[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]


                  EXAMINING FEDERAL EFFORTS TO ENSURE 
          QUALITY OF CARE AND RESIDENT SAFETY IN NURSING HOMES

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

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 6, 2018

                               __________

                           Serial No. 115-164
                           
                           
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                    COMMITTEE ON ENERGY AND COMMERCE

                          GREG WALDEN, Oregon
                                 Chairman
JOE BARTON, Texas                    FRANK PALLONE, Jr., New Jersey
  Vice Chairman                        Ranking Member
FRED UPTON, Michigan                 BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
MICHAEL C. BURGESS, Texas            ELIOT L. ENGEL, New York
MARSHA BLACKBURN, Tennessee          GENE GREEN, Texas
STEVE SCALISE, Louisiana             DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio                MICHAEL F. DOYLE, Pennsylvania
CATHY McMORRIS RODGERS, Washington   JANICE D. SCHAKOWSKY, Illinois
GREGG HARPER, Mississippi            G.K. BUTTERFIELD, North Carolina
LEONARD LANCE, New Jersey            DORIS O. MATSUI, California
BRETT GUTHRIE, Kentucky              KATHY CASTOR, Florida
PETE OLSON, Texas                    JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia     JERRY McNERNEY, California
ADAM KINZINGER, Illinois             PETER WELCH, Vermont
H. MORGAN GRIFFITH, Virginia         BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida            PAUL TONKO, New York
BILL JOHNSON, Ohio                   YVETTE D. CLARKE, New York
BILLY LONG, Missouri                 DAVID LOEBSACK, Iowa
LARRY BUCSHON, Indiana               KURT SCHRADER, Oregon
BILL FLORES, Texas                   JOSEPH P. KENNEDY, III, 
SUSAN W. BROOKS, Indiana                 Massachusetts
MARKWAYNE MULLIN, Oklahoma           TONY CARDENAS, California
RICHARD HUDSON, North Carolina       RAUL RUIZ, California
CHRIS COLLINS, New York              SCOTT H. PETERS, California
KEVIN CRAMER, North Dakota           DEBBIE DINGELL, Michigan
TIM WALBERG, Michigan
MIMI WALTERS, California
RYAN A. COSTELLO, Pennsylvania
EARL L. ``BUDDY'' CARTER, Georgia
JEFF DUNCAN, South Carolina

              Subcommittee on Oversight and Investigations

                       GREGG HARPER, Mississippi
                                 Chairman
H. MORGAN GRIFFITH, Virginia         DIANA DeGETTE, Colorado
  Vice Chairman                        Ranking Member
JOE BARTON, Texas                    JANICE D. SCHAKOWSKY, Illinois
MICHAEL C. BURGESS, Texas            KATHY CASTOR, Florida
SUSAN W. BROOKS, Indiana             PAUL TONKO, New York
CHRIS COLLINS, New York              YVETTE D. CLARKE, New York
TIM WALBERG, Michigan                RAUL RUIZ, California
MIMI WALTERS, California             SCOTT H. PETERS, California
RYAN A. COSTELLO, Pennsylvania       FRANK PALLONE, Jr., New Jersey (ex 
EARL L. ``BUDDY'' CARTER, Georgia        officio)
GREG WALDEN, Oregon (ex officio)
  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Gregg Harper, a Representative in Congress from the State of 
  Mississippi, opening statement.................................     1
    Prepared statement...........................................     3
Hon. Diana DeGette, a Representative in Congress from the state 
  of Colorado, opening statement.................................     4
Hon. Greg Walden, a Representative in Congress from the State of 
  Oregon, opening statement......................................     5
    Prepared statement...........................................     7
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     8

                               Witnesses

Kate Goodrich, M.D., Director, Center for Clinical Standards and 
  Quality, and Chief Medical Officer, Centers for Medicare & 
  Medicaid Services..............................................    10
    Prepared statement...........................................    13
Ruth Ann Dorrill, Regional Inspector General, Office of Inspector 
  General, U.S. Department of Health and Human Services..........    29
    Prepared statement...........................................    31
John Dicken, Director, Health Care, Government Accountability 
  Office.........................................................    45
    Prepared statement...........................................    47

                           Submitted Material

Committee memorandum.............................................    86
Report entitled, ```They want docile': How Nursing Homes in the 
  United States Overmedicate People with Dementia,'' Human Rights 
  Watch, 2018 \1\

----------
\1\ The information can be found at: https://docs.house.gov/
  meetings/IF/IF02/20180906/108648/HHRG-115-IF02-20180906-
  SD003.pdf.

 
EXAMINING FEDERAL EFFORTS TO ENSURE QUALITY OF CARE AND RESIDENT SAFETY 
                            IN NURSING HOMES

                              ----------                              


                      THURSDAY, SEPTEMBER 6, 2018

                  House of Representatives,
      Subcommittee on Oversight and Investigations,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:15 a.m., in 
room 2322 Rayburn House Office Building, Hon. Gregg Harper 
(chairman of the subcommittee) presiding.
    Members present: Representatives Harper, Griffith, Burgess, 
Brooks, Walberg, Walters, Costello, Carter, Walden (ex 
officio), DeGette, Schakowsky, Castor, Clarke, Ruiz, and 
Pallone (ex officio).
    Also present: Representative Bilirakis.
    Staff present: Jennifer Barblan, Chief Counsel, Oversight 
and Investigations; Samantha Bopp, Staff Assistant; Lamar 
Echols, Counsel, Oversight and Investigations; Ali Fulling, 
Legislative Clerk, Oversight and Investigations, Digital 
Commerce and Consumer Protection; Christopher Santini, Counsel, 
Oversight and Investigations; Jennifer Sherman, Press 
Secretary; Julie Babayan, Minority Counsel; Jeff Carroll, 
Minority Staff Director; Tiffany Guarascio, Minority Deputy 
Staff Director and Chief Health Advisor; Chris Knauer, Minority 
Oversight Staff Director; Jourdan Lewis, Minority Staff 
Assistant and Policy Analyst; Kevin McAloon, Minority 
Professional Staff Member; and C.J. Young, Minority Press 
Secretary.

  OPENING STATEMENT OF HON. GREGG HARPER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF MISSISSIPPI

    Mr. Harper. We will call to order today's subcommittee 
hearing, Oversight and Investigations, and our hearing today is 
on Examining Federal Efforts to Ensure Quality of Care and 
Resident Safety in Nursing Homes. I want to welcome each of our 
witnesses that are here today, and at this point I am going to 
recognize myself for our opening statement.
    So this a very important subject and the subcommittee 
continues to work in examining whether the Federal Government 
is meeting its obligations to ensure that residents in nursing 
homes across the country are free from abuse and receiving the 
quality of care that they deserve and respect. Protecting our 
most vulnerable citizens is among the most fundamental 
responsibilities entrusted to the fFederal Government and it is 
also a responsibility that we as Americans all share.
    The Centers for Medicare and Medicaid Services, CMS, is the 
Federal agency tasked with ensuring nursing home residents are 
protected and well cared for, and CMS largely relies on the 
efforts of State survey agencies to verify that nursing homes 
are meeting Federal standards for quality and safety.
    However, reports issued by the Department of Health and 
Human Services Office of Inspector General and the Government 
Accountability Office, along with all too frequent press 
reports, detail horrible cases of abuse and neglect occurring 
in nursing homes raises questions as to whether CMS is 
fulfilling its obligations to residents. For example, in 2014, 
OIG found that based on its review of more than 650 medical 
records of Medicare beneficiaries that were receiving care in a 
nursing home, approximately one-third of residents experienced 
some type of harm during their stay. According to OIG, nearly 
60 percent of this harm was either clearly preventable or 
likely preventable.
    Last year, reports emerged out of Florida of the deaths of 
at least a dozen residents of the Rehabilitation Center at 
Hollywood Hills after the facility's air conditioning system 
failed in the immediate aftermath of Hurricane Irma. According 
to state regulators, temperatures at the facility reached 
nearly a hundred degrees and the facility deprived residents of 
timely medical care despite being located across the street 
from a fully functioning and functional hospital.
    CMS described the events at this nursing home as a complete 
management failure and terminated the facility from the 
Medicare and Medicaid programs noting that the conditions at 
the facility constituted an immediate jeopardy to residents' 
health and safety. Previously, this facility's owner entered 
into a settlement agreement with the Federal Government to 
resolve allegations he and his associates had paid kickbacks 
and performed medically unnecessary treatments to generate 
Medicare and Medicaid payments at another Florida healthcare 
facility in which he had an ownership interest. Despite this 
history and last year's tragedy at that person's rehabilitation 
center, we have learned that the facility's owner continues to 
maintain an ownership interest in at least 11 facilities 
participating in the Medicare and Medicaid programs.
    It can't be emphasized enough that it should not take a 
tragedy like what we have seen at the Rehabilitation Center at 
Hollywood Hills to make CMS mindful or take action in response 
of conditions at nursing homes that threaten residents' well-
being. However, the committee's oversight and reports issued by 
OIG and GAO suggest that this isn't necessarily the case.
    Improving care for vulnerable populations including the 
care provided to nursing home residents has been identified by 
OIG as a top management challenge for over a decade. We want to 
know why this continues to be a top management challenge, what 
steps CMS is taking to improve efforts to enforce existing 
regulatory requirements, and how the agency is addressing any 
gaps in its oversight.
    At the same time, we want to recognize the many, and I mean 
many, nursing homes that are providing their residents with 
high quality care. In advance of this hearing I checked in with 
Vanessa Henderson, Executive Director for the Mississippi 
Health Care Association, for an update on our facilities after 
Tropical Storm Gordon made landfall late last night on the 
Mississippi Gulf Coast. Ms. Henderson received reports every 2 
hours throughout the night from 19 nursing homes in nine South 
Mississippi counties. There were no major issues. They were 
well prepared.
    When Hurricane Katrina devastated the Mississippi Gulf 
Coast, now 13 years ago, there was no fatality or major problem 
at a nursing home in Mississippi. And I am proud of these 
successes in my home State. What are the best practices being 
utilized at these facilities that if applied everywhere could 
yield positive outcomes for nursing home residents?
    I look forward to hearing from each member on our panel on 
ways we can improve our Federal oversight of nursing homes to 
ensure that CMS is protecting seniors from abuse and neglect in 
nursing homes and using its authority in a fair and efficient 
manner. I thank you for your testimony today and I now 
recognize the ranking member of the subcommittee from Colorado, 
Ms. DeGette, for 5 minutes.
    [The prepared statement of Mr. Harper follows:]

                Prepared statement of Hon. Gregg Harper

    Good morning, today the Subcommittee continues its work 
examining whether the Federal Government is meeting its 
obligations to ensure that residents in nursing homes across 
the country are free from abuse and are receiving the quality 
of care they deserve. Protecting our most vulnerable citizens 
is among the most fundamental responsibilities entrusted to the 
Federal Government, and it is also a responsibility that we, as 
Americans, all share.
    The Centers for Medicare and Medicaid Services (CMS) is the 
Federal agency tasked with ensuring nursing home residents are 
protected and well-cared for, and CMS largely relies on the 
efforts of state survey agencies to verify that nursing homes 
are meeting Federal standards for quality and safety. However, 
reports issued by the Department of Health and Human Services' 
Office of Inspector General (OIG) and the Government 
Accountability Office (GAO), along with all too frequent press 
reports that detail horrible cases of abuse and neglect 
occurring in nursing homes, raise questions as to whether CMS 
is fulfilling its obligations to residents.
    For example, in 2014 OIG found that, based on its review of 
more than 650 medical records of Medicare beneficiaries that 
were receiving care in a nursing home, approximately one-third 
of residents experienced some type of harm during their stay. 
According to OIG, nearly 60 percent of this harm was either 
clearly preventable or likely preventable.
    Last year, reports emerged out of Florida of the deaths of 
at least a dozen residents of the Rehabilitation Center at 
Hollywood Hills after the facility's air conditioning system 
failed in the immediate aftermath of Hurricane Irma. According 
to state regulators, temperatures at the facility reached 
nearly 100 degrees and the facility deprived residents of 
timely medical care despite being located across the street 
from a fully-functional hospital. CMS described the events at 
this nursing home as a ``complete management failure'' and 
terminated the facility from the Medicare and Medicaid 
programs, noting the conditions at the facility constituted an 
immediate jeopardy to residents' health and safety.
    Previously, the facility's owner entered into a settlement 
agreement with the federal government to resolve allegations he 
and his associates paid kickbacks and performed medically 
unnecessary treatments to generate Medicare and Medicaid 
payments at another Florida health care facility in which he 
had an ownership interest.
    Despite this history, and last year's tragedy at the 
Rehabilitation Center, we have learned that the facility's 
owner continues to maintain an ownership interest in at least 
11 facilities participating in the Medicare and Medicaid 
programs.
    It can't be emphasized enough that it should not take a 
tragedy like what was seen at the Rehabilitation Center at 
Hollywood Hills to make CMS mindful, or take action in 
response, of conditions at nursing homes that threaten 
residents' well-being. However, the Committee's oversight, and 
reports issued by OIG and GAO, suggest that this isn't 
necessarily the case. Improving care for vulnerable 
populations, including the care provided to nursing home 
residents, has been identified by OIG as a top management 
challenge for over a decade. We want to know why this continues 
to be a top management challenge, what steps CMS is taking to 
improve efforts to enforce existing regulatory requirements, 
and how the agency is addressing any gaps in its oversight.
    We also want to recognize the many nursing homes that are 
providing their residents with high quality care. In advance of 
this hearing, I checked in with Vanessa Henderson, Executive 
Director for the Mississippi Health Care Association, for an 
update on our facilities after Tropical Storm Gordon made 
landfall late last night on the Mississippi Gulf Coast.
    Ms. Henderson received reports every two hours throughout 
the night from 19 nursing homes in 9 south Mississippi 
counties. There were no major issues. When Hurricane Katrina 
devastated the Mississippi Gulf Coast 13 years ago there was no 
fatality or major problem at a nursing home in Mississippi. I 
am proud of these successes in my home state. What are the best 
practices being utilized at these facilities that if applied 
elsewhere could yield positive outcomes for nursing home 
residents?
    I look forward to hearing from each member of our panel on 
ways we can improve our Federal oversight of nursing homes to 
ensure that CMS is protecting seniors from abuse and neglect in 
nursing homes and using its authorities in a fair and effective 
manner. I thank you for your testimony today and now recognize 
the Ranking Member of the Subcommittee from Colorado, Ms. 
DeGette, for 5 minutes.

 OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF COLORADO

    Ms. DeGette. Thank you so much, Mr. Chairman. I guess as 
proof that this subcommittee often, most often, works in a 
bipartisan way, my opening statement is pretty much exactly the 
same opening statement you just made down to the example of the 
Hollywood Hills tragedy after Hurricane Irma when 14 people 
died. So I am going to submit my written statement for the 
record, I just want to make a couple of observations.
    The first one is some of us have been on this subcommittee 
for many, many years and those of you who have been here you 
know that for all of these years we have struggled to address 
the issue of quality care at nursing homes. Both the IG at HHS 
and also the GAO have consistently raised issues over the years 
about how the States and CMS oversee the nursing home industry 
and every so often we have a real tragedy like this Hollywood 
Hills tragedy.
    But then, you have got to wonder how many more facilities 
are like this and what are we doing to make a permanent effort. 
It just seems like we haven't turned the corner to get where we 
need to be in providing effective oversight in this sector of 
care. For example, just today, the Inspector General in written 
testimony mentions a statistic that I find really troubling. 
Fully one-third of Medicare residents in a skilled nursing home 
experienced harm from the care that they received and half of 
those cases were actually preventable.
    So we do this over and over again, but yet, one-third of 
Medicare residents have experienced harm. Now the IG has made 
recommendations for how to improve these issues. CMS needs to 
articulate to us today what concrete steps the agency is making 
to improve this. I also want to know what progress CMS is 
making on implementing the updated health and safety 
regulations that were finalized in 2016 after a lengthy 
rulemaking process.
    It took years and a lot of public feedback, but in 2016 CMS 
did update the federal nursing home regulations to improve 
planning for resident care, training for staff, and protections 
against abuse, among other issues. But now as CMS is 
implementing these new rules, the agency has taken a series of 
actions that have led consumer groups, state attorneys general, 
and others to question whether CMS is doing enough to 
strengthen and enforce federal standards.
    Here is a couple of examples: Last year CMS announced that 
it had imposed a moratorium on the enforcement of many of these 
regulations. In other words the agency is restraining itself 
from using some of its most effective enforcement tools against 
those who violate those new rules designed to protect 
vulnerable nursing home residents.
    I must say CMS has to commit itself to implementing and 
enforcing its own regulations. That sounds kind of like a 
ridiculous thing to say but it is true, because as I said the 
core issue is here that frail and vulnerable people are harmed 
when nursing homes fail to meet our standards. And I don't 
think any of us wants to wait until the next natural disaster 
or other disaster exposes some kind of a deficiency that kills 
dozens of people.
    I want to thank the witnesses for being here today. I want 
to thank the Inspector General and the GAO for your body of 
oversight of work on nursing homes, and I hope that we won't be 
back here again next year or in 5 years to talk about how more 
people have died. Thanks, and I yield back.
    Mr. Harper. The gentlewoman yields back.
    The chair will now recognize the gentleman from Oregon, the 
chairman of the full committee, Mr. Walden, for 5 minutes.

  OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. Walden. Thank you very much, Mr. Chairman. Thanks for 
holding this hearing on this topic that is very important to 
all of us across the country.
    I think it is important to put it all in context as well. 
According to information released by the Centers for Medicare 
and Medicaid Services, more than three million individuals rely 
on services provided by nursing homes at some point during 
every year. And on any given day, 1.4 million Americans reside 
in more than 15,000 nursing homes across our country and the 
overwhelming majority of these nursing homes provide high 
quality, lifesaving care to their residents. We know that too.
    I have heard from many seniors and their families in my 
district about how they or their loved ones are receiving 
excellent, around-the-clock care at their nursing homes and 
they go above and beyond. One provider I spoke with recently 
has a facility down in Redding, California. And when the fires 
were threatening Redding he chartered buses, had them on the 
ready with 200 seats, made arrangements, and all of this was 
happening very, very quickly to be able to move patients, 
residents to a facility many miles away in Klamath Falls, 
Oregon, if need be. As it turned out he didn't have to do that 
evacuation, but they were ready. Unfortunately, this doesn't 
appear to be the case in all nursing homes.
    We all know the discussion that has occurred around what 
happened at the Rehabilitation Center at Hollywood Hills, 
Florida, run by Dr. Jack Michel. That tragedy that occurred at 
that facility during Hurricane Irma was the result of 
inexcusable management or mismanagement and it resulted in 
needless loss of life.
    While many facilities in Florida had the right procedures 
in place and handled the hurricanes well, we need to make sure 
our Federal oversight efforts are effective in detecting low 
quality, unsafe nursing homes while being mindful to not impose 
excessive regulatory burdens that in some cases don't help but 
cost a lot of money and tie up resources. So I think we need to 
look at that as well, what is working and what is not, to get 
to the underlying problems we have identified in the OIG and 
others have.
    As Chairman Harper described, CMS is the Federal agency 
responsible for ensuring the safety and quality of care 
provided to Medicare and Medicaid beneficiaries in nursing 
homes. CMS enters into these agreements with the states 
providing that state agencies will inspect nursing homes on 
CMS' behalf to determine whether the facilities are meeting 
Federal requirements.
    And so this is done by the states. However, CMS may not 
always be effectively overseeing that work that these agencies 
do on behalf of the federal government. Over the last decade or 
so, the Department of Health and Human Services Office of 
Inspector General and Government Accountability Office have 
both issued reports indicating CMS could improve its oversight 
of nursing homes.
    For example, HHS OIG has examined whether States properly 
verify that deficiencies identified during nursing home 
inspections are corrected. In some instances, such as my State 
of Oregon, HHS OIG found the State properly verified that 
facilities corrected deficiencies after they were identified 
and during inspections.
    Several of the reports on this topic, however, HHS OIG has 
found that state agencies elsewhere did not meet that standard 
of proper oversight. For example, a report issued this May 
estimated that in 2016 Nebraska failed to properly verify that 
deficiencies at nursing homes identified during state 
inspections were corrected 92 percent of the time. CMS needs to 
ensure that all state survey agencies are adequately conducting 
the survey process on their behalf.
    We are looking forward to hearing what CMS is doing to 
improve its oversight of the survey process. We also look 
forward to hearing from GAO about their work and 
recommendations, especially their recommendations relating to 
CMS' oversight of state survey agencies. So the focus of 
today's hearing is to learn more about what CMS is doing to 
maintain consistency across the country and guarantee that all 
States are effectively surveying nursing homes on their behalf 
to ensure compliance with existing Federal requirements.
    We also want to know what we can do to help in these 
efforts. So it is important that CMS effectively enforce 
existing requirements for nursing homes to protect and promote 
safety, especially in extreme cases like what happened at the 
Rehabilitation Center at Hollywood Hills. And lastly, I want to 
thank our witnesses for being a part of this important 
conversation. We very much value and appreciate your testimony.
    With that Mr. Chair, unless anyone else wants the 
remainder--Dr. Burgess chairs our Subcommittee on Health--I 
yield the balance to you.
    [The prepared statement of Mr. Walden follows:]

                 Prepared statement of Hon. Greg Walden

    Thank you, Mr. Chairman, for holding this hearing on the 
very important issue of protecting one of the most vulnerable 
populations in the United States--the elderly.
    According to information released by the Centers for 
Medicare and Medicaid Services (CMS), more than 3 million 
individuals rely on services provided by nursing homes at some 
point during the year. On any given day, 1.4 million Americans 
reside in the more than 15,000 nursing homes across our 
country. The overwhelming majority of these nursing homes 
provide high quality, life-saving care to their residents.
    I've heard from many seniors and their families in my 
district about how they or their loved ones are receiving 
excellent, around the clock care at their nursing homes. And 
many go above and beyond.
    One provider I spoke with recently has a facility in 
Redding, California, and set a good example of what to strive 
for in preparing for an emergency, with 200 seats on buses 
ready to go at a moment's notice, and agreements with providers 
in Klamath Falls, Oregon to house their patients if this 
summer's devastating wildfires threatened their facility.
    Unfortunately, this doesn't appear to be the case in all 
nursing homes across the country, such as the Rehabilitation 
Center in Hollywood Hills, Florida, run by Dr. Jack Michel. The 
tragedy that occurred at this facility during Hurricane Irma 
was a result of inexcusable management, and it resulted in 
needless loss of life. While many facilities in Florida had the 
right procedures in place and handled the hurricanes well, we 
need to make sure our federal oversight efforts are effective 
in detecting low quality, unsafe nursing homes while being 
mindful to not to impose excessive regulatory burdens that, in 
some cases, may actually hinder resident care.
    As Chairman Harper described, CMS is the Federal agency 
responsible for ensuring the safety and quality of care 
provided to Medicare and Medicaid beneficiaries in nursing 
homes. CMS enters into agreements with individual states, 
providing that state agencies will inspect nursing homes on 
CMS' behalf to determine whether the facilities in a particular 
State meet Federal requirements to participate in these 
programs.
    However, CMS may not always be effectively overseeing the 
work that these state agencies are doing on its behalf. Over 
the last decade or so, the Department of Health and Human 
Services' (HHS) Office of Inspector General (OIG) and the 
Government Accountability Office (GAO) have both issued reports 
indicating that CMS could improve its oversight of nursing 
homes.
    For example, HHS OIG has examined whether sStates properly 
verify that deficiencies identified during nursing home 
inspections are corrected. In some instances, such as my home 
State of Oregon, HHS OIG has found that the State properly 
verified that facilities corrected deficiencies after they were 
identified during inspections. In several of the reports on 
this topic, however, HHS OIG has found that state agencies did 
not meet that standard of proper oversight. For example, a 
report issued this past May, estimated that in 2016 Nebraska 
failed to properly verify that deficiencies at nursing homes 
identified during state inspections were corrected 92 percent 
of the time. CMS needs to ensure that all state survey agencies 
are adequately conducting the survey process on their behalf. 
We are looking forward to hearing what CMS is doing to improve 
its oversight of the survey process.
    We also look forward to hearing from GAO about their work 
and recommendations--especially their recommendations relating 
to CMS' oversight of state survey agencies.
    The focus of today's hearing is to learn more about what 
CMS is doing to maintain consistency across the country and 
guarantee that all States are effectively surveying nursing 
homes on their behalf to ensure compliance with existing 
federal requirements. We also want to know what we can do to 
help these efforts.
    It is important that CMS effectively enforce existing 
requirements for nursing homes to protect and promote patient 
safety, especially in extreme cases like what happened at the 
Rehabilitation Center at Hollywood Hills. Lastly, I'd like to 
thank our witnesses for being a part of this important 
conversation and look forward to their testimony.

