[Senate Hearing 116-282]
[From the U.S. Government Publishing Office]
S. Hrg. 116-282
NOT FORGOTTEN: PROTECTING AMERICANS FROM ABUSE AND NEGLECT IN NURSING
HOMES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FINANCE
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MARCH 6, 2019
__________
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Finance
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-968 PDF WASHINGTON : 2020
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COMMITTEE ON FINANCE
CHUCK GRASSLEY, Iowa, Chairman
MIKE CRAPO, Idaho RON WYDEN, Oregon
PAT ROBERTS, Kansas DEBBIE STABENOW, Michigan
MICHAEL B. ENZI, Wyoming MARIA CANTWELL, Washington
JOHN CORNYN, Texas ROBERT MENENDEZ, New Jersey
JOHN THUNE, South Dakota THOMAS R. CARPER, Delaware
RICHARD BURR, North Carolina BENJAMIN L. CARDIN, Maryland
JOHNNY ISAKSON, Georgia SHERROD BROWN, Ohio
ROB PORTMAN, Ohio MICHAEL F. BENNET, Colorado
PATRICK J. TOOMEY, Pennsylvania ROBERT P. CASEY, Jr., Pennsylvania
TIM SCOTT, South Carolina MARK R. WARNER, Virginia
BILL CASSIDY, Louisiana SHELDON WHITEHOUSE, Rhode Island
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
TODD YOUNG, Indiana
Kolan Davis, Staff Director and Chief Counsel
Joshua Sheinkman, Democratic Staff Director
(ii)
C O N T E N T S
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OPENING STATEMENTS
Page
Grassley, Hon. Chuck, a U.S. Senator from Iowa, chairman,
Committee on Finance........................................... 1
Wyden, Hon. Ron, a U.S. Senator from Oregon...................... 3
WITNESSES
Blank, Patricia, daughter of nursing home neglect victim, Shell
Rock, IA....................................................... 5
Fischer, Maya, daughter of nursing home abuse victim, Seminole,
FL............................................................. 7
Grabowski, David, Ph.D., professor, Harvard Medical School,
Boston, MA..................................................... 9
Gifford, David, M.D., MPH, senior vice president, quality and
regulatory affairs, American Health Care Association,
Washington, DC................................................. 10
Goodrich, Kate, M.D., Director, Center for Clinical Standards and
Quality; and Chief Medical Officer, Centers for Medicare and
Medicaid Services, Baltimore, MD............................... 35
Bacon, Antoinette, Associate Deputy Attorney General and National
Elder Justice Coordinator, Office of the Deputy Attorney
General, Department of Justice, Washington, DC................. 37
Mitchell, Keesha, Director, Medicaid Fraud Control Unit, Office
of the Ohio Attorney General, Columbus, OH..................... 39
ALPHABETICAL LISTING AND APPENDIX MATERIAL
Bacon, Antoinette:
Testimony.................................................... 37
Prepared statement........................................... 51
Responses to questions from committee members................ 55
Blank, Patricia:
Testimony.................................................... 5
Prepared statement........................................... 57
Casey, Hon. Robert P., Jr.:
Letter from Senators Casey and Toomey to Hon. Seema Verma,
March 4, 2019.............................................. 58
Fischer, Maya:
Testimony.................................................... 7
Prepared statement........................................... 60
Gifford, David, M.D., MPH:
Testimony.................................................... 10
Prepared statement........................................... 61
Goodrich, Kate, M.D.:
Testimony.................................................... 35
Prepared statement........................................... 66
Grabowski, David, Ph.D.:
Testimony.................................................... 9
Prepared statement........................................... 73
Grassley, Hon. Chuck:
Opening statement............................................ 1
Prepared statement........................................... 82
Mitchell, Keesha:
Testimony.................................................... 39
Prepared statement........................................... 83
Wyden, Hon. Ron:
Opening statement............................................ 3
Prepared statement........................................... 86
Communications
AARP............................................................. 89
Altarum.......................................................... 91
Arends, Kathy.................................................... 95
Armstrong, Jeanette.............................................. 97
California Advocates for Nursing Home Reform et al............... 98
Carlsen, Linda S................................................. 105
Center for Fiscal Equity......................................... 106
Center for Health Information and Policy (CHIP).................. 107
Cooper, Kendra................................................... 114
Farley, Margaret A............................................... 115
Flowers, Molly, R.N.............................................. 118
Greenwood, Paul.................................................. 121
Harper, John M................................................... 150
Hebrew Home at Riverdale......................................... 151
Johnson, Patricia................................................ 154
LeadingAge....................................................... 156
Long Term Care Community Coalition et al......................... 159
Miller, Cherrie A................................................ 163
Mount, Jill K., R.N., BSN, MSN, Ph.D............................. 167
Nappo, Christina A............................................... 167
National Association of State Long-Term Care Ombudsman Programs.. 171
National Association of States United for Aging and Disabilities. 173
Pioneer Network.................................................. 174
Purdy, Judith, R.N............................................... 176
Schneider, June.................................................. 176
Smart, Laura, MSW, LGSW.......................................... 177
Stanton, Ann E................................................... 179
Weaver, Stephanie Walker......................................... 184
Woolfork, Carole H............................................... 185
NOT FORGOTTEN: PROTECTING AMERICANS
FROM ABUSE AND NEGLECT
IN NURSING HOMES
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WEDNESDAY, MARCH 6, 2019
U.S. Senate,
Committee on Finance,
Washington, DC.
The hearing was convened, pursuant to notice, at 10:15
a.m., in room SD-215, Dirksen Senate Office Building, Hon.
Chuck Grassley (chairman of the committee) presiding.
Present: Senators Crapo, Thune, Portman, Toomey, Scott,
Cassidy, Lankford, Daines, Wyden, Stabenow, Cantwell, Menendez,
Carper, Cardin, Casey, Warner, Whitehouse, Hassan, and Cortez
Masto.
Also present: Republican staff: Evelyn Fortier, General
Counsel for Health and Chief of Special Projects; and Kirsten
Lunde, Professional Staff Member. Democratic staff: Anne Dwyer,
Senior Health Counsel; and Matt Kazan, Senior Health Advisor.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
IOWA, CHAIRMAN, COMMITTEE ON FINANCE
The Chairman. I want to welcome everyone to our hearing
today. The hearing is on a very extremely important topic:
elder abuse. And I thank our witnesses for joining us today.
Elder abuse, and nursing home abuse in particular, has been
a topic of ongoing concern of mine and other members of this
committee for a long time. My involvement has gone on over a
period of the last 2 decades. As former chairman of the Senate
Aging Committee, as an example, I conducted oversight of the
nursing home inspection process and convened hearings focused
on enhancing standards and compliance across the nursing home
industry.
More recently, I sponsored the Elder Abuse Prevention and
Prosecution Act, a new Federal law that calls for the training
of elder abuse investigators, collection of data on elder
abuse, and collaboration among Federal officials tasked with
combating seniors' exploitation. Its enactment was a top
priority of mine in the 115th Congress, but Congress's work in
this area seems never to be done.
Hardly a week goes by without seeing something about
nursing home abuse or neglect in the national news. Every
family has a loved one--a mother, a father, or a grandparent--
who may someday need nursing home care. That makes this a topic
of enormous concern, then, to every American. And today, two
such Americans are here with us to share their heartbreaking
experiences. They are both the daughters of former nursing home
residents who were victims of abuse or neglect.
First we will hear from a friend of mine, Pat Blank, whose
mother Virginia died at an Iowa nursing home due to horrific
neglect. This facility was fined for the mistreatment of
Virginia as well as another Iowan, Darlene Weaver. Second, I
want to welcome Maya Fischer, whose 87-year-old mother, an
Alzheimer's patient, was brutally raped by a nursing aide. In
each of these cases, the victim's trust was betrayed by the
very individuals who were entrusted to care for and protect
them. Sadly, these are not isolated cases. They could have
happened to anyone.
According to the Inspector General, a whopping one-third of
nursing home residents experienced harm while under the care of
their federally funded facilities. And in more than half of
these cases, the harm was preventable. I remember that figure;
one-third is pretty close to the one-third figure that cropped
up in my hearings 20 years ago. Two years ago, the Inspector
General also issued an alert warning the public about
deficiencies cited at nursing homes in 33 States. A significant
percentage of these cases involved sexual abuse, substandard
care, and neglect.
It is our job to protect America's most vulnerable citizens
and to prevent them from being victimized. Many, like the
elderly mothers of Ms. Fischer and Ms. Blank, cannot speak for
themselves. Some rely on wheelchairs and walkers to get up from
their beds. Others have mental and cognitive disabilities that
prevent them from communicating wrongdoing.
We depend on nursing homes to render the skilled nursing
care that many of our loved ones cannot provide on their own.
As chairman of the Senate Finance Committee, I will continue to
make it a top priority to ensure our most vulnerable citizens
have access to quality long-term care in an environment free
from abuse and neglect, and I know that members of this
committee share that goal, and particularly my partner, Senator
Wyden.
I intend for today's hearing to shed light on the systemic
issues that allow substandard care and abuse in America's
nursing home industry and help lead the way to reforms. I hope
to hear from our expert witnesses, for example, about why some
nursing home abuse and neglect cases never even get reported to
law enforcement. And that is required by law. I hope to hear
that we fixed the weaknesses in the five-star rating system,
and that we have cracked down on social media abuse. Every
American listening today can be sure that I will continue
shining the public spotlight on this issue as long as it takes
to fix these problems.
It is my hope that the oversight work of this committee
will prevent elder abuse from claiming more victims so that we
will not need to call more witnesses to testify about the
horrible abuse that we are going to hear about today, and so
that other moms and dads do not experience that in a nursing
home.
Thank you all for joining us. I look forward to your
testimony, and I will call on Senator Wyden.
[The prepared statement of Chairman Grassley appears in the
appendix.]
OPENING STATEMENT OF HON. RON WYDEN,
A U.S. SENATOR FROM OREGON
Senator Wyden. Thank you very much, Mr. Chairman. As you
indicated, this will be another issue where there is an
opportunity for you and I and committee members to find
considerable common ground. And I look forward to working with
you.
Colleagues, generations ago with Social Security, America
closed the door to the whole idea of impoverished seniors
living out their last years on poor farms. Decades later with
Medicare and Medicaid, there was a guarantee that seniors would
be able to get health care. To continue that hard work, one of
the challenges our country faces now is ensuring that seniors
in nursing homes are safe and well cared for. I want to be
clear this morning: our best nursing homes meet a high standard
of care, but tragically not all do in America.
Seniors in nursing homes are among the people most
vulnerable to life-threatening consequences of abuse and
neglect. Across the country, that vulnerability is being
exploited in unimaginably cruel ways in nursing homes that are
unsafe, understaffed, and uninterested in providing even the
most basic humane level of care.
This morning the committee is going to hear stories of
seniors being sexually and physically abused, starved,
dehydrated, and left for dead. These stories, unfortunately,
are not just isolated cases. Last November I released a
report--a report that was produced by Finance minority staff
called ``Sheltering in Danger''--that examined the tragic
deaths of 12 residents at a Florida nursing home where nursing
home managers and staff failed to evacuate them after Hurricane
Irma.
Just this week, a news report from Ashland, OR told the
story of an elderly nursing home resident who was found with
mold, ulcers, and infections after she went a week without
bathing. In the news report, a nurse was allegedly stealing her
pain medication, and, even after a trip to the hospital to
treat her infections, the person who is charged with her care--
according to the news report--continued to steal her medicine
until she died 17 days later.
So as the committee examines these issues, there are a few
specific matters that need investigation. First, the Trump
budget comes out next week, and my sense is--I wish it was not
the case--we will see proposed another draconian cutback on
Medicaid. Medicaid helps cover costs for two out of three
seniors in nursing homes. I am going to fight this proposal
with everything I have got, because it would turn back the
clock on efforts to improve care, and it would inevitably lead
to more nursing homes closing their doors, which would
especially work a hardship in rural America. We cannot see
rural America turning into a sacrifice zone, but if we do not
have rural health care and rural nursing homes, that is where
you are headed.
Second, at a time when the Federal Government ought to be
raising standards and rooting out harmful substandard care and
those who provide it, regrettably the Trump administration and
the Centers for Medicare and Medicaid Services are going in the
wrong direction. The basic regulations on nursing homes go back
several decades. Since then, a 2003 study found 20,000
complaints of exploitation, abuse, and neglect. Reports from
the National Center on Elder Abuse found that only a small
fraction of cases even get reported.
A 2014 report from the Department of Health and Human
Services Inspector General found that a third of Medicare
beneficiaries were harmed within a matter of weeks, just
several weeks, after they entered the home. So in 2016, there
was an effort to update basic safety rules. The update required
nursing homes to develop plans to prevent infections. There
were specific policies and procedures in that proposal to
prevent abuse, neglect, mistreatment, and theft.
The proposal said that nursing homes should not pump
residents full of psychotropic drugs. That seems about as basic
as you can get. And it banned the practice of forcing seniors
to sign away their legal rights with pre-arbitration contracts
as a precondition of admission to a nursing home. Also, it
proposed tougher financial penalties for homes that harm
residents or fail to meet safety standards. Come 2017, under
the banner of deregulation, the Trump administration said, ``We
are going to roll those changes back.'' Other examples related
to the recommendations are in the ``Sheltering in Danger''
report. I am concerned that the Trump rollbacks will mean
nursing homes are unprepared for natural disasters in the
future. There still is no Federal rule mandating that nursing
homes have emergency power generators.
Folks, this is not rocket science. It gets hot in the
summers in the west and the south and all over the country. If
you have a rule that does not require that nursing homes have
emergency power generators, that is a prescription for trouble.
So when I hear the Trump administration throw around the phrase
``patients over paperwork,'' I think that somehow criminals and
substandard caregivers are getting off the hook, because there
is a likelihood that more vulnerable seniors get hurt.
I also share the chairman's view with respect to the
Federal Government's rating system for nursing homes. At a
hearing in the Aging Committee years ago--and I think I
mentioned this once to the chairman--I pointed out that it was
easier to get an accurate review of a washing machine than a
nursing home. After that hearing, the Centers for Medicare and
Medicaid Services created a new rating system that should have
been a powerful tool for seniors and their families to sort out
the good homes from the bad. As the chairman indicated--a view
we share--it has not turned out that way.
Too much of the information that goes into the rating
system is self-reported. It is not a reliable indicator of
quality. For instance, one of the witnesses coming before the
committee today will tell us about her mother passing away
after suffering extreme neglect at a facility in Iowa. That
home got top marks for quality: a five-star rating. So as the
chairman indicated, this hearing needs to be part of the effort
to accelerate fixes to the flawed rating system.
I am going to close with one last point. I know in my home
State there are nursing homes and labor unions working together
on common ground to try to set higher standards and raise the
quality of care. As a young man, I was the co-director of the
Oregon Gray Panthers, and I was named by our Governor to serve
on the State Board of Examiners of Nursing Home Administrators,
even though the industry got State legislators to vote to keep
me off.
I finally managed to get on, and I spent a lot of time
visiting seniors who lived in sordid conditions who needed a
lot of help just to get through the day and who were victims of
scams and abuses. So those memories are still very much on my
mind.
I am pleased that the chairman has chosen to hold this very
important oversight hearing, and I think we can all agree that
what this is about is, seniors have a right to a dignified
retirement. And this battle is not complete until that right to
a dignified retirement is secure.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Wyden appears in the
appendix.]
The Chairman. I hope you know that what I have pointed out,
and what Senator Wyden has pointed out, that these issues come
up whether you have Republican or Democratic Presidents. When I
first got involved in it, it was a President of another
political party. This is a systemic problem that does not seem
to respond to whoever is in control of any bureaucracy here.
Before I introduce these first four witnesses, I want to
say a friend of mine, Donna Harvey, is in the audience. When
she was head of the Governor's Administration on Aging in Iowa,
she and I collaborated on elder abuse policy for many years,
and she now heads up the Northeast Iowa Area Agency on Aging. I
want to recognize her past contribution to this effort as well.
Now to introduce our witnesses. The first one--I have
already spoken about Patricia Blank, a constituent of mine and
the daughter of a nursing home neglect victim from Iowa.
Then we have Maya Fischer from Seminole, FL, who is the
daughter of a Minnesota nursing home abuse victim. We welcome
both of you here.
Then we are going to have Dr. David Grabowski, health-care
policy professor, Harvard Medical School, and a member of the
Medicare Payment Advisory Commission, which is a commission
that a lot of us on this committee pay a lot of attention to.
Dr. Grabowski has conducted extensive research on aging and
nursing home care.
We will then hear from Dr. David Gifford. He serves as
senior vice president of quality and regulatory affairs for the
American Health Care Association, which represents many of the
nation's nursing homes.
We welcome all of you, and we are going to start then with
Patricia, and then go to Maya, and then go to Dr. Grabowski,
and then to Dr. Gifford.
Would you start? Make sure the red button is on.
STATEMENT OF PATRICIA BLANK, DAUGHTER OF NURSING HOME NEGLECT
VICTIM, SHELL ROCK, IA
Ms. Blank. Ladies and gentlemen, my name is Patricia
Olthoff-Blank. I am from Shell Rock, IA. I want to thank you
all for allowing me to present testimony this morning on this
very important issue. It is important to me because my mother,
Virginia Olthoff, died as a result of neglect at a nursing home
where she had lived for nearly 15 years. As a matter of fact,
today marks the 1-year and 1-day anniversary of her funeral.
One of the most frustrating parts about how she died is
that during her 15 years at Timely Mission Nursing Home in
Buffalo Center, IA, my family believed she was getting good
care. Each time we visited, she seemed comfortable. She was
dressed in regular clothes, not pajamas. She seemed to be clean
and well-groomed. We were familiar with many of the staff,
including the director of nursing, who went to high school with
me and my brothers. There had always been good communication
from the staff between my father--who lived just three blocks
away from the facility until his death in 2012--and me, the
eldest and only daughter.
After my father's death, I became the family member
responsible for decisions, and the administrators called me
often--and I appreciated hearing from them. ``Your mom needs
new glasses. She needs a haircut. Her toenails need to be
trimmed. She could use some new underwear.'' They also
contacted me and discussed each time her medication was
altered. She had dementia and she communicated with the staff
and with us, but not always knowing who we were. She just
always thanked us because we were the nice people who came to
visit. I was always invited to attend her yearly evaluation,
which I did not attend in person because I live nearly 2\1/2\
hours away. But it was conducted during the week, and the staff
always reported to me what had happened during that evaluation
over the phone.
Fast forward to February 28, 2018, at 3 a.m. I received a
phone call from the overnight registered nurse, who told me
simply, ``Your mother is moaning. What do you want me to do?''
I said, ``Give her something for pain.'' And the nurse
said, ``Well, all we can give her is Tylenol.'' She asked me
again, ``What do you want me to do?'' And I said, ``Well, I
think she needs to go to the hospital.'' So she said, ``Okay,''
and hung up.
The next call I got was from an emergency room nurse at
Mason City, which is about an hour and a half away from the
facility, who said I had better come quickly because she was
not sure that my mother would be alive in the hour or so that
it would take me to get there. My husband, brother, and I were
greeted by the emergency room doctor, who said my mother was
extremely dehydrated and had sodium levels that were so
elevated she likely had suffered a stroke.
He also said, ``This did not just happen. I believe she has
been without water or any type of fluid for 4 or 5 days, maybe
for as long as 2 weeks.'' He also told us he was a mandatory
abuse reporter, and he was going to report this.
I heard him say that, but I was so surprised that my mom
was so sick at this point that it really did not register at
the time. We held her funeral, as I said, March 5th of last
year. After her funeral, I went on with my life, grieving her
especially in April, because we shared a birthday. She would
have been 88.
In July, I got a phone call from Clark Kauffman, a reporter
from The Des Moines Register, who said he was sorry for my
mother's death, and he wanted to know if I had any comments
about a Department of Inspections and Appeals report. I had no
idea what he was talking about, but then remembered the
emergency room doctor had said he was going to make a report.
He did report that to the Department of Human Services.
The report, 31 pages long, read like a horror story.
According to numerous staff members, my mother had been eating
very little and drinking almost nothing for almost 2 weeks.
Where was my phone call then? The report also said she had been
crying out in pain often. Where was my phone call then?
She did have a Do Not Resuscitate order, but was not having
breathing or cardiac issues. The DNR states she is to be made
comfortable with an IV for fluids, oxygen, and morphine or
something for pain. None of that happened. The DIA report also
mentioned that she had lost a considerable amount of weight.
Again, where was my phone call?
I do want to thank the CNAs, the nurses, and others who do
work in care facilities who do their jobs right. The facilities
are often understaffed, and these people work for much less
money than they should be paid. Please thank these people if
you have a loved one in one of these nursing homes in nursing
care.
I also want to thank the emergency room doctor who reported
the neglect, and I want to thank Clark Kauffman from The Des
Moines Register and other journalists who make time to read
these lengthy reports and write stories about inspections so
perhaps something can be done about the current situation, and
family members will be notified when this happens.
I do have more ideas that I will just leave to the comment
section to talk to you about later. So, thank you very much.
[The prepared statement of Ms. Blank appears in the
appendix.]
The Chairman. Ms. Fischer?
STATEMENT OF MAYA FISCHER, DAUGHTER OF NURSING HOME ABUSE
VICTIM, SEMINOLE, FL
Ms. Fischer. Chairman Grassley, Ranking Member Wyden, and
members of the committee, thank you for the opportunity to be
here today on behalf of my mother Sonja Fischer. My mother,
suffering from advanced Alzheimer's, was a Medicare patient at
Walker Methodist Health Center in Minneapolis. On December 18,
2014, at 4 a.m., a nurse walked into her room and witnessed a
male caregiver, George Kpingbah, raping my mother.
My mother had suffered from Alzheimer's for 12 years. She
was totally immobile, unable to speak, and fully dependent on
others for her care. When I saw the nursing home's number on
caller ID, I prepared myself for the worst, that my mother had
passed away after so many years struggling with Alzheimer's. I
was not prepared for what I heard. A nurse informed me that my
mother had been sexually assaulted and was being transported to
the hospital. And just like that, my mother became another
statistic in the shocking reality of nursing home abuse. My
mother, however, was so much more than a statistic. So, please
allow me to tell you about her.
My mother was born in Jakarta, Indonesia in 1931. In 1942,
the Japanese army invaded the Indonesian Islands. In the horror
of war, soldiers were raping and killing women and young girls.
My grandparents were left with no other option but to flee
their homeland with their 12-year-old daughter.
My mother ended up in the United States, becoming a U.S.
citizen and building a life for herself here in this country.
She was a testament to the American dream. In this country, she
was safe and she was happy, a world removed from the horrors of
her youth.
It is impossible to imagine that at the end of her life
when she had no ability to fend for herself, that she would
suffer the very same horror her parents had fled their homeland
to protect her from. At 83 years old, unable to speak, unable
to fight back, she was more vulnerable than an infant when she
was raped. The dignity which she always displayed during her
life, which had already been assaulted by her disease, was
dealt a further devastating blow by her caregiver.
I received a phone call that this unthinkable act had been
committed against my mother during the week of Christmas 2014.
This news was devastating not only for its immediate shock, but
how it affected the memories we had of my mother and
Christmases past. Now and for the rest of my life, when I think
of my mother at Christmas, I will think of that horrifying
call.
The sense of helplessness I felt trying to comfort her
while she had a rape kit performed on her will always remain
with me, as will the 9 hours I spent in the emergency room with
her and the fear she must have felt with the bright lights and
scary noises of monitors going off. I will remember the pain
she went through having an IV drip so that, at 83, she did not
contract a sexually transmitted disease.
My final memories of my mother's life now include watching
her bang uncontrollably on her private parts for days after the
rape with tears rolling down her eyes, apparently trying to
tell me what had been done to her but unable to speak due to
her disease. I still feel the guilt of not being able to take
care of her myself and having to entrust her care to others
only to have her subjected to this unthinkable assault.
I remember the difficult decision we had to make when we
realized we could no longer care for her at home. We understood
that we had to pick a nursing home for her, and we did
everything we could to find the best place. We assured my
mother that she would be safe and that she would not suffer. I
can never overcome the guilt of realizing that these promises
were not kept. She was not safe. She was raped. Could this rape
have been prevented?
