drowned in a nearby pond. A 75-
year-old Alzheimer's patient was torn apart by alligators after
he wandered from his assisted living facility.
``A 74-year-old woman was bound for more than six hours and
the restraints pulled so tightly they ripped into her skin and
killed her. In Hialeah, a 71-year-old man with a mental illness
died from burns after he was left in a bath tub filled with
scalding water. The Agency for Health Care Administration had
failed to monitor the shoddy operators.
``A resident was eating from a filthy food bin. Four inches
of dirt was on the floor of a dorm room, and six residents were
drugged on tranquilizers without doctor's orders. And after
this five years, one of those--he was given a year to find a
buyer.
``Another one cramped in a dirty bedroom. They didn't give
him food. They didn't give him water. They never gave him the
medicine that would have saved his life. Another one vomiting
and defecating in his bed--refusing to clean him because the
stench was too strong. Despite the pleas from the other
residents that he desperately needed help, caretakers never
called the paramedics to try to save his life.
``At one called Hillandale, punishment was swift and
painful--violent take-downs, powerful tranquilizers that made
them stumble and drool. And the staffers would scream and
tackle them when they misbehaved. The worst was the closet, a
cramped room at the end of the hallway where the residents who
were deemed unruly were locked sometimes for hours.
``And at one point, when the staff protested the removal of
a 47-year-old man, the residents shouted and blocked the path
for him to leave. And it took them calling the sheriff's office
to clear a path and break up the crowd in order to allow him to
leave the facility.''
Now, I mean, it keeps going on and on. And, of course, we
can point out to the fact that this is just a minor, minor
percentage. But this is America in the year 2011, and these
kinds of things shouldn't be happening.
Mr. Navas, what kind of information would have helped your
family pick a good assisted living facility?
Mr. Navas. Senator Nelson, I'm not sure what kind of
information would have really assisted us. My sister is the one
that went through the selection process. I believe that a
friend of hers that works for the Department of Children and
Family had recommended this facility. But as we looked into
this matter of these facility issues deeper, we found that this
particular operator has nine licenses under--each license is
under a different corporation.
They also move all their personal assets to trusts, and
lawyers are--I heard a gentleman to my left here mention that.
And it was very difficult for us to find any lawyer to take it,
because once there's a trust in place, and the law requires a
minimum policy of--insurance policy, there's no money for the
lawyers.
Senator Nelson. So there were no assets to go after. There
was only a $35,000 insurance policy?
Mr. Navas. Twenty-five thousand----
Senator Nelson. Twenty-five.
Mr. Navas [continuing]. Is the minimum for Florida for
these operators.
Senator Nelson. And you did not know that as a piece of
information----
Mr. Navas. No, I----
Senator Nelson [continuing]. Having put your mother there.
Mr. Navas. No, and we weren't looking at those things
because----
Senator Nelson. Sure. Sure.
Mr. Navas [continuing]. We weren't expecting anything to
happen. But the worst that I see happening--and I apologize
because I see it here also. I'm a former administrator in a
private corporation, and our solution is funding, funding, and
funding. Well, some of them--many of the incidents that you
mentioned, Senator, in the Miami Herald were five, six, seven
years ago when funding was at its heydays in every state. Our
economy has only gone downhill here in the last few years. So
what happened there?
Senator Nelson. When you were making a decision to go in
that particular home, you said that you went and visited, and
it looked fairly good. Would you have--had you wanted to
inquire as to the quality of that place, would you have known
at the time how to go about getting the information to
determine the quality?
Mr. Navas. Not at all. Not at all. I know my sister signed
a contract with the operator. But in there, I don't believe
there's anywhere--or any information to say you can research
this operator or this licensing through this agency. And in the
case of Florida, it's AHCA, or the Agency for Health Care
Administration. And----
Senator Nelson. In any of your experiences, have you ever
seen this taken to a prosecution? Have the state attorneys ever
gotten involved in any of the states that you all have an
experience with?
Mr. Maag. Senator, there have been a few cases where
attorneys--it's more likely a local prosecuting attorney has
taken an action like that. I'm originally from the state of
Washington, and I do know of a few examples in that state. The
difficulty, obviously, is the burden of proof and the
evidentiary standards for a criminal prosecution. But it has
become more common, and many more state prosecuting attorneys'
offices and local district offices are looking at elder abuse
situations, including these kind of circumstances, and becoming
much more proactive across the country.
