[Senate Hearing 112-255]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-255

           ENSURING QUALITY AND OVERSIGHT IN ASSISTED LIVING

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

                                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


                                _____

                  U.S. GOVERNMENT PRINTING OFFICE
72-456 PDF                WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001










                       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
                              ----------                              
                 Debra Whitman, Majority Staff Director
             Michael Bassett, Ranking Member Staff Director













                                CONTENTS

                              ----------                              

                                                                   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
.................................................................
.................................................................
.................................................................
.................................................................

 
           ENSURING QUALITY AND OVERSIGHT IN ASSISTED LIVING

                              ----------                              


                      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






                                  