It is my understanding that other residents had previously
complained of sexual misconduct while Mr. Kpingbah worked at
the nursing home. I have learned that the Department of Health
investigated these prior complaints, did nothing, and kept them
hidden. I cannot help but wonder how my mom's, my family's, and
my life would be different if the Department had not kept these
allegations hidden.
Families struggle to care for their loved ones, do
everything they can to find the best possible care and to make
the best decision possible. We rely on information provided by
the Department of Health, and we must have access to all of
this information.
Please consider what I have shared with you today, how this
crime has changed our lives forever, how it stole away the last
shred of dignity that my mother had, and how it tarnished the
memory of a decent and loving woman who had already suffered
enough. Thank you.
[The prepared statement of Ms. Fischer appears in the
appendix.]
The Chairman. Dr. Grabowski?
STATEMENT OF DAVID GRABOWSKI, Ph.D., PROFESSOR, HARVARD MEDICAL
SCHOOL, BOSTON, MA
Dr. Grabowski. Thank you, Chairman Grassley, Ranking Member
Wyden, and distinguished members of the committee. My name is
David Grabowski, and I am a professor of health-care policy at
Harvard Medical School.
I want to thank you for inviting me to testify today on
this important issue of protecting older Americans from abuse
and neglect in nursing homes. On a given day, roughly 1.5
million individuals receive care from approximately 16,000
nursing homes nationwide. These individuals have high levels of
physical and cognitive impairment and often lack family
oversight and financial resources. As such, these are among the
frailest and most vulnerable individuals in our health-care
system.
We spend roughly $170 billion annually on nursing home
care. This sector is heavily regulated. Yet, quality issues
persist in many U.S. nursing homes. I want to quote from a U.S.
Senate Special Committee on Aging report. In this report, the
committee identified the following nursing home abuses: a lack
of human dignity, lack of activities, untrained and inadequate
numbers of staff, ineffective inspections and enforcement,
profiteering, lack of control on drugs, poor care, and the list
goes on and on.
If this report does not sound familiar to the Senators and
their staff, it is because it was published in 1974. I would
acknowledge that the nursing home sector has made important
improvements over the past 45 years. Nevertheless, many of the
issues identified in the Senate report in 1974 persist today.
Often the number of nurses per resident is low and the
staff turnover rate is high. Residents may develop new health
problems after admission due to physical restraints and missed
medications. Avoidable transfers of residents to the emergency
room and hospital are frequent. Many residents suffer from
abuse and neglect. And finally, the quality of life in many
U.S. nursing homes is inadequate. And a large number of
residents report feeling isolated and lonely.
So why is nursing home quality such a persistent problem
going on multiple decades? I want to review four reasons that
have been identified by researchers.
Reason number one for persistent low quality: we get what
we pay for. Medicaid is the main payer of nursing home
services, accounting for about half of all revenues and 70
percent of bed days. In many States, Medicaid reimburses at a
rate that does not cover the cost of caring for these high-need
residents. It is hard to run a high-quality nursing home when
you are losing money on the majority of your residents. Low
Medicaid payment rates also result in unnecessary emergency
department and hospital transfers, which increase Federal
Medicare spending on these services.
A second reason for persistent low quality: we have
regulations that simply are not being enforced. Over the last
several decades, we have seen quality improvements due to our
regulatory system. However, cracks are clearly evident in the
current quality assurance framework. Recent investigative
reports have documented substantial lapses in oversight
processes across multiple States. Importantly, it is the States
that are largely responsible for implementation of oversight
responsibilities, and many of the identified gaps have been
specific to particular States.
A third reason for low quality: certificate of need or CON
regulations which have stifled quality competition in many
markets. Thirty-four States currently have CON laws in place to
hold down nursing home spending. A CON law requires nursing
homes to get permission from the State to build additional
beds. Research has been fairly clear: nursing home CON laws
serve as a barrier to competition and lower the quality of
care. These laws also discourage capital innovation in a sector
badly in need of modernization.
And a final reason is really a lack of quality
transparency. CMS produces the Nursing Home Compare tool on the
Medicare.gov website to facilitate better consumer choice by
providing summary quality rankings. Evidence suggests that it
is coming up short.
Unfortunately, Nursing Home Compare lacks information on
many of the provider features that may be of the greatest
importance to residents and their families. Beyond shortcomings
in the website itself, relatively few nursing home consumers
report being aware of--much less using--the Nursing Home
Compare tool.
In summary, we have made important progress towards
improving nursing home quality over the past few decades since
the 1974 U.S. Senate report. I would assert, however, that the
nursing home sector is better, but still not well. We have a
lot of work left to do.
Significant quality-of-care problems persist at many U.S.
nursing homes. These problems are related to how we pay for
care, how we regulate providers, how we enforce existing
regulations that are on the books, and the inability of
residents and their advocates to monitor and oversee care.
Unless we address these underlying issues, we will be
discussing nursing home quality for another 50 years.
Thank you, Mr. Chairman.
[The prepared statement of Dr. Grabowski appears in the
appendix.]
The Chairman. Dr. Gifford?
STATEMENT OF DAVID GIFFORD, M.D., MPH, SENIOR VICE PRESIDENT,
QUALITY AND REGULATORY AFFAIRS, AMERICAN HEALTH CARE
ASSOCIATION, WASHINGTON, DC
Dr. Gifford. Chairman Grassley, Ranking Member Wyden, and
distinguished members of the committee, I would like to thank
you for holding this hearing to address abuse and neglect. My
name is David Gifford. I am a geriatrician, and I serve as the
senior vice president for quality at the American Health Care
Association. Previously, I was the Director of Health in the
State of Rhode Island.
As we just heard, nursing homes miserably failed to keep
the mothers of Ms. Blank and Ms. Fischer safe and healthy. You
entrusted their care to the staff in those nursing homes only
to see that trust violated. Their failure changed your lives
forever.
I want to thank you for coming forward today to describe
their abuse and neglect so that we can discuss ways to prevent
this from happening again. Families and residents like you and
your mothers, who are often at the most vulnerable and in the
most need of care and support, should never have to worry about
their physical safety, let alone experience what they have
done.
Cases of neglect and abuse are inexcusable and should not
happen ever. We are appalled and disgusted by these incidents.
Chairman Grassley and committee members, thank you for making
sure that these women are not forgotten. Our focus is to
prevent horrific incidents like these from occurring. At the
same time, I would like to recognize the thousands of dedicated
and caring nursing home staff who care for the elderly, often
in challenging circumstances.
AHCA represents nearly 10,000 of the 15,000 nursing homes
in the country, including half the not-for-profit and half the
government facilities. One of the privileges of my job is to
travel around the country to meet the hard-working committed
nurses, nursing assistants, and other staff. I have heard
thousands of heartwarming accounts of how nursing home staff
look after residents as if they are their own family members,
helping them get back on their feet and return home or enjoy
the remaining years with their families.
Listening to media stories, one might think the quality of
care in nursing homes is getting worse. This is not true. I am
proud to report that, in the last 7 years, the quality of care
in nursing homes has improved dramatically. In early 2012, AHCA
voluntarily launched a quality initiative, a member-wide effort
to measurably improve care, and our members stepped up to that
challenge. Since then our members have demonstrated
improvements in 18 of 24 quality outcome measures by CMS, many
of which relate to neglect.
For example, our members have decreased the number of
elderly who develop pressure ulcers, prevented more residents
from developing urinary tract infections, and prescribed fewer
antipsychotic medications. For the first time among all health-
care providers in the country, a nursing home in Idaho received
the U.S. Department of Commerce's prestigious Malcolm Baldrige
Award.
More needs to be done. Sometimes we fall short. Sometimes
we fall very short, as we have heard today. So what can we do
to help prevent future neglect and abuse cases? We have spoken
widely with our members and reviewed many of the abuse and
neglect citations. What we learned leads us to make the
following three recommendations.
First, to further reduce incidents of neglect, a program is
needed to attract and retain more nurses, aides, and health
professionals such as social workers and activity coordinators.
Staffing is the number one challenge I hear from our members
over and over again. Unfortunately, there is a national
workforce shortage. When nursing homes identify or train staff,
they often leave and take jobs in a hospital. To recruit and
retain high-quality staff, we suggest expanding to nursing
homes the already successful Federal programs to use loan
forgiveness to attract health-care workers.
Second, to prevent abuse we need to ensure that people we
hire have never engaged in improper, neglectful, or abusive
behaviors anywhere. We cannot do that nationwide and are deeply
concerned. To complete our background searches, we recommend
that nursing homes get easier access to the National
Practitioner Data Bank maintained by HRSA.
Third, CMS needs to collect and post customer satisfaction
ratings. Nursing homes are the only health-care setting without
such information. Giving residents and family members of voice
is essential.
In closing, AHCA is committed to making positive change and
is dedicated to ensuring that nursing home residents receive
consistent high-quality care and remain safe. We are eager to
work with Congress, members of this committee, CMS, and other
providers so that neither the mothers of Ms. Blank or Ms.
Fischer are forgotten.
Thank you for the opportunity to testify today.
The Chairman. Okay. We will have 5-minute rounds for
questions.
[The prepared statement of Dr. Gifford appears in the
appendix.]
The Chairman. Thank you all for staying within your
appropriate time to testify. And for the two witnesses who lost
loved ones, we are sorry that you had to tell us that story. We
thank you for being brave to come here to do it, and probably--
as I can tell, it is still troubling you very much to do that
because of the ones you love.
I kind of want to get from Ms. Blank and Ms. Fischer some
idea what you maybe went through to choose a facility,
information that might have been available to you at the time,
if you sought any such information, and specifically whether
you would rely on the Federal Nursing Home Compare website or
the five-star rating system in choosing a facility. I will
start with Pat.
Ms. Blank. Our family did not use that system. It was our
hometown nursing home. We knew everyone who worked there. We
had a wonderful administrator there for many, many years. He
knew every one of the residents, and it was never a question.
It was after he left that things went downhill. But even
after my mother's case and the one that you made reference to
from Kathy Weaver Arends, the abuse case, that facility still
had a five-star rating. So of course, now I definitely would
not look at that, and it is not accurate.
The Chairman. Yes, Maya?
Ms. Fischer. We did not use that either. We were
recommended this nursing home by some friends and family. We
did tours of it, talked to other residents' families who lived
there in order to gain our information. We did move her in
there a number of years ago. So there was not as robust of
information on the Internet to do a search at that time. So it
was mostly word of mouth and talking to other residents'
families who lived there in order to make our decision.
The Chairman. I am interested in what you were told,
whether or not, after you learned that your mother's cases were
being investigated, were these cases reported to law
enforcement, and if so, do you know who made the report and
what challenges, if any, did you face in this process? Pat?
Ms. Blank. We did not report to law enforcement, but we did
talk to the Winnebago County attorney, and we are still
currently pursuing criminal charges.
The Chairman. And you, Maya?
Ms. Fischer. Yes, in my case one of the nurses did report
it to the local police department. They did come and arrest him
immediately. The Minneapolis police department and prosecutor's
office did an unbelievable job in prosecuting him, but he was
taken away and it was reported by the nursing facility.
The Chairman. At any point in the process, were either one
of you contacted by the State's Long-Term Care Ombudsman?
Ms. Blank. No.
Ms. Fischer. I don't believe so. No.
The Chairman. Okay. Thank you.
Now to Dr. Grabowski, I suppose I am going to start out by
asking an impossible question. We have quite a few rural
communities in Iowa and other States, of course, and when
nursing homes close, there might be few options available.
Families are torn between traveling long distance to better
facilities to visit their family members as they want to, or do
they keep them in a lesser facility? What suggestions would you
have for families coping with that issue?
Dr. Grabowski. There was a really powerful New York Times
story, just earlier this week on Monday, that highlighted
exactly this issue around rural nursing home closures. This is
a really important issue. I would like to say rural nursing
homes are like other nursing homes, only more so, and that all
the issues we are talking about today, I think, are magnified
there: the lack of options, the high dependence on Medicaid,
and really the importance of oversight from regulatory bodies.
So I agree with you that that choice you just described is
not a good one. Do I go to a substandard nursing home, or do I
travel long distances? Oftentimes patients have to travel long
distances to a substandard nursing home, so there really is not
that kind of choice.
I would hope that we could think about some different
policy levers here, like Medicaid payment changes for rural
areas. Could we think about additional regulatory oversight in
recognition that maybe consumers do not have choice? Can we
think about payment and regulations being ways to maybe spur
better quality in those rural markets?
The Chairman. Okay.
Would you answer that question too, Dr. Gifford?
Dr. Gifford. We hear and are concerned too about rural
facilities. The challenges, I think, as Dr. Grabowski said, are
both financial but also workforce. Many people are moving from
the rural area into urban areas, so there just are not enough
people there. And what we hear and what we recommend today is,
we need incentives to get high-quality health-care workers to
come in there.
Many of the graduates from nursing school have huge loans,
and a loan forgiveness program would be able to go right away
to help rectify that situation.
The Chairman. Senator Wyden?
Senator Wyden. Thank you very much, Mr. Chairman.
Let me ask you a question, if I might, Dr. Gifford. I think
you were here when I said the best nursing homes in this
country adhere to a high standard of care. And I took special
note of the fact that in Oregon we have a number of our homes
working with the unions of service employees and others to
improve standards of care.
We have heard, however, really horrendous stories this
morning. We heard about an 83-year-old Alzheimer's patient
raped. We heard about an 87-year-old patient denied water for
weeks. And you said--to your credit--you were very concerned
about that.
But I am very troubled about a policy that I believe you
advocate. I believe you are in favor of a policy that would
take away the option of those families and those patients to
secure justice in the legal system. In other words, I believe
you are for a policy that would require patients, at least at
some facilities, to sign what would be called a pre-dispute
arbitration agreement, in effect requiring the families to
choose between entering a nursing home of their choice, or
waiving their rights if something horrible happened. Now, my
understanding is your support for these pre-
dispute arbitration agreements is because you think that will
keep people out of court and prevent conflicts and the like, a
legitimate point.
But tell me why this morning you believe people should be
forced to give up their right to secure justice in the legal
system, because we heard from two family members about how
important that was. Why should people not have the right to
have both? If you want to go arbitration, go arbitration. But
why should you give up that other right, particularly when
these patients and their families are so vulnerable?
Dr. Gifford. Senator Wyden, I think that, as you aptly
described, the tragedies that they both suffered--there is
probably no compensation or any issue that will be able to
rectify the situation that occurred.
I do think--and AHCA's position has been--that arbitration
is a legal remedy that does allow them to get compensation for
any rights and wrongs done out there. So there are two options,
which are to either pursue the legal aspect or to pursue an
angle through arbitration. And arbitration is often resolved
faster and quicker out there. So our position has been, as an
association, to allow the pre-dispute arbitration as an option.
Senator Wyden. But it is the only option for some people.
When you talk about supporting pre-dispute arbitration
agreements, you in effect support a policy that requires
families to choose between entering a nursing home of their
choice or waiving their rights if something horrible happens.
I want to move on. I just hope that you all will re-examine
this, because I am one who wants to work with facilities that
adhere to these high standards of care, and that is why I am
pointing out that in Oregon we have some people working very
hard to do it. But the idea that those folks over there who
have told these stories that ought to shock the conscience of
everybody in America should give up their right for legal
recourse, I cannot swallow that. It is contrary to everything I
have been part of since the days when I represented the public
interest on the board of nursing home examiners.
Okay. One other question, if I might, for you, Dr.
Grabowski. You are something of an authority on this.
What concerns me--and I very much share the chairman's view
on this--is if we are not careful, we are going to lose rural
facilities from one part of the United States to another, and
we are going to see them just collapse like dominoes and you
will not have rural nursing facilities, and rural areas become
sacrifice zones.
Last Congress we had a proposal that would have slashed
Medicaid with block grants, capped the program. I asked the
congressional scorekeepers to analyze this, and they said the
Medicaid cuts would reach 35 percent by the end of the first 2
decades. It seems to me if you have something like that--and
with Medicaid paying much of the nursing home bill--not only
are we going to lose the nursing home guarantee, but we are
going to see even more nursing home closures in rural America.
Tell me a little bit about what you see as the
ramifications of these kind of cutbacks.
Dr. Grabowski. Absolutely. We are seeing this already. We
have had over 400-plus rural nursing home closures. So we are
losing, really, the backbone of a lot of these communities in
terms of support for older adults. The issue is, once again, as
you suggested. It is low Medicaid payment. Many of these
nursing homes are almost entirely dependent on the Medicaid
program for financing. It is just really hard to continue to
operate a high-quality nursing home with the Medicaid rate.
I think the other issue--and Dr. Gifford raised this--is
labor, finding workers. That has been a real challenge as well.
You might say, well, why don't they just pay more? Well once
again, Medicaid is the one reimbursing the care. They are not
able to raise wages with low Medicaid payment rates. So we are
going to see additional closures. And I think Medicaid is
absolutely one way to encourage a healthier rural nursing home
sector.
Senator Wyden. Thank you, Mr. Chairman.
The Chairman. Let me tell my committee members that this is
the way it is going to be for the people who are here now, but
remember, with a long list like this, if somebody comes in, you
could be cut out of your turn. Senator Scott first, and then
Senator Stabenow, and then Hassan, and then Whitehouse.
Senator Scott. Thank you, Mr. Chairman, for holding this
incredibly important hearing this morning, one that challenges
the conscience--as Ranking Member Wyden suggested, shocks the
conscience, especially when you listen to Ms. Blank and Ms.
Fischer and their testimony. The challenges--I think the whole
process of engaging the right place to put your loved one is a
difficult process in and of itself, then coming to the decision
where you place that loved one, especially in what I consider
the sandwich generation--where we have young ones old enough to
be on their own, but not necessarily there yet, and folks who
are old enough to need our assistance.
So the pain and misery associated with the decision-making
process cannot be emphasized enough. And I certainly do not
have words to articulate how important this hearing is and how
important your testimonies have been. I watched them back in my
office, and I will say that it is just a challenge that we need
to find ways to root out and to solve.
Abuse and neglect can never be tolerated. So thank you very
much for your bravery and your willingness to come forward and
be so transparent in a vulnerable way. Our Nation benefits from
your testimony, without any question.
In South Carolina, there has been a strong and sustained
focus on quality, which I am proud of. The vast majority of our
nursing facilities are providing meaningful care to a very
vulnerable population in safe and secure settings. There
certainly are bad actors, and I do have some questions for Dr.
Gifford as it relates to those bad actors.
One of the things that I highlight in South Carolina is
that the vast majority of our nursing facilities have either a
four- or five-star rating overall, as well as in their staffing
levels and the quality of the care. According to a 2017 OIG
report, we were one of only 9 States to receive between 0 and
15 complaints for every 1,000 nursing home residents.
That said, listening to your testimonies, we have to do
better. And it is incumbent upon us to figure out ways forward.
It is vital that we avoid any steps that divert attention and
resources away from resident care, away from the actual
patients who need and deserve--and frankly are paying for--that
type of assistance.
To that end, Dr. Gifford, what changes are necessary from
CMS to improve the quality of care in nursing homes, especially
taking into consideration what we have heard and, frankly, the
contrast with a lot of patients, in South Carolina and many
other States, where the level of care is good? How do we
improve the engagement with CMS to improve the outcome of the
average patient?
Dr. Gifford. Well I think, as you have heard today in the
testimony by the panelists and the questions, certainly
improving five-star is one way to do that, though it is not
just about the selecting of homes. I think it is the monitoring
of the homes. Certainly one of our recommendations today is,
you really need to have the consumer voice added. The fact that
we need to have satisfaction on there is something that we have
been advocating for for a while. I believe the GAO report on
five-star has asked CMS to do that in the past as well. So I
think that would help move that in that direction.
I think the other issue is that often the focus of
citations, as Dr. Grabowski has talked about in some of his
studies, is varied and difficult to understand. And so there is
not a consistency there. And when there is greater consistency,
they tend to not focus on the broader systems. This is why at
AHCA we have really advocated for our members to adopt the
Malcolm Baldrige framework.
Senator Scott. Yes.
Dr. Gifford [continuing]. Because that really focuses on
systems. And in those systems, you have to have management with
the right training to do the right oversight so that issues
when residents have a change in status, like Ms. Blank's
mother, or when other State employees are noticed to be not
dealing well with residents, that they are notified and then
changes can take place before these abuses can occur.
Senator Scott. Thank you.
Dr. Gifford. That is what we would like to have done.
Senator Scott. One last question--I note my time is about
up. So how can we ensure that our actions, whether in
regulation or enforcement, are targeted at bad actors and avoid
increasing the administrative burden for the high-quality
facilities across the country that are already placing patients
at the center of their attention? Dr. Gifford?
Dr. Gifford. Well, I think one of the things we talked
about in my testimony is making sure that we have access to the
National Practitioner Data Bank at HRSA. I think that will go a
long way.
Right now we really only have access to information within
the State. As any employees move across State lines or move
between provider settings, we do not have access to that
information. That would be put into the National Practitioner
Data Bank, and we would get access to that. And that is
something we could do relatively quickly.
Senator Scott. Mr. Chairman, I will just say this in
closing, sir. I think it is incumbent upon all of us to take
this issue incredibly seriously and perhaps even in our own
States take the time to visit some of the nursing homes and see
firsthand what may lead to a better experience so that we can
avoid as many of the incredible testimonies that we have heard
today, if possible.
So I would challenge all of us to make it a priority to
visit nursing homes and to become intimately aware of an
industry that will be growing, I think, exponentially over the
next several years as baby boomers, at 10,000 a day, continue
to become a focus of our attention.
Thank you, Mr. Chairman, for this hearing.
The Chairman. I would back you up, not only to visit the
nursing home to see what goes on there and understand it and
hopefully encourage more quality care, but it is also a good
place to hold a town meeting.
Senator Scott. Good thinking, sir. Yes, sir.
The Chairman. Senator Stabenow?
Senator Stabenow. Well, thank you, Mr. Chairman. First,
thank you to you and our ranking member for holding this very
important hearing.
Thank you to all of you for being here, and particularly
Ms. Blank and Ms. Fischer. I was thinking as you were talking,
my mom is 92 years old, and I am blessed because she is doing
very well. She is amazing--former nurse--and doing very well.
But if that had happened to me, what happened to you--my blood
pressure was just going up and up and up thinking about the
horror of this. And so, thank you for having the courage to
come forward and speak for many people about what happened, and
thanks to our other witnesses as well for the good work you do.
And I do want to stress that Medicaid pays for two out of
three nursing home residents. And so, when the President's
budget comes forward, if it guts Medicaid again, let us be
clear, that cuts nursing home care. That makes it harder, Dr.
Gifford, to have quality staff that you can maintain. I mean,
this is all related, and we need to be serious and understand
that as we go forward.
I wanted to speak about transparency, which many of you
have talked about. And because we are all at some time going to
be looking for a quality nursing home--of which by the way,
there are many with dedicated staff and such, but people need
to know when there are situations that are not high-quality so
you can make the right choices.
So we have talked about the CMS Nursing Home Compare
website, which has been around about 20 years in different
forms. I actually pulled it up here. As we look at, Ms. Blank,
the nursing home that your mom was in, I am assuming that you
would want folks to know what happened to your mom in this
report. Is that a fair assumption?
Ms. Blank. Absolutely.
Senator Stabenow. Well, it unfortunately is very tough to
do when you look at this report. And so when we look at this,
we see that the nursing home gets a two out of five-star
rating, which includes a one out of five inspection rating,
four out of five staffing rating, and five out of five quality
measure rating.
If you click on health inspections on that tab, you will
see three citations in the most recent inspection. August, just
months after your mom passed away, they had a ``minimal harm or
potential for actual harm'' and a ``few residents affected''
category.
And if you go on down to another one, complaint inspections
between February of last year and January of this year, it
comes up with 9 pages that are extremely hard to figure out for
anybody, and I do a lot of work on health policy and work on
Medicaid all the time. And this is extremely hard to figure
out.
And the first time I read it, I actually missed your mom's
case in here because it was listed under level of minimal harm
or potential for actual harm. I assume that is not an accurate
description in your mind that this was minimal.
Ms. Blank. Absolutely not.
Senator Stabenow. So what type of information would you
want people to have when searching for a nursing home? And how
would you recommend we change here from this mass of numbers
and so on to actually be able to share information?