Senator Nelson. Ms. Edwards, could you give us some more
details on the health and welfare assurances that states
provide to CMS?
Ms. Edwards. Senator, we ask for states to tell us what
their standards are in their state; to identify who the
providers are for the services that they're identifying; what
the licensure standards are for those providers or training or
credentialing, depending upon what the service is--they're not
all facilities--telling us where people can receive services
and if they have standards for those settings of care. Whether
it's an assisted living facility, a group home--it might be in
a school, it might be in the work place--are there, in fact,
standards and what do they look like.
We ask states to assure that people have a person centered
plan of care that works with that individual--and the
individual chooses to say what they need and how they would
prefer to get those services--and deals with mitigating risk
for individuals. We ask that individuals have a proper
assessment of their need, and we ask states to assure us that
they have oversight of the standards that they have
established.
Who is the licensing agency? What's their responsibility?
How often are reports made? We ask for sampling of participants
to assure that the assurances the states have given us are, in
fact, happening. And we work with states if we find shortfalls.
States are expected, in fact, to identify for themselves
where they have shortfalls and to put corrective action in
place to prevent abuse and to improve their own systems. That's
the expectation. And, obviously, because states have a lot of
flexibility in what their standards are, we see variation
across the states.
Senator Nelson. You list a litany of questions that you
ask. And with regard to action, you mentioned one thing. You
said, ``We work with the states.'' Describe that. And do you
have any other things that you can do if a state isn't living
up to its assurances?
Ms. Edwards. Senator, we have--we require from states
corrective action plans if there is a shortfall that is
identified, and we offer technical assistance to states. We
have a national contractor that works with states on their
quality improvement programs, and they will literally go onsite
to states to help them in improving their programs.
We offer technical assistance at the staff level. As I
mentioned earlier to Mr. Manchin, we don't have a lot of
sanctions available, interim sanctions. Ultimately, what we can
do is refuse the waiver. We can terminate or non-renew a waiver
and stop all the funding that's flowing to the individuals that
are being supported. It's sort of a nuclear option.
And so we would like to have additional sanctions when
states are not aggressively pursuing corrective action. We
don't think it would be used often, but we would like to have
them when we need them. We have proposed in a regulatory--in an
NPRM that we have the ability to, for example, put a moratorium
on more people moving into a waiver program if a state's
quality assurance is not sufficient and even to withhold
funding for administrative--or a portion of the funding that
goes to the state, rather than all or nothing, as a way of
getting----
Senator Nelson. You don't have that option?
Ms. Edwards. We do not have those options.
Senator Nelson. It's either all or nothing.
Ms. Edwards. Yes, sir.
Senator Nelson. And it's all or nothing, not with regard to
a specific ALF, but with regard to the entire funding going to
that state.
Ms. Edwards. All of the individuals receiving waiver
services would lose that waiver support if we deny or
terminated the waiver. So it is a very difficult tool to use.
Senator Nelson. Well, you do have the bully pulpit.
Ms. Edwards. Yes, sir.
Senator Nelson. A bully pulpit that was filled by the Miami
Herald, I might say.
Ms. Edwards. Yes.
Senator Nelson. How do you use the bully pulpit?
Ms. Edwards. We are probably more subtle than the Miami
Herald in our interventions, and----
Senator Nelson. Well, obviously.
Ms. Edwards [continuing]. There's a role for both of those
things. I will say that when we received a copy of the Miami
Herald article--which was, by the way, forwarded to us by the
Office of Civil Rights at Health and Human Services--we
immediately contacted the state. Our regional office and our
central office team--we have a protocol for responding to those
kinds of situations, whether they come in the paper or they
come from a consumer or come from our inspectors.
And we talked with high-level state officials within a
couple of days of those articles to ask for more detail about
what the state was doing to respond to those situations, how
the state had handled those situations at the time, and within
a couple of days had sent a written response to the state for
detail. And the state did report back to us on their activities
to respond.