    Mr. Burgess. Well, thank you, Chairman Walden.
    And I just want to mention that like Representative 
DeGette, in January of 2006 this subcommittee held a hearing, 
field hearing, in New Orleans, Louisiana, dealing with just 
this issue. So this morning it is important to see not just one 
of the lessons learned but how it is the implementation of 
those lessons and how really report not just to us, on us, how 
we are doing in overseeing the oversight that the agency is 
supposed to provide to the facilities that are taking care of 
our seniors.
    So thank you, Mr. Chairman, for doing this hearing and I 
will yield back.
    Mr. Harper. The gentleman yields back.
    The chair will now recognize the ranking member of the full 
committee, Mr. Pallone, for 5 minutes.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Mr. Chairman. Nursing home 
residents are among our most vulnerable populations who are 
often unable to care for themselves and require personal 
attention. Many of us have had loved ones in the care of 
nursing homes or skilled nursing facilities so we can all 
appreciate the need to ensure these facilities are providing 
high quality care. Most of the time nursing homes are staffed 
by compassionate professionals who want to provide quality care 
to those who need it and these professionals are strong allies 
too in our efforts to ensure residents are properly taken care 
of.
    As the Department of Health and Human Services Office of 
Inspector General points out in his testimony today, nursing 
homes offer enormous benefit by providing a place of comfort 
and healing to residents in fragile health, many of whom are 
insured by Medicaid. The best nursing homes provide excellent 
care and take seriously their duty to protect their residents.
    That said, nursing home quality of care is a longstanding 
concern and we should always strive to conduct oversight of 
this sector in an effort to improve the overall quality of 
care. And over the past several years, HHS's OIG and the 
Government Accountability Office have both found problems in 
nursing home delivery of care and Federal and State oversight. 
And that is not to say that we should be suspicious of all 
nursing homes, rather, certain providers have failed to ensure 
high quality care.
    For example, OIG has found that when incidents of abuse or 
neglect occur some nursing homes fail to report them as 
required and GAO has identified gaps in nursing homes' 
emergency preparedness and response capabilities. We can and 
must demand better for our loved ones and that is why we must 
focus our resources to weed out these bad actors so that 
residents are protected and the rest of the industry is not 
given a black eye.
    And that is where the Centers for Medicare and Medicaid 
Services comes in. In exchange for participating in the 
Medicare/Medicaid programs, nursing homes must comply with 
Federal standards related to health and safety. CMS is charged 
with overseeing nursing homes' compliance with those standards 
and the agency has enforcement mechanisms at its disposal. And 
among those standards are the ability to terminate a facility 
participation in Medicare and Medicaid if it does not comply, 
however, OIG and GAO have long raised questions about CMS' 
oversight of nursing homes.
    For instance, OIG notes that CMS does not always ensure 
that abuse and neglect at skilled nursing facilities are 
identified and reported, and when a nursing home is cited for 
deficiency OIG has found that CMS does not always require them 
to correct the problem. Many of these same issues have been 
raised for several years so the committee needs to hear what 
progress CMS is making and what more needs to be done to better 
ensure quality of care.
    CMS also relies on state survey agencies to conduct 
inspections of nursing homes on CMS' behalf, but some States 
have been better than others at ensuring high quality care. 
OIG's audits have revealed that several States fell short in 
investigating the most serious complaints and many had 
difficulty meeting CMS' standards. Workforce shortages and 
inexperienced surveyors at the state level have also led to the 
understatement of serious care problems. And, hereto, OIG and 
GAO have found problems with CMS' oversight of the state 
agencies. We need to hear what CMS needs to do better or 
differently to ensure Federal requirements are being followed.
    And, finally, CMS has yet to finalize and enforce some 2016 
regulations to update and strengthen the nursing home 
standards. These regulations address critical areas such as 
staff training and protections against abuse, among other 
issues. However, last year, CMS issued a moratorium on 
enforcement of many of these regulations. And it is important 
to hear the input of industry and consumer groups to ensure 
regulations are done right, but without actually enforcing 
these rules it is unclear how CMS will ensure the quality and 
safety of our nation's nursing homes.
    So Dr. Goodrich needs to articulate today how CMS is 
considering the concerns of the industry and consumers while 
also meeting its responsibility to ensure high quality care in 
nursing homes. I yield back, Mr., I mean unless anybody else 
wants the time, but I don't think so. I yield back.
    Mr. Harper. The gentleman yields back. I ask unanimous 
consent that the members' written opening statements be made 
part of the record. Without objection, they will so be entered 
into the record. I also ask unanimous consent that members of 
the full committee on Energy and Commerce not on this 
subcommittee be permitted to participate in today's hearing.
    I would now like to introduce our witnesses for today's 
hearing. Today we have Dr. Kate Goodrich, the Director of the 
Center for Clinical Standards and Quality, and Chief Medical 
Officer at the Centers for Medicare and Medicaid Services. We 
welcome you today.
    Next is Ms. Ruth Ann Dorrill, Regional Inspector General at 
the Office of Inspector General at the U.S. Department of 
Health and Human Services. Thank you for being here today.
    And, finally, Mr. John Dicken, Director of Health Care at 
the U.S. Government Accountability Office.
    You are each aware that this committee is holding an 
investigative hearing and when doing so has had the practice of 
taking testimony under oath. Do you have any objection to 
testifying under oath?
    Let the record reflect that all three have indicated no. 
The chair then advises you that under the rules of the House 
and the rules of the committee you are entitled to be 
accompanied by counsel. Do you desire to be accompanied by 
counsel during your testimony today?
    All of the witnesses have indicated no.
    In that case if you would please stand and raise your right 
hand, I will swear you in.
    [Witnesses sworn.]
    Mr. Harper. Thank you. You may be seated. You are now under 
oath and subject to the penalties set forth in Title 18 Section 
1001 of the United States Code. You may now give a 5-minute 
summary of your written testimony.
    And we will begin with you, Dr. Goodrich, and you are 
recognized for 5. We would ask that you pull the microphone a 
little closer to you and make sure that the mic is on. And you 
know the light system is such when it gets to yellow you have 1 
minute. Red, the floor will not open up, but do bring it in for 
a landing, OK. Thank you.
    You may begin.

STATEMENT OF KATE GOODRICH, M.D., DIRECTOR, CENTER FOR CLINICAL 
 STANDARDS AND QUALITY, AND CHIEF MEDICAL OFFICER, CENTERS FOR 
   MEDICARE & MEDICAID SERVICES; RUTH ANN DORRILL, REGIONAL 
INSPECTOR GENERAL, OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT 
   OF HEALTH AND HUMAN SERVICES; AND, JOHN DICKEN, DIRECTOR, 
         HEALTH CARE, GOVERNMENT ACCOUNTABILITY OFFICE

                   STATEMENT OF KATE GOODRICH

    Dr. Goodrich. All right. To Chairman Harper, Ranking Member 
DeGette, and members of the subcommittee, thank you for the 
opportunity to discuss CMS' efforts to oversee nursing homes.
    Resident safety is our top priority in nursing homes and 
all facilities that participate in the Medicare and Medicaid 
programs. Every nursing home must keep its residents safe and 
provide high quality care. Monitoring patient safety and 
quality of care in nursing homes requires coordinated efforts 
between the Federal Government and the States.
    To participate in Medicare or Medicaid, a nursing home must 
be certified as meeting numerous statutory and regulatory 
requirements including those pertaining the health, safety and 
quality. Compliance with these requirements for participation 
is verified through annual unannounced, onsite surveys 
conducted by state survey agencies in each of the 50 States, 
the District of Columbia, and the U.S. territories. When a 
state surveyor finds a serious violation of Federal regulation 
they report it to CMS and swift action is taken.
    In cases of immediate jeopardy, meaning a facility's 
noncompliance has caused or is likely to cause serious injury, 
harm, or even death we can terminate the facility's 
participation agreement within as little as 2 days. Civil 
monetary penalties can also be assessed up to approximately 
$20,000 per day or per instance until substantial compliance is 
achieved. Other remedies could include in-service training or 
denial of payments.
    For deficiencies that do not constitute immediate jeopardy, 
these deficiencies must be corrected within 6 months or the 
facility will be terminated from the program. Facilities are 
also required by law to report any allegation of abuse or 
neglect to their state survey agency and other appropriate 
authorities such as law enforcement or adult protective 
services.
    When CMS learns that a nursing home has failed to report or 
investigate instances of abuse we take immediate action. For 
example, CMS issued a civil monetary penalty of almost $350,000 
to one nursing home when a state surveyor found they did not 
properly investigate or prevent additional abuse involving 
eight residents.
    We are always taking steps to enhance our quality and 
safety oversight efforts. Last fall, surveyors began verifying 
facility compliance with CMS' updated and improved emergency 
preparedness requirements. Facilities are now required to 
address location-specific hazards and responses, must have 
emergency or standby power systems and ensure they are 
operational during an emergency, develop additional staff 
training, and implement a communications system to contact 
necessary persons regarding resident care and health status in 
a timely manner.
    In addition, in 2016, CMS updated the nursing home 
requirements to reflect the substantial advances into theory 
and practice of service delivery that have been made since 1991 
such as ensuring that nursing home staff are properly trained 
in caring for residents with dementia. Given the number of 
revisions, CMS has provided a phased-in approach for facilities 
to meet these new requirements. We are in the second of three 
implementation phases and we are taking a thoughtful approach 
to implementation and providing education to providers while 
holding them accountable for any deficiencies.
    Promoting transparency is another key factor to 
incentivizing quality. By using a five-star quality rating 
system, our Nursing Home Compare website provides residents and 
their families with an easy way to understand meaningful 
distinctions between high and low performing facilities on 
three factors: health inspections, quality measures, and 
staffing. In April of this year, we took steps to make staffing 
data more accurate. The new payroll-based journal data provide 
unprecedented insight into how facilities are staffed which can 
be used to analyze how facility staffing relates to quality and 
patient outcomes.
    Under the new systems, facilities reporting 7 or more days 
in a quarter with no registered nurse hours or whose audits 
identify significant inaccuracies between the hours reported 
and the hours verified will receive a one-star staffing rating 
which will reduce the facility's overall rating by one star.
    CMS greatly appreciates and relies on the work of the 
Government Accountability Office and the HHS Office of the 
Inspector General to inform our efforts. We have implemented a 
number of recommendations in this area and we look forward to 
additional recommendations to help us continuously improve our 
programs.
    For example, CMS implemented a new survey process last fall 
that provides standardization and structure to help ensure 
consistency between surveyors while allowing surveyors the 
autonomy to make decisions based upon their expertise and 
judgment. We expect every nursing home to keep its residents 
safe and provide high quality care. As a practicing physician 
that makes rounds in the hospital on weekends, many of my 
patients are frail, elderly nursing home residents, so I am 
personally deeply committed to the care of these patients.
    CMS remains diligent in its duties to monitor nursing homes 
participating in the Medicare and Medicaid programs across the 
country and we look forward to continuing to work with 
Congress, States, facilities, residents, and other stakeholders 
to make sure the residents we serve are receiving safe and high 
quality care. I look forward to answering questions you may 
have. Thank you.
    [The prepared statement of Dr. Goodrich follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Harper. Thank you, Dr. Goodrich.
    The chair will now recognize Ms. Dorrill for 5 minutes for 
the purposes of your opening statement.