Ms. Blank. Well, just to be able to write it in layman's
terms so people can understand, because I read those reports
too, over and over again, and I am sure Maya has read those as
well--just so that they are understandable so people know what
it is and the level of which they are under duress, and, you
know, that level was, I think, massive. There were several
people there who were under immediate distress, and that is
where it needs to be.
The other thing I think--and I am talking a little bit out
of turn here, but I think we need to know when they get a fine.
That should be reported on there also, because in my mother's
case, it was initially $30,000. It was held in suspension.
Senator Grassley, with the letter, was able to get it elevated
to $77,000. But they get a 35-percent discount if they say,
``Okay, we are not going to appeal it.''
So why is there a 35-percent discount for that? So that is
another thing that is very troubling. So it does not look as
bad as it is when it is only a $30,000 fine from a $77,000
fine, which is huge for the State of Iowa. That was a large,
large fine for a facility.
Senator Stabenow. Really good points. And by the way, you
have to go to the fine print in the back to even find any
description of what happened to your mom, as you know.
Ms. Blank. Yes, ma'am.
Senator Stabenow. Now, Dr. Gifford, you talked about AHCA
strongly supporting a mechanism for public reporting on
resident and family satisfaction. And you pointed out that
nursing homes are the only sector right now where CMS does not
require it, and I agree with you completely. I think that is a
very important piece of this. And CMS could add this right now,
right? They could just add it if they wanted to?
Dr. Gifford. It would require setting up a program for
everyone to collect it and submit it to CMS, and they would
have to issue a rule and regulation, but there is----
Senator Stabenow. But they could. There is nothing that
prohibits it.
Dr. Gifford. Correct. Yes.
Senator Stabenow. And I hope they will take your
recommendation and do that.
Dr. Gifford. Thank you.
Senator Stabenow. Dr. Grabowski, do you have other
suggestions on improving quality or availability of information
so that people can make a good decision? People want to make
good decisions; families want to make the right decision. It
seems to me that it is all of our collective jobs to make sure
they have that information so they can do that.
Dr. Grabowski. Absolutely, and the experience of Ms.
Fischer and Ms. Blank not using Nursing Home Compare is
actually very typical. Very few residents and their families
actually access the website.
So a first step would just be getting individuals to
potentially choose their nursing home through the hospital. Are
there ways of using hospital discharge planners to mandate that
everyone be shown information about the different nursing homes
in their area?
Another idea, obviously, is to improve the actual quality
of the quality rankings. We heard about nursing homes that
maybe are not the best performers getting four or five stars,
and we need to make certain those are accurate ratings.
And then the final point is, these ratings really reflect a
very narrow part of the entire experience. I think they are
very focused on the nursing side of the nursing home
experience. They are not very focused on the home. There is
very little about the quality of life in the nursing home.
There is very little about patient satisfaction, to Dr.
Gifford's point.
I often use this line, that I can learn more about the
hotel that I stayed in last night here in DC prior to this
hearing than I can about any of the nursing homes in this local
area. It should not be that way. We should be able to learn a
lot more about these nursing homes.
The Chairman. Senator Hassan?
Senator Hassan. Thank you, Mr. Chairman. And I want to
thank you and the ranking member for holding this hearing.
To all of our witnesses, thank you for being here today,
and particularly to Ms. Fischer and Ms. Blank. Thank you for
having the strength and courage to talk about something so
extraordinary painful in public. Just please know what a
difference it makes when you do. And so you have a lot of
people out there who are very grateful, and I hope your stories
will help a lot of others avoid the harm that your loved ones
experienced.
So I want to talk a little bit and follow up really, Dr.
Grabowski, with you and maybe, Dr. Gifford, you may also want
to talk about it. One of the greatest challenges that you have
both mentioned for many nursing homes is staffing. Facilities
often have a very difficult time recruiting and training staff.
Difficulty finding high-quality workers can obviously impact
the health and safety of residents.
I have heard from nursing homes in my State about this
problem directly. For example, at one nursing home, the
president of the nursing home and all of the non-clinical and
administrative staff are cross-trained as licensed LNAs so that
they can take on shifts. This nursing home not only pays for
staff to receive their licensed nursing assistant training, but
also provides a stipend while they attend class because so many
people who want to get their LNAs cannot afford to miss work
and take the class at the same time. And this nursing home
provides on-site daycare to attract employees, but it is still
not enough.
Despite all of this, the nursing home is still struggling
tremendously with a workforce problem to a point where it
affects their census, how many beds they can have, because
State regulators are very clear with them, you may not have
more patients than you have staff to take care of. So we know
that low staffing rates are linked to poor outcomes for
patients, so it is absolutely critical we address it.
So let us start with you, Dr. Grabowski, anything you can
add. You have already talked a little bit about it, what
Congress can do to help support nursing homes with recruitment
and retention to ensure that they have the workforce that they
need.
Dr. Grabowski. Absolutely. This is a national crisis. Many
nursing homes just cannot find the labor out there that they
need. I would make one point in addition. I already mentioned
payment. I would go, kind of, a little further there and say
some States have been very innovative in developing wage pass-
through programs where they do not just pay nursing homes more,
but they actually put the dollars specifically towards staff.
And I think that is really important--not just paying more, but
paying more for staff.
And I do think we have seen some important innovations in
terms of quality monitoring right now with the Payroll-Based
Journal or PBJ data, that now we can actually see who is caring
for our loved ones on any given day in these nursing homes.
So I think we have improved data resources to monitor
nursing homes. Let us give them the resources now to make
certain that we have sufficient staffing on a consistent basis.
Senator Hassan. Thank you. Dr. Gifford, do you have
something to add?
Dr. Gifford. I would agree with Dr. Grabowski. I would add
that, as we listen to our members--and I listened to just even
family members and others who were graduating--the debt of
health-care workers is so big that it is not just a salary
issue. And that is why we were proposing the loan forgiveness.
We thought--these changes we support may take time. They may be
very costly. The loan forgiveness would be easier and I think
faster to implement to help meet Senator Grassley's and Wyden's
issue to address this quickly.
Senator Hassan. Thank you.
Ms. Fischer and Ms. Blank, I want to thank you both again
for being here today and to add my condolences for the
heartbreaking stories that you have shared about truly horrific
shortcomings in the nursing homes your loved ones were in. I
think we all share the sentiment that nobody should have to
share the experiences that your family has had, particularly
your loved ones. But I just wanted to give you any additional
opportunity to let us know what else is on your mind about what
steps Congress can take to ensure that abuse and neglect in
nursing homes like the abuse and neglect your mothers
experienced never happens again.
Ms. Blank will start.
Ms. Blank. I would like to say that I know for a fact that
at least three of the people who were fired from the facility
after this made the front page of our State newspaper very
easily got a job across the border in Minnesota. They are all
working right in the same kind of facilities again, and there
was no--they were never charged with anything. So I am sure
they never said, ``Well, two people died on the same day in our
care facility and one of them made the front page of the
newspaper,'' and they are not going to say that, but yes.
So I think some way to follow that, track that that
information is also available to people who are looking to
employ. But again, that shortage is one of the reasons why they
were happy to have these people who had all of that experience,
but they did not know why they were let go.
Senator Hassan. That is helpful. Ms. Fischer?
Ms. Fischer. I think again, for me, it is mostly about the
transparency. In my situation, the person who raped my mother
had been investigated numerous times before. So the fact that,
you know, he was continually investigated, and he still kept
his job--how can that be? How can that be?
I understand maybe one allegation. I understand these are
elderly patients; sometimes they get confused. But when you
have an employee who is multiply investigated for sexually
assaulting nursing home victims, somebody dropped the ball
there. And somebody did not take that seriously, and because of
that, my mother was a victim of his.
Senator Hassan. Thank you.
The Chairman. Senator Cardin?
Senator Cardin. Thank you, Mr. Chairman.
I want to thank all of our witnesses. Obviously, in regards
to safety, the issues of transparency are extremely important.
Staffing issues are well understood, that we have a challenge
in finding qualified people in adequate numbers, and those
issues have been covered, and I think we have to see what role
we can play here in Congress to help in regards to those
issues.
Dr. Gifford, I want to cover one other issue that has not
been talked about yet, and that is the unnecessary senior
hospitalization we see from nursing homes. One of the reasons,
of course, is that nursing homes by and large do not have 24/7
medical staff on duty, which is understandable. There have been
a couple suggestions that have been made. I have been working
with Senator Thune on a way you can get on-site emergency
medical care within our nursing facilities. We also have the
growing understanding of telehealth and what telehealth can do
as far as providing timely information that can help deal with
patient care.
So my question to you is, within the industry, is there an
understanding that in many cases patients who are in nursing
homes are--because there are other options available--sent to
an emergency room only to find out that it was really not
necessary for them to be sent to the emergency room, but that
was the safest option at the time?
Are you looking at ways that you can reduce unnecessary
hospitalization?
Dr. Gifford. Yes, we have made reducing hospitalizations
one of our central focus points for our quality initiative
areas. And I would say that, particularly in the rural areas,
the promise of telehealth is great, but as you know, telehealth
varies all over the map with that.
And I do think that, generally speaking, the nursing home
staff I talked to find that when people go to the hospital,
they come back usually worse than when they left. The acute
illness might be treated. The emergency room may address the
issue, but the resident really suffers a lot because, as you
have heard, these elderly individuals are very frail and have a
lot of complications with them.
So we think it is important to address that and lower it. I
think telehealth definitely plays a role in it. We hear from
members all the time which ones know how to work it, and there
are a lot of different companies out there. So we would be
happy to work with you and your staff to figure out how better
to do that.
Senator Cardin. Is this an issue of just not understanding
telehealth, not having it available, not having the right
staffing needs in order to deal with this? I appreciate the
fact that you have acknowledged a problem, and you also
acknowledge that, by sending the person to the emergency room,
it may not even be in their best interest. It is a costly
option, by the way, also to our health-care system. But it may
not be in their best health-care interest.
Do we have a regulatory problem that is impeding your
ability to deal with this issue? Is it a cost issue on
staffing? Is it a lack of understanding on how telehealth
works? Are there restrictions on telehealth? Where can we
assist in helping you solve these problems?
Dr. Gifford. I think there are a number of different ways,
and probably, given the time and everything, it would be better
if we sit down and talk with your staff on how to do it. But I
know that one of the common issues we hear from telehealth is
about how they get reimbursed for that time. And I think the
current reimbursement system was designed prior to telehealth.
And how to incorporate that in is one of the challenges that is
out there.
Senator Cardin. And we have had that issue in regards to
other issues. This committee has taken action in regards to
opioids, in regards to mental health, in regards to other
fields where we have been able to expand telehealth
opportunities. So I think this is an underutilized area.
Dr. Grabowski, did you want to comment?
Dr. Grabowski. No. I completely agree. We did a study in
Massachusetts where we looked at nursing home telemedicine, and
it was found to do exactly what you suggested: it prevented
hospital transfers during evenings and weekends when staff were
not there. We thought this was a real success.
Of course, right when our study ended, the nursing home
chain did away with the technology for exactly the reason that
was just suggested. It was about payment. They were paying for
the technology, ``they'' being the nursing home. Medicare was
enjoying the savings. And so I think bridging that disconnect
between who pays for the service and who actually gets the
savings--we can have telemedicine in rural areas, in rural
nursing homes, and that can be paid for. But in urban and
suburban nursing homes, that is not the case.
So I think bridging that disconnect between who pays and
who reaps the savings--and is there a way for Medicare to maybe
invest in these programs to enjoy some of the savings?
Senator Cardin. I look forward to working with you.
Thank you, Mr. Chairman.
The Chairman. Now we have--Senator Thune has come back. So
as I told some of you----
Senator Thune. You seem disappointed, Mr. Chairman.
[Laughter.]
The Chairman. No. Not at all. It is just kind of hard to
referee when people are in and out.
Senator Thune. I know.
The Chairman. Go ahead, Senator Thune.
Senator Thune. Well, thank you, Mr. Chairman, for holding
the hearing.
Ms. Blank, Ms. Fischer, so sorry for your experiences, and
we appreciate hearing your stories.
I think we can all agree that the stories of egregious
abuse and neglect that we have heard today have no place in our
society, and that as work continues to improve quality and
outcomes and to prevent these types of instances of abuse from
happening again, we also need to ensure that access to care
remains a priority as our population continues to age. And that
is certainly an issue that we deal with in South Dakota.
Dr. Grabowski, in your testimony you referred to a New York
Times article from this Monday that discussed rural nursing
home closures. As a result of the closures referenced, more
than 100,000 South Dakotans were displaced, many of whom had
few options that were less than 100 miles away from the
facilities that closed.
Staffing is one of the top issues that I hear about, but
for the benefit of the committee, what other challenges do
rural facilities face as they work to provide quality care? We
see, as I mentioned, more and more nursing homes in my State of
South Dakota are closing.
Dr. Grabowski. Yes, and we are seeing that trend nationally
with the closure of rural nursing homes. It is really about
resources, the resources to pay staff to operate a nursing
home. And so, given that these rural nursing homes are often so
dependent on Medicare and Medicaid as a less-generous payer of
services, they simply do not have the resources to provide
high-quality care and even to stay in business.
So I think adding additional resources for rural nursing
homes is really important. That was a really well-written
story, and a really powerful story about displacing residents
and just the effect that has on their health. It is not just
bad for residents to be transferred to the hospital; it is also
bad for them to have to transfer nursing homes. And so I hope
that we can work on ways to provide rural nursing homes with
more resources to continue to be that important source of care
for older adults.
Senator Thune. Yes, and that story did point out the
disruption, dislocation, and just the deteriorating physical
health of people who are put in that situation. And that is, by
the way, a circumstance I think that a lot of South Dakotans
can relate to, because there are a lot of small communities
with nursing homes, and to find another alternative, you
literally have to go tens if not hundreds of miles, and that is
an incredible disruption for somebody who is in that age, and
in some cases, that state of life.
So would you say that in terms of the rural providers,
nursing homes in those rural areas that you talked about, the
payer mix--Medicaid represents what, 70-80 percent in a lot of
those cases?
Dr. Grabowski. Yes. So nationally, Medicaid pays for about
two-thirds of all care. In those communities it can be 80-90
percent. So they can be high-Medicaid facilities. And as I
mentioned in my testimony, those are exactly the facilities
oftentimes that we are seeing with the worst quality of care
problems. These are the lowest-resource facilities with the
most issues around neglect and poor quality of care.
Senator Thune. And is that--I know part of that story; you
would attribute that to staffing. But it is also just the
overall--do you know what the margin is for a nursing home in
operating costs if 70 percent to 80 percent of your payer mix
is Medicaid?
Dr. Grabowski. So the estimate that we typically see is
that nursing homes make a positive margin, sometimes a very
healthy margin, on the Medicare side. Obviously private pay,
they set the price and the margins are fine there. But in most
States--and it varies State to State--the margins are negative
on Medicaid. And so that can be -2 to -5 percent on Medicaid.
And that could even be lower in certain low-payment States. So
it is certainly very challenging to be a high-Medicaid nursing
home.
Senator Thune. And I want to come back to something that
Senator Cardin referenced, because we have a bill that creates
an alternative payment model for nursing homes and facilities
that actually will find ways to reduce costs through the use of
technology and trying to incentivize more of that. You alluded
to--and I think Dr. Gifford as well--something about the
barriers to that. And a lot of it has to do with
reimbursements, which we have heard about for a really long
time.
But it seems to me at least that that is a solution,
particularly in these rural areas of the country, that offers
great opportunity in terms of delivering care and servicing a
population that covers vast distances and has great difficulty
traveling.
So I would again just throw that out there and say to you
that if you have thoughts or ideas that could add to, or
enhance, or improve upon that legislation, I would really like
to see us address this issue. And we have been trying for a
long time. We make little incremental progress, but technology,
telehealth, telemedicine I think, can do remarkable things for
delivery of services in rural areas of the country.
Thank you. Thank you, Mr. Chairman.
The Chairman. No we go to the Senator from Nevada.
Senator Cortez Masto. Good morning.
First of all, let me just say to Ms. Blank and Ms. Fischer,
thank you. Thank you for being here. Thank you for continuing
to be advocates and tell your stories. And it is not easy.
As I sit here, I reflect on--in southern Nevada where I was
born and raised, my grandmother, whom I was named after, had
Alzheimer's. And she stopped eating and drinking, and
unfortunately, the only place that we could help her was in a
nursing home. And it is hard. It is hard on the families.
But I also know that, even though your family is around and
you want to be there, you cannot be there 24/7. That is why
when I became Attorney General in Nevada for 8 years, I created
the unit to enforce and prosecute for elder abuse, neglect, and
exploitation.
And that is why I was an advocate for a Medicaid fraud unit
within the Attorney General's office that does the same thing.
And that is one of the reasons why I am excited and thank the
chair and ranking member for this hearing today, because,
although there are some good nursing care facilities out there,
there are some bad players.
And I am counting on the Association to help us find those
bad players, and weed them out, and hold them accountable. I do
not think there is a role for the Association to protect
everyone. I think there is a role that you can play, and I am
looking forward to working with you there.
But let me talk, Dr. Grabowski, about an issue that I saw
that I think is of concern. I know I saw it. I think I saw it
in some of the testimony today that there is a problem of
excessive prescribing in some of our nursing homes, either of
drugs or treatment. And Medicare beneficiaries may undergo
medically unnecessary procedures that are costly, that are
dangerous, or both, simply so that the facilities can bill the
government.
Can you speak to the payment incentives that drive that
type of behavior, if you would, please? I am curious how we
can, here at the Federal level, put systems in place, or rules
or regulations, whatever we need to do working with the
Association, how we can address this.
Dr. Grabowski. Yes. It is a really important issue. So I am
glad you raised it.
We see over-medication and inappropriate medications in a
lot of nursing home residents. Of course, most of the payment
for medications is done separate from the Medicaid system. This
is paid, for those long-staying nursing home residents, through
Part D through the Medicare program, or for those short-stay
rehab nursing home patients, it is paid through their skilled
nursing facility benefit.
So it is Medicare really footing the bill for those
medications. And I think we could do two things here. We could
do a lot more oversight about this inappropriate prescribing. I
will give one example, which there has been a lot of interest
in, and that has been the inappropriate prescribing of
antipsychotics to nursing home residents with dementia. It has
been used as a way to basically restrain these residents.
Rather than use a physical restraint, we overmedicate them and
sedate them, basically. And it is inhumane. It is a terrible
practice, but it has been over-utilized, even following a black
box warning by the FDA.
So that is an area where I think your committee could
really be helpful in continuing to shine a light on that kind
of overuse.
And then I think through the payment system, I think
keeping a close eye on how we are reimbursing particular drugs
and whether those drugs are actually adding value. We have a
lot of polypharmacy here. We have big utilization. I think
nursing homes can be a partner in this. Obviously, they are not
the ones doing the prescribing, but I think a lot of nursing
homes are encouraging, at times, residents to get on some of
these medications. And so I think nursing homes can certainly
be a partner here along with Medicare in trying to address this
issue.
Senator Cortez Masto. But let me also address it this way,
because I think they are--do you think there is a component of
training, whether it is nursing training, doctor training,
whatever it is, the training on the utilization of these drugs
when it comes to elder care? I mean that, to me, should be
where we start, and then whether or not there is some sort of
payment incentive we can address. But to me it starts with the
training as well and recognizing that working with seniors may
be a little bit different.
Let me give you an example. I have a great aunt who is 94,
and she can tell you every President, and she is focused and is
there mentally and alert. She broke her hip, which left her in
the hospital unfortunately, and she was overmedicated. And I
think part of that was because they felt that she was older,
she did not know, and so they were trying to help her. But
instead, it was making it worse.
And when we figured that out and took her off that
medication, she was so much better and more alert. But just
assuming she is 90 years old and not going to be all there,
there is that assumption. I think part of it is the training.
Would you agree with that?
Dr. Grabowski. Training is absolutely important. I am glad
you raised the role of the hospital here. We see a lot of
medications being picked up when individuals are transferred--
we heard about the high rate of emergency department and
hospital use earlier. They go to the hospital. They come back
on several new medications. And so this is sort of a dynamic
issue of trying to hold down all these medications.
Senator Cortez Masto. Thank you. And I know my time is up,
but that training is key for the nursing homes as well.
Dr. Grabowski. Yes.
Senator Cortez Masto. For those people whom we are hiring,
we want to do the background checks. But also we want to make
sure they have the qualifications that are necessary and they
understand that interaction as well.
So, thank you. I know my time is up. Thank you.
The Chairman. The next three will be Casey, Daines, and
then Warner. And, Senator Daines, I was told you were going to
be good enough to take over for me so I can go to another
meeting.
Since you are going to be the second one up, why don't you
come up here and take over right now.
Senator Casey?
Senator Casey. Mr. Chairman, thanks very much, and thanks
for having this hearing.
It is, to say the least, an outrage to hear what we have
heard over far too long, the stories of abuse and neglect that
have gone on, stories that have been on the public record more
recently. We have had reporting in Pennsylvania, a series
entitled ``Still Failing the Frail.'' That is the name of a
story from PennLive, a newspaper series in Pennsylvania, that
talked about some of the abuses that have taken place.
In this particular series, there were stories of patients
with maggots in their feeding tubes, patients with bedsores of
course, which we hear about a lot, and patients who died as a
result of the neglect that they faced.
This hearing, I think, demonstrates clearly that this is an
issue that both parties in both houses have to be concerned
about. I have here in front of me a letter that Senator Toomey
and I have sent to the Administrator of the Centers for
Medicare and Medicaid Services, Seema Verma, dated March 4th,
outlining a series of nine questions about these issues.
Mr. Chairman, I would ask consent that this letter from
Senator Toomey and I, dated March 4th, to CMS Administrator
Verma be made part of the record.
Senator Daines [presiding]. Without objection.
Senator Casey. Thanks very much.
[The letter appears in the appendix on p. 58.]
Senator Casey. CMS has a program, the Special Focus
Facilities Program, but unfortunately this program is so
focused that only a fraction of the facilities that require
additional attention are in fact admitted to the program. CMS
puts together a list of the facilities in every State that it
recommends to be included in the program, and as many here
know, over 400 are recommended for additional monitoring, but a
minimum of 88 are in fact admitted to the program.
Ms. Blank and Ms. Fischer, we are grateful for your
testimony, your presence here. Do you believe that families
should have access to this secret list of 350 facilities in
need of monitoring before making a decision about where their
loved ones receive care?
Ms. Blank. Absolutely. I would say any information that can
be helpful in making the decision of where loved ones would go,
or in the case of my mother, after she has passed away, any
kind of information that could be made available would be
helpful. Absolutely.
Senator Casey. Thank you.
Ms. Fischer. I would have to agree with that. I think the
more information the consumer gets, it certainly helps them
make an educated decision. In my situation, if one were to find
out that this particular nursing home has had some issues and
there were some investigations of sexual misconduct by
employees, I think that might change someone's mind as to
whether they are going to pick one nursing home over another.
So I think we need all of this information. It is an
extremely difficult decision to make, putting your loved one
into a nursing home facility. It is heartbreaking, and so any
information that we can get to help us make a more informed
decision, I would be all for it.
Senator Casey. Well, thank you very much.
I wanted to highlight some of the questions in the letter
that we have sent to CMS. We ask in the first question about
the methodology that CMS uses to determine the fixed size of
the facilities, and what numbers there are. Number two, we ask
about providing the reasoning for maintaining the program's
current size. We ask about whether CMS updates the skilled
nursing facility candidate list. We ask CMS whether it engages
with State survey agencies. We also ask about the
prioritization for skilled facilities, participation in the
selected program. So it goes on from there, but we want to make
sure that we shine a very bright light on this program and have
questions answered about it.
I will have additional questions for the second panel, but,
Mr. Chairman, thank you very much.
Senator Daines. Thank you, Senator Casey.
I guess I will do my round of questions now. I guess it is
good to have the gavel occasionally, right? But I think I am in
line right after Senator Casey. So I am actually following the
batting order here in fairness to my colleagues.
Abuse and neglect, I think we all agree, should never be
allowed under any circumstance. We heard it firsthand from a
couple of our witnesses here today, and I want to thank you for
your courage to come here and share the painful story.
We have over 3,700 Montanans receiving care every day in
nursing homes. It is an important discussion to have. I am
grateful that the chairman has decided to take on this issue
and bring this to light in Washington.