We actually view this as still an open issue with the state
and are continuing to gather information. We believe the state
has taken responsive action to investigate and to, in fact, do
the kind of systemic review that's been described here. That's
exactly what we want to see. And so we are continuing to
monitor what the state is doing and continuing to offer
assistance, but also continuing to encourage the state to be
assertive and aggressive in its efforts to assure that its
systems are adequate.
Senator Nelson. Isn't this the purpose of an ombudsman? We
require an ombudsman. I haven't heard anywhere in this that the
ombudsman says there's something rotten in Denmark and start
pointing the finger. What's their role?
Ms. Edwards. Senator, I hate to say this, but the ombudsman
is not a CMS responsibility, and so I really don't feel like
I'm in the position to speak----
Senator Nelson. It's a state responsibility.
Ms. Edwards. Well, there is an Administration on Aging
program for the ombudsman. Martha might actually be able to say
more about it than I can.
Senator Nelson. Ms. Roherty.
Ms. Roherty. I can address it. Our state agencies on aging
have the ombudsman program underneath them, although they are
supposed to act outside of the agency because they do represent
the consumer voice. And they are supposed to draw attention to
it, and they frequently do at the ire of the governor. I
understand they do report to the governors.
But I can tell you from our experience, I've had many
ombudsmen calling the media and reporting on abuses, and then
the governor's office calls our--my commissioners and says,
``Why did you allow that to happen?'' That's their job. Their
job is to look for these facilities, and that's----
Senator Nelson. Did Florida have one when all of these
abuses that were chronicled by the Herald----
Ms. Roherty. Yes.
Senator Nelson [continuing]. Happened?
Ms. Roherty. Yes. Every state has a state ombudsman, and
there is a federal funding stream from the administration down
to the state. The problem----
Senator Nelson. Well, maybe we should have had that person
here answering the questions. Why didn't they blow the whistle?
Or why didn't they know? Is that the role of an ombudsman?
Ms. Roherty. It is the role of the ombudsman, and I don't
know why they're not here. But I can say that they're really
under--it's a very underfunded program. There's a tiny amount
of funding that states can use. And they were given most
recently in the last reauthorization of the Older Americans Act
this new population that they were supposed to go in and serve,
which is the assisted living homes. And it grew so fast that
it's very difficult to go in. I don't know the number in
Florida offhand, but I would suspect it's fewer than 100 staff
that have to go into all of these facilities.
Senator Nelson. Dr. Polivka, you or someone said earlier
that the trend is toward these ALFs from nursing homes under
the theory, obviously, better quality of life, less expensive--
just like home health care. If you can have somebody taken care
of in their home instead of having to go into a nursing home,
it's cheaper, the quality of life is better, everybody's
happier. It's a win-win-win.
So if this is the trend, what we've heard here today are
abuses that are even worse than we've heard about abuses in
nursing homes. Tell us----
Dr. Polivka. Senator, let me respond quickly to the
ombudsman issue. And I do not consider myself an expert on the
ombudsman program, either nationally or within Florida. But I
have learned some things about it since the work group began
two months ago. And one thing that needs to be remembered is
the ombudsman program is not a regulator--a regulatory program.
They are to talk to residents. They are to express and convey
the grievances and concerns of residents in facilities.
And they've added the ALF. That's still a developing,
maturing process, because that's a new kind of task for them
that they're still adapting to. I am really concerned--and I
expressed this, Senator, to the legislature in Florida, both
the House and the Senate, back in March, as they talked about
Medicaid reform, as they talked about moving towards a managed
long-term care system, which is something I have tracked
closely for about 20 years.
I am concerned that as we move in that direction, and we
look to contain costs in large measure by containing nursing
home use and shifting more and more people into the community
residential programs like assisted living, that if we're not
careful, we're going to end up with something like a slightly
less expensive nursing home, a slightly less regulated nursing
home. And that's not going to, I think, meet the needs of
anybody, either the residents, policy makers, families, or
anybody else. That has--we have to keep a close eye on that
possibility and keep it from happening.
Senator Nelson. That's exactly the message that I've gotten
here. I mean, I can't say it any better than you just said it.
And, interestingly, if the ombudsman program is federal,
setting up and giving to the states, and if it's supposed to be
vital in advocating for the seniors, then is there an
independence in reality for this ombudsman?
And I'd like the record to reflect, and we will submit into
the record a statement by Brian Lee, the Executive Director for
Families for Better Care, who recently served as Florida's
ombudsman.