                 STATEMENT OF RUTH ANN DORRILL

    Ms. Dorrill. Good morning, Chairman Harper, Ranking Member 
DeGette, and other distinguished members of the subcommittee.
    I have been visiting nursing homes on behalf of the OIG for 
20 years. When you speak with the people who have chosen to 
spend their professional lives in these settings, they will 
tell you that nursing home care is incremental. By that I mean 
that the gains and the losses can be small and around the 
margins.
    Nursing homes can be places of comfort and healing. They 
can make the difference between someone having 10 more good 
years or a downward spiral. But it's important to recognize 
that people who enter nursing homes are at low points at times 
of crisis. They often have not only an acute condition that 
landed them there in the first place, but they have many 
competing comorbidities and complex conditions on top of that.
    Many of the facilities as you've said provide excellent 
care, but an alarming number of residents are subject to unsafe 
conditions, much of which is preventable with better guidance 
and government oversight. Our work has found widespread, 
serious problems in nursing home care and my remarks today will 
rest on three priority areas: harm to nursing home residents, 
emergency preparedness of nursing homes, and the important role 
of the state agencies.
    First, in regard to harm, OIG has expended extensive time 
and focus on the problem of resident harm as it's been 
referenced already today, including harm from medical care 
known as adverse events. In a national study of hundreds of 
nursing homes, we found that a third of residents, 33 percent, 
one in three, were harmed by medical care--infections, blood 
clots, aspiration--and half of this harm, 59 percent, was 
preventable.
    And an important point, one of the interesting things about 
this study to us was that most of these events weren't big, 
dramatic events that you think about when you think about harm 
or adverse events. Most of them were incremental. They were 
small. They were surrounding the daily, hourly care that's 
provided by certified nurse assistants and staffing throughout 
the nursing home.
    And there are things that the staff didn't recognize and, 
in many cases, the family didn't recognize. The same is 
happening in hospitals. This low level, substandard care harms 
a tremendous number of people and we've recommended that CMS 
develop guidance and revise requirements for detecting and 
preventing this harm, the detection being a key component.
    Residents also of course face abuse and neglect. In 2012, 
we found that only half of nursing homes were reporting 
allegations of abuse and neglect. And then we went back just 
last year in 2017 and looked at emergency room records and we 
found that it was still a substantial problem. There were many 
cases that were not reported by the nursing homes. We urged CMS 
at that time to take immediate action to monitor claims and to 
enforce against those who fail to report. OIG also works in the 
law enforcement side with our partners to hold accountable 
those who victimize residents.
    Next, on emergency preparedness. So after Hurricane Katrina 
and other storms in 2005 we went into, we had found in looking 
at the deficiencies that almost all nursing homes met their 
emergency provisions. Ninety four percent were in compliance 
and yet when we visited a sample of homes who were actually 
affected by the hurricanes, we found that the plans weren't 
practical and up-to-date. That in many cases the nurses would 
pull out a pad and pen when they saw the hurricane coming as 
opposed to looking at the binder on the shelf.
    We also found that once the storms hit and in their 
aftermath that whether the nursing homes evacuated or sheltered 
in place that they had problems with transportation, with 
staffing, with supplies, anything that you can imagine. We also 
found this for wildfires and for flooding.
    When we went back, we also were struck by the fact that 
after additional storms--Ike, Gustav in 2009-2010--we found 
essentially the same thing, no improvement besides additional 
guidance by CMS. We recommended that CMS develop targeted 
guidance in requirements and as Dr. Goodrich said state 
agencies began assessing homes for these requirements last 
November.
    Finally, I want to further emphasize the critical role of 
the state agencies in citing deficiencies when homes aren't up 
to snuff. In recent work, we found that seven of nine states 
did not consistently verify that homes actually corrected the 
deficiencies that the states had cited. In another study, we 
found that States weren't enforcing very critical core 
components, care and discharge planning, which are very 
important to patient outcomes. We recommended the States 
strengthen those procedures. And the report was in 2013, the 
recommendations were implemented just a few months ago in June 
of 2018.
    In closing, the through line here is that while CMS has 
taken steps to create a framework for improvement, all progress 
will lie in the execution on the part of CMS, on the part of 
the state agencies, and on the part of the nursing homes. This 
means focused education and accountability from CMS and also 
staying alert to the impact of changes. Are the requirements 
understood, the new requirements by inspectors and homes are 
they practical? Do they improve care? None of that can really 
be assumed and the consequences are great.
    OIG is recommending that CMS do more to protect nursing 
home residents and we are committed to that as well. We have 
ongoing work assessing a number of areas and we thank you for 
your ongoing leadership in this area and for the opportunity 
today.
    [The prepared statement of Ms. Dorrill follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Harper. Thank you, Ms. Dorrill.
    We will now recognize Mr. Dicken for 5 minutes for the 
purposes of his opening statement. Thank you.