This New York Times article about the high rate of nursing
home closures in rural parts of the country that was published
earlier this week is referenced a couple of times. When you
think about Montana, you probably think about rural America,
and that is true. In fact, 20 years ago in Montana, we had over
100 nursing homes. Today we have just over 70, while at the
same time, just in the last 10 years, our senior population has
grown 40 percent. And I am guessing these kind of numbers are
probably consistent with what we are seeing across much of
rural America.
Dr. Grabowski, you have been asked a couple of questions
about rural challenges. You have been asked about telemedicine.
From a Federal policy viewpoint, as you think about making a
recommendation to this committee, what does HELP look like as
well as what we could do here to address the challenge that we
see with closing nursing homes in rural America?
Dr. Grabowski. So I have talked about Medicaid, as you
said. I talked about the importance of, sort of, the workforce
and telemedicine. Maybe to add another part of this, we have
this huge fragmentation. It is a national issue across Medicare
and Medicaid. And another opportunity for rural nursing homes
is potentially to leverage some of that Medicare financing. And
that means offering a more integrated product, which we see
with the special needs plans under Medicare Advantage. We have
seen some States participating in the financial alignment
initiative, which is an integrated demonstration for dually
eligible individuals.
But most of these Medicaid recipients we are describing in
nursing homes are also Medicare beneficiaries. And so there is
this opportunity to leverage both the Medicaid long-term care
benefit, the nursing home benefit, but also the Medicare
benefit and add additional resources.
So I would like to put that out there as another idea. It
is one that could apply anywhere, but I think it could be
especially fruitful for those rural nursing homes.
Senator Daines. In looking at the demographic trends in our
Nation, this is only going to become increasingly a bigger
problem, obviously. And I think this is a good discussion to
have today about where do we go next, as we think about the
next 10 or 20 years.
I was struck by the comment you made, Dr. Grabowski, in
response to one of the Senator's questions about how you could
go online and see reviews at the hotel you stayed at last
night. When it comes to nursing home or senior care, there is
an absence of such.
I spent 28 years in the private sector before coming to
Washington, DC. In fact, I spent 12 years in the cloud
computing business, and we saw firsthand the power of the
consumer, unleashing the power of your crowdsourcing input and
holding service institutions accountable by what the consumer
is saying.
So I did a little research--and not that I was not fully
listening to my Senate colleagues and their questioning, but I
was doing a little online research. And I looked at Yelp, for
example. I see that Yelp, in 2015, actually added a platform
for nursing homes. If you do a Yelp search of nursing homes,
you can find it.
But yet when you take a look at how many comments are
there--I just looked at a couple examples. Again, it is a bit
anecdotal, but they date back to 2016. There was one comment in
2018--two comments about a very large facility that will remain
anonymous here for the purpose of this discussion.
My question is, what power do you see in the consumer
having a greater voice? And I am going to ask this question of
Ms. Blank and Ms. Fischer as well in terms of what you might
have done by putting your comments online so others can see
what is going on and shining light and bringing more
transparency to what is happening as it relates to the care or
the lack thereof in several nursing homes.
Dr. Grabowski. So I think there is both a private and a
public role here. The public role is, could we enhance Nursing
Home Compare to make it a much broader tool where you actually
could learn about resident experiences, some quality of life
rankings, or patient satisfaction measures? But some of that
could also be vignettes about the care. I think that would be
really useful. I would want to learn about Ms. Blank's and Ms.
Fischer's experiences.
And then on the private side, we are going to see Yelp,
Facebook, and other platforms develop these tools. I hope
consumers will use them. I think the initial research suggests
they add a very different dynamic or dimension to the quality
framework here, but they do not----
Senator Daines. Every business in America now in the
service industry is held accountable by consumers. And I
recognize that there is good news and there is bad news here in
terms of people sometimes writing reviews that are not accurate
and so forth. But I think in the totality, that has been a very
good thing.
Dr. Grabowski. There is a signal there.
Senator Daines. Absolutely. It is democracy in action,
people voting and expressing their views here as it relates to
just--Ms. Blank and Ms. Fischer, any thoughts you had looking
at--would you want more Iowans and others to hear your story so
that others who are thinking about the services would know
about them?
Ms. Blank. Absolutely, but I think they are hearing it more
through the news media and social media than looking on a
website for their loved ones, because some of them are not
looking at that until they actually need that service. So in my
case, I am also a journalist, so I have also told my story. I
have let other journalists tell my story as well. And I think
that has been much more effective than putting it on a website
somewhere for somebody to read.
Senator Daines. Okay.
Ms. Fischer. I would agree, and I guess when I think of
something like Yelp--you know, we talked about being able to
look up the review of our hotel. I do not know if that is
necessarily something that people would think of using when
they look to find a long-term care facility for their families.
Do I want people to know about what happened to my mother?
Absolutely. But again, as Ms. Blank testified to, there were
wonderful people in this nursing home. And there was some
fantastic experiences, and my mother had a lot of years in this
nursing home where people took fantastic care of her.
How we identify this bad situation and make people aware of
it--Yelp or reviews of the nursing home itself as a whole may
not be the best way to do that. This was one individual, you
know, who was, again, investigated by the Department of Health
over and over again, but continued to keep his job.
I do not know if that is something necessarily that could
be discussed on Yelp or brought to light. It is by a simple
review.
Senator Daines. Thank you. I am out of time. I want to
respect my colleagues here.
Senator Warner?
Senator Warner. Thank you, Mr. Chairman. I have never seen
anybody get to the gavel this quickly on the Finance Committee.
So that is pretty darn good. [Laughter.]
I want to pick up, actually, on both your lines of
questioning. I am very concerned as well about the rural
closures, 440 in a place like the Commonwealth of Virginia,
particularly in southwest and southside Virginia. This is an
enormous challenge. In many of these communities, the nursing
home may be even the largest employer. And the burden on
families--obviously, I really appreciate the heart-wrenching
stories. We have to improve quality, but we also have to find a
way to get the incentives right.
I have a two-part question--probably anybody can comment on
this--but probably more for Dr. Gifford and Dr. Grabowski. One,
the existing CMS rating system on the five-star scale, my
understanding is that is graded purely on a curve. So you are
going to have a fixed number of ones and fives regardless of
whether they all come out on a curve. And I would like to get
your comments on the CMS system, and then I do worry--and I do
not know if this question has been fully raised. But when we
look at--I say this as a former Governor--the mix and match on
the funding streams between Medicare and Medicaid, it is a real
challenge.
I know MedPAC estimated that the aggregate margin for
Medicare skilled nursing facilities was a little over 11
percent. That is a pretty darn good margin. But when you add in
the Medicaid reimbursements, the overall industry average drops
to about a half-percent margin.
Now as a former business guy, particularly in an industry
where you have as much turnover as you have in this field--so
that we can avoid the kind of horror stories that we heard from
some of our witnesses--is this a viable business model,
particularly in some of these smaller communities, if this
margin is this thin?
Dr. Grabowski. I will start with the margins, and this
issue is magnified. You described this on a sector-wide basis
across all nursing homes. Not every nursing home cares for a
similar mix of private-pay, Medicare, and Medicaid. There are a
lot of high-
Medicaid nursing homes out there that are losing money on every
resident. And then you have the----
Senator Warner. And that is where the whole population
migrates to as they run through their other resources?
Dr. Grabowski. Absolutely, and so it really becomes the
haves and have-nots among nursing homes. I think that is a big
part of the problem. And the reason many quality-of-care issues
often happen is that we have this kind of lower tier of
facilities.
Towards the ratings question, there are some measures where
we use thresholds like staffing, but everything is benchmarked,
as you suggest, within States. So they are putting this on a
distribution, and we have some number of five-stars down to
some number of one-stars. And it is kind of on a normal
distribution, yes.
Senator Warner. Another question for you--the question has
been asked--as we think about the funding model, we want to
improve quality, but particularly as we are looking at these
nursing homes that disproportionately only take Medicaid or
have this mixed model, I worry that these 440 rural closings
are going to continue to increase as people just find that it
is not a viable business model.
Dr. Gifford. We share the concern. I mean there are a
little over 3,000 counties in the United States. Ninety-three
percent of those have at least one nursing home in them. And
often they are the largest health-care provider in that
community. And they go beyond just providing long-term care,
but really are a resource for that community.
So keeping them open and maintaining them, I think, really
is a priority. And I think you are starting to see the early
effects of the challenges out there running nursing homes in
this country.
Dr. Grabowski. It is interesting that you mentioned they
are the largest employer in many of these counties. They are a
really important employer. There are actually more nursing
homes in this country than Starbucks, if you can believe it. So
there are a lot of nursing homes, 15,000 to 16,000 facilities.
So they are a really important employer in rural America and in
other parts of the country.
Senator Warner. Would either of you like to add anything?
Ms. Blank. Well, it is almost the only place to work in our
community, and so to also address what the sitting hearing
chair now had to say--I am sorry. I cannot see you----
Senator Daines. I am not Chuck Grassley, just so you know.
[Laughter.]
Ms. Blank. I know that well, sir. So just the whole idea
that things are--to say that on a rating that terrible thing
that happened to my mother, that terrible thing that happened
to Ms. Fischer; there are a lot of wonderful people who work
there.
I have known those people there for all my life, most of
them. And so to put a rating on there and to say that this is a
terrible place to have your loved one--no, it was a terrible
thing that happened to my mother and some other people who live
there, so----
Senator Warner. Right. We need that accountability. And I
guess--I know my time is up--I would like to get maybe for the
record though, because I do think we need to expect quality,
but we also have to expect a business model that works.
And one of the things on electronic health records, the
EHRs, nursing homes are not included in the HITECH Act. I think
it, again, it is not a silver bullet, but it ought to be part
of the solution set, and I hope that we could consider as we
move forward to make sure EHRs from nursing homes are included.
Dr. Grabowski. The majority of nursing homes have some
electronic health record, but very few connect to hospitals or
physicians. So it is another source of fragmentation in our
health-care system. And the exclusion of nursing homes from the
HITECH Act, I think, was a mistake in hindsight.
Senator Warner. Thank you.
Senator Daines. Thank you. Senator Whitehouse?
Senator Whitehouse. Thank you very much, Mr. Chairman.
Let me first welcome a friend, Dr. Gifford, who was for
several years our Health Director in Rhode Island and did a
terrific job. And before then he was the chief medical officer
for a group called Quality Partners, which had the CMS nursing
home quality improvement contract and performed a lot of path-
breaking work. So I welcome Dr. Gifford as one of the good guys
in this effort who has dedicated an enormous amount of his
career to trying to move the ball forward in a very complicated
and difficult area.
I want to thank Ms. Blank and Ms. Fischer for bringing
their stories. And you have no idea how boring Finance
Committee hearings can sometimes get. And the policy debates
sometimes obscure the harsh painful facts that should draw our
attention. And your testimony has really been important in that
regard. So, I want to thank you.
I would like to echo the ranking member's remarks about the
importance of not allowing mandatory arbitration to degrade the
accountability of these organizations. I think the founding
fathers set up courtrooms and juries for a reason. They had a
lot of confidence in them. It is a core part of the American
system of government, and to simply take that away from people,
particularly in ways that they had no real bargained choice
with is a grave, grave, grave mistake. And I look forward to
working with Senator Wyden to make sure we defend against that.
I would like to ask Dr. Grabowski a question for the record
to get back to me on. You do not have to answer it right now,
but being from a very urban State, Rhode Island, I am very
interested in your comment about the difference between rural
and urban on telehealth reimbursement, because I do think we
need to address telehealth reimbursement as a significant part
of improving care here.
I would like to ask Dr. Gifford now to tell me how clear a
signal you believe the various quality reporting requirements
that nursing homes are subject to--how clear the signal is that
emerges. Sometimes I fear that we demand so much reporting in
so many different ways that you end up with a kind of Tower of
Babel noise coming out rather than a clear articulable signal
that Ms. Fischer and Ms. Blank could go to and see, uh-oh,
there is one that is signaling real trouble. And it seems to me
that there is a lot of noise in the system that obscures the
signal of which ones are in trouble.
I guess for the purposes of my time, is that a real problem
that we should pursue--and then through a QFR--what would your
group recommend to try to get more signal out of the noise?
Dr. Gifford. Senator Whitehouse, yes. That is a challenge
and a problem we hear about from law enforcement, from our
members, and from State service agencies around the country.
It is a challenging issue, and we are happy to respond to
you in the QFR session.
Senator Whitehouse. Okay. Good.
The final question I have has to do more generally with
end-of-life care. And as you know, we have made a lot of
progress in Rhode Island with trying to make sure that people's
choices at that very delicate and special time are honored,
that people know what the choices are so that they can be
honored, that they are recorded where they need to be.
We have most records so that it is actually in most folks'
medical files. But I think there is more progress that we need
to make and, in particular, towards the end of life when the
system insists that before somebody goes into a nursing home
for their final days, they need to have 2 nights or 3 days in a
hospital, or whether they insist that for purposes of home
caregiver respite care, it is the patient who has to go and be
dislocated and ambulanced someplace rather than have a home
care worker come in and provide respite to the family member,
or whether it is forcing the question of ending curative care
before palliative care can be administered.
I think there are just some real mistakes in the system
right now. And so I would ask for you to take a look at a bill
we are going to send to both of you and get your comments on
it, because I think there is a way, by waiver, to solve those
problems for communities where they are really taking a look at
this population as a focus. And C-TAC and other groups are
working on this. So I know there is some attention to it, but I
would ask you to have a look at the bill. And with that, I
conclude my questioning and yield back. Thank you, Mr.
Chairman.
Senator Daines. Thank you, Senator Whitehouse.
This concludes the testimony of this panel. Thank you for
coming, and thank you for sharing your insights.
We are going to switch panels here. Bring the next panel up
if you would.
[Pause.]
Senator Daines. I want to extend a warm welcome to our
second panel, which includes both Federal as well as State
government witnesses. Testifying first is Dr. Kate Goodrich,
who heads the Center for Clinical Standards and Quality at the
Centers for Medicare and Medicaid Services. She also serves as
Chief Medical Officer for this agency. Welcome, Dr. Goodrich.
Our next two witnesses are from Senator Portman's home
State of Ohio, and he would like to introduce them.
Senator Portman?
Senator Portman. Great. Thank you, Mr. Chairman. I thank
you and Senator Grassley--now that you are the chair here--for
the hearing. It has been fascinating and troubling in a lot of
respects.
You know, all of us care a lot about our nursing homes
working. In my case, grandparents on both sides ended up their
lives in nursing homes. And it was said earlier by some of the
witnesses, there are some great people who work in our skilled
nursing and our nursing home facilities.
And then there are issues that arise, and one of the
issues, as I see it, is that as unemployment goes down--and
this is based on a study that was just done, an economic
study--the mortality rates actually go up. And I think a lot of
that is because of the staffing challenges we have. So one of
the issues that I am glad we got some input on and I want to
hear more about is our staffing.
But I am very happy to have the opportunity to welcome two
of our witnesses here. The first is Toni Bacon. I saw in all
the material--I have it--her real name is Antoinette. I never
knew that. I always knew you as Toni. But I am going to use
Antoinette today in a more formal way.
But she is right where she needs to be in this issue,
because she is a very impressive prosecutor. She looks very
nice, I know, but she is really one of the toughest prosecutors
in the country, and she has that reputation. She actually took
on public corruption in Cleveland, OH and is known as really
one of the country's premier corruption prosecutors anywhere.
And her work ended up, Mr. Chairman, resulting in a total
reform of the Cuyahoga County governmental system.
Now, she is in a position that is really important, because
she is--although Assistant U.S. Attorney in Cleveland, she is
detailed to the Department of Justice as the Associate Deputy
Attorney General and the National Elder Justice Coordinator.
And in that position, of course, she has taken a national
leadership role on elder abuse cases. So she is a tough
prosecutor, and she is right where she needs to be, as I said,
to be able to help on this critically important issue that we
have talked about a lot today. So welcome, and thank you for
your service.
Ms. Mitchell, thank you for being here. Keesha Mitchell is
a section chief in charge of the Health Care Fraud Section in
Ohio Attorney General Dave Yost's office. I saw earlier that
your bio said in Mike DeWine's office and they have not updated
it yet, but we are happy to have you still in that job.
She is a true expert. She has devoted over 20 years of her
career to identifying payment fraud in our State's Medicaid
program and to protecting nursing home patients who fall victim
to abuse. So she has a great background. And she has also been
president recently of the National Association of Medicare
Fraud Control Units and has done a lot of work with them,
including some of these global settlements, and been a member
of their executive and global case committee--so a true expert
who speaks around the country on these issues.
And I am delighted to have this expertise in my home State
of Ohio and really glad we are going to get to hear from you
all today. Thank you for being here.
Senator Daines. Thank you, Senator Portman.
Dr. Goodrich, you may proceed.
STATEMENT OF KATE GOODRICH, M.D., DIRECTOR, CENTER FOR CLINICAL
STANDARDS AND QUALITY; AND CHIEF MEDICAL OFFICER, CENTERS FOR
MEDICARE AND MEDICAID SERVICES, BALTIMORE, MD
Dr. Goodrich. Thank you.
So, Chairman Grassley, Ranking Member Wyden, Senator
Daines, Senator Portman, and the members of the committee,
thank you for the opportunity to discuss CMS's efforts to
ensure that every nursing home serving Medicare and Medicaid
beneficiaries is meeting Federal requirements to keep its
residents safe and to provide high-quality care.
Patient safety is our top priority in nursing homes and all
facilities that participate in the Medicare and Medicaid
programs. And we appreciate the significant time and effort
dedicated to this issue by the members of this committee.
Chairman Grassley and Ranking Member Wyden have both been
leaders on this issue over the years, and we appreciate the
continued interest.
Monitoring patient safety and quality of care in nursing
homes requires coordinated efforts between the Federal
Government and the States. To participate in Medicare and
Medicaid, a nursing home must be certified as meeting numerous
statutory and regulatory requirements, including those
pertaining to health, safety, and quality. Compliance with
these requirements for participation is verified through annual
unannounced surveys. They are on-site surveys conducted by
State survey agencies in each of the 50 States, the District of
Columbia, and the U.S. territories. And to help ensure greater
consistency among State survey agencies, CMS recently
implemented a new computer-based standardized survey
methodology across all States. 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 non-
compliance has caused or is likely to cause serious injury,
harm, or even death, we can terminate the facility's
participation and agreement. Other remedies could include
issuing civil monetary penalties, providing directed in-service
training, or denial of payments. For deficiencies that do not
constitute immediate jeopardy, they 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 a nursing home has failed
to report or investigate incidents of abuse, we take immediate
action. For example in 2018, when a State surveyor found that a
nursing home did not properly investigate or prevent additional
abuse involving two residents, placing other residents on the
unit at risk for abuse, the nursing home was cited at the most
serious level of non-
compliance--immediate jeopardy--and they were assessed a civil
monetary penalty of almost $800,000. We can also refer
suspected cases of abuse or neglect to our law enforcement
partners, including the Department of Justice, and we greatly
appreciate their ongoing focus on resident safety and facility
compliance with the law.
We expect nursing homes to meet our basic standard of care
at all times, even during emergency situations. To further
protect residents in 2016, we updated and improved our
emergency preparedness requirements. Facilities are now
required to address
location-specific hazards and responses and must have emergency
or standby power systems and ensure they are operational during
an emergency, develop additional staff training and implement a
communication system, and contact necessary persons regarding
resident care and health status in a timely manner.
Surveyors recently began verifying facility compliance with
our improvements, and as of February 22nd, 98 percent of
nursing homes have been surveyed under the new emergency
preparedness requirements. Over 70 percent of those surveyed
were found to be in compliance, and those cited for non-
compliance deficiencies have made all the necessary corrections
to come into compliance with these requirements.
In 2016, CMS issued, for the first time in over 25 years, a
final rule updating the requirements for nursing homes and
other long-term care facilities. These changes reflected the
substantial advances in the theory and practice of service
delivery that have been made since 1991, such as ensuring
nursing home staff are properly trained on caring for patients
with dementia. Given the number of revisions, we have provided
a phased-in approach for facilities to meet these new
requirements, and we are now in the second phase of the three
implementation phases. We are taking a very thoughtful approach
to implementation and providing education to providers while
holding them accountable for any deficiencies.
Promoting transparency is another key factor to incentivize
quality. Our five-star rating system on Nursing Home Compare
provides residents and families with an easy way to understand
meaningful distinctions between high- and low-performing
nursing homes on health inspections, quality measures, and
nurse staffing.
And just yesterday, we announced important updates to all
three of these areas to reflect more recent and meaningful
information about the quality of care that each nursing home is
giving its residents. We expect every nursing home to keep its
residents safe and provide high-quality care. And as a
practicing physician who still 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.
We look forward to continued 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 your questions. Thank you.
Senator Daines. Thank you, Dr. Goodrich.
[The prepared statement of Dr. Goodrich appears in the
appendix.]
Senator Daines. Ms. Bacon?
STATEMENT OF ANTOINETTE BACON, ASSOCIATE DEPUTY ATTORNEY
GENERAL AND NATIONAL ELDER JUSTICE COORDINATOR, OFFICE OF THE
DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Bacon. Thank you.
Good afternoon, Acting Chairman Daines, Ranking Member
Wyden, Senator Portman, and distinguished members of the
committee.
I am Antoinette Bacon, Associate Deputy Attorney General
and the Department of Justice's first National Elder Justice
Coordinator. As a Federal prosecutor for the past 18 years, I
have witnessed the outstanding work of agents and trial
attorneys who are investigating and prosecuting the chilling
cases of elder abuse that we heard about in the first panel.
And I appreciate the opportunity to appear before you to
discuss the Department's ongoing efforts to protect older
Americans.
For decades, the Department has been actively engaged in
combating abuse and exploitation of our Nation's vulnerable
seniors. Since its inception, the Medicare Fraud Strike Force
has charged nearly 4,000 defendants for over $13 billion in
fraud. Additionally, we have brought numerous cases against
nursing homes under the False Claims Act and other statutes for
grossly substandard and medically unnecessary services.
Certainly these are laudable accomplishments. But we
realize there is so much more work that needs to be done. As
our population ages, and as stories of victimization reach our
headlines with unfortunate frequency, the Department is
continuing to expand its resources in every Federal district to
ensure that we are ready to meet the enforcement challenges.
Here are some examples of just a few ways in which we are
building on our strong foundation to prepare.
(1) Experienced leadership--The Attorney General designated
senior Department of Justice officials with extensive
litigation experience to lead our elder justice efforts.
(2) Increased internal collaboration--We formed a working
group composed of 12 DOJ components to make sure that we are
using all appropriate tools and paths to investigate,
prosecute, and importantly, to prevent nursing home abuse.
(3) Expanding our nationwide resources--We designated an
Elder Justice Coordinator in every single U.S. Attorney's
office around the country to work with our State, local, and
tribal partners on the most pressing issues facing local
communities. And we provided training specifically on nursing
home abuse to those coordinators.
(4) Supporting local law enforcement--We understand that
local sheriffs, local police departments, are critical partners
in this effort. And we launched a series of free online
training resources available right now to all law enforcement
officers, to help identify, investigate, and hopefully, again,
stop elder abuse.
(5) We expanded our network--We partnered with the USDA to
address elder abuse in rural and tribal America. This
culminated in a Rural and Tribal Elder Justice Summit in Des
Moines, IA last November, and resulted in the formation of an
Elder Justice Coordinating Council Working Group specifically
to address rural elder justice issues.
(6) Supporting victims--We announced $18 million in grants
for victims of elder abuse for a wider variety of services than
ever before.
And with all these systemic changes, we are still
continuing to bring meaningful cases. Just last week, we
announced a settlement of a False Claims Act case against a
Tennessee nursing home chain for allegedly providing grossly
substandard care.
The facts of this case are hard to listen to, but they were
even more difficult for the residents affected. Some residents
had pressure ulcers down to their bones, others were not given
adequate medication if they were screaming in pain in their
rooms. One did not have a real shower for 5 months--nearly half
a year without a real shower. And sadly, as the first panel
mentioned, this was not the only case where our nursing home
residents are suffering so greatly.
But in my last minute, I would like to highlight a
disturbing trend in nursing home abuse. As Senator Portman
mentioned, I am an Ohio resident. And I have seen firsthand the
devastation that the opioid crisis is causing to our families
and to our communities. Tragically, the epidemic has now
reached nursing homes.