Senator Nelson. So what should we at the federal level do,
in your judgment, in order to see that the ombudsmen can do
their jobs more effectively so that these horror stories that
we've heard about won't happen, and so that the vast majority
of ALFs that are doing a good job don't get painted with the
tar brush of all the bad ones?
Ms. Roherty. I think that Larry's point is a very
significant one, and that is that the ombudsman is only one
part of the solution. It has to work in more of a systemic
system in order for it to ensure quality and safety for the
consumers. And I think it's--and sometimes you're going to end
up calling in the Adult Protective Services if it gets that
dire a situation.
In most of the states, they also work with their survey and
certification team, so if they're finding things, they're going
to call in--the folks that do the regulatory findings--and
advise the CMS folks of a real difficult thing. You can't just
pick one program and expect them to do everything and fix this
whole assisted living issue.
Dr. Polivka. Senator, as a follow-on to Martha's point, I
don't think we should expect the ombudsman program, either in
current or some kind of revised form, to be a substitute or
even a major add-on to the regulatory framework. They are there
to be in touch with residents. They are there to convey
information and occasionally to move information along if they
spot something that is really a problem to either the Adult
Protective Services or back to the regulatory agency.
I think they need strengthening in playing that role. I
think there needs to be a few more resources, and this may be
something that the Congress will want to look at as you look at
the Older Americans Act, which, I think, is on your agenda now.
But I don't think it would be wise to think that the ombudsman
program in any other form is going to deal with some of the
regulatory issues we've been talking about here today in any
definitive way.
Mr. Jenkens. Senator, I'd like to add to that as well and
really agree with Martha and Larry. I think the system we have
in place depends on multiple checks and balances. The ombudsman
program is one of those. But certainly the check and balance
between state and federal is the other. And I think that what
we know is we all--each of us need someone to hold us
accountable to be better than we are ourselves.
That happens in our lives. That happens between providers
and state regulators. I worked for a multistate provider. We
benefited by state regulators holding us to a higher standard.
And I have seen the federal government play that role with
states and providers as well.
And I'd like to make a comment. Running a program that asks
for an entirely different model to be implemented, which people
believe is not possible under the current regulatory
structure--I'd like to say that I have found federal regulators
to be some of the most flexible and innovative regulators when
we are implementing the Green House Project. And, in fact, they
often help hold states to a higher standard of flexibility in
interpretive guidance than we might get otherwise.
So I don't think it's true that the federal government will
squash innovation. But I think it's very important how we
approach this and what that partnership looks like, including
involving a very significant stakeholder group of providers and
advocates to help find the right solution, which we've done
before and I know we can do again.
Senator Nelson. Well, on the basis of what we've seen in
this newspaper report, the regulatory agency in this case--AHCA
in the state of Florida, the Agency for Health Care
Administration--wasn't doing its job.
Mr. Jenkens. I would agree.
Senator Nelson. So the laws weren't being enforced. Now,
other than tuning up the ombudsman to blow the whistle, what do
we do to get the states to enforce their laws?
Mr. Jenkens. I think we need to give CMS many of the
intermediate sanction opportunities that Barbara recommended,
and we need to give them some funding to be more effective in
playing that role.
Senator Nelson. Mr. Maag, what do you think from your
perspective?
Mr. Maag. Well, I think, Senator, you did hit on at the
beginning of that Miami Herald article when you talked about
``the regulators allowed''--and it is a matter of not coming up
with new regulations but ensuring that the enforcement
activities and the regulations that already exist in all the
states are actually enforced. It's sometimes a resource
allocation.
I think CMS may play a role in that, because many of the
states--you mentioned California earlier. One of the reasons
that California has a four or five-year wait between
inspections is simply a resource allocation issue that they've
been facing, and they've chosen to not fund that aspect of the
regulatory enforcement process as much as many of us would like
to see.
So I think that the role, as Robert said and as Larry said,
of having, you know, the oversight to monitor that the states
are, in fact, doing what they're supposed to do under their
regulatory framework really is a key consideration. There is
the tool there--there are the tools there. There are the
enforcement mechanisms, and there are many states that are very
aggressive and active in it.