                    STATEMENT OF JOHN DICKEN

    Mr. Dicken. Chairman Harper, Ranking Member DeGette, and 
members of the subcommittee, I'm pleased to be here today to 
discuss GAO's body of work on nursing home quality and the 
Center for Medicaid and Medicaid Services oversight of nursing 
homes.
    For many years, GAO has reported on problems in nursing 
home quality and weaknesses in CMS' oversight. As early as 
1998, GAO reported that despite Federal and State oversight, 
certain California nursing homes were not sufficiently 
monitored to guarantee the safety and welfare of their 
residents. In the intervening 2 decades across more than two 
dozen reports, GAO has consistently found shortcomings in the 
care that some nursing home residents received and in Federal 
and State oversight of nursing homes.
    In response to identified weaknesses, CMS and state survey 
agencies have made a number of changes in their oversight. 
Inspection protocols have been updated, enforcement tools have 
been revised, and consumers have been provided more information 
to compare nursing homes. Yet, we continue to see mixed results 
in indicators intended to assess the quality of care. Further, 
we lack full assurance of these indicators including 
information made available to consumers are consistently based 
on accurate data and we remain concerned that the prevalence of 
serious care problems remains unacceptably high.
    In my remaining time I'd like to briefly summarize key 
takeaways from GAO reports issued in 2015 and 2016 that examine 
trends in nursing home quality, information made available to 
consumers for comparing nursing homes, and changes CMS had made 
to its oversight activities. I will also note CMS' responses to 
recommendations we made.
    First, we found that data on nursing home quality showed 
mixed results. We found an increase in reported consumer 
complaints through 2014, suggesting that consumers' concerns 
about nursing home quality increased. In contrast, trends in 
care deficiencies, nurse staffing levels, and clinical quality 
indicators through 2014 indicate potential improvement.
    Second, we found data issues complicated the ability to 
assess quality trends. For example, at that time CMS allowed 
states to use different survey methodologies to measure 
deficiencies in nursing home care. GAO recommended CMS 
implement a standardized survey methodology across states and 
in November 2017 CMS completed national implementation. 
Further, GAO recommended CMS implement a plan for ongoing 
auditing of quality data that had been self-reported by nursing 
homes. The agency concurred and has begun auditing staffing 
data that now relies on payroll-based reporting, but CMS does 
not have a plan to audit certain other quality data on a 
continuing basis.
    Third, in the 2016 report we found CMS did not 
systematically prioritize recommended changes to improve its 
Nursing Home Compare website. In several factors it limited 
consumers' ability to use CMS' five-star rating system. CMS 
agreed with these recommendations and earlier this year 
completed actions establishing a process to prioritize website 
improvements and adding explanatory information about the five-
star system. But CMS has not yet acted on other recommendations 
including providing national comparison information that could 
help consumers better make distinctions between nursing homes.
    Fourth, CMS had modified certain oversight activities at 
the time of our 2015 report and those steps have continued. 
Some modifications expanded activities such as creating new 
training for state surveys on unnecessary medication use, 
others reduced existing activities. For example, CMS reduced 
the scope of Federal monitoring surveys which may decrease CMS' 
ability to monitor whether state survey agencies understate 
serious care deficiencies. Similarly, CMS reduced the number of 
homes designated as special focus facilities which may limit 
its ability to monitor homes with poor performance. GAO 
recommended CMS monitor the effects of these modifications and 
CMS indicates it is beginning to take steps to do so.
    In closing, addressing the long-term concerns that nursing 
residents receive unacceptable care requires sustained Federal 
and state commitment. We maintain the importance of monitoring 
to help CMS better understand how oversight modifications 
affect nursing home quality and to improve its oversight given 
limited resources.
    Chairman Harper, Ranking Member DeGette, and members of the 
subcommittee, this concludes my prepared statement. I'd be 
pleased to answer any questions that you may have.
    [The prepared statement of Mr. Dicken follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Harper. Thank you, Mr. Dicken.
    This is now the members' opportunity to ask questions of 
each of you to learn more about this very important issue, so I 
will recognize myself for 5 minutes.
    Ms. Dorrill, HHS OIG has identified improving care for 
vulnerable populations including the care provided to 
individuals in nursing homes as a top management challenge for 
a decade. Could you expand on this and tell us why ensuring 
nursing home residents receive the proper standard of care 
continues to be such a longstanding challenge for HHS and 
specifically CMS?
    Ms. Dorrill. Yes, thank you for the question. It certainly 
is true that we have considered this a top management challenge 
for years and we would love to have that removed from the list. 
But unfortunately the problems remain. And I think it is 
important to note that although so many of these problems are 
longstanding that we are in a different place in time so the 
heavy lift with revising recommendations that has been done, 
when I said in my statement that we have a framework I think 
that's correct. And so we are at a different place than we were 
when we cited those TMCs over the years.
    Mr. Harper. Is that a better place?
    Ms. Dorrill. Yes. I think it's a first step, absolutely. 
And that but the proof will be in the execution of that, that 
sometimes a requirement and the actions of the homes just like 
emergency planning can be miles apart. And so, but that first 
step was an enormous one and an important one. And so we would 
hope as we see execution over the next couple of years that we 
might be able to eliminate this concern from our top management 
challenges.
    Mr. Harper. Do you see now that you and CMS are all on the 
same page?
    Ms. Dorrill. It's a great question, yes and no. Yes, on 
some factors we feel that in respect to our adverse events the 
harm from medical care that CMS has been proactive in they 
pulled us into the process of providing that guidance based on 
our expertise and have laid out very explicit instructions for 
nursing homes and surveyors. In other areas I wouldn't grade 
them as highly.
    Mr. Harper. Mr. Dicken, I would like to ask you a similar 
question. Given GAO's substantial body of work examining 
Federal efforts related to nursing home quality of care, have 
any issues stood out to you as being long-term challenges for 
CMS?
    Mr. Dicken. Yes, thank you. And I think as you note that we 
do have a long-term body of work and many of those same types 
of issues have occurred. We are pleased that over the years CMS 
has implemented many of the recommendations we've had and made 
a number of changes. Certainly we've seen improvements in 
things like training of surveyors, a more standardized 
methodology for surveyors. We do continue to see that there's 
important need to make sure that information that CMS is 
receiving is accurate and that they're using it for assessing 
States consistently.
    And very important that as there are a number of changes 
occurring over the years that CMS and others continue to 
monitor to see what the effects of those changes actually are, 
both in some of the improvements and the enhancements that have 
been made as well as some of the reductions in oversight that 
have been made.
    Mr. Harper. All right. Let me just follow up on that just a 
little bit if I can. Are there any aspects of CMS' efforts 
relating to nursing homes that GAO's work may have touched on 
would you believe merit additional attention?
    Mr. Dicken. Well, we do still have a number of open 
recommendations that CMS has taken some steps in, one, in 
trying to make sure the information's more accurate. I think 
Dr. Goodrich mentioned that they have now much more verifiable 
information on staffing and are using that to more thoroughly 
look at and use inspections of staffing.
    There are other areas still, however, where they still need 
to make sure that getting accurate information and of 
monitoring those effects.
    Mr. Harper. And, Dr. Goodrich, if I can ask you a question. 
Obviously in my opening statement I mentioned the terrible 
tragedy in Florida at Hollywood Hills at the Rehabilitation 
Center. And I know CMS terminated the facility from Medicare 
and Medicaid and has obviously recognized how horrible that is.
    The owner of the facility still has an ownership interest 
in 11 other facilities. Under CMS' current authority, is there 
anything preventing him from opening a new or additional 
nursing home facility?
    Dr. Goodrich. So thank you for the question. The tragedy at 
Hollywood Hills was just that, devastating tragedy that should 
never have happened. As has been said before, it was a complete 
management failure. As I understand the facts of this case, 
there's nothing in Medicare that prevents Dr. Michel--if I'm 
saying his name right----
    Mr. Harper. Yes.
    Dr. Goodrich [continuing]. From having ownership interest 
in Medicare facilities. Medicare can only bar an individual who 
has been convicted of a felony or who is on the OIG exclusion 
list.
    Mr. Harper. In light of Dr. Michel's history, do you 
believe you need additional tools that can restrict based upon 
something less than a criminal conviction?
    Dr. Goodrich. So this is not my exact area, but I am aware 
that CMS issued a proposed rule in 2016 to further enhance our 
program integrity abilities related to this area. We received a 
number of comments on that rule and we are currently 
considering them in terms of how to move forward.
    Mr. Harper. Thank you, Dr. Goodrich.
    The chair will now recognize Ranking Member DeGette for 5 
minutes.
    Ms. DeGette. Thank you.
    Ms. Dorrill mentioned that updating the recommendations is 
going to be the first step to trying to solve this problem. And 
as I mentioned in my opening statement, in 2016 CMS issued 
regulations that updated the Federal health and safety rules 
for nursing homes.
    I know, Dr. Goodrich, that CMS is now in the process of 
implementing those regulations. I think the one you just 
referred to is probably one of them. You said that in your 
testimony these changes are the first comprehensive updates of 
the nursing home regulations since 1991; is that right? Yes Dr. 
Goodrich.
    Dr. Goodrich. Sorry. That is correct.
    Ms. DeGette. And so I am assuming that a lot has changed in 
the industry that would necessitate an update to those rules 
and I would assume that the 2016 regulations were designed in 
part to reflect the advancements and improve how the industry 
provides quality care to nursing home residents; is that 
correct?
    Dr. Goodrich. Yes, that is correct.
    Ms. DeGette. And as I said in my opening statement, since 
the rules have been finalized CMS has taken several actions 
that could delay some of them or roll them back altogether. 
First of all, the rules were designed to be implemented in 
phases, but not all the phases have been implemented yet.
    Second, CMS now has issued a moratorium on enforcing some 
of those rules, and, finally, last year CMS launched a review 
of nursing home regulations to or requirements to determine 
whether any of them placed procedural burdens on facilities. So 
it sounds like maybe some of these proposed rules will never be 
implemented; is that correct?
    Dr. Goodrich. We are currently in the process as you 
mentioned of implementing the rule that we finalized in 2016. 
We are on target for implementing all three of the phases and 
that is underway now.
    Ms. DeGette. OK. And what is your timeframe for 
implementing all of the phases?
    Dr. Goodrich. So phase 1 was implemented shortly after the 
publication of the final rule in 2016. This was really the 
things that nursing homes were already doing or were very 
simple to achieve.
    Ms. DeGette. OK.
    Dr. Goodrich. Phase 2, we began implementation and 
surveying and enforcing on November 28th of 2017, so that is 
underway now. We've surveyed about----
    Ms. DeGette. It has been about a year.
    Dr. Goodrich. It's been about a year and phase 3 begins in 
November of 2019.
    Ms. DeGette. And how long will that take?
    Dr. Goodrich. So nursing homes are expected to be compliant 
with the phase 3 requirements by November of 2019. So at that 
time that will be the expectation.
    Ms. DeGette. OK. And so let me just ask the question again. 
Do you anticipate that all of the 2016 rules will be 
implemented?
    Dr. Goodrich. Yes, we are on track to implement the 2016 
final rule.
    Ms. DeGette. OK. Now I want to ask you a question about a 
CMS proposal that might prohibit nursing home residents from 
being able to bring a lawsuit. There is a rule that bans pre-
dispute arbitration agreements and CMS has signaled it may 
remove it. In other words CMS is proposing to remove what I 
consider to be a consumer protection rule that was designed to 
make sure that nursing home residents could go to court or 
could join other people in lawsuits to settle grievances and 
that they wouldn't be forced into arbitration.
    I know a lot of groups like the AARP have expressed 
concerns about this proposed change. What is the status of 
that? Does CMS intend to do that and why?
    Dr. Goodrich. So as you mentioned as part of the 2016 final 
rule we did impose a ban on pre-dispute arbitration.
    Ms. DeGette. Yes.
    Dr. Goodrich. Shortly thereafter, Department of Health and 
Human Services was sued for an injunction, a preliminary and 
permanent injunction to stop CMS from enforcing that ban on 
pre-dispute arbitration. The court granted a preliminary 
injunction in November of 2016, so we currently cannot enforce 
what we finalized----
    Ms. DeGette. Did by court order?
    Dr. Goodrich. Yes.
    Ms. DeGette. And what is the status of that lawsuit, do you 
know?
    Dr. Goodrich. I'm not certain of the status but the 
injunction is still in place so we are not able to enforce.
     Ms. DeGette. If you could get us the status of that 
lawsuit that would be----
    Dr. Goodrich. Certainly.
    Ms. DeGette [continuing]. Very helpful to us because my 
view and I think Congresswoman Schakowsky would really agree 
with me about this as one of the most effective ways to address 
if we see rampant nursing home abuses is when patients can 
bring class actions against some of these bad actors. And, you 
know, these families they are going into nursing homes, they 
are being asked to sign these arbitration agreements. They are 
so desperate to get the health--as I think all of you have 
said, these are families in crisis many times and so they just 
sign it and then they have signed away their legal rights.
    So we will do everything we can, I think, to make sure that 
we can enforce that 2016 rule that people don't have to be 
forced to sign arbitration agreements. With that I yield back.
    Mr. Harper. The gentlewoman yields back.
    The chair will now recognize the gentleman from Oregon, the 
chair of the full committee, Mr. Walden, for 5 minutes.
    Mr. Walden. Thank you, Mr. Chairman. And I want to thank 
our witnesses. We have another hearing going on downstairs and 
so some of us have to bounce back and forth.
    Dr. Goodrich, a September 2017 data brief issued by the OIG 
indicated that there was a significant amount of variation with 
respect to how state survey agencies classified the complaints 
they received. For example, data compiled by the OIG showed 
that in 2015 there were three States that prioritized 
complaints as being immediate jeopardy at least 40 percent of 
the time, while eight States did not designate any of their 
complaints as immediate jeopardy.
    Can you explain why there seems to be such a variation in 
how States prioritize complaints and what is CMS doing to 
ensure that complaints and deficiencies are addressed in a more 
consistent manner?
    Dr. Goodrich. Yes, thank you for the question. So, first, I 
want to say we very much appreciate the work of the OIG and the 
GAO in the oversight of our programs. They really help to make 
our programs better and we have concurred with the vast 
majority of their recommendations particularly on this issue 
around state service oversight, state agency oversight.
    So we are undertaking actively a number of actions to 
address exactly these recommendations. So number one, CMS 
regional offices do meet quarterly with the state survey 
agencies to discuss issues, look at trends and how they're 
performing, any concerns that they may have. We also recently 
undertook an effort to really overhaul our Federal oversight 
surveys.
    We are required to conduct Federal oversight surveys of 
about five percent of state surveys or at least five state 
surveys and we've been doing this for awhile, but we've 
undertaken an effort beginning in April of this year to revise 
that process in response to what we learned from the OIG as 
well as the GAO. So that's underway now as well.
    We also give monthly feedback reports to the state survey 
agencies that we began in April of this year which allow them 