The Department is finding that some are exploiting
vulnerable patients for profit by giving powerful opioids that
are not medically necessary, and we all know the dangers of
that. Others are stealing residents' opioids, either for their
own use or to sell, which unquestionably is leaving seniors in
excessive and preventable pain. That is not acceptable. The
Department is collaborating with our partners at CMS, at the
State MFCUs, and HHS-OIG to identify these cases and to act
swiftly to make sure that residents in nursing homes are
getting appropriate medication.
Let me close by thanking you for your leadership on many of
these most critical and pressing issues facing our Nation's
seniors, especially in the passage of EAPPA, the Elder Abuse
Prevention and Prosecution Act. And I am pleased to answer your
questions. Thank you.
Senator Daines. Thank you, Ms. Bacon.
[The prepared statement of Ms. Bacon appears in the
appendix.]
Senator Daines. Ms. Mitchell?
STATEMENT OF KEESHA MITCHELL, DIRECTOR, MEDICAID FRAUD CONTROL
UNIT, OFFICE OF THE OHIO ATTORNEY GENERAL, COLUMBUS, OH
Ms. Mitchell. Thank you, Acting Chairman Daines and Senator
Portman. Thank you for the opportunity to appear before you
today to discuss the role of State Medicaid Fraud Control Units
in investigating and prosecuting patient abuse and neglect in
nursing homes. I am Keesha Mitchell, Director of the Medicaid
Fraud Control Unit in Ohio Attorney General Yost's office. All
State Medicaid Fraud Control Units investigate and prosecute
Medicaid provider fraud, fraud in the administration of the
Medicaid program, and abuse, neglect, and misappropriation
involving the residents of health-care facilities.
Currently, 49 States as well as the District of Columbia,
Puerto Rico, and the Virgin Islands all have Medicaid Fraud
Control Units. While we all operate under unique State
jurisdictional statutes, the MFCU model embraces the use of a
strike force team of investigators, prosecutors, fraud
analysts, and nurses. This is unlike most traditional law
enforcement models where the investigation and prosecution
proceed without much input from one to the other. This model is
particularly important when investigating allegations of abuse
and neglect because we have the expertise when dealing with the
competency of our victims and reviewing medical records and
plans of care. And by way of example, I would offer two recent
cases that our unit has investigated.
The first one we are currently prosecuting is where an Ohio
grand jury returned indictments against seven current and
former employees and contractors of a facility located in
Columbus, OH. The defendants are charged with involuntary
manslaughter, gross patient neglect, patient neglect, tampering
with records, and forgery. Through our investigation, we were
able to establish that the facility employees failed to provide
required care and falsified patient medical records to make it
appear as though the care had been provided. Our investigation
also established that a facility resident died from infected
skin wounds because facility employees failed to take
appropriate action that would have saved his life. And when I
am talking about the infected wound, I am talking about a wound
that you could actually reach into up to your elbow.
Another case that we had--we had three employees' recent
guilty pleas and a verdict where they were found guilty of one
count each of forgery and gross patient neglect. The defendants
were employed at this facility on the night of January 7, 2018,
when a female resident of the facility wandered outside the
facility in sub-zero temperatures and died of hypothermia.
Despite the fact that the resident was wearing a WanderGuard
device which was designed to alert staff when she travelled
past sensors placed throughout the facility and exited the
facility through a door with an alarm sensor, the resident was
not discovered missing for more than 8 hours when the morning
staff was preparing residents for breakfast. The defendants who
were supposed to be caring for the resident during the
nighttime hours documented in the medical record that they had
checked on this resident every 2 hours. Through our
investigation, they admitted that they never even looked at the
residence room to see if she was there.
In the last 10 years, the Ohio Medicaid Fraud Control Unit
has processed nearly 3,300 complaints of abuse, neglect, and
misappropriation. Under the best of circumstances, these are
challenging cases, and we are tasked with the responsibility to
speak for those who often are unable to speak for themselves.
While this is extremely rewarding work, our efforts are
hampered by a number of factors, and I believe my remarks will
expand greatly on each one of these factors. So I will just
list them.
In order to effectively investigate incidents of patient
abuse and neglect, we must ensure timely referrals from State
surveyors to their Medicaid Fraud Control Units when they
suspect abuse, neglect, or falsification of records. And this
oftentimes should occur while the surveyors are actually in the
facility, because there is a great amount of time between the
time they are in the facility and they are seeing evidence of
this type of action and when we actually see the survey and it
is posted
It is crucial that the State and Federal agencies
coordinate their investigations to properly leverage our
resources and expertise. We must also require nursing homes to
properly report and detail incidents of patient abuse, neglect,
and misappropriation or face meaningful penalties. And I
outlined several very vague reports which we received which
would never have alerted us to go in and look at the particular
incident. One short one was where the report said that there
was an incident that occurred on the ground. And what actually
occurred was the resident had eloped and drowned in a pond on
the grounds.
Finally, States must address the real outcomes of not
properly incentivizing nursing homes to adequately staff their
facilities to achieve quality care.
In conclusion, I would like to thank you again for asking
me to speak here today and again underline the vital role State
Medicaid Fraud Units play in protecting our Nation's nursing
home residents. It is important to include us in taskforces and
conversations on how best to protect our long-term care patient
population.
Senator Daines. Thank you, Ms. Mitchell.
[The prepared statement of Ms. Mitchell appears in the
appendix.]
Senator Daines. Senator Portman?
Senator Portman. First, I want to thank all three witnesses
for the powerful testimony and the explanation of some of the
things that CMS and Justice are doing. They are important, and
also some of the suggestions for reforms. I will be submitting
questions to all three of you. Thank you.
Senator Daines. Thank you, Senator Portman.
Senator Wyden?
Senator Wyden. Thank you. Thank you very much, Senator
Daines.
Dr. Goodrich, I want to ask you a question with respect to
staffing and the relationship to quality, because to me good
staffing is more likely to produce good quality. Quaint idea,
like two sides of the same coin.
Last year I wrote to CMS after reports nursing homes were
overstating how much staff they had on-site to care for
patients. You all responded saying that, yes, the nursing homes
overstated how much staff they had on-site, and you also found
significant fluctuations in staffing from day-to-day, as well
as days when there was no registered nurse reported on-site.
So I think my question to you is, could you tell us what
you all are working on now, going forward from this day on, to
make sure that we deal with what are the key issues here. Good
staffing is a path to good quality, and you all share my
concern that nursing homes have overstated how much staff they
have. What is going on?
Dr. Goodrich. Yes, thank you for the question and the
opportunity to talk about our work on nurse staffing. I would
say we do share that concern, and we are very glad, beginning
in 2017, that we were able to pilot and now we have fully in
place a new process for assessing staffing of nurses and other
types of personnel within nursing homes. This is called the
Payroll-Based Journal System, and it is a method by which
nursing homes have to report to us every quarter their staffing
for a variety of different types of positions, including nurses
and nurses' aides for 365 days a year.
Whereas previously, the way this was reported to us was
simply a 2-week snapshot of their staffing levels. So we do
believe that this Payroll-Based Journal Staffing System is much
stronger and is much more accurate, because it has to be
auditable.
Senator Wyden. So this is a pilot project?
Dr. Goodrich. No, it is not a pilot anymore. We did pilot
it first, but it is now fully in place.
Senator Wyden. And can you give us some summary, a written
summary quickly, of how it is faring, because obviously, given
some of the quality issues we have heard about today, this is
serious business.
Dr. Goodrich. We would be glad to, and I would be glad to
tell you how we are using it, if that is helpful.
Senator Wyden. How long would it take to get a written
report on that?
Dr. Goodrich. I would say not long at all. We can get you
something.
Senator Wyden. Ten days?
Dr. Goodrich. Yes.
Senator Wyden. Okay, great.
Since I only have a couple more minutes, I want to ask you
about one other thing that I am very troubled about.
Dr. Goodrich. Sure.
Senator Wyden. I put out recently--and we sent it all to
you--a report called ``Sheltering in Danger'' that shows
nursing homes are not adequately prepared for natural
disasters. And I am concerned that, instead of acting on the
report's recommendations, CMS is looking at finalizing a
regulatory rollback that would scale back emergency training
requirements, allow nursing homes to review emergency plans
just once every 2 years, and do away with requirements that
nursing homes show their work when it comes to coordinating
with emergency first responders.
So the idea of CMS allowing nursing homes to go into
emergencies without sufficient preparation and practice is very
troubling to me. And climate change is only going to make
emergency planning more important.
So my question to you is, will the agency--and I am
requesting this--rescind its rollback of emergency preparedness
standards?
Dr. Goodrich. So we published a proposed rule, as you note,
last year that covered a variety of topics, including emergency
preparedness and all of the proposals that you have mentioned,
based upon what we have been hearing from the field around
concerns about paperwork. Having said that, we have received
hundreds of comments on this proposed rule, including a number
of comments, specifically, on this issue as it relates to
nursing homes and the concerns around the modifications that we
were proposing.
We are taking all of those comments, including the ones
that you sent to us, strongly into account as we consider our
policies for our final rule.
Senator Wyden. That is not anything that gives me any
guidance on how you are proceeding. I mean, to me, given what
we have seen, given the threat with respect to disasters--
Senator Daines and I are in the west. You know fires we are
seeing in the west are infernos. They are not your
grandfather's fires.
It seems to me that we need a smarter strategy with respect
to emergency preparedness, and you all are going in just the
opposite direction. So I am going to give you one more chance
to give me some sense that you all are going to be serious
about a problem that we found in our report ``Sheltering in
Danger'' that I have only grown more concerned about since
then.
Dr. Goodrich. So what I will say is that we have reviewed
your report very carefully and are considering many of the
recommendations that you made.
Senator Wyden. Okay. Just on that, is there anything in
that report that you disagree with?
Dr. Goodrich. There are some things in the report that we
do not have authority over, like assisted-living facilities for
example.
Senator Wyden. Right.
Dr. Goodrich. But I think that most of the things you have
in that report are very common-sense. And we are thinking about
how we can incorporate them into our guidance.
Senator Wyden. That sounds like progress, because I want to
work with you. And of course, you know we are focused on
nursing homes. You have indicated that you think much of the
report makes sense.
That sounds like progress. I hope that you all will work
with the staff ahead of time before this comes out, because too
often CMS--I learn about CMS from things in the newspaper.
There was an effort, for example, the rollback of part of
the Affordable Care Act that I authored--1332--to give States
the opportunity to try fresh approaches, and I basically
learned about it after there had already been press reports and
the like. I hope that we can break from that kind of pattern
and that you all will be in touch with us before you take final
action.
Dr. Goodrich. We would be glad to do so.
Senator Wyden. All right.
Thank you, Mr. Chairman.
Senator Daines. Thank you, Senator Wyden.
Last year there was a State-run nursing home in Montana
that was cited for failing to protect patients from verbal,
physical, and sexually abusive behaviors of fellow patients.
And in fact, it resulted in over $255,000 in fines. In fact, it
was in Lewistown. That is where this happened, in Lewistown,
MT.
According to reports, on 13 occasions officials were not
notified of incidents that included abuse in the facilities
wing which houses dementia patients. As part of the
investigation, one staff member said they had not been trained
on how to help manage resident behaviors. These kind of reports
are saddening. They are concerning, particularly as these
patients are some of the most vulnerable Montanans who are
receiving mental health and long-term care services.
Dr. Goodrich, could you speak to the role of effective
staff training programs to ensure that this abuse in Montana's
senior homes would never happen again?
Dr. Goodrich. Yes. First let me say that abuse of any
kind--verbal, sexual, physical--is absolutely not permitted.
Our expectation is that nursing homes keep their residents safe
and free from abuse. That is an absolute expectation.
We do have regulatory requirements around nursing homes,
including that they must report any allegations, and certainly
any substantiated cases, of abuse to law enforcement
immediately. And when we learn of an incident of abuse, we take
very swift action. We send our State surveyors out into the
field to the nursing home immediately.
And sometimes what we learn when there are cases of abuse
is that staff within the nursing home may not have received
appropriate training, as you mentioned. And so we ask, whenever
we find episodes of abuse--first of all, we implement certain
types of penalties to bring the nursing home swiftly back into
compliance. And we require that they submit to us something
called a Plan of Correction, and that Plan of Correction can
include a number of things, depending upon the circumstances,
and oftentimes one of those things that is required is related
to ensuring that all staff have training around the issues of
abuse.
Senator Daines. When a loved one gets older, a question
that I know that many families face, including our family, is,
where is a mom or a dad, a grandfather, a grandmother, where
are they going to receive the care as they age? And I know for
some, in-home care is an appropriate option. I think of my own
grandma, Grandma Daines in Billings, who lived at home well
into her 90s and had in-home care.
It allowed her to receive that care in the comfort of her
own very modest home in Billings with the support of family and
friends and other professional caregivers. In-home care can
sometimes enhance the patient experience because it also allows
them to be home and can be more cost-effective.
Dr. Goodrich, how can we ensure that patients are receiving
the high-quality care that they need and deserve in the most
appropriate as well as cost-effective settings?
Dr. Goodrich. Yes, I think that is an incredibly important
issue. My mother, who is 81 years old, lives with me, and we
were fortunate to have her at home. And that is, of course, the
setting where most people would like to be.
We do have authority over a number of types of facilities
and health-care organizations, obviously including nursing
homes, but also home health agencies and hospice and so forth.
And all of these types of facilities, in order to get paid by
Medicare and Medicaid, must adhere to a basic set of health and
safety standards.
And we survey for those standards within nursing homes on
an annual basis and with other types of facilities about every
3 years or so. So we think that is one very key way to hold
facilities accountable and organizations accountable for good
quality care.
We also have a number of other levers that we use,
including quality measures for payment programs, for example,
and making information about the quality of care transparent,
whether it be our Nursing Home Compare five-star rating system
or our Nursing Home Compare website. We also have a Home Health
Compare website and Hospice Compare website. We think
transparency is another way that we can really ensure that
these facilities are incentivized to improve the quality of
care.
Senator Daines. So, speaking of the five-star rating
system, the Montana facility that I referenced earlier that had
the $255,000 in fine, currently has a two-star rating from
Medicare, which means they are considered to be below average
in terms of quality care. But years ago, they received one of
the best ratings in the country.
A follow-up on the rating system, Dr. Goodrich: do you
believe the star rating system provides an accurate assessment
of nursing home quality?
Dr. Goodrich. We have made a number of changes, including
as recently as what we announced yesterday to happen in April.
But over the past few years, we have made a number of changes
to strengthen the five-star rating system so that it does
provide the most accurate picture of quality.
For example, we now have, of course, the Payroll-Based
Journal nurse staffing data, which is self-reported but
auditable. So it is much more accurate than what we had before
for the nurse staffing rating. And we also have quality
measures that we are including now on the Nursing Home Compare
star rating site that are not self-reported and that are
actually higher-weighted than other types of quality reporting
measures. For example, readmissions to a hospital or transfers
to an emergency department, things that are really important
for patients and for providers, now have a higher weight on
that site.
So we think that we have strengthened the site overall. We
have also increased the threshold. So what it takes to get a
four- and five-star we have increased over time in order to
better distinguish homes from one another as well as to
incentivize improvements.
Senator Daines. Thank you, Dr. Goodrich.
Senator Cortez Masto?
Senator Cortez Masto. Thank you. Thank all three of you for
being here.
Ms. Mitchell, let me start with you. How long have you been
the Chief of the Medicaid Fraud Unit?
Ms. Mitchell. Since 2010 and in the unit since 2003.
Senator Cortez Masto. That is fantastic. Thank you. You
probably work with Mark Kemberling in the Nevada office.
Ms. Mitchell. I was just going to say----
Senator Cortez Masto. Yes, so I am curious, because I think
you touched on some of the challenges that I saw. And I think
it is perfect that all three of you are at the table together,
because I think there is the need for that timely coordination
from the State right when their surveyors are out there to
immediately reach out. I think the task force is important. I
also think that coordination amongst the task force members and
the immediacy of it and the response are important.
So let me ask you--the first question I have for you is,
what can we be doing to help or improve upon whatever
coordination that is necessary, but also to help the States
recognize that that immediacy for that survey and that referral
is important? What should we be doing at the Federal level?
Ms. Mitchell. Thank you very much for the question, and it
really gets to the heart of the agencies working in tandem,
because the State survey agency has the administrative
jurisdiction to go in and cite, but they can only cite on what
they see in the facility at the time that they go in. If it is
a complaint survey, they are going in on the complaint, and
they can only interview those people, that staff that is there.
They cannot even go out--it is my understanding--and interview
the actual perpetrator.
So really, in those situations, we believe that that call
should go out to us immediately or law enforcement certainly--
--
Senator Cortez Masto. But the challenge is, because it is
administrative, you literally cannot be with them when they are
going through that process.
Ms. Mitchell. Exactly. But I think we need better
coordination so that at least we are aware of the allegation
and we can start investigating immediately, because time really
is of the essence. In these types of instances from some of the
earlier testimony, if there is not enough evidence to cite
administratively, we should be going out and looking at those
perpetrators to make sure that they are not able to stay in the
facility and continue, unfortunately, to perpetrate against
additional victims.
So I think that is just critically important. And then
certainly, some of the other State jurisdictional task forces--
where we see systemic neglect and abuse chain-wide, those are
instances where we are really trying to work cooperatively with
our task force members.
Senator Cortez Masto. Right, and no offense to CMS, but I
know there is a love/hate relationship. And so particularly
with the States and sometimes with the Medicaid Fraud Units, I
think the intent is to make sure there is more of the love,
everybody working together. But there is a challenge at times.
Is there something that we should be aware of or that--now
that we have all three of you at the table--is there something
else that we should be addressing to make sure that there is
that responsiveness, the coordination, and everybody is working
together? Are there still challenges?
Ms. Bacon. Thank you for the question and for the
opportunity to answer that. The case I mentioned in my opening
statement, the Vanguard case, was actually a CMS referral. I
think that is a wonderful example of the U.S. Attorney's
community, the Department of Justice working together with our
partners to address these types of issues.
Certainly the goal of the Elder Justice Coordinators, the
94--one in each U.S. Attorney's office--is really to serve that
quarterbacking role, Senator, that you are concerned with. And
it is so important, as my colleague Ms. Mitchell mentioned,
that the Elder Justice Coordinators can be a convening force to
bring together the State MFCUs, State Attorney General offices,
local prosecutors' offices, the ombudsman, anyone in the
ecosystem who might touch on and concern these issues, so, one,
people know who to call----
Senator Cortez Masto. Right.
Ms. Bacon [continuing]. Where to go, and then who has the
appropriate tool to address the appropriate problem at the
appropriate time.
Senator Cortez Masto. Okay.
Dr. Goodrich. The one thing I will add is that we do have
requirements around how quickly a facility must report, which
is not what you are getting at, but nonetheless, they must
report any episode of abuse or injury to law enforcement within
24 hours. Regarding the States, we do oversee the State's
performance in their survey activities. So we do work very
closely with them. And we have been putting a number of things
in place over time to try to really standardize our
expectations across all the States.
We, like Vanguard, do have some good examples where we and
the State agency and law enforcement have worked well together.
One very tragic example--but it was a good example of
coordination--was, of course, Hollywood Hills in Florida, which
is the nursing home under Hurricane Irma where all the
residents passed away from heat exposure. And that was an
example where everybody really did coordinate quite well.
But we think there probably could be more standardization,
and we are continuing to work with the States on that.
Senator Cortez Masto. Thank you.
I noticed my time is up, but--you are here. Go right ahead.
I did not know if anybody else was going to be here. I had one
more question, but I will wait for a possible second round.
Senator Daines. You want to ask one more question?
Senator Cortez Masto. I just have one more question for Dr.
Goodrich.
In 2017, the State of Nevada discovered serious systemic
quality issues with our residential homes where Medicaid
beneficiaries with developmental disabilities were--where they
were living. And the State shut down these offenders.
So my question to you is, as States continue to shift their
service delivery models to focus on home and community-based
services, what sort of obligation does CMS have to protect
against abuse and neglect in individuals' homes where Medicaid
or Medicare is paying for the services delivered?
Dr. Goodrich. So we have authorities to hold providers of
care responsible for health and safety standards in most, sort
of, inpatient settings of care. We really do not within the
actual home. What I thought you were referring to at first--
maybe you were--were the intermediate care facilities for
individuals with intellectual disabilities. Those are long-term
care homes for particular populations. And we definitely have
authority over the health and safety standards for those homes.
But within a home or an assisted living facility, we do not
have authority over those particular types of situations.
Senator Cortez Masto. Okay. Thank you.
Senator Daines. Senator Menendez?
Senator Menendez. Let me start off by thanking--I think
they had to leave--Ms. Fisher and Ms. Blank for coming here
today and sharing their families' experiences. Unfortunately, I
was on the Foreign Relations Committee, but I did see their
testimony.
In New Jersey, we have 11 families who lost their children
last fall at the Wanaque Center for Nursing and Rehabilitation
due to failures at the facility to identify and contain a viral
outbreak. And I want to take a moment and recognize those 11
lives that were lost and their families who suffered the loss
of their loved ones. And I will be keeping them in mind as I
work with my fellow committee members to improve safety and
care at nursing homes.
Dr. Goodrich, are you aware that Medicare had cited the
Wanaque facility in New Jersey before the outbreak in 2018 that
killed 11 children?
Dr. Goodrich. Yes, sir.
Senator Menendez. How is it that when the Federal
Government is working with States to regulate this industry--
where are the gaps in the system that allow facilities with
multiple citations to continue accepting patients?
Dr. Goodrich. Thank you for that.
So whenever a facility is cited for anything with whatever
level of severity, we expect them to come back into compliance
rapidly, and we have a number of tools at our disposal so that
they, hopefully, can do that. Certainly for the most severe
deficiencies, what we call immediate jeopardy, we have an
expectation that they come back into compliance very rapidly,
and they have to demonstrate that they have come back into
compliance.
And I am sorry. I do not remember the exact circumstances
of Wanaque before all of those tragic deaths and what was found
previously. But likely what happened is, they came back into
compliance after they were cited for whatever deficiency
happened.
Certainly over time, as we see facilities have repeated
numbers of citations at increased severity, we have the ability
over time if they do have repeated sort of offenses, if you
will--to increase the number of penalties that they have or to
apply more and more severe penalties to bring them back into
compliance. But if they do not come back into compliance, if
they cannot demonstrate that they are able to provide safe care
for their residents, we will terminate them from the Medicare
and Medicaid programs. That is the ultimate penalty.
Senator Menendez. What is the time frame for returning into
compliance?
Dr. Goodrich. So it depends on the citation. So if it is at
the immediate jeopardy level, typically they have to come back
into compliance within--I believe it is about 23 days. So if it
is a less severe penalty, then that time frame is a bit longer
than that.
Senator Menendez. Well, that did not work out in this case.
What are the gaps in oversight?
Dr. Goodrich. So I think one of the things that we believe,
first of all, is that we do have an expectation that these
facilities provide safe care. That is their responsibility, to
adhere to our regulations and provide safe care. And our job is
to hold them accountable for that.
I think one of the things that we have seen over the years
is that there may be some inconsistency across the country in
how that oversight is applied, how penalties are applied. So we
have taken a number of really important steps over the last
couple of years, which we are continuing to work on, to further
that consistency so that the expectations are the same across
the States, and that we are overseeing the States in their
application of the enforcement penalties and in their on-site
surveys.
Senator Menendez. If that is the case, why is the
administration relaxing regulations at a time when we have
tragedies like Wanaque?
Dr. Goodrich. So we are continuing to hold these facilities
accountable in the ways that we have before. What we are
looking at is ways in which our paperwork and administrative
requirements may be getting in the way of patient care. We are
really trying to be very thoughtful about that.
Senator Menendez. In the Obama administration, there were a
series of quality standards that were implemented, and yet
those standards have been walked away from by your agency.
Dr. Goodrich. So I would be interested in understanding
which ones you are referring to in particular. The quality
standards for the long-term care facilities, for nursing homes
that we finalized in 2016, they are in place. We are actively
enforcing those standards now.
Senator Menendez. Let me ask you one other question. I
would be happy to go over them with you at greater length
outside of the hearing.
