[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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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
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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.
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\*\ 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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