to understand where their own deficiencies are, where there may 
be patterns of inconsistencies or where they're not 
appropriately citing deficiencies as they should. And this has 
really been made possible by the new standardized software-
based survey process that we implemented last fall across the 
country.
    Mr. Walden. Ah, OK.
    Dr. Goodrich. And then finally we are in the process right 
now of really overhauling the State Performance Standards 
System. This is a system that we've had underway for awhile, 
but again in response to the recommendations from the OIG and 
the GAO we began an effort again in April of this year to 
evaluate this entire program to identify ways to improve it. 
It's a very large-scale effort, will take at least a year to do 
but is well underway. And it's really focused on improving the 
efficiency and the effectiveness of measuring and improving 
state performance.
    Mr. Walden. Right.
    Dr. Goodrich. So we're very happy that we have these 
recommendations and that we're moving forward on them.
    Mr. Walden. Good, thank you. Admittedly, this is old, but 
my mother spent her last few months in a nursing home in our 
hometown 28 years ago. And I spent a lot of time in and out as 
you do with a parent and I was always struck by how much time 
the people that were giving health care had to spend on 
paperwork. And they would be off in the cafeteria and I went 
over, and I was in state legislature at the time, and I said 
what is all this, and just reams of paper, paper, paper.
    And I thought at some point, here, as public policy people 
we want what everybody wants is quality safe care especially 
for this vulnerable and difficult fragile population and 
sometimes government just overreacts and says we need a new 
rule, we need a new regulation, we need another something which 
in the end eats up the resource that is hard to get.
    It is hard to, as we all know there are medical shortages 
in terms of nurses and aides and everybody else and it just 
struck me that would my mother have been better off with less 
reporting and paperwork and somebody that actually was checking 
on her more often. Do you know what I mean? And we have got to 
have both, it is finding this right balance. But boy, I hope 
somebody is looking at just the layer, a layer, a layer we tend 
to add on to address a single problem that may occur in Florida 
and so we think we have to do this everywhere.
    And looks at are there some things that we could peel back 
that would actually allow improved quality of care and then 
what are the real management tools we need and make sure they 
are being enforced effectively in this process. It is hard, I 
know, but I have seen it firsthand. My parents, both my parents 
and my mother-in-law and over the years and, you know, you 
realize it is a difficult population and very fragile 
medically. Things happen and mistakes are made and there are 
some bad actors.
    And so I just hope as you all are doing your work somebody 
is looking at that angle as well so the measrements and the 
tools for enforcement are effective but make sense too. So, Mr. 
Chairman, I yield back.
    Mr. Harper. The gentleman yields back. The chair will now 
recognize the gentlewoman from Florida, Ms. Castor, for 5 
minutes.
    Ms. Castor. Thank you, Mr. Chairman. I think this 
investigation by the committee is very important on nursing 
home resident care and the quality of our skilled nursing 
centers across the country and I appreciate the focus on 
emergency preparedness. It has not been a year since Hurricane 
Irma swept through and I think it is important for us to go 
through what CMS is doing, what States are doing.
    One thing that should not be done has become clear here as 
was reported by the AP earlier this year. As Hurricane Irma 
bore down on Florida, Governor Rick Scott gave out his cell 
phone number during a conference call with administrators of 
the State's nursing homes and assisted living facilities. He 
told them to contact him if they ran into problems and he would 
try to get help.
    So they did 120 times according to phone records released 
earlier this year, not last year. Nearly all the calls went 
directly to voice mail before being returned. The Associated 
Press reached 29 of the callers and found that in numerous 
cases the Governor's offer to personally intervene may have 
slowed efforts to get help and fostered unrealistic and 
potentially dangerous expectations that Scott could resolve 
problems.
    Irma knocked out power across much of Florida as its 
strongest winds swept from Key West to Jacksonville, so most of 
the skilled nursing centers asked for restoration of 
electricity. But Florida is served by private electric 
companies and municipal utilities and none are directed by the 
state, so the Governor's office could only request that 
particular nursing homes be given priority.
    Twelve patients later died of overheating at a nursing home 
that called Scott's cell phone three times. Its administrators 
say Scott's staff didn't get them help restoring the air 
conditioning but we know it was a significant management 
failure as well by the owners of Hollywood Hills. This cannot 
be the answer for emergency preparedness.
    So I understand now there are new requirements that went 
into effect in November of 2016. CMS is now surveying states. 
That began last year. What have we found? Are the states 
following through? I will let you begin, Doctor.
    Dr. Goodrich. Absolutely. Thank you for the question. As 
you mentioned, we did finalize the emergency preparedness rule 
in November of 2016. This applied to all Medicare-certified 
facilities certainly including long-term care facilities or 
nursing homes. We began verifying that compliance in November 
of 2017.
    So far we have surveyed about 75 percent of facilities. We 
anticipate we will have surveyed across the country a hundred 
percent of facilities by February of 2019. As you noted, there 
is a need for proper communications systems when there is a 
disaster and one of the components of the emergency 
preparedness rule that facilities are now required to adhere to 
is to develop and maintain communications systems to contact 
appropriate staff and authorities.
    Ms. Castor. So are you finding now in the surveys that they 
are adhering to the new requirements?
    Dr. Goodrich. So we are finding currently that there have 
been some providers that have been cited for noncompliance so 
we are working with them to bring them into compliance rapidly. 
That is an area that they are required to adhere to. Currently, 
we are not finding that that is one of the most commonly cited 
deficiencies, but it is something that we are surveying for 
actively.
    Ms. Castor. Thank you. States have a critical role here and 
I am concerned with certain States not following through with 
requirements. For instance, OIG's audits have found that some 
States fell short in investigating the most serious complaints 
in nursing homes.
    Ms. Dorrill, what are the nature of these complaints and 
what should we expect the States to do in response?
    Ms. Dorrill. The complaints ran across the board and then 
half of them were associated with high priority or immediate 
jeopardy, so serious complaints. And so I think the issue at 
hand is that states have to be held accountable. Dr. Goodrich 
talked a bit about that system and I think it's critical to all 
these pieces coming together that the states are understanding 
the new requirements and effectively enforcing those in the 
homes.
    Ms. Castor. Do you believe CMS is holding states 
accountable when they do not follow through with their 
responsibilities?
    Ms. Dorrill. So much of this is new, we'll certainly be 
looking at it. But so much of the new requirement in the 
guidance is just new within the last 9 months and so we don't 
know but we certainly have pointed out weaknesses. And we think 
that it's a two-pronged approach. It's education and it's also 
ensuring that there's some kind of accountability on the part 
of the States to ensure that they follow through.
    Ms. Castor. Thank you. I yield back.
    Mr. Harper. The gentlewoman yields back. The chair will now 
recognize the gentleman from Virginia, the vice chairman of the 
subcommittee, for 5 minutes.
    Mr. Griffith. Thank you very much, Mr. Chairman. I greatly 
appreciate it.
    Dr. Goodrich, my colleagues, Congresswoman Black, 
Congressman Adrian Smith, Lujan, and Crowley and I recently 
introduced the Reducing Unnecessary Senior Hospitalization Act 
of 2018 which seeks to improve quality in nursing homes by 
providing quality acute care at patients' bedsides via 
telehealth instead of transferring them to the hospital. By 
CMS' own calculations, two-thirds of hospital transfers are 
avoidable leading to increased costs to Medicare and negatively 
impacting health outcomes and quality of care.
    What are your thoughts on the potential for complementing 
current nursing home staff with emergency trained first 
responders utilizing telehealth to connect physician 
specialists, i.e., emergency physicians that might not 
otherwise be available to this patient population?
    Dr. Goodrich. So thank you for that question and letting me 
know about this pending legislation. So we do understand that 
as you mentioned transfers to the hospital, that's a very 
disrupting event for a nursing home patient and many of them 
are avoidable. This is something we actually measure as part of 
our quality reporting programs so we're certainly aware that 
there's a significant level of admissions to a hospital.
    So we would be very interested and willing to provide 
technical assistance to you and your staff on this legislation 
at your convenience.
    Mr. Griffith. Well, I appreciate that very much and thank 
you. I am really excited by telemedicine. Representing a fairly 
rural district, I can tell you that one of my small nursing 
home chains has implemented wound care by using telemedicine, 
so they have a wound care specialist who is available.
    And one of their nurses will go in and see the patient who 
may have a bedsore or some other kind of injury and they are 
looking at through a pair of glasses that has a camera on it 
and the wound specialist wherever they are in the United States 
can see that wound, get a color picture, be able then to tell 
the nursing home staff what needs to be done to make sure that 
that wound is being treated properly and taken care of. So I am 
really excited about telemedicine as a whole.
    Let me go to your payroll-based journal for staffing, 
because I do think that sometimes there may be some confusion. 
And while we recognize that we want the staffing to be there so 
you all can use it as a tool, you mentioned it in your 
statement, Mr. Dicken mentioned in his that the self-reporting 
hadn't worked because there was a difference.
    But I think that may be a little unfair to CMS and to the 
nursing homes affected, to some of them. Not the bad actors but 
people that are really trying, because am I not correct that it 
is a slightly different standard? In self-reporting if you had 
a salaried employee who worked 50-55 hours a week they got to 
count that extra time, but under your report which I have no 
quarrel with, I am just saying they are different, you only 
count those folks at a maximum of 40 hours of being on the 
floor.
    Likewise, if you have an LPN who is doing supervisory work, 
they don't get credit for their supervisory time where an RN 
would. Again no quarrel with the change, but just saying that 
to say that the old reporting system was intentionally 
underreporting might not be fair since it is really apples to 
oranges. Wouldn't you agree with that?
    Dr. Goodrich. The previous reporting system was essentially 
a 2-week snapshot that the nursing homes completed on a form 
during their recertification survey. The current system as you 
mentioned is based upon daily staffing levels of numerous 
different types of staff that the nursing homes have to report 
quarterly to CMS. And certainly as we were standing that up we 
had to make certain decisions around ensuring that what is 
reported is auditable back to the payroll so that it could be 
as it is required by law so that it could be as accurate as 
possible.
    So the situations you mentioned around a salaried employee, 
yes, we only count the 40 hours a week that they would be 
working.
    Mr. Griffith. And I don't have any quarrel with that but to 
say that there was understaffing previously when you are using 
different metrics wouldn't really be fair to CMS or to some of 
the nursing homes. Wouldn't that be fair to say?
    Dr. Goodrich. I would say it's very difficult to compare 
the two.
    Mr. Griffith. Difficult to compare, OK.
    The Commonwealth of Virginia partnering with healthcare 
providers developed a long-term care mutual aid plan which is a 
voluntary agreement among participating nursing homes that they 
will share supplies, resources, and house residents from other 
facilities if a serious need arises. We heard Chairman Walden 
say earlier that one of his nursing homes or a small chain had 
a facility in California and was looking to move patients to 
Oregon. This is actually a statewide system.
    Are you familiar with this type of plan and do you think it 
will work and do you think other sStates will adopt it?
    Dr. Goodrich. I am not familiar with this kind of plan but 
we certainly would be interested to learn more and again our 
staff would be glad to follow up with you on this.
    Mr. Griffith. Very good. Thank you so much.
    I yield back, Mr. Chairman.
    Mr. Harper. The gentleman yields back. The chair will now 
recognize the gentleman from California, Mr. Ruiz, for 5 
minutes.
    Mr. Ruiz. Thank you, Mr. Chairman. Taking care of seniors 
has been a big priority for me as a physician. I am an 
emergency medicine doctor, Dr. Goodrich, and now as a Member of 
Congress advocating for them here. And when a loved one is 
placed in the care of a nursing home, we trust and expect that 
they will receive high quality care and as we know many nursing 
homes do exactly that. But it is also clear from years of 
reports from OIG and GAO that there are problematic providers 
out there.
    Ms. Dorrill, your office did groundbreaking work that 
identified instances of adverse events in nursing homes and you 
found that one in three Medicare beneficiaries experienced harm 
during their stay. So what kind of adverse events did these 
residents experience, can you elaborate on those?
    Ms. Dorrill. Yes, thank you for the question. It really 
ranged the gamut. And that's actually a part of our message is 
that we found that nursing homes were focusing on just a small 
number of events, falls with injury, for example, and pressure 
ulcers, and they were excluding a broad range of events that 
were already happening that went unnoticed as harm. Things like 
blood clots and dehydration that can seem like subtle----
    Mr. Ruiz. That they didn't identify and allowed it to 
persist for a time. How about medical errors, giving the wrong 
medication, et cetera?
    Ms. Dorrill. Fourteen percent of our events involve medical 
error. When a lot of people think about adverse events they 
think it's all medical error. But one of the things that we've 
tried to promulgate is this notion that adverse events can 
occur from general substandard care. It's not really a mistake, 
it's just not doing the right thing.
    Mr. Ruiz. So you say that half of these were preventable. 
Can you give me some examples of those that were not 
preventable that----
    Ms. Dorrill. Yes. So, for example, if someone was given a 
medication and they were allergic to that and had a reaction 
but no one knew that they were allergic, that was not 
information that the physician could have acted upon.
    Mr. Ruiz. And so are these different adverse events not on 
the state agencies' survey lists? Why are they not looking for 
these?
    Ms. Dorrill. I think that there's been a revolution and 
this is true for hospitals too in the whole notion of adverse 
events. And CMS has changed its hospitals provisions as well 
that I think there was just a narrow focus on a small number of 
events and people weren't thinking about harm more broadly.
    Mr. Ruiz. So they weren't.
    Ms. Dorrill. No.
    Mr. Ruiz. They weren't looking for these different types of 
adverse events.
    Ms. Dorrill. That's correct.
    Mr. Ruiz. So I would like to turn to another quality of 
care concern. In your recent reporting, OIG again identified 
Medicare beneficiaries in nursing homes who suffered harm, this 
time from abuse and neglect, where still OIG found that, quote, 
a significant percentage of these incidents may not have been 
reported to law enforcement.
    So I find this very troubling and so did you, or OIG, 
enough to issue an early alert to CMS about the findings. What 
are some of the immediate actions CMS can take to address these 
vulnerabilities?
    Ms. Dorrill. Thank you. We first requested that they do 
what we did which is it's possible to look in the claims and 
find out a lot of these things are claims associated with abuse 
and neglect and that we suggested that CMS do that to monitor 
the situation. And then, secondly, we also suggested that they 
enhance their pursuit of the authority to be able to give 
remedies when these events were not reported.
    Mr. Ruiz. Dr. Goodrich, what has the agency taken, what 
actions has the agency taken to address this finding?
    Dr. Goodrich. So regarding the recommendation to look in 
the claims for emergency room services and matching those 
claims to skilled nursing facilities, that is something that we 