In your testimony, you discuss the emergency preparedness
standards that went into effect in 2016. You note that nearly
30 percent of nursing homes are not in compliance. What action
does CMS plan to take if they are not compliant by the next
time you survey them, and when are you going to survey them?
Dr. Goodrich. So nursing homes have to be surveyed, by law,
every year. So they get annual surveys.
And so we have now surveyed about 98 percent of active
nursing homes on the emergency preparedness requirements. As
you note, about 70 percent of those facilities were in
compliance at the time of the survey. We worked individually
with each of the nursing facilities that was not in compliance
to bring them into compliance. And they all have come into
compliance, but because these facilities are surveyed on an
annual basis, there will be ongoing oversight for their
adherence to those requirements.
Senator Menendez. I have one last question, if I may, Mr.
Chairman.
I often hear that one of the challenges is the inability to
retain qualified individuals at these institutions. Have we
looked at--is there any proposal as to how we ensure that these
institutions have the wherewithal to retain qualified
individuals to perform the services necessary?
Dr. Goodrich. I believe that topic was of great discussion
in the last panel. And we certainly heard from the panelists
concerns around payment and availability of the appropriate
staffing and that sort of thing.
We do have expectations of nursing facilities for having
the appropriate staffing for their patient population. And we
survey for that on a regular basis to make sure that they have
the appropriate staffing. Plus they have to report that to us
now every quarter using data that is auditable back to their
payroll. So we now have a much more accurate picture of the
staffing levels and where there may be gaps and deficiencies in
staffing that we just did not have before.
And we are continuing to analyze and review that data so
that we can have a much better understanding of what additional
actions we may need to take based upon that data to improve
those circumstances.
Senator Menendez. Thank you, Mr. Chairman.
I will just say that I think there is a gulf between the
expectations and the reality in several of these instances. And
we look forward to working with you to bridge the gulf. Thank
you.
Senator Cortez Masto. Mr. Chairman, I know I said ``no,''
but can I do one follow-up?
Senator Daines. You may.
Senator Cortez Masto. Thank you.
I want to follow up on Senator Menendez's--one of his
questions. In November of 2017, the Trump administration issued
an 18-month moratorium on full enforcement of eight standards
of care. And they included baseline care planning, staff
competencies, the provision of behavioral health services,
antibiotic stewardship, and limiting psychotropic medications.
Is that moratorium still in effect?
Dr. Goodrich. That moratorium ends in May of this year. I
would like to be clear about what the moratorium did.
Senator Cortez Masto. Thank you.
Dr. Goodrich. We still surveyed for all of those things.
Senator Cortez Masto. Okay.
Dr. Goodrich. And we still cited facilities that were not
in compliance with those eight items. The moratorium was around
using some of our more severe penalties, enforcement penalties
like civil monetary penalties, for just those eight items for
18 months. And instead, the enforcement remedies that we put in
place were more educational in nature.
Starting in May of this year, those eight items now will be
subject to any of the penalties that we have.
Senator Cortez Masto. Will not be or will be?
Dr. Goodrich. They will be.
Senator Cortez Masto. So it goes back into effect?
Dr. Goodrich. Yes.
Senator Cortez Masto. So what was the purpose of the
moratorium then?
Dr. Goodrich. We published our final rule in October of
2016, revising the requirements and participation for the
health and safety standards for long-term care facilities. It
was a complete overhaul. It was a huge change for the industry.
And so because of that, at that time, we also finalized
that we were going to phase in the implementation of those
requirements in three phases. Phase two, which was some of the
ones that were, quite frankly, a little bit of a bigger lift
for facilities, began in November of 2017. And what we had
heard was that some facilities, in particular in rural areas,
were having difficulty being ready for those particular eight
items at the time in November of 2017.
And we felt we could not delay requiring it, but what we
could do is take a more educational approach for about 18
months before we had, sort of, the threat, if you will, of
civil monetary penalties and termination.
Senator Cortez Masto. Thank you, Doctor; thank you very
much.
Thank you, Mr. Chairman.
Senator Daines. Thank you, Senator.
I want to thank our witnesses for your attendance and
participation today. We are grateful to you for traveling here
to share your time, your expertise with this committee.
I ask that any member who wishes to submit questions for
the record please do so by the close of business on Tuesday,
March 20th. And with that, this hearing is adjourned.
[Whereupon, at 1 p.m., the hearing was concluded.]
A P P E N D I X
Additional Material Submitted for the Record
----------
Prepared Statement of Antoinette Bacon, Associate Deputy Attorney
General and National Elder Justice Coordinator, Office of the Deputy
Attorney General, Department of Justice
Good morning, Chairman Grassley, Ranking Member Wyden, and
distinguished members of the committee. I am Antoinette Bacon,
Associate Deputy Attorney General and Department of Justice Elder
Justice Coordinator. I appreciate the opportunity to appear before you
today to discuss this critical issue of our time, which is the quality
of care that our elders receive in our Nation's nursing homes and
skilled care facilities. We have a legal and a moral obligation as a
government to ensure that the elderly members of our society who raised
us, guided us, and fought for our freedoms receive quality health care
during their nursing home stays, which for many, is at the end of their
lives when they are frail and most vulnerable.
The Department of Justice (``Department'') has been bringing to
justice nursing homes that provide grossly substandard care to their
residents for over 2 decades through its Elder Justice Initiative. We
have brought civil and criminal cases against the Nation's largest
nursing home chains, small regional chains, single facilities, and
against nursing home CEOs and executives. As a career prosecutor, I
have seen over the past 18 years the devastation and pain caused by
these criminals. It can span generations and destroy communities.
And while the Department and our Federal, State, local, tribal, and
non-governmental partners have done so much great work in this area,
there is still much work to be done as our population ages and as
stories of victimization of our Nation's elders in nursing homes reach
our national headlines with unfortunate frequency.
The Department's commitment to nursing home cases spans multiple
departmental components and includes actions that the Elder Justice
Initiative, the Civil Division Consumer Protection Branch, the Criminal
Division, the Civil Rights Division, and our U.S. Attorney's offices
have pursued, and are pursuing, to combat abuse in nursing homes across
the country. In addition, and significantly, the Department's
commitment to nursing home matters is underscored by the infrastructure
that the Department has put in place to combat elder abuse both in
nursing homes and in community settings.
First, leadership has directed resources across the Department to
focus on elder justice, including nursing home quality cases.
Specifically, the Department named Marc Krickbaum, U.S. Attorney for
the Southern District of Iowa, to chair the Attorney General Advisory
Committee's Subcommittee on Elder Justice, which advises the Attorney
General on policies and strategies for combating elder abuse and fraud.
Second, he appointed me to serve as the Department's first National
Elder Justice Coordinator. I also chair the Department's Elder Justice
Working Group, composed of 12 components, which brings together diverse
expertise to focus on a variety of threats to America's seniors. Last
year, the Department ordered each of the 94 U.S. Attorneys' offices to
appoint an Elder Justice Coordinator (``EJC'') tasked with fulfilling
the Elder Abuse Prevention and Prosecution Act of 2017's (``EAPPA'')
mandate of: serving as the legal counsel for the Federal judicial
district on matters relating to elder abuse; prosecuting, or assisting
in the prosecution of, elder abuse cases, and particularly focusing on
nursing home quality matters; conducting public outreach and awareness
activities relating to elder abuse; and ensuring the collection of data
required to be collected under the EAPPA. Having an EJC in every
Federal district allows the Department to work on the most pressing
elder justice issues facing those communities, while also collaborating
with State, local, and tribal partners to combat all forms of elder
abuse and fraud.
The EJCs enhance and broaden the reach of the outstanding work done
by the Department's Elder Justice Initiative (``EJI''), which for
decades has been a leader in prosecuting nursing home cases and in
promoting greater Federal, State, and local coordination to resolve
cases where nursing homes provide grossly substandard care to their
residents. Under EJI's leadership, the Department, in early 2016,
enhanced its commitment to nursing home matters by creating ten Elder
Justice Task Forces located across the country, including in U.S.
Attorney Krickbaum's State of Iowa and in my home State of Ohio. The
Elder Justice Task Forces are led by representatives from the U.S.
Attorneys' Offices, and most include on their multidisciplinary teams
State Medicaid Fraud Control Units, State and local prosecutors'
offices, the Department of Health and Human Services (``HHS''), State
Adult Protective Services agencies, Long-Term Care Ombudsman programs,
law enforcement, and emergency medical services in their respective
communities. The multidisciplinary teams allow the Task Forces to focus
on the most significant problems in their communities to identify
needed solutions quickly and efficiently. These Task Force leaders
serve as mentors to the EJCs and as a model for other districts to
pursue providers that provide grossly substandard care to their
residents.
The Department, through its many components, has prosecutors across
the Nation who are focused on protecting America's elders in nursing
homes. We have brought so many cases like the ones that I am going to
describe to this committee. These few examples show the breadth and
tragedy of the abuse we have identified. The facts of these cases are
hard to listen to but were even harder to experience for the residents
affected.
Just last week, the Department announced that it settled a failure
of care False Claims Act case against the Brentwood, TN nursing home
chain Vanguard Healthcare and several Vanguard companies for $18
million in allowed claims. The United States, partnering with the State
of Tennessee, brought to justice this company and its CEO and Chief
Compliance Officer for allegedly providing grossly substandard care to
its residents on basic care needs such as administering medications as
prescribed, providing standard infection control, failing to prevent
pressure ulcers, and using physical restraints. Our Nation's elderly
residents suffered such harm in the Vanguard facilities as residents
faced pressure ulcers down to the bone, residents who were not
adequately provided with pain medications and as a result were
screaming in pain in their rooms, and a resident who only received one
real shower in 5 months.
Another example of the Department's failure of care False Claims
Act matters focuses on the alleged overuse of antipsychotic medications
such as occurred in a case brought in the Northern District of Iowa. On
February 1, 2017, an Iowa nursing facility, the Abbey of LeMars, Inc.,
its ownership, and its management, agreed to pay $100,000 to resolve
allegations that the care provided to their nursing facility residents
was grossly substandard. During this time, the nursing facility
allegedly overused antipsychotic medications to numb or sedate
residents to keep residents from expressing their needs. Residents were
allegedly not given adequate nourishment or bathing care and residents
were subjected to physical and chemical restraints rather than other
types of interventions.
Given the particularly egregious nature of the resident harm at
issue in these types of cases, nursing home defendants frequently enter
into Quality of Care Corporate Integrity Agreements (``CIAs'') with the
Department of Health and Human Services' Office of Inspector General at
the same time they settle their False Claims Act liability with the
Department of Justice. For example, in 2014, following an extensive
Federal-State investigation, the Extendicare Health Services, Inc. and
its subsidiary Progressive Step Corporation paid the United States $28
million for a civil False Claims Act failure of care settlement, the
largest such settlement in the Department's history. The United States
alleged that Extendicare failed to have a sufficient number of skilled
nurses to adequately care for its residents and failed to prevent
resident pressure ulcers. At the same time, Extendicare entered into a
5-year Quality of Care Corporate Integrity Agreement with HHS-OIG.
Under this agreement, Extendicare was required to have a comprehensive
compliance program with systems in place to address the quality of
resident care. Indeed, this CIA had specific staffing provisions and is
still in force today.
An additional example, on November 16, 2017, the Department settled
a case with Hyperion Foundation, in which the entities and individuals
agreed to pay the United States a total of $1.25 million to resolve
allegations of false claims to Medicare and the Mississippi Medicaid
program for providing grossly substandard care to residents at the
Oxford Health and Rehabilitation nursing home in Lumberton, MS. The
Department alleged that Hyperion lacked adequate nursing staff, failed
to meet the nutritional needs of residents, failed to administer
medications to residents as prescribed by their physicians,
overmedicated residents, and diverted Medicare and Medicaid funds to
other affiliated entities, leaving the facility unable to pay for its
basic operations, including food, heat, air conditioning, pest control,
and cleaning.
As a result of these care failures, residents suffered
immeasurably, including one resident who lost over 14 pounds in the
facility over 60 days and developed massive, foul-smelling pressure
sores on the resident's buttocks, heels, and legs, and another resident
who complained of leg pain only to discover the pain was caused by a
live snake wrapped around her leg. The physical plant in which these
residents were forced to live was truly horrific. This facility was
frequently plagued by filth, mold, insects, snakes, and rodents.
Roaches were found on food trays and in the ice machines.
Although the horrific description of neglect of care occurred in
rural Mississippi, it is important to shine a light on the fact that
our Nation's rural elders are particularly vulnerable to abuse in
nursing homes. In some rural communities, staff are not as available
and people are often further from family members who can visit
facilities and check on loved ones. The Trump administration and this
Department recognize that we have a particular responsibility to ensure
that our elderly residents in rural America are cared for in a way that
retains their dignity and respect. In November last year, the
Department held a Rural and Tribal Summit in Des Moines, IA, where we
brought together Federal, State, local, and tribal governments, as well
as subject matter experts, to address, among other things, the health
of our rural elder populations. We discussed care in long-term
facilities and see this issue as a Department priority.
These cases make clear that the care that these residents suffered
is not the care that our elders, our parents, relatives, and friends
deserve.
The Department's enforcement reaches beyond False Claims Act cases.
The Civil Rights Division is fully engaged in combatting elder abuse by
pursuing relief affecting public and private residential health care
facilities, including nursing homes. Civil Rights attorneys conduct
investigations to eliminate abuse and grossly substandard care in
Medicare- and Medicaid-funded public long-term care facilities, as well
as the unnecessary segregation of individuals who require health care
supports and services. For example, in 2018, the Department entered
into an agreement with the State of Louisiana, whose nursing facilities
have long been reported as among the worst for quality of care in the
Nation, to address its alleged overreliance on nursing facilities to
house people with mental illness.
In the most egregious cases, the Department has and will continue
to pursue criminal prosecutions. One example is a case prosecuted by
the U.S. Attorney's Office for the Eastern District of Missouri, the
United States Department of Health and Human Services, Office of the
Inspector General, and the Missouri Medicaid Fraud Control Unit.
Between 2013 and 2016, John Sells, CEO of Benchmark Healthcare of
Festus and a number of long-term care facilities in Missouri, Kentucky,
and Tennessee, stole Medicaid funds, which were intended to provide
care for the elderly and disabled residents at Benchmark. Because Sells
diverted funds to his own use, the residents did not receive
medication, food, and needed dietary supplements. On one occasion, the
residents were given only a clear bowl of broth soup and a very small
cookie, which was not substantial and failed to meet their nutritional
needs. The facility's staff resorted to using their own money to buy
food for the residents, because in some instances there was little to
no food provided by Benchmark. Additionally, the facility was dirty, as
trash piled up and flies infested the surrounding area in the absence
of pest control services, and due to a lack of routine maintenance and
repairs, the facility was also unsafe. In October 2017, Sells was
sentenced to 41 months in prison, and ordered to pay over $667,000 in
restitution.
Our Nation is in the midst of an opioid crisis. Tragically, seniors
in nursing facilities are not immune to its devastating effects. In the
fall of 2018, the United States Attorney's Office in the Southern
District of Iowa and the Iowa Medicaid Fraud Control Unit (``MFCU''),
identified a troubling trend in Iowa nursing homes. MFCU was
investigating numerous allegations of nursing care facility employees,
ranging from nurses to certified nursing assistants, who diverted
controlled substances from elderly patients who had valid
prescriptions, to their own illegal use, leaving the patients in pain
because their caregivers stole their medication. Six nurses and
certified nursing assistants have been indicted, and so far one has
pleaded guilty. Let me emphasize that the charges are merely
allegations and each defendant is presumed innocent until proven
guilty.
The Criminal Division's Medicare Fraud Strike Forces, in
conjunction with HHS's Centers for Medicare and Medicaid Services
(``CMS'') and the Office of Inspector General of HHS (``HHS-OIG''),
have been a strong team working together to combat elder abuse.
Recently, the team identified a provider unnecessarily prescribing
powerful opioids to residents. As part of a guilty plea in January
2018, Yasser Mozeb admitted that he conspired with the owner of the
Tri-County Network, Mashiyat Rashid, along with other co-conspirators,
to prescribe medically unnecessary controlled substances, which
allegedly included oxycodone, hydrocodone, and oxymorphone, to Medicare
beneficiaries, many of whom were addicted to narcotics. He also
admitted that co-conspirators directed physicians to require Medicare
beneficiaries to undergo medically unnecessary facet joint injections
in order to obtain prescriptions for the narcotics. Some of these
beneficiaries were also then referred to specific third party home
health agencies, even though those referrals were medically
unnecessary.
It is likely that because of these health-care fraud schemes, at
least some of these beneficiaries never received the medical attention
and treatments they actually needed, or suffered through medically
unnecessary procedures. Additionally, some elders in nursing homes are
also not receiving the appropriate medication as prescribed by their
physicians, because the staff or visiting relatives and friends are
instead stealing the medication to sell or to maintain their own
addiction. This undoubtedly causes these seniors to be in excessive and
preventable pain. This administration will not tolerate this type of
abuse.
While the focus of today's hearing is nursing home enforcement, I
would like to expand my discussion of the Department's work done on
elder justice issues to focus on the Department's efforts in combating
financial exploitation and bringing scammers to justice. On February
22, 2018, the Attorney General announced the largest coordinated sweep
of elder fraud cases in history. With help from our partners at all
levels of government and in the private sector, the Department brought
civil and criminal actions against more than 250 defendants from around
the globe who victimized more than one million Americans, most of whom
were elderly. The cases included criminal, civil, and forfeiture
actions across more than 50 Federal districts, with losses exceeding
$500 million.
These scams imperil older adults as they steal their money, life
savings, and their pride. Studies show that older adults suffering
financial exploitation are more likely to suffer other forms of elder
abuse. Sometimes the pain from having been scammed is more than some
elders can bear. At last year's Elder Fraud Sweep, we heard from the
granddaughter of a victim of multiple financial fraud schemes. The
perpetrators were persistent, and eventually defrauded the victim of
everything she had. After realizing what had happened, the victim felt
embarrassed, and, hopeless, her sense of self-worth at an all-time low,
she took her own life. This is a clear example of the tragic effects
these crimes can have on an individual. Financial scams can be deadly
and at the Department we are pursuing these scams with unparalleled
vigor. Because of situations like this, and others, the Department's
Office for Victims of Crimes has given $18 million in grants for senior
victims this past year, and we will continue to support victims while
continuing to pursue their perpetrators.
Clearly, elder justice is a Department priority. We are actively
engaged in pursuing and combatting abuse and exploitation of our
Nation's vulnerable senior citizens, and through coordination with our
partners, the Department remains committed to using all appropriate
tools and paths to investigate, prosecute, and prevent abuse of our
Nation's elderly in nursing homes. Our many dedicated public servants
have elder justice as their daily mission and we support them in their
efforts on this priority issue.
Again, thank you for this opportunity to speak before you today. I
look forward to further discussions on these issues, and I am pleased
to answer any questions you may have.
______
Questions Submitted for the Record to Antoinette Bacon
Questions Submitted by Hon. Chuck Grassley
Question. Have each of the Elder Justice Coordinators in the field
met with each elected District Attorney to find out if they have
designated an elder abuse prosecutor? If so, can you highlight areas of
the country where this practice has been established? Are there areas
in which District Attorneys are not designating an Assistant District
Attorney or Attorneys to carry out this function?
Answer. As a general matter, Elder Justice Coordinators in the
United States Attorneys' Offices have taken steps to reach out to their
State and local counterparts. For example, the U.S. Attorney's Office
for the Southern District of California has joined the San Diego County
District Attorney Office's Elder Protection Council, a private/public
collaboration designed to raise awareness, enhance prevention, and
improve protection for San Diego County's elder population. Working
together, along with private sector stakeholders, they launched the San
Diego County Elder and Dependent Adult Abuse Blueprint, which is
designed to highlight best practices for a coordinated law enforcement
and community response to elder and dependent adult abuse in order to
better prevent, protect, prosecute, and partner on this public safety
challenge. Given the sheer number of District Attorney's offices around
the country, it would be difficult to catalogue the extent to which
each has specifically designated an elder abuse prosecutor. With that
caveat, we are not aware of any United States Attorney's Office that
has reported an inability to identify individuals to partner with in
State and local law enforcement. In addition, the Department itself
continues to work closely with the National Association of Attorneys
General (NAAG) and the National Association of Medicaid Fraud Control
Units (MFCUs) to identify ways to ensure that Federal and State
prosecutors are coordinating strategically to stem the tide of elder
abuse and financial exploitation in the Districts..
Question. Does each Elder Justice Coordinator interact in a
meaningful way with long-term care licensing agencies in each State to
encourage sharing of information on all allegations of elder abuse? If
so, can you highlight some examples of where this practice has achieved
success?
Answer. As part of their training, the Elder Justice Coordinators
were provided with a network of State and local agencies that play a
role in working with, or monitoring, nursing homes and other long term
care providers, including but not limited to federally funded Long Term
Care Ombudsmen, State-funded Adult Protective Services agencies, State
survey and certification agencies, and State licensing agencies. Many
Elder Justice Coordinators have reported communicating or working with
those State and local partners as part of their training, outreach and
coordination efforts. Some districts, like the Middle District of
Tennessee, Eastern District of Pennsylvania, and the Eastern District
of Virginia, have regular meetings with their State and local partners
as part of their ongoing elder justice efforts.
Question. Do Elder Justice Coordinators encourage strategy sessions
with all stakeholders in each judicial district to develop a
comprehensive strategy to respond to elder abuse? If so, can you
elaborate on where and how this is working successfully? Are there
areas where this collaboration can be improved? Please explain.
Answer. Elder Justice Coordinators have reported a variety of
working groups that made up of relevant stakeholders, including not
only the State and local governmental officials described above, but
also other Federal stakeholders (e.g., the FBI, the Department of
Agriculture, and the SEC), other governmental stakeholders (such as
first responders), and individuals representing various involved
community partners, including from the private sector such as financial
and nursing home professionals, federally funded Long Term Care
Ombudsmen, State-funded Adult Protective Services (``APS''), and
Federal and State-funded legal aid lawyers. For example, the District
of Oregon hosts a monthly fraud working group that includes
participants from the Oregon Attorney General's office as well as APS;
one of the primary topics addressed in the working group's meetings is
elder abuse. Members of the working group participate in an email list
that allows the group members to effectively communicate on elder
justice initiatives not just during the meetings, but throughout the
month. All of this has allowed stakeholders in Oregon to effectively
coordinate on elder justice strategies and identify and implement
effective approaches to combating elder fraud and abuse.\1\
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\1\ https://www.justice.gov/usao-dc/pr/us-attorney-liu-announces-
initiative-combat-elder-abuse-and-financial-exploitation.
______
Question Submitted by Hon. Todd Young
civil penalties/exclusion
Question. Nursing homes who receive Federal funding are mandated to
report and investigate suspected abuse and neglect in their nursing
homes--failure to do so results in civil penalties of up to $300,000
and possible exclusion from participation in any Federal health-care
program.
How often do these fines and penalties occur?
Answer. The Department of Health and Human Services would be in a
better position to answer this question.
______
Question Submitted by Hon. Benjamin L. Cardin
elder financial abuse
Question. Elder financial abuse results in financial losses of
about $3 billion annually, and is growing as scam artists develop new
ways to defraud vulnerable seniors out of their money and possessions.
According to a 2010 MetLife study, about 12 percent of reported cases
of elder financial abuse originate from a legitimate business such as
nursing home administration or an institutional caregiver.
Many more seniors are defrauded or tricked by neighbors or
acquaintances who take advantage of their trust while in a nursing
home. The Consumer Financial Protection Bureau has published a lengthy
manual addressing some of these issues, entitled ``Protecting Residents
From Financial Exploitation.'' The goal of this manual is to educate
providers about signs that a vulnerable individual is being taken
advantage of financially.
What more needs to be done to protect our vulnerable seniors from
financial abuse, and does the Federal Government have a role in this?
Answer. The Federal Government is already playing an active role in
protecting older Americans from financial abuse. The second historic
elder fraud sweep announced March 7, 2019 highlighted the prime
importance the Department and its partners place on shielding American
seniors from financial fraud. The sweep involved cases of local
financial abuse as well as transnational criminal organizations
defrauding thousands of victims. The Department is actively
investigating and stopping international schemes targeting seniors,
like the tech fraud schemes highlighted at the Department's Elder Fraud
Sweep in March.