As I mentioned, Senator Kohl's home state of Wisconsin is a
shining example of a very good regulatory framework, and I
think we can use those examples to illustrate how--as a good
practice that other states need to start to look at and make
sure, by oversight, that they, in fact, are following those
kinds of practices.
Dr. Polivka. Senator----
Senator Nelson. Go ahead, Doctor.
Dr. Polivka. As a follow-up in response to your question, I
think that the thing--the work group is looking at at least
three areas where we think we can move in the direction that
you're talking about. One is limited discretion, possibly, in
some decisions that can be made by the regulator, by AHCA. We
have not--there's not a consensus on this, but it is being
discussed, and it may be something that we will look at both
next week and then longer term.
We're very much interested in a progressive sanction kind
of model, and it's one that Wisconsin has done a very good job,
in my judgment, in looking at that up close over the last
couple of months. The other is to get Adult Protective
Services--I think Martha or Barbara mentioned--more involved in
this.
And we have a list of recommendations we're going to
address on Tuesday regarding the relationship between Adult
Protective Services, which is in a separate department from
Medicaid--bringing them closer together so that they're much--
so that not only do they share information, but there's some
accountability between those two organizations in terms of
taking actions when a problem is identified.
And the other one is involving the state's attorney's
office and law enforcement. That's a bit tricky, and I think it
was mentioned a minute ago in terms of problems with evidence
and how you proceed with some of these cases. But we're looking
at that very closely as well, because we think there's some
potential there. There have been two or three cases where the
attorneys general have been very effective in Florida in
bringing actions.
Mr. Jenkens. I think it would be also worth stating the
obvious. This is not just a Florida problem. This could happen
to any state in the United States.
Senator Nelson. Well, let me ask you an essential question.
Should CMS have the authority to shut down ALFs when chronic
problems are occurring and state regulators have failed to act?
Ms. Edwards. Senator, if I could at least start, I guess I
would just remind all of us that CMS is not the principal payer
in assisted living facilities. And there are probably many
assisted living facilities across the country in which there
are no Medicaid dollars coming at all. And so I'm not sure CMS
has the right involvement with this industry, at least today,
to be effective.
Senator Nelson. But it sounds like on the testimony that
more and more, there is Medicaid dollars going in ----
Ms. Edwards. But it could only be a very small portion, and
we might find ourselves no longer welcome if we become the
vehicle for all regulation. So I would just point out that at
this point, there really is a very large assisted living
industry. Right now, Medicaid's engagement with them is small,
possibly growing. But I just want to keep that in perspective.
Senator Nelson. Well, aren't some things blurring now
between nursing homes and ALFs? Haven't we seen here today
examples of complex medical services? People who have that need
are being admitted to ALFs, whereas, normally, they would be
admitted to a nursing home?
Dr. Polivka. Senator----
Senator Nelson. So how do we prevent ALFs from becoming
unregulated nursing homes?
Dr. Polivka. As I mentioned, that's a concern that I and
some of my colleagues in Florida have as well, Senator. I don't
think at this point--and looking at data, because part of the
operation that I administer includes a large data operation for
the state of Florida and the Medicaid program. And what I have
seen over the last 10 years and have seen as recently as 2010
is that there is a clear difference between the typical
assisted living resident, Medicaid supported, and the typical
nursing home resident, which is--and those residents have a
tendency--or patients have a tendency to be more impaired,
require significantly higher levels of care still.
The issue, however, is that there is movement, and it's not
just a creep, but steady movement towards the blurring that
you're talking about, and that we do have at this point a
substantial percentage of people in assisted living who would
have been in nursing homes 10 or 15 years ago. That is
something we need to be alert to in the way that I mentioned
and that you talked about.
Mr. Maag. And, Senator, I'd like to add--I don't think the
assisted living would be considered unregulated nursing homes.
They are a very regulated set of communities.
The states that are moving forward on what we commonly call
aging in place recognize that, and I can think of states like
my home state of Washington, Oregon, some of the others who
have allowed additional aging in place--have done that,
recognizing that that heightens the awareness of what needs to
be done to monitor those states. And they have done, by and
large, a very good job of monitoring what goes on in those
assisted living communities which choose to provide higher
levels of care.
Some assisted living communities don't believe that they
have the proper qualifications to provide care to those types
of residents, and so those residents aren't in those
communities. But those who choose to provide that higher level
of care are looked at and scrutinized, knowing that the risk is
higher.