are currently exploring the feasibility of doing.
    Mr. Ruiz. You haven't started it but you are just looking 
into it.
    Dr. Goodrich. We're exploring whether or not that's 
feasible to do to be able to have that information to the 
surveyors.
    Mr. Ruiz. Well, by law, as an emergency physician if 
somebody reports any suspicion of abuse or neglect that has to 
go into the medical record and that has to be reported to the 
county officials and APS and all that so that would be a good 
place to start.
    I have another question in terms of empowering the clients 
and consumers and also their families. Is there any requirement 
that when a patient gets or a person gets admitted to a nursing 
home during the orientation that they are given an 
understanding of their rights, of quality measures, resources, 
to understand more about what those quality measures are and 
also a way to report any concerns to a third party like an 
agency or CMS, is that a requirement, part of your requirements 
for CMS so that they know that and is that being implemented 
properly?
    Dr. Goodrich. Yes. So yes, that is a requirement as part of 
our requirements for participation that residents or their, and 
their families or their surrogates be informed of their rights 
as soon as they are admitted into a nursing facility and that 
they are informed of their rights to file complaints with the 
state survey agency or with law enforcement.
    Mr. Ruiz. Are they given the information on how to do that?
    Dr. Goodrich. Yes, it's supposed to be posted in the 
nursing home. Sorry, I'm not familiar with the details.
    Mr. Ruiz. Yes, see, that is the difference that Ms. Dorrill 
was saying. It is either posted or you have something in 
writing, but the true understanding and the implementation of 
that information is a different story.
    So do we know if it is being conducted in a way where 
during the orientation they are being explained on how to file 
a complaint?
    Dr. Goodrich. Yes. As part of the admission process in 
addition to everything about the plan of care in clinical care, 
one of our conditions or requirements for participation is 
around patient rights and being informed of those rights.
    Mr. Ruiz. Thank you.
    Mr. Harper. The gentleman yields back. The chair will now 
recognize the gentlewoman from Indiana, Mrs. Brooks, for 5 
minutes.
    Mrs. Brooks. Thank you, Mr. Chairman, and thank you for 
holding this very important hearing.
    Ms. Dorrill, I would like, as Chairman Harper talked about 
in his opening statement, I want to focus a little bit on my 
line of questioning regarding the owner of the facility where 
the 12 residents died in the aftermath of Hurricane Irma, the 
Hollywood Hills. Because it is my understanding that Dr. Michel 
had been the subject of wrongdoing in the past, including 
settling with the Department of Justice long ago, corporate 
integrity agreement, after being implicated in a scheme to 
receive kickbacks for providing unnecessary medical treatment 
to elderly residents, and that was the '06 timeframe.
    Can you please explain--and I am a former U.S. Attorney so 
I have worked with HHS OIG. Can you explain what tools are 
available to you to exclude facility owners from owning nursing 
homes if obviously OIG had determined and there was a 
settlement and so forth, but they were involved in 
participating in this unlawful conduct or fraud, can you go 
into deeper detail about exclusion process?
    Ms. Dorrill. Yes, just to say though, I'm not in the 
Counsel's Office. I'm not an investigator but I'll do my best, 
that OIG has a number of tools at our disposal and this it's 
critical to us. It's the main part of our work that we hold 
wrongdoers accountable. And so I think the important thing to 
remember is that those tools are at our disposal and that it 
depends on the specific facts and circumstances of the case 
what direction we go.
    But we certainly have the exclusion authority. We also have 
tools such as under the False Claims Act we have the ability to 
impose civil monetary penalties. We also have hundreds of 
criminal investigators who help their law enforcement partners 
to investigate criminal cases. So it's a broad range of 
activity and core to our mission.
    Mrs. Brooks. Can you talk a little bit though about the 
exclusion authority tool and how long the process takes, who 
ultimately makes the decision as to when a provider is on the 
exclusion list?
    Ms. Dorrill. So for those who may not be familiar, and 
again I'm not in the Counsel's Office, but the OIG can exclude 
individuals and entities from Federal programs such as Medicare 
and Medicaid for various types of conduct set forth in statute, 
including false claims. The primary effect of that exclusion is 
it will no longer pay for services and we maintain a database 
with all that information publicly.
    OIG has certainly excluded nursing home providers. We 
recently excluded a 13-facility nursing home chain. We have 
something like 70,000 excluded providers now, something like 
1,600 just this fiscal year alone. So I don't know if that 
fully answers your question.
    Mrs. Brooks. It doesn't require though a criminal 
conviction then for a person to be excluded or an entity to be 
excluded?
    Ms. Dorrill. I'll need to take that question, I'd be so 
happy to, back to my Counsel's Office to make sure that I can 
give you accurate information there.
    Mrs. Brooks. I think we would like to know more information 
about the exclusion process from Counsel's Office and from your 
office particularly relative to, not only we had that incident, 
but as I understand there are other incidents involving this 
particular provider let alone the Hollywood Hills incident. So 
I am interested in knowing how long the process takes, who 
makes the final decisions, what are the categories that a 
person can be excluded.
    Then I would like to ask both you and Dr. Goodrich a little 
bit more about the emergency preparedness issues. We are 
reauthorizing what is called PAHPA, Pandemic All-Hazards 
Preparedness Act, and we are including in that a provision to 
have the National Academy of Medicine do an overview of 
emergency preparedness by hospitals but also long-term care 
facilities. And because as I am hearing you both say that while 
there might be plans in place that doesn't necessarily mean the 
execution of those plans happen.
    And do you believe there needs to be more attention to this 
emergency preparedness that we are not doing enough? Dr. 
Goodrich?
    Dr. Goodrich. Thank you. Obviously this is a huge priority 
for us especially given the events of last year. So as we've 
mentioned we are in the process, in the early process of 
implementing that regulation and surveying facilities for that. 
So as you're working, doing your work on this area we'd be more 
than happy to give you technical assistance and talk through 
these issues with you. But we are early in the process and I 
think learning how it is going.
    Mrs. Brooks. OK, thank you.
    Ms. Dorrill, anything further before my time is expired?
    Ms. Dorrill. No, just asserting that we found significant 
problems with the emergency planning and appreciate your focus 
on that area.
    Mrs. Brooks. Thank you. I yield back.
    Mr. Harper. The gentlewoman yields back. The chair will now 
recognize the gentlewoman from Illinois, Ms. Schakowsky, for 5 
minutes.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    If I sound a little impatient about this focus on nursing 
home and safety it is because I have been working on this issue 
since the mid-80s, including when I was in the state 
legislature in Illinois and ever since I have been here in 
Congress. There are some provisions in the Affordable Care Act 
that deal with nursing homes that I was successful in getting 
into the legislation. But I don't know how many GAO reports 
there have been. I don't know how many reports from oversight 
committees there have been about these persistent problems.
     And as we enter into this age where more, the aging of 
America, the graying of America, more and more people needing 
long-term care including nursing homes, it is hard for me to 
hear words like, this is an important first step. I mean we 
need to be making last steps now. We need to be getting at the 
heart of the problem.
    Let me ask you, Dr. Goodrich, who has the primary 
responsibility to make sure that nursing home quality standards 
are met, States or CMS? And is it the policy of the Trump 
administration to shift more of the responsibility to the 
States?
    Dr. Goodrich. So it is a shared responsibility between the 
States and CMS. We promulgate the regulations and then we 
oversee the state survey agencies in their implementation of 
the surveys of the nursing homes and the implementation of 
those regulations. And as I----
    Ms. Schakowsky. Are we seeing more of a shift toward States 
or is this always standard?
    Dr. Goodrich. Our process for overseeing health and safety 
for nursing homes remains the same. It hasn't changed. It 
remains a partnership in the way that I just described.
    Ms. Schakowsky. What was the rationale behind no longer 
imposing financial penalties for each day of a violation? 
Couldn't that be seen as a weakening of a commitment to 
enforcement?
    Dr. Goodrich. Specifically related to the civil monetary 
penalties what we were seeing over the last few years and what 
had been, I think, also recognized by others was that there was 
quite a bit of variation in how civil monetary penalties were 
being applied across the country. In some areas not being 
applied enough when they should have been and in other areas 
being applied in situations when actually should have had 
different enforcement remedies applied.
    So we sought to make that process more standardized and 
more uniform so that there was consistency across the country 
in the correct application of civil monetary penalties. And so 
last year what we did was we worked with the regional offices 
and we developed a civil monetary penalty tool so that survey 
agencies and our regional offices could go and use that tool 
which has essentially an algorithm in it to ensure that regions 
are consistently and accurately applying civil monetary 
penalties.
    Ms. Schakowsky. Except that I am asking about the penalties 
then, not the monitoring, the penalties, no longer imposing 
financial penalties for each day.
    Dr. Goodrich. So we do still impose financial penalties for 
each day, so per day penalties depending upon the circumstance. 
And the number of those penalties has actually risen over the 
last 4 years. In 2014 we had just over 1,100 per day civil 
monetary penalties and in 2017 we had almost 2,000 per day.
    Ms. Schakowsky. So let me ask you this. Do the nursing home 
advocates support these changes?
    Dr. Goodrich. We have certainly worked with and been 
transparent about our intents here related to----
    Ms. Schakowsky. That is kind of a yes or no.
    Dr. Goodrich. I would have to ask the nursing home 
advocates. We certainly have had discussions with them about 
this. We have seen----
    Ms. Schakowsky. My understanding is no. Let me also, I want 
to get to a Human Rights Watch report \*\ found that in an 
average week nursing facilities in the United States administer 
powerful anti-psychotropic drugs in over 179,000 people who 
don't need them. I ask unanimous consent to enter that report 
into the record.
---------------------------------------------------------------------------
    \*\ The information has been retained in committee files and can be 
found at: https://docs.house.gov/meetings/IF/IF02/20180906/108648/HHRG-
115-IF02-20180906-SD003.pdf.
---------------------------------------------------------------------------
    Mr. Harper. Without objection.
    [The information appears at the conclusion of the hearing.]
    Ms. Schakowsky. These drugs are often given without 
informed consent. This is after a 2011 OIG report that found 
rampant overuse of these anti-psychotic drugs.
    So, Dr. Goodrich, what actions are CMS taking to address 
the high rate of these drugs and used 7 years after that OIG 
report?
    Dr. Goodrich. So we would completely agree that this has 
been a very significant quality and safety issue within nursing 
homes. That is why in 2011 in partnership with a number of 
stakeholders we launched the National Partnership to Improve 
Dementia Care in Nursing Homes, which was a holistic effort 
around dementia care, but definitely had a very serious focus 
around reducing inappropriate use of anti-psychotics in nursing 
homes.
    We have seen over that time period from 2011 to early 2017 
a 34 percent reduction in the inappropriate use of anti-
psychotics and we are now focusing----
    Ms. Schakowsky. So two-thirds still remains.
    Dr. Goodrich. So there is still overuse. That is true. And 
there are particular nursing homes in the country who have not 
made the kinds of improvements that we would hope. And so we 
have set a new goal to focus on those facilities that are still 
overusing to unacceptable extent.
    Ms. Schakowsky. Thank you.
    Mr. Harper. The gentlewoman yields back. The chair will now 
recognize the gentlewoman from California, Mrs. Walters, for 5 
minutes.
    Mrs. Walters. Thank you, Mr. Chairman. Federal regulations 
enumerate a limited number of circumstances under which a 
nursing facility or skilled nursing facility may transfer or 
discharge a resident against their will. Under Federal law, a 
nursing facility or skilled nursing facility must also readmit 
residents who may temporarily leave for a hospitalization. 
However, claims that nursing home residents are being dumped or 
denied readmission appears to be a growing concern.
    For example, according to press reports, the California 
State Long-term Care Ombudsman received more than 1,500 
complaints in 2016 alleging that residents have been improperly 
discharged or evicted from nursing homes in California. This is 
a 73 percent increase from the number of complaints received 
since 2011. The Illinois State Ombudsman has stated that such 
complaints have more than doubled since 2011.
    Dr. Goodrich, does CMS view involuntary discharges of 
nursing home residents or denials of readmission as a 
significant problem?
    Dr. Goodrich. Yes. This is something that we have also 
heard reports about happening and it is something that we're 
concerned about absolutely.
    Mrs. Walters. When nursing home residents are involuntarily 
discharged from or denied readmission to a nursing home after a 
hospital stay, where do they typically end up and how are they 
cared for?
    Dr. Goodrich. So I think that's variable and that is 
something that we are trying to explore a little further to 
understand what's happening on the ground with these residents. 
So certainly where they end up if that's your question can be 
quite variable. It can be, with a family member and another 
facility is often where they will end up going as well.
    Mrs. Walters. Are you guys trying to do any sort of 
analysis on this to find out exactly where they are ending up?
    Dr. Goodrich. I'd be happy to get back to you with the 
answer to the question to how we're taking a look at that. I'm 
not sure of the specifics.
    Mrs. Walters. Did you want to add something?
    Ms. Dorrill. We have, we're currently underway on this 
exact issue. I share your concern and we have a study that will 
be coming out shortly that will be of interest to you.
    Mrs. Walters. OK, thank you.
    Federal law also requires States provide nursing home 
residents, who allege they were improperly discharged or 
transferred, with a hearing and, if appropriate, provide for 
residents a readmission to the nursing home if they prevail. 
However, it has been alleged that California is failing to 
enforce its own hearing decisions in instances where decisions 
have been rendered in favor of residents.
    In a 2012 letter to the California Department of Public 
Health, Center for Healthcare Quality, CMS stated that while it 
could not advise California what particular state agency should 
enforce the hearing decisions, as that is for the States to 
decide, CMS regulations are clear that the state agency must 
promptly make corrective actions. CMS reiterated California's 
obligation to enforce its hearing decisions in a letter sent on 
August 31st, 2017.
    Dr. Goodrich, how does CMS verify that States are 
fulfilling their legal obligations to adjudicate and enforce 
hearing decisions related to improper nurse home discharges or 
transfers?
    Dr. Goodrich. So this is a topic with which I'm not 
terribly familiar of the specifics of the California case, but 
we'd be very happy to take a look at it and get back to you 
with responses to that.
    Mrs. Walters. OK, so then I don't know if you can answer 
these two questions but I will ask you. Does CMS know whether 
California is meeting its legal obligations to enforce these 
decisions?
    Dr. Goodrich. I'm not personally aware but we will get back 
to you with that.
    Mrs. Walters. OK, then I have one more. Does CMS know of or 
have reason to believe other States may be failing to enforce 
their hearing decisions?
    Dr. Goodrich. I think that's something we certainly would 
be concerned about and would be happy to get back to you with 
responses.
    Mrs. Walters. OK, if you guys could follow up----
    Dr. Goodrich. We will.
    Mrs. Walters [continuing]. And get back to the committee on 
that we would really appreciate it.
    Dr. Goodrich. Of course.
    Mrs. Walters. Thank you and I yield back the balance of my 
time.
    Mr. Harper. The gentlewoman yields back. I will now 
recognize the vice chairman of the subcommittee, Mr. Griffith, 