Likewise, the Elder Justice Coordinating Council (EJCC), which is
comprised of 14 Federal agencies, is supported by an informal Elder
Justice Working Group, with participation of senior staff from each of
the 14 EJCC member agencies. The Working Group has established a
voluntary dissemination subcommittee that focuses on leveraging Federal
resources in order to coordinate Federal governmental information
dissemination and to coordinate efforts to raise public awareness of
common and developing fraud scams, how older Americans may protect
themselves, and on all aspects of prevention and responses to all forms
of elder abuse, neglect, and financial exploitation.
Moreover, the Federal Government is actively developing training,
information, and resources for responders to elder fraud and abuse--
including law enforcement, first responders, prosecutors, and Adult
Protective Services workers--to help expand and enhance their capacity
to support elder abuse victims. For example, last year the Department
launched EAGLE, the Elder Abuse Guide for Law Enforcement, which is a
free, on-line resources guide that include evidence collection
checklists, tips for interviewing older adults, State and local
statutes, and best practices for documenting elder abuse. Additionally,
the Department launched the Elder Justice Neighborhood Map, a free,
user-friendly webpage that helps people locate elder abuse services in
their State.
While the Federal Government has been very active in combating
financial fraud, there is always more that can be done. We welcome the
opportunity to work with Congress on potential ways to continue
advancing our efforts to prevent elder financial exploitation.
______
Question Submitted by Hon. Catherine Cortez Masto
Question. Ms. Bacon, you explained collaboration on the Elder
Justice Task Forces by the U.S. Attorneys' Offices, most of which
include State MFCUs, the State Department of Health and Human Services,
and State Adult Protective Services agencies among others. How do you
make sure that patterns of quality deficiencies identified by this
group are flagged and addressed by CMS?
Answer. The Department has a very strong working relationship with
the CMS Division of Nursing Homes, among other CMS components The
Department works closely with that CMS Division to identify providers
that are providing grossly substandard care. In many of those cases,
CMS then determines which of its remedies to apply to a particular
provider, anywhere from denial of payment for new admissions to
termination from Federal health-care programs.
______
Prepared Statement of Patricia Blank,
Daughter of Nursing Home Neglect Victim
Ladies and Gentlemen, my name is Patricia Olthoff-Blank. I am from
Shell Rock, IA. I want to thank you for allowing me to present
testimony this morning on this very important issue. It is personal to
me because my mother Virginia Olthoff died as the result of neglect at
a nursing home where she had lived for nearly 15 years. As a matter of
fact, today marks the one-year and one-day anniversary of her funeral.
One of the most frustrating parts about how she died is that during
her 15 years at Timely Mission Nursing Home in Buffalo Center, IA, my
family believed she was getting good care. Each time we visited, she
seemed comfortable, was dressed in regular clothes not pajamas, and
seemed to be clean and well-groomed. We were familiar with many of the
staff including the director of nursing, who went to high school with
me and my brothers.
There had always been good communication from the staff between my
father, who lived just three blocks from the facility until his death
in 2012, and me as the eldest child and only daughter.
After my father's death, I became the family member responsible for
decisions and whom the administrators called if there were needs. And
they called often, which I appreciated. ``Your mom needs new glasses,''
``she could use a haircut,'' ``she needs her toenails trimmed,'' and
``she could use some new underwear.''
They also contacted me and discussed each time her medication was
altered. She had dementia but she communicated with the staff and with
us, although she often just thought we were some nice people who came
to visit. I was always invited to attend her yearly evaluation, which I
did not attend because I live 2\1/2\ hours away and it was conducted
during the week. But the staff always was available to discuss the
report over the phone.
Fast forward to February 28, 2018 at 3 a.m. I received a phone call
from the overnight registered nurse who told me simply, ``Your mother
is moaning.'' And she asked me, ``What do you want me to do?'' I said,
``Give her something for pain.''
And the nurse said, ``All we can give her is Tylenol,'' and she
asked me again, ``What do you want me to do?'' I said, ``I think she
needs to go to the hospital.'' She said, ``Okay,'' and hung up.
The next call I got was from an emergency room nurse at a hospital
in Mason City who said I had better come quickly because she was not
sure my mother would be alive in the hour or so that it would take me
to get there.
My husband, brother, and I were greeted by the emergency room
doctor who said my mother was extremely dehydrated and had sodium
levels that were so elevated that she likely had suffered a stroke. He
also said, quote, ``This did not just happen. I believe she has been
without water or any type of fluid for at least 4 or 5 days.'' He also
told us he is a mandatory abuse reporter and he was going to report
this. (I heard the doctor say this but I wasn't sure what it meant
because I was so surprised that she was this ill and was likely going
to die soon).
My mother was given morphine for extreme pain, and we transferred
her back to Timely Mission where she passed away a few hours later.
We held her funeral on March 5th and found it odd that no one from
the nursing home where she had lived for 15 years attended the funeral.
The church is just four blocks away. The director of nursing sent a
beautiful bouquet of roses, but we received no sympathy cards from
anyone on the staff, which is unusual in a small town. Many of them
knew my mother before she developed dementia and often told me stories
about her when I would come to visit.
After the funeral, I went on with my life, grieving my mother
especially in April because we shared a birthday. It was my first one
without her. She would have been 88.
In July, I got a phone call from Clark Kauffman, a reporter for The
Des Moines Register, who said he was sorry for my mother's death and
wanted to know if I had any comments about a Department of Inspections
and Appeals report. I had no idea what he was talking about but
remembered what the emergency room doctor had said, so it was now
making sense.
The report read like a horror story. According to numerous staff
members, my mother had been eating very little and drinking almost
nothing for almost 2 weeks. Where was my call? The report also said she
had been crying out in pain often. Where was my phone call?
She did have a Do Not Resuscitate order but she wasn't having
breathing or cardiac issues. The DNR states that she is to be made
comfortable with an IV for fluids, oxygen, and morphine or something
for pain. NONE of that happened. The DIA report also mentioned her
doctor who noted that my mother had lost a considerable amount of
weight. Again, where was my phone call?
The DIA report also showed that there were several certified
nursing assistants who frequently notified their supervisors of my
mother's condition, but nothing was done.
I want to thank the CNAs, nurses, and others who work in care
facilities and do their jobs right. The facilities are often under-
staffed and these people work for much less money than they should be
paid. Please thank those people if you have a loved one in nursing
care. I also want to thank the emergency room doctor who reported the
neglect, and I especially want to thank Clark Kauffman and other
journalists who take time to read these lengthy reports and write
stories about these inspections, so perhaps something can be done about
the current situation. I have more ideas that I will address in the
comment section, if there is time.
Thank you.
______
Letter Submitted by Hon. Robert P. Casey, Jr.,
a U.S. Senator From Pennsylvania
United States Senate
WASHINGTON, DC 20510
March 4, 2019
The Honorable Seema Verma
Administrator
Centers for Medicare and Medicaid Services
200 Independence Avenue, SW
Washington, DC 20201
Dear Administrator Verma:
We are writing on behalf of the 80,000 Pennsylvanians who call a
nursing facility home. Recently, select nursing homes in the
Commonwealth were the subject of an in-depth investigation into patient
neglect and understaffing.\1\ Given this report, we are writing to
request additional information on the Special Focus Facility (SFF)
Initiative, a statutorily required Centers for Medicare and Medicaid
Services (CMS) program \2\ intended to enhance care quality and foster
improvement among nursing facilities that persistently under perform.
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\1\ Daniel Simmons-Ritchie, ``Still Failing the Frail,'' PennLive,
November 2018, http://stillfailingthefrail.pennlive.com/.
\2\ 42 U.S.C. 1395i-3; 42 U.S.C. 1396r.
We are proud of our State's high-quality nursing facilities, which
benefit from dedicated leadership and staff members devoted to their
residents' health, flourishing and overall well being. Recent reporting
suggests, however, that there are facilities that fall short of the
care standards that we should expect of every one of our Nation's
nursing homes. As detailed in these reports, despite recent changes in
ownership and prior investigations,\3\ some of our older constituents
and people with disabilities residing in these homes experienced
significant harm, including insect infestations, improper wound care,
unsanitary conditions, supply shortages, and more.
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\3\ Daniel Simmons-Ritchie and David Wenner, ``Failing the Frail,''
PennLive, August 2016, https://www.pennlive.com/news/page/
failing_the_frail_part_1.html.
Neglect and abuse of this nature is altogether unacceptable and through
a robust system of competition, monitoring, oversight, technical
assistance and enforcement, it should be entirely avoidable. Among the
many vital elements of this system, we understand that CMS works
alongside the Pennsylvania Department of Health (DoH) to administer the
SFF program. Indeed, three of the nursing facilities featured in the
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aforementioned investigation are current participants in the program.
We are interested in learning more about the program's operations,
scope and overall effectiveness. In continuation of our engagement on
these issues, we ask that CMS provide answers to the following
questions about the SFF program and the facilities eligible for and/or
participating in this initiative:
1. There are more than 15,570 nursing homes in the U.S.\4\ Less than 1
percent (0.6 percent) participate in the SFF program and less than 3
percent (2.8 percent) are eligible for the candidate list. What
methodology did CMS use to determine the fixed size of the following:
---------------------------------------------------------------------------
\4\ CMS, ``Provider Info,'' Data.Medicare.Gov, accessed on February
12, 2019, https://data.medicare.gov/Nursing-Home-Compare/Provider-Info/
4pq5-n9py.
a. Total SFF participants nationally (88 facilities);
b. Total candidates nationally (435 facilities);
c. Total required participants per State (ranging from 1-6);
and
d. Total candidates per State (ranging from 5-30);\5\
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\5\ CMS, Center for Clinical Standards and Quality/Survey and
Certification Group, ``Fiscal Year (FY) 2017 Special Focus Facility
Program Update,'' March 2, 2017, https://www.cms.gov/Medicare/Provider-
Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/
Survey-and-Cert-Letter-17-20.pdf.
2. CMS guidance \6\ indicates the number of candidates and required
SFF participants have not been updated since May 2014. Please provide
the agency's reasoning for maintaining the program's current size (both
candidates and participants), as well as the total number of SFF
participants and candidates nationally for each year since 201O;
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\6\ Ibid.
3. How frequently does CMS update the SFF candidate list? In addition,
please provide information on how long a facility typically remains on
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the candidate list before selection in the SFF program;
4. What process does CMS engage in with State Survey Agencies (SA) to
determine which candidates to select for the SFF program? Does CMS
require or encourage the SA to take into consideration the scope and
severity of deficiencies cited in prior surveys? Does CMS require or
encourage the SA take into account any State action that has been taken
against a facility?
5. Are there are any circumstances where a facility is prioritized for
SFF participation or selected for the program outside of the rolling
selection window (e.g., before a slot becomes available upon a
participating facility's graduation or termination)?
6. Please indicate what, if any, surveying and oversight actions are
taken with respect to candidates not selected by SAs for participation
in the SFF program;
7. Please provide information on the frequency with which facilities
cycle on and off the candidate list and what, if any, surveying,
oversight and enforcement actions are taken if those repeat candidates
are not selected for the SFF program. Please provide the average length
of time a facility remains in the SFF program until graduation and/or
termination of Federal participation, as well as details on outliers
(least amount of time, most amount of time, etc.). Please also provide
information on facilities that exit the program without graduating or
being terminated from Federal participation;
8. CMS makes the list of selected SFF facilities publicly available on
a monthly basis; however, the list of potential candidates is provided
only to the candidates themselves. Please provide the most recent
candidate list and the agency's reasoning for not previously releasing
this list to the public; and
9. Pennsylvania's SFF participation includes a minimum of 20
candidates and 4 participants. Please provide the name, address, and
length of candidacy for each of the Pennsylvania facilities on the SPF
candidate list.
Please provide answers to these questions by March 27, 2019 as well as
a briefing for our staff members. If you have any questions, please
contact Gillian Mueller of Senator Casey's staff at
[email protected] and Theodore Merkel of Senator
Toomey's staff at [email protected]. Thank you for your
consideration and we look forward to your response.
Sincerely,
Robert P. Casey, Jr. Patrick J. Toomey
U.S. Senator U.S. Senator
______
Prepared Statement of Maya Fischer,
Daughter of Nursing Home Abuse Victim
Chairman Grassley, Ranking Member Wyden, and members of the
committee, thank you for the opportunity to be here today on behalf of
my mother, Sonja Fischer. My mother, suffering from advanced
Alzheimer's, was a Medicare patient at Walker Methodist Health Center
in Minneapolis. On December 18, 2014, at 4 a.m., a nurse walked into
her room and witnessed a male caregiver, George Kpingbah, raping my
mother.
My mother had suffered from Alzheimer's for 12 years. She was
totally immobile, unable to speak, and was fully dependent on others
for her care.
When I saw the nursing home's number on caller ID, I prepared
myself for the worst, that my mother had passed away. I was not
prepared for what I heard. A nurse informed me that my mother had been
sexually assaulted and was being transported to the hospital. And just
like that, my mother became another statistic in the shocking reality
of nursing home abuse. My mother was so much more than a statistic, so
please allow me to tell you about her.
My mother was born in Jakarta, Indonesia in 1931. In 1942, the
Japanese army invaded the Indonesian islands. In the horror of war,
soldiers were raping and killing women and young girls. My grandparents
were left with no option but to flee their homeland with their 12-year-
old daughter.
My mother ended up in the United States, became a U.S. citizen, and
built a life for herself in this country. She was a testament to the
American Dream. In this country, she was happy and safe--a world
removed from the horrors of her youth. It was impossible to imagine
that at the end of her life, when she had no ability to fend for
herself, she would suffer the very same horror her parents had fled
their home to protect her from.
At 83 years old, unable to speak, unable to fight back, she was
more vulnerable than an infant when she was raped. The dignity which
she always displayed during her life, which was already being assaulted
by her disease, was dealt a further devastating blow by her caregiver.
I received the phone call that this unthinkable act had been
committed against my mother during the week of Christmas in 2014. This
news was devastating not only for its immediate shock but how it has
affected the memories we had of my mother and Christmases past. Now and
for the rest of my life, when I think of my mother at Christmas, I
think of the horrifying shock of that call.
The sense of helplessness I felt, trying to comfort her while she
had a rape kit performed, will remain with me always. As will the 9
hours I spent in the emergency room with her and the fear she must have
felt with the bright lights and the scary noises of monitors going off.
I will remember the pain she went through having an IV drip to make
sure that at 83 she didn't contract a sexually transmitted disease.
My final memories of my mother's life now include watching her bang
uncontrollably on her private parts for days after the rape, with tears
rolling down her eyes, apparently trying to tell me what had been done
to her, but unable to speak. I still feel the guilt of not being able
to take care of her myself and having to entrust her care to others
only to have her subjected to this unthinkable assault.
I remember the difficult decision we had to make when we realized
that we could no longer care for her at home. We understood this meant
we had to select a nursing home. We did everything we could to find the
best place for her.
We assured my mother that she would be safe: she would not suffer.
I can never overcome the guilt of realizing that these promises were
not kept. She was not safe; she was raped.
Could this rape been prevented? It is my understanding that other
residents had previously complained of sexual misconduct while Mr.
Kpingbah worked there. I have learned that the Department of Health
investigated these prior complaints, did nothing, and then kept them
hidden. I can't help but wonder how my mom's, my family's, and my life
would have been different had the Department not kept these allegations
hidden.
Families struggling to care for their loved ones do everything they
can to find the best possible care. To make the best decision possible,
we rely on the information provided by the Department of Health. We
must have access to all important information to help us make these
difficult decisions.
Please consider what I have shared with you today, how this crime
has changed our lives forever, how it stole away the last shred of my
mother's dignity and tarnished the memory of a decent and loving woman
who had already suffered enough.
Thank you for allowing me to tell my mother's story.
______
Prepared Statement of David Gifford, M.D., MPH, Senior Vice President,
Quality and Regulatory Affairs, American Health Care Association
Chairman Grassley, Ranking Member Wyden, and distinguished members
of the committee, I'd like to thank you for holding this important
hearing. My name is Dr. David Gifford, and I am a geriatrician and
currently senior vice president of quality and regulatory affairs at
the American Health Care Association (AHCA). Previously, I served for 6
years as Director of the Rhode Island State Department of Health. Prior
to that, I was the chief medical officer for Quality Partners of Rhode
Island, while also serving on the faculty at Brown University. In
addition, I've been a medical director in a number of nursing homes in
Rhode Island. Throughout my career, I have been asked to participate on
numerous Federal expert panels, including the Centers for Medicare and
Medicaid Services' (CMS) panel to develop the Quality Assurance and
Performance Improvement Program for nursing homes and the Center for
Disease Control's Infection Control Panel. On behalf of AHCA and its
members, I would like to thank the committee for the opportunity to
participate in this morning's hearing.
I would like to begin this written statement by saying that Ms.
Virginia Olthoff's and Ms. Maya Fisher's mothers were entrusted into
the care of nursing homes. Quite simply and regrettably, these nursing
homes not only failed them; they failed and tragically impacted the
lives of their families and friends as well. Families and residents who
are often at their most vulnerable and in need of care and support
should never have to worry about their physical safety, let alone
experience what Ms. Olthoff's and Ms. Fisher's mothers endured. As a
physician who has committed my career to the improvement of care for
the elderly and as a son of two elderly parents, on behalf of AHCA, I
am appalled and disgusted by the two devastating incidents we will
discuss here today. Chairman Grassley and committee members, thank you
for making sure that they are not forgotten.
Before I turn to a discussion of some proposed strategies to
address abuse in nursing homes, I would like to briefly provide some
important context about the industry as a whole. AHCA is the Nation's
largest association of long term and post-acute care providers
representing nearly 10,000 of the 15,000+ nursing homes in the country
who routinely provide high quality care to over a million residents and
patients every day. We represent nearly half of all not-for-profit
facilities, two-thirds of proprietary skilled nursing facilities
(nursing homes), and half of government facilities.
Our mission is improving lives by delivering high-quality care.
While there are tragic stories like the ones presented today, and this
hearing is rightfully focused on how to prevent these tragedies in the
future, I also want to remind you and the American public that there
are also countless heartwarming accounts of nursing home staff caring
for residents as if they were their own family members. One of the
privileges of my job is to travel the country and meet nurses, nursing
assistants and nursing home staff from around the country who dedicate
their lives to the care of the elderly. Today, I hope that we focus on
solutions to prevent these unconscionable incidents in the future and
limit using too broad a brush to castigate the countless hard-working,
committed staff caring for elderly residents in nursing homes around
the country, staff such as the more than 200 employees at the Good
Samaritan Society in Florida who left their families at home during
Hurricane Irma to stay with their residents over several days, make
preparations for the storm, and ensure the residents' safety.
Let me also tell you about the staff in a Colorado nursing home who
cared for Jeraldine. After her husband passed away, she was prescribed
an off-label antipsychotic and became depressed and socially withdrawn
while in her home. This led to her admission to a Colorado nursing
home. Over time, the dedicated team of certified nursing assistants
(CNAs), nurses, and other caregivers got to know her and realized they
could safely remove her from all psychotropic medications. Today,
Jeraldine has experienced dramatic improvements. She is one of our most
active residents, serving as a key member of the residents' council
and, as she puts it, is ``a different person'' today than when she
arrived. This turnaround in Jeraldine's quality of life was a direct
result of the actions taken by the caring staff--something that is also
going on around the country every day for the millions of residents for
which our members care.
quality improvements in america's nursing homes
I am proud to report to you, Chairman Grassley and Ranking Member
Wyden, that in the last 7 years, both the quality of care and
caregiving methods used in our nursing homes have improved
dramatically. We need to build off of this success to address the
complex issues raised today.
In early 2012, AHCA launched the Quality Initiative, a member-wide
challenge to meet specific, measurable targets in areas including
hospital readmissions and the off-label use of antipsychotic
medications and to adopt the Department of Commerce's Malcom Baldrige
framework of health care excellence. Our members stepped up to that
challenge.
Since the launch of this Initiative, our members have demonstrated
significant qualitative and quantitative improvements in the care
provided to nursing home residents. For the first time in the history
of Baldrige program, an AHCA member in Idaho won the Department of
Commerce's prestigious national Malcom Baldrige award for health care
over all other health-care providers.
First and most importantly, nursing homes over the past 7 years
have demonstrated improvement in 18 of the 24 quality outcomes measured
and publicly reported by CMS. The data demonstrates further that:
Fewer residents are returning to the hospital from the
nursing home. An important measure of nursing home quality is
the number of residents who return to a hospital because their
condition has deteriorated during their nursing home stay.
Today, that indicator of quality has changed for the better.
Since 2011, the number of residents returning to the hospital
after a nursing home stay has declined 11.6 percent.
Fewer residents are receiving antipsychotic medications.
Today, less than one in seven nursing home residents are
receiving antipsychotic medications. This is a significant
decline from 2011 when 25 percent of all residents received an
antipsychotic.
Staff are spending more time than ever before with
residents. Remarkably, 75 percent of nursing homes received
three out of five stars or better from CMS for staffing. In
fact, in 2018, three out of every four nursing homes had more
registered nurses and clinical staff caring for residents than
what CMS projects they should have based on the type of
residents in the facility. This is a significant improvement
even compared to just 2 years ago when 18 percent had staff
greater than what CMS expected based on the facility's
residents. At the same time as described below we are facing
serious staffing challenges.
Nursing homes provide more person-centered care today than
ever before. Only one in 18 nursing home residents report
experiencing pain compared to one in eight in 2011. Moreover,
since 2011, common ailments among nursing home residents have
steadily declined. For example, we can document a 20-percent
decrease in pressure ulcers, a 61-percent decline in urinary
tract infections, and a 35-percent decline in depressive
symptoms. And, as Jeraldine's story demonstrates, nursing homes
have trained staff to better understand and care for residents
with dementia without medications and replace antipsychotic
medications with robust activity programs, social workers, and
resident councils so that residents can be mentally,
physically, and socially engaged.
improvements have been made, but challenges remain
The dramatic improvements described above are the result of the
unrelenting commitment of AHCA members dedicated to improving the care
provided for their nursing home residents. It also from AHCA's decision
to identify and concentrate on root cause issues. However, from time to
time, we fall short--sometimes terribly short.
Let me state for the record loudly and unequivocally: the cases of
neglect and abuse like those we heard about today are inexcusable and
should not happen--ever. The trust the elderly and their families place
in us should never be violated.
AHCA is committed to preventing, not just reducing, future cases of
neglect and abuse. Indeed, as AHCA's Senior Vice President of Quality
and Regulatory Affairs, having spent my career working to improve
nursing home quality, incidents like these are painful to hear,
horrific and should never have happened to these individuals or to
anyone else.
So how do we prevent something like what happened to Ms. Olthoff's
and to Ms. Fisher's mothers from happening in the future?
As a representative of AHCA who is a primary care physician and
former public health official, I think about prevention efforts in two
important ways. First, how to prevent a disease from of adverse event
from happening in the first place, which would be referred to as
primary prevention--versus the second type, how do you treat and
prevent a disease from getting worse--so called secondary or tertiary
prevention. Both are effective strategies but need to be done in
concert since neither alone are effective in preventing disease. Let me
use the flu as an example. Primary prevention efforts would include the
use of the influenza vaccine to prevent the influenza before it
happens. When the vaccine is not effective, secondary and tertiary
strategies are needed such using an oral antiviral medication such as
Tamiflu, to treat individuals who have already developed the flue in
order to prevent complications or the spread of the infection.
Using these public health principles as an analogy, currently, most
CMS regulations and enforcement actions to address abuse would be
classified as secondary or tertiary prevention efforts (that is, steps
and actions taken after an allegation of neglect or abuse). There is
less focus on steps to prevent instances of abuse, or so-called primary
prevention. For example, CMS already has extensive and broad
regulations in place,\1\ and there are criminal laws and penalties
about elder abuse. CMS regulations clearly state that residents shall
not suffer from any abuse and require immediate reporting to law
enforcement and the State licensing agency within two to 24 hours of
any allegation of neglect or abuse; posting and notification of
residents' rights; procedures on how to report allegations/concerns;
and steps on reporting and investigating any allegations, as well as
mandated employee education about abuse and reporting requirements. All
of these are steps to be taken after neglect or abuse has occurred.