Mr. Jenkens. And I would add, Senator, I think from my
perspective it's important that the lines have become blurred.
It's important that we give people options in where they can be
served when they have a nursing home level of need. And some
states have done a very good job as they've introduced Medicaid
waiver programs, which require people to be nursing home
eligible, in actually layering on a regulatory level or
category within assisted living to deal with the additional
needs around guarding against abuse and neglect and care.
Arkansas is a terrific example of that. They introduced an
Assisted Living II category when they introduced their Medicaid
waiver program. So I think it's really a question of the system
that fits the state, with some federal guidance and then some
federal accountability to be sure that those pieces are in
place.
Ms. Roherty. Senator Nelson, can I just add on--one
additional point is that one of the other parts, getting back
to the whole system that is in place, if you take--separate out
again from CMS and go over to the Administration on Aging, one
of the things that is critical to putting--or having an
individual choose which place is the proper place is to have
options counseling through a third party information and
referral specialist that can actually look at the options for
the consumer and make sure that what facility they're choosing
is going to best meet their needs.
And oftentimes that's not happening. Frequently,
individuals need it really quickly. They move from being able
to stay at home without extra supports into a situation where,
very quickly, they have to make a decision. And so having
additional support of third party options counselors would be
very helpful.
Dr. Polivka. Senator, let me--I think that's a very good
point, and the Congress and CMS and AOA have done a good job
over the last several years in developing the Aging Adult and
Disabled Adult Resource Centers that can provide that function
and do in many states, including Florida.
Let me just say, too, that there are a lot of people in
assisted living who don't want to leave. And as they become
more impaired, there's enormous pressure, but they don't want
to leave. And many facilities are running a risk in keeping
them there because they have become part of the family,
possibly, so to speak, and it creates a really difficult
dynamic related to all the issues that we're talking about.
Mr. Jenkens. People also don't want to leave assisted
living because the option of many nursing homes is not an
option that they would choose. The institutional environment is
tough. And Green House is trying to change that, but that's
going to be a big and long change. So I do think we want to
make options and choices work with appropriate oversight, given
what providers are committing to.
Ms. Edwards. Senator, if I could just add, again, a
reminder that--because this is like ``welcome to how difficult
this issue is''--is to remember that much of the movement
toward home and community-based services, certainly in the
Medicaid program, has, in fact, been driven by consumers
themselves who have said, ``I don't want a nursing home. I
don't want it because the quality of life there is not the
quality of life that I want.
``I don't want to live in an institutional setting where I
don't get to choose how I spend my day, who I spend my time
with. I don't have the ability to take some risks in my own
life, even though I prefer the quality of life if I can stay in
my own home, if I can stay in my own apartment, if I can choose
a less restrictive setting.''
And the movement has really been driven by consumers
themselves who are saying, ``I want more choices. I want more
autonomy and independence. And while I might be safer in
another setting, that's not a quality of life that I want for
myself or my loved one.''
And so part of the challenge here is trying to assure that
as we work toward caring--being sure that people are well cared
for and are not subject to abuse and neglect and the horror
stories that we've heard today is also recognizing that what
people don't want is to live in a nursing home if, in fact,
they have other choices that can meet their needs. And so it's
just a matter of keeping in mind that balance, or finding
better models of oversight.
Senator Nelson. Well, I want to thank all of you for a very
lively discussion. I think it has enormously added to the
repository of information of this committee. And let's see what
we can do, at least, to make the suggestions to the states for
the ombudsmen to be more effective, and, secondly, that because
of the abuses that have been uncovered, albeit in a small,
small percentage of the ALFs, that we find a better way at
encouraging the states to take regulatory control of this
problem and do what they should under their laws, that is,
regulate so that the people's conditions are what the community
at large would accept.
And, of course, what the Miami Herald chronicled was not
conditions that the community would accept at all--to the
contrary, to the point of absolute shock and revulsion.
Mr. Navas, I'm sorry you had to go through your personal
experience. But you brought that personal experience here to
this committee, and we are very, very grateful for that.
Thank you, and the hearing is adjourned.
[Whereupon, at 4:02 p.m., the hearing was adjourned.]
APPENDIX