for the purposes of a follow-up question.
    Mr. Griffith. Yes, and I think that Ms. Schakowsky and I 
might be on the same side, we might not be, but it deals with 
the daily fines and so forth. Because I am aware of a 
situation, so I am glad you are looking at it so we can get 
these algorithms where they make sense because you want to 
punish people for bad acts.
    But I am aware of a situation where coffee was spilled. 
There was an incident. Something should have been said but 
somehow the fine ended up being between $1 million and $2 
million dollars. The patient never went to the hospital. No 
serious injuries. Clearly something needed to be done, but it 
seemed that maybe the old algorithm was a little out of whack 
if you end up with a $1 million to $2 million dollar penalty 
for spilled coffee and no hospitalization.
    Dr. Goodrich. So I'm not familiar with that particular 
incident, but I think that is potentially an example where 
there was again as I mentioned before we weren't always seeing 
consistent application of the civil monetary penalties in both 
directions. And so that's why we really have been trying to 
standardize that.
    Mr. Griffith. And I appreciate that and hope that you all 
get that all worked out, but agree that there ought to be 
penalties and there ought to be something that the nursing 
homes can know that this is what we are supposed to do, and if 
there is a problem the penalty will be something that is equal 
to or in the vein of what ought to be happening.
    Thank you, yield back.
    Mr. Harper. The chair will now recognize Ms. Schakowsky for 
the purposes of a follow-up question.
    Ms. Schakowsky. So in terms of CMS enforcement I wondered 
how you are using these new--we have been talking somewhat 
about the payroll staffing data reported by nursing homes to 
enforce the requirements that each facility have a registered 
nurse on duty at least 8 hours every day. Let me just state my 
preference. I think most people who put a person in a nursing 
home would be shocked that there is not a nurse, a registered 
nurse 24/7, when they get the bill for the month that there is 
not a nurse there.
    I have a piece of legislation I have introduced, Put a 
Nurse in a Nursing Home. But I am just wondering how you are 
following up on that.
    Dr. Goodrich. Absolutely. Thank you for bringing that up. 
We would agree that the new payroll-based journal system gives 
us really unprecedented insight into staffing within nursing 
homes. And as you mentioned, some of the things that we have 
discovered since we started requiring the reporting of those 
data is exactly what you mentioned, is that there are some 
nursing homes that do not have a registered nurse as required 
by our regulations for 8 hours a day, 7 days a week.
    And I think even more concerning is that we see 
fluctuations in some nursing homes, again a minority but it's 
there, where that those deficiencies in nurse staffing are more 
common on the weekends than they are on the weekdays. And I 
can't think of any clinical reason why that should be different 
on a Saturday than on a Tuesday.
    So that is something that we are concerned about and right 
now we're taking two actions related to that. I will caveat 
that by saying this is early, we're exploring the data and 
we're thinking ahead about other ways in which we can use these 
data better. So number one, one thing we have already done is 
in the five-star rating system nursing homes that do not have 
nurse staffing as appropriate for at least 7 days out of a 
quarter, their star rating goes down to one star and that 
affects the staffing star rating and that affects that overall 
star rating as well.
    We are also looking at ways in which we could incorporate 
the findings that I just mentioned about the fluctuations and 
the lack of nursing as required by regulation further into the 
star rating system. The second thing that we're doing is we are 
embedding the data, the staffing data into our survey software 
which will then allow the state surveyors when they go onsite 
to do their investigations to have that information around 
staffing for that nursing home that they are in so that they 
can look for quality issues that may be related to staffing 
based upon the data they have right there in their hand.
    So those are two ways in which we're, for now, initially 
using these data, but we'll continue to explore other ways.
    Ms. Schakowsky. OK, and any of the other two witnesses want 
to say anything on this topic? I don't know.
    Ms. Dorrill. I just wanted to say that we have work 
underway now on the payroll-based journal and we plan to look 
at the accuracy of the data and CMS' use of it at this early 
implementation.
    Ms. Schakowsky. OK. I would really like to see that after 
you complete your investigation of that issue. So good, thank 
you very much. I yield back.
    Mr. Harper. The chair will now recognize the gentleman, in 
celebration of his birthday, the gentleman from Georgia, Mr. 
Carter.
    Mr. Carter. Thank you, Mr. Chairman. I appreciate you 
sharing that with everyone. And I do appreciate it very much.
    Mr. Harper. We didn't ask what year.
    Mr. Carter. You can't thank me for that as well, yes.
    Well, thank all of you for being here. Full disclosure, I 
am currently the only pharmacist serving in Congress. Not only 
am I a pharmacist, but I was also a consultant pharmacist and 
my expertise and my career was spent in institutional pharmacy 
in nursing homes. I have gone through Federal inspections, 
state inspections, so this is something that I am very familiar 
with.
    And I have to tell you I was blessed to be in a number of 
good nursing homes that provided quality care that really cared 
about the patients and sometimes I could be frustrated by some 
of the regulations. And I just want to encourage you, a couple 
of things. First of all, you know, it is important and it is 
important to have a registered nurse 8 hours a day. It is 
important to make sure that rules and regulations are followed, 
but sometimes we get caught up in the cookie cutter approach 
that one size fits all.
    And I just want to encourage you and I say that because I 
have seen it firsthand. I have seen how nursing homes struggle 
and they struggle to find good quality help. They don't pay 
very high, they can't afford to. It is difficult at times. That 
is no excuse, you still have to have quality care and as I say 
I was very blessed to be in facilities that provided quality 
care.
    I think that you have--I am sorry I had another hearing, 
but we have already talked about the payroll-based journal and 
about the fact that salaried employees, and trust me, I have 
seen a salaried, a DNS who has is registered as 40 hours seeing 
a more 60 or 80 hours a week. So that is kind of a misnomer and 
I hope you take that into consideration.
    And then whenever you are talking about a 30-minute lunch 
break, I have seen them take 5 minutes to cram something in 
their mouth and go on and continue on. I have also seen it as 
you well know, and I know I am the preacher preaching to the 
choir here, but nursing homes can fall apart quickly. I have 
been in a nursing home in the morning and it was in top shape 
and then by the afternoon and just because of the patient 
population it can really fall apart very quickly.
    But anyway, having said that I will tell you that I am 
concerned particularly the Federal inspectors as it relates to 
the state inspectors. I have seen the state inspectors 
sometimes try to do too much because the Federal inspectors are 
following them. Generally what happens is that you would always 
know if the fire inspector came and then probably the 
surveyors, the state surveyors were coming next because the 
fire inspector would always come first and then the state 
surveyors would come.
    And the Federal surveyors would come after the state 
surveyors in order to see how well the state surveyors had done 
and sometimes I felt like they were putting undue pressure on 
some of the state inspectors. Not that they didn't need it at 
times, they did, and it is important. It is important to have 
the checks and balances in that and I understand that.
    I wanted to ask you and I will ask Dr. Goodrich, you, this 
question about some of the potential complexity for providers 
that have that the regulations. As I understand it, there has 
been a temporary moratorium placed on some of the 194 
regulations as a result of the stakeholder feedback. Just to 
clarify, how many of the 194 regulations had this moratorium 
placed on them?
    Dr. Goodrich. Eight.
    Mr. Carter. Eight of them. And out of those eight did any 
of those have to do with neglect or with abuse?
    Dr. Goodrich. They did not.
    Mr. Carter. They did not, OK. Good, they should not and I 
appreciate that. And, finally, do facilities still have to 
enforce these eight regulations and have a plan in place to fix 
them if they are noncompliant?
    Dr. Goodrich. Absolutely. That's our expectation, yes.
    Mr. Carter. That is your expectation, good. Again you know, 
I have seen the burden that can be placed on these facilities 
and again no one is accepting and I am certainly not advocating 
that they shouldn't have quality care. This is a very feeble, 
if you will, population that needs this help. But I just want 
to make sure we have balance here. I want you to understand 
that I have worked side by side with these people in the 
nursing homes and they are good people for the most part.
    Now, like every profession you have bad actors and you have 
to get rid of those bad actors and to a certain extent, to a 
large extent that is your responsibility and the responsibility 
of the state surveyors. We need to get those bad actors out. 
They need to be brought to justice, if you will. But for the 
most part, I just feel like I need to express to you the true 
quality work that many of these facilities provide and that 
many of these employees provide. And, Mr. Chairman, I will 
yield.
    Mr. Harper. The gentleman yields back. The chair will now 
recognize the gentleman from Florida, Mr. Billirakis, for 5 
minutes.
    Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it. 
Thanks for holding this hearing, so very important.
    As you know, Mr. Chairman, last year we had Irma that hit 
Florida. The many hardworking staff of our nursing homes and 
assisted living facilities prepared for the hurricane, 862 
facilities evacuated, over 2,000 facilities lost power in the 
state of Florida. They were tested by the storm and the vast 
majority passed. Again those folks were doing the Lord's work 
and we do appreciate them so very much.
    Yet, in every group there are bad actors as my colleague 
just said. We had the Rehabilitation Center at Hollywood Hills 
fail to take the proper measures to protect their residents and 
as a result 12 people died from heat exposure despite having a 
hospital across the street from the facility. These deaths were 
100 percent preventable.
    One of the concerns that have is how many facilities are 
not in compliance with the emergency rule. Dr. Goodrich, I 
believe that CMS began compliance surveys last year. That is my 
understanding. Do we know how many facilities are currently not 
in compliance with the emergency rule? That is my first 
question.
    Dr. Goodrich. Certainly. So we are about 75 percent of the 
way through surveying all facilities nationally for the 
emergency preparedness requirements. We will have completed 
surveys for a hundred percent of facilities by February of 
2019. While we are finding that the majority of facilities are 
in compliance or come into compliance quickly, we have had some 
citations for noncompliance that are intended to swiftly bring 
these facilities into compliance. So we have had about 2,300 
facilities or so, so far, be cited for noncompliance that then 
would have to implement a corrective action plan in order to 
come into compliance.
    Mr. Bilirakis. So 2,300 out of how many?
    Dr. Goodrich. There's a total of about 15,600 nursing homes 
but again they haven't all been surveyed yet.
    Mr. Bilirakis. Right, so but the majority of them have been 
surveyed.
    Dr. Goodrich. Seventy five percent about.
    Mr. Bilirakis. OK, thank you. The rehab center had their 
provider agreement terminated. This is the one that I was 
speaking of in Hollywood, Florida. It was terminated by CMS. 
Despite this, the owner of the rehab center still has an 
ownership stake in 11 other facilities that participate in the 
Medicare program. These facilities continue to operate despite 
the tragedy that occurred last year and the previous 
allegations that the Department of Justice made against the 
owner regarding providing unnecessary medical treatment to 
seniors.
    Dr. Goodrich, given your experience at CMS, are you 
surprised by this that there are so many, he is operating so 
many other facilities? And yes and is he being monitored? Can 
you maybe expand on that, please?
    Dr. Goodrich. Certainly. So for any Medicare-certified 
facility of any type they are required to undergo surveys just 
like nursing homes do, so whatever type of facility an owner 
may have an ownership interest in. So they have to undergo 
periodic recertification surveys in the situation of nursing 
homes, those are annual. And then there's complaint surveys 
that can take place if somebody files a quality of care 
complaint.
    So any facility no matter what type that is Medicare-
certified would have to undergo these surveys as well.
    Mr. Bilirakis. OK, can you maybe get back to me on whether 
these other 12 facilities that this person owns follow the 
emergency rule? Can you give me that information? I know you 
can't, more than likely you don't have it with you now.
    Dr. Goodrich. What I do know is that the other facilities 
owned by this owner have undergone the standard recertification 
surveys. As it relates specifically to emergency preparedness 
we will have to get back to you on that.
    Mr. Bilirakis. Please get back to me on that. I appreciate 
it. Again, Doctor, I know the State is trying to pull the rehab 
center's owners licenses, but I am told it is tied up in the 
court system at the moment. I know I don't have a lot of time, 
so can CMS terminate the provider agreements with the various 
facilities that he has an ownership stake in? Do you have the 
ability to do that?
    Dr. Goodrich. As I understand it, Medicare has the ability 
to bar an individual from owning other facilities under two 
circumstances. One is if they have a felony conviction and the 
second is if they're on the OIG exclusion list.
    Mr. Bilirakis. OK, very good.
    Well, thank you, Mr. Chairman. Thanks for allowing me to 
sit in and thanks for holding this hearing. I appreciate it.
    Mr. Harper. The gentleman yields back.
    Just a little quick follow-up to you, Ms. Dorrill, and to 
you, Mr. Dicken. Both HHS OIG and GAO have found situations 
where these allegations of abuse or neglect or substandard care 
they have been reported but state survey agencies failed to 
investigate those claims in a timely manner. CMS reserves 
immediate jeopardy classifications for situations that have 
caused or are likely to cause a serious injury, harm, or death 
to a resident and require such a claim to be investigated 
within 2 days.
    So, Ms. Dorrill and Mr. Dicken, when state survey agencies 
fail to conduct those timely investigations especially in cases 
of immediate jeopardy, does that place nursing home residents 
at greater risk?
    Mr. Dicken. Certainly as we've looked at the complaint 
investigation processes we've seen that States have sometimes 
been challenged to meet timeframes better at the immediate 
jeopardy types of issues that you raise. We did see, however, 
that as States are not timely it's much more difficult for 
States to be able to substantiate allegations and there are 
higher substantiation when they are meeting timely frameworks. 
So it is important to have a timely and complete complaint 
investigation.
    Mr. Harper. All right. Well, let me follow up on that. So 
does this failure also potentially allow facilities which may 
have in fact harmed a resident to go unpunished and perhaps 
give a false impression that they are providing a better 
standard of care than they actually are?
    Mr. Dicken. Well, certainly to the extent that the 
complaints are not investigated or not investigated in a timely 
manner that as you know can make it hard to substantiate. 
Certainly there are other processes that can go in and identify 
that as part of the standard survey process, but that is a real 
concern that if they are not being substantiated and because of 
not timely reviews.
    Mr. Harper. Thank you.
    Ms. Dorrill, anything you would like to add to that?
    Ms. Dorrill. Just to reiterate how important timeliness is 
in terms of substantiation. We did find that there were only a 
handful of States who had substantial problems with that to the 
extent that that's helpful.
    Mr. Harper. I want to thank each of you for being here. Our 
concern is the care and well-being of the residents of any of 
these facilities. They are the loved ones of many families that 
care greatly about what happens. You have a great 
responsibility. We thank you for being here today.
    I also want to remind members that they have 10 business 
days to submit questions for the record, and should you receive 
any of those as witnesses from today we would appreciate your 
response as promptly as possible to that. With that the 
subcommittee is adjourned.
    [Whereupon, at 12:00 p.m., the subcommittee was adjourned.]
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