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\1\ See F-tags 600 through 610 in the State Operating Manual at
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/
downloads/som107ap_pp_guidelines_ltcf.pdf
These regulations do not stand alone. Rather, they are augmented by
CMS's vast authority to enforce and mandate penalties upon those
nursing homes that are non-compliant after the abuse or neglect has
occurred. For example, CMS must apply civil monetary penalties (CMP) up
to $21,393 per day upon a nursing home when cited for abuse or neglect
that harms a resident. The per diem CMP remains in effect until the
problem leading to abuse or neglect is corrected. Additionally, CMS can
limit admissions to a nursing home, deny payments to that same
facility, terminate a facility from Medicare and Medicaid, and report
those individuals involved in a violation to the State professional
licensing boards. In addition to requiring the nursing home to submit a
plan of correction, CMS can also mandate remedies to fix the situation,
including mandatory staff training, the transfer of at-risk residents
to other facilities, hiring of an external manager/consultant, hiring
of an external monitor, or any other remedy it determines necessary to
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remedy the problems found during their onsite inspections.
So as one can see, there is no shortage of regulations addressing
abuse and neglect, and the penalties are severe.
It is AHCA's position that neither the number of pages of
regulations nor the amount of penalties imposed (secondary and tertiary
prevention efforts) will stop bad actors from engaging in bad
activities. Rather, we would recommend focusing on primary prevention
strategies to prevent neglect or abuse before it happens. In order to
develop effective primary prevention strategies, another tenant of
public health efforts and quality improvement strategies to prevent
disease and adverse events is to focus on the underlying root causes.
To identify potential causes, we have spoken with members and
considered the abuse and neglect citations. After reviewing these
specific citations of abuse and neglect to a resident, we make the
following recommendations:
1. Expand Federal programs that attract health-care workers to
the nursing home industry.
2. Strengthen Federal regulations around reporting and sharing
of information about employees who have engaged in abuse.
3. Make ratings of resident and family satisfaction with
nursing home care publicly available.
First, as we examine these cases and discuss this issue with
members, it is AHCA's position that one of the causes for many of the
incidents cited by CMS for neglect frequently lies in part with a
nursing home's ability to hire, engage, and retain skilled, talented,
and suitable staff to care for this frail and vulnerable population.
Unfortunately, there is a national workforce shortage, which is even
worse in the rural areas. When we do identify or train high quality
staff, they often take jobs in the hospital or resign from a nursing
home to accept positions in a hospital. We are in desperate need of a
program to attract and retain more nurses, aides, and health
professionals, such as social workers and activities coordinators. To
this end, we would recommend expanding on other successful Federal
programs that use loan forgiveness to attract health care workers in
needed areas, including nursing homes.
Second, we need to a much stronger process to prevent people who
are at risk of inflicting abuse or neglect from working in nursing
homes. Presently, the Federal Government prohibits nursing homes from
hiring direct-care employees who will care for resident that have been:
``Found guilty of abuse, neglect, exploitation,
misappropriation of property, or mistreatment by a court of
law,'' or
``Had a finding entered into the State nurse aide registry
concerning abuse, neglect, exploitation, mistreatment of
residents or misappropriation of their property,'' or
``Have a disciplinary action in effect against his or her
professional license by a State licensure body as a result of a
finding of abuse, neglect, exploitation, mistreatment of
residents or misappropriation of resident property.''
Currently, CMS, in its guidance to nursing homes, states that
``facilities must be thorough in their investigations of the histories
of prospective staff. In addition to inquiry of the State nurse aide
registry or licensing authorities, the facility should check
information from previous and/or current employers and make reasonable
efforts to uncover information about any past criminal prosecutions.''
AHCA strongly supports this guidance.
Additionally, States can require nursing homes to complete a
criminal background check on employees prior to hiring. Many providers
also choose to implement more stringent hiring policies than what is
mandated by law. In this regard, AHCA routinely advises members on best
practices and model policies for employee background screening. After
all, the safety and security of patients, residents, and families
begins with recruiting staff of the highest integrity. However, we hear
from members across the country repeatedly that this is one of the most
difficult challenge they face.
In addition to checking State registries, CMS also requires
facilities to ``report to the State nurse aide registry or licensing
authorities any knowledge it has of actions by a court of law against
an employee, which would indicate unfitness for service as a nurse aide
or other facility staff.'' However, this is only required staff found
unfit by a court of law. The court systems take time, and other actions
are not reported.
In addition, when a negligent staff member moves to another State,
their history of abuse or neglect does not consistently make it into
the next State's registry. AHCA proposes that to ameliorate this
situation, nursing homes require easier access to and participation in
the national practitioner data bank maintained by the Health Resource
and Services Administration (HRSA). This data bank currently collects
information from hospitals, health plans, and State licensing boards
for all health-care professionals, including any terminations by
providers who participate in the data bank. It is AHCA's position that
the national practitioner data bank must be available to all Medicare
and Medicaid certified providers for the purposes of background checks
of prospective employees. This will significantly improve the
profession's ability to root out bad actors before they are hired.
Third, AHCA strongly supports a mechanism for public reporting on
resident and family satisfaction. Nursing homes are the only sector
without a CMS reporting requirement on satisfaction. Making consumer
satisfaction information available to families and future residents
will go a long way toward enhancing transparency regarding the
operation of a nursing home. Often, staff involved in abuse and neglect
were identified early on as being ``rough'' or ``difficult'' with
residents. Having the resident's and families report their satisfaction
with the care and staff can help detect concerns to avoid tragic events
like those described today.
Finally, AHCA would be remiss if it did not address the
relationship between the safety and security of patients, residents,
and families and the ability of its member homes to recruit and retain
staff of the highest caliber. We have already established that our
members are struggling to find the right staff. It is also a challenge
to offer competitive salaries and benefits to staff. In its March 2018
Report to Congress on Medicare Payment Policy, the Medicare Payment
Advisory Commission (MedPAC) reported that nursing homes have no extra
room to increase costs compared to the reimbursements they receive from
Medicaid and Medicare, which cover three-fourths of residents in
nursing homes. The cost of more regulation that focuses on paper
documentation, allegations requiring investigations, and reports of
cases redirects limited resources and staff away from providing care to
residents. This is unsustainable, and efforts to further improve
nursing home care must be considered within this context.
conclusion
One of the most important concerns before AHCA--in addition to
ensuring that we never again experience incidences like Virginia
Olthoff's and Maya Fisher's mothers--is how to continue and sustain the
improvements in care that we have seen since 2012. This is why we
encourage nursing homes to have strong systems in place. Over the past
several years, we have supported and strongly encourage members to
adopt CMS's Quality Assurance and Performance Improvement (QAPI)
program, despite the fact that these regulations do not go into effect
until November 2019. Our members who have adopted this approach
consistently have better clinical and workforce outcomes and
significantly fewer citations for abuse or neglect.
AHCA is committed to continuing to strive for complete elimination
of all instances of abuse and neglect. We are committed to working with
this committee and others to achieve that goal. We believe the answers
will largely be found, not in adding to an already broad and expansive
set of regulations and penalties that fall into the secondary or
tertiary prevention category, but in developing and strategies such as
those proposed today, that will help prevent these tragic incidents
from happening.
Quality care in America's nursing homes has come a long way, and it
remains our focus, our passion, and our commitment. We continue to
challenge ourselves to improve and enhance quality, as demonstrated by
both the data and the experiences of Jeraldine and our dedicated staff
who overcome myriad obstacles to make sure our residents remain safe
and properly cared for. This is especially true as we prepare for the
increased demand for long term and post-acute care in the future as
baby boomers begin to reach the age of 85.
AHCA stands ready to work with Congress, members of this committee,
CMS, and other health-care providers to continue its mission to improve
lives by delivering common-sense solutions for quality care so that
neither Virginia Olthoff's nor Maya Fisher's mother is forgotten. Thank
you for the opportunity to testify today.
______
Prepared Statement of Kate Goodrich, M.D., Director, Center for
Clinical Standards and Quality; and Chief Medical Officer, Centers for
Medicare and Medicaid Services
Chairman Grassley, Ranking Member Wyden, and members of the
committee, thank you for the invitation and the opportunity to discuss
the Centers for Medicare and Medicaid Services' (CMS's) ongoing efforts
to ensure that Americans in nursing homes receive high-quality care.
For vulnerable Medicare and Medicaid beneficiaries residing in nursing
homes for long stays, these institutions are much more than health-care
facilities--they have become homes. Every nursing home serving Medicare
and Medicaid beneficiaries is required to keep its residents safe and
provide high-quality care. We have focused on strengthening
requirements for nursing homes, working with States to enforce
statutory and regulatory requirements, increasing transparency of
nursing home performance, and promoting improved health outcomes for
nursing home residents.
Across our efforts, we work to make sure the focus remains where it
should be--on the patient and their family. By reducing administrative
burden through our Patients Over Paperwork initiative,\1\ CMS is
allowing clinicians to spend more time with their patients, which is
particularly important in a nursing home setting where residents have
more complex care needs, and care decisions are sometimes directed by
family members. Reducing provider burden can also lower administrative
costs, allowing facilities to dedicate their resources to other areas
such as improving patient care. Our Meaningful Measures framework,\2\
launched in 2017, helps make sure providers are held accountable for
the quality of care they provide by identifying high priority areas for
patient-centered, outcome-based quality measurements in all health-care
settings. For example, ``make care safer by reducing harm caused in the
delivery of care'' is one of the six Meaningful Measures domains, and
includes measures such as avoiding complications like bed sores and
preventing health care-associated infections.
---------------------------------------------------------------------------
\1\ https://www.cms.gov/Outreach-and-Education/Outreach/
Partnerships/PatientsOverPaper
work.html.
\2\ https://www.cms.gov/Medicare/Quality-Initiatives-Patient-
Assessment-Instruments/Quality
InitiativesGenInfo/MMF/General-info-Sub-Page.html.
We appreciate the significant time and effort dedicated to this
issue by Chairman Grassley and Ranking Member Wyden, and we look
forward to working with this committee and Congress as we continue to
enhance our efforts to improve both the quality of services received
and the quality of life experienced by nursing home residents. We also
greatly appreciate the work of the Government Accountability Office
(GAO), the Department of Health and Human Services Office of Inspector
General (HHS-OIG), and the Department of Justice (DOJ), including their
recommendations and ongoing assistance to ensure resident safety and
facility compliance.
strengthening nursing home requirements
Every nursing home resident has the right to be treated with
dignity and respect, and we expect every nursing home to meet this
expectation. All long-term care facilities that seek to participate in
Medicare and Medicaid must comply with basic health and safety
requirements set forth in statute \3\ and regulation,\4\ including
requirements for infection control, quality of care, nursing services,
the unnecessary use of psychotropic medications, and many others.
Compliance with these requirements is determined through unannounced,
annual on-site surveys conducted by State survey agencies in each of
the 50 States, the District of Columbia, and the U.S. territories. To
prevent facilities from being able to predict the occurrence of their
next survey, annual surveys are conducted at varying time intervals.
The State-wide average interval between surveys must be no greater than
12 months, but individual facilities may experience a gap of up to 15
months between annual surveys.\5\ Nursing homes must remain in
substantial compliance with these requirements, as well as applicable
Federal, State, and local laws, and accepted professional standards, to
continue as a Medicare or Medicaid participating provider.\6\
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\3\ Sections 1819 and 1919 of the Social Security Act.
\4\ 42 CFR part 483, subpart B.
\5\ Sections 1819(g)(2)(A)(iii) and 1919(g)(2)(A)(iii) of the
Social Security Act.
\6\ 42 CFR Sec. 483.70(b).
In 2015, CMS issued a revised regulatory proposal for public
comment based on the findings of a comprehensive review of our existing
regulations. This review focused on ways to improve the quality of
life, care, and services in long-term care facilities, optimize
resident safety, reflect professional standards, and improve the
---------------------------------------------------------------------------
logical flow of the regulations.
This process resulted in CMS issuing--for the first time in over 25
years--a final rule \7\ updating the requirements for nursing homes and
other long-term care facilities. These revisions are an integral part
of our efforts to hold nursing homes accountable for improved health
outcomes, while at the same time minimizing administrative burden for
providers. The changes also reflect the significant innovations in
resident care and quality assessment practices that emerged over the
previous three decades, as the population of long-term care facilities
has become more diverse, more clinically complex, and more has been
learned about resident safety, health outcomes, individual choice, and
quality assurance and performance improvement.
---------------------------------------------------------------------------
\7\ Available at https://www.federalregister.gov/documents/2016/10/
04/2016-23503/medicare-and-medicaid-programs-reform-of-requirements-
for-long-term-care-facilities.
Of particular note, the final rule made a series of changes that
resulted in a more streamlined regulatory process, aligning program
requirements with current clinical practice standards to enhance
resident safety and improve the quality and effectiveness of care
---------------------------------------------------------------------------
delivered to residents.
Among other provisions, the 2016 rule finalized changes intended
to:
Ensure that facilities provide residents with the necessary
care and health services including behavioral health, based on
a comprehensive assessment, to attain the highest practicable
physical, mental health and psychosocial well-being.
Require all long-term care facilities to develop, implement,
and maintain an effective comprehensive, data-driven quality
assurance and performance improvement program that focuses on
systems of care, outcomes of care, and quality of life.
Ensure that long-term care facility staff members are
properly trained on resident's rights, properly caring for
residents including caring for residents with dementia, and in
preventing elder abuse.
Ensure that long-term care facilities take into
consideration the health of residents when making decisions on
the kinds and levels of staffing a facility needs to properly
take care of its residents.
Improve care planning, including discharge planning, for all
residents with the involvement of the facility's
interdisciplinary team and consideration of the caregiver's
capacity, which will give residents information they need for
follow-up after discharge, and ensure that instructions are
transmitted to any receiving facilities or services.
Expand protections for residents from the use of
inappropriate drugs, including expanding requirements for those
who use psychotropic drugs or who have not previously used
psychotropic drugs, including antipsychotics.
We have since reviewed these changes with a focus on reducing
administrative burden while prioritizing resident safety and have begun
enforcing and monitoring implementation. In response to public comments
and to ensure facilities have time to make these important, long-term
changes, CMS is implementing this rule in three phases based on the
complexity of the revisions and the work necessary to revise
interpretive guidance and survey processes. The schedule for the three
phases is:
Phase 1: Beginning in November 2016, the implemented rules
included provisions that did not impose additional requirements
on facilities or were straightforward to implement.
Phase 2: In November 2017, a revised survey system
incorporating the new requirements was introduced.
Phase 3: Starting in November 2019, this phase will include
requirements that will take longer for nursing homes to
implement, such as such as including a new compliance and
ethics program.
A key component of the requirements for participation in the
Medicare and Medicaid programs are emergency preparedness standards for
the planning, preparing, and staff training for potential emergency
situations. CMS issued a final rule \8\ in September 2016 updating and
improving upon the emergency preparedness requirements for nursing
homes and other providers and suppliers participating in Medicare and
Medicaid to add additional requirements to safeguard residents and
patients during emergency situations. For example, CMS now requires
facilities to use an ``all-hazards'' risk assessment approach in
emergency planning to identify and address location-specific hazards
and responses.\9\ In addition, facilities are now required to develop
and maintain an emergency preparedness training and testing program for
new and existing staff, along with a communications system to contact
appropriate staff, patients' treating physicians, and other necessary
persons in a timely manner to ensure continuation of patient care
functions.\10\
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\8\ Available at https://www.gpo.gov/fdsys/pkg/FR-2016-09-16/pdf/
2016-21404.pdf.
\9\ 42 CFR Sec. Sec. 483.73(a)(1).
\10\ 42 CFR Sec. Sec. 483.73(c), (d).
The new emergency preparedness standards became effective on
November 15, 2016, and State surveyors began to evaluate compliance
with the new requirements as part of the certification and
recertification survey process on November 15, 2017. As of February 22,
2019, 98 percent of the 15,581 active nursing homes have been surveyed
under the new emergency preparedness requirements, and over 70 percent
of these were found to be in compliance. We expect all certified
nursing homes to be surveyed for compliance with these new requirements
by the end of this month. All facilities that have been cited for
noncompliance deficiencies under these requirements have made the
necessary corrections to come into compliance with the emergency
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preparedness requirements.
Earlier this year, we issued clarifying manual interpretative
guidance for nursing homes and State survey agencies on emergency
preparedness.\11\ The instructions included adding emerging infectious
disease threats to the current definition of all-hazards approach and
clarifying standards for alternate source power and emergency standby
systems.
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\11\ Available at https://www.cms.gov/Medicare/Provider-Enrollment-
and-Certification/Survey
CertificationGenInfo/Downloads/QSO19-06-ALL.pdf.
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working with states to enforce nursing home requirements
Monitoring patient safety and quality of care in nursing homes
serving Medicare and Medicaid beneficiaries requires coordinated
efforts across the Federal Government and States. In addition to
meeting Federal statutory and regulatory requirements, nursing homes
must also meet State licensure requirements, which vary by State.
Because the State survey agency is usually the same agency responsible
for both State licensure and Federal surveys, these on-site surveys are
typically performed by the same State team at the same time, with the
State and Federal findings identified separately: one for State
licensure purposes and one for Medicare and Medicaid compliance
purposes. The State survey agencies also manage the intake of
complaints and conduct investigations accordingly.
To help ensure greater consistency among State survey agencies, in
November 2017, CMS implemented a new computer-based standardized survey
methodology across all States. This new resident-centered survey
process provides surveyors with more information on quality of care
issues at that facility and allows surveyors more flexibility to ensure
the quality of care issues and concerns they identify through resident
observation and interviews are addressed. CMS makes results of these
surveys available through our Nursing Home Compare website \12\ and
through datasets on our Quality, Certification, and Oversight Reports
database \13\ and the Medicare data website.\14\ In April 2018, CMS
began distributing monthly performance feedback reports to CMS Regional
Offices and State survey agencies, identifying reporting issues such as
inconsistencies with Federal processes. CMS Regional Offices meet
quarterly with State survey agencies in their region to discuss survey
outcomes and issues, and CMS meets monthly with a panel of State survey
agency directors to discuss survey issues.
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\12\ https://www.medicare.gov/nursinghomecompare.
\13\ https://qcor.cms.gov/main.jsp.
\14\ https://data.medicare.gov/.
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Addressing Suspected Abuse and Neglect in Nursing Homes
Abuse and mistreatment of nursing home residents is never tolerated
by CMS, and the agency takes any allegation of these types of incidents
very seriously. CMS requires nursing homes to report allegations of
abuse, neglect, exploitation, or mistreatment, including injuries of
unknown source and misappropriation of resident property, immediately
to their State survey agency.\15\ When we learn a nursing home failed
to report or investigate incidents of abuse, CMS takes immediate action
against the nursing home. For example, in 2018, when a State surveyor
found that a nursing home did not properly investigate or prevent
additional abuse involving two residents, placing other residents on
the unit at risk for abuse, the nursing home was cited at the most
serious level of noncompliance (immediate jeopardy) and assessed a
civil monetary penalty of approximately $798,679. In addition to
issuing civil monetary penalties, CMS can, and under certain
circumstances must, deny payments or terminate a facility's Medicare
and Medicaid participation agreements when appropriate.
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\15\ 42 CFR Sec. 483.12(c).
State survey agencies can conduct complaint surveys at any time,
and anyone can file a complaint, including residents, family members,
nursing home staff, and anyone else who has reason to suspect abuse or
neglect is taking place. CMS's Nursing Home Compare website \16\
includes links and other helpful information to help patients and
families determine when and how to file a complaint. Nursing homes are
required to post similar information on how to file complaints and
grievances in their facilities.\17\
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\16\ https://www.medicare.gov/NursingHomeCompare/Resources/State-
Websites.html.
\17\ 42 CFR Sec. 483.10.
When State surveyors identify noncompliance with Federal
certification requirements, including abuse, they document this for the
facility and, in cases where the facility is not in substantial
compliance, refer the case to CMS for enforcement. To continue to
participate in Medicare and Medicaid, the facility is required to
address identified issues and develop a corrective action plan.\18\
When immediate jeopardy to resident health and safety exists, meaning
that the provider's noncompliance with one or more requirements has
caused, or is likely to cause, serious injury, harm, impairment, or
death, CMS and the State Medicaid Agency may terminate the facility
and/or install temporary management in as few as two calendar days, and
up to 23 calendar days,\19\ after the survey which determined immediate
jeopardy exists. Civil monetary penalties can also be assessed up to
approximately $20,000 per day until the immediate jeopardy is removed
and substantial compliance is achieved, as well as other remedies. A
facility's removal of the conditions that caused the immediate jeopardy
may, at CMS's discretion, result in the rescission of the termination
if the facility demonstrates substantial compliance with all
requirements during an unannounced re-survey.
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\18\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/
downloads/som107c
07.pdf.
\19\ 42 CFR Sec. Sec. 488.410, 488.456(c), 489.53(d)(1), and
489.53(d)(2)(ii).
For deficiencies that do not constitute immediate jeopardy
situations, remedies could include directed in-service training, denial
of payments, or civil monetary penalties. While CMS has the authority
to terminate Medicare participation of all providers (including nursing
homes) and suppliers because of noncompliance with the applicable
statutory or regulatory requirements, State Medicaid Agencies have the
authority to terminate Medicaid providers and suppliers in their State.
State Medicaid Agencies are also required to deny or terminate the
enrollment of any provider that has been terminated for cause under
Medicare or another State's Medicaid or CHIP program, in accordance
with relevant regulatory provisions. Nursing facilities that do not
achieve substantial compliance within six months are terminated from
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Medicare and Medicaid participation.
When a provider's certification has been terminated from the
Medicare program and we see signs of potential fraud or abuse, CMS may
refer this information to the HHS-OIG and potentially the DOJ based on
the facts and circumstances surrounding the termination.
Special Focus Facilities
The Special Focus Facility initiative was developed to address
those nursing homes that would be identified as providing substandard
quality of care, having more problems or more serious problems than
other nursing homes, or having a pattern of serious problems that
persisted over a long period of time. Often, these nursing homes would
institute enough improvements to address the presenting problems in
order to come into compliance and continue to receive Medicare
payments, but then significant problems would re-surface by the time of
the next survey, leading them to be identified as providing substandard
quality of care again. Such facilities with a ``yo-yo'' or ``in and out
of'' compliance history rarely addressed underlying systemic problems
that were giving rise to repeated cycles of serious deficiencies.
Nursing homes designated as a Special Focus Facility are inspected by
survey teams twice as frequently as other nursing homes and must
recommend progressively stronger enforcement actions in the event of
continued failure to meet the requirements for participation with the
Medicare and Medicaid programs. For example, the Regional Office could
impose a higher civil money penalty or add a Denial of Payment for New
Admissions if consecutive surveys find problems.
The Special Focus Facility program provides a mechanism for State
survey agencies and CMS Regional Offices to provide additional
attention and resources to these facilities for the purpose of
improving their quality of care and protecting residents. CMS has
strengthened the Special Focus Facility program over the past several
years to ensure that homes either improve so that they can graduate
from the program, or they are terminated from Medicare and Medicaid
participation. The objective of all enforcement remedies is to
incentivize swift and sustained compliance in order to protect resident
health and safety. Within 18-24 months after CMS identifies a facility
as a Special Focus Facility nursing home, we expect that the facility
would make significant, lasting improvements and graduate from this
program, be terminated from the Medicare and Medicaid programs, or show
promising progress but be permitted to continue as a Special Focus
Facility for some additional time.
Our efforts are designed to help facilities come back into
compliance, as well as prevent future noncompliance, without requiring
a termination from the Medicare and Medicaid programs that would lead
to disruptions in patient care. Nevertheless, our primary obligation is
to ensure that all nursing home facilities are safe and can meet
resident needs, and we will terminate facilities that do not
appropriately correct deficiencies.
increasing transparency of nursing home performance
Promoting transparency is a key factor to protecting patient safety
and holding facilities accountable for the health outcomes of their
residents, and CMS is committed to empowering patients and their
families by providing access to the information they need to support
their health care decisions for long-term care facilities. Through our
Nursing Home Compare website,\20\ consumers and families have the
ability to compare facilities' performance in key areas. This
transparency of performance information also serves as a strong,
market-based motivator for facilities to make continuous improvements
to the quality of care they provide.
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\20\ https://www.medicare.gov/nursinghomecompare.
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Nursing Home Compare and Nursing Home Five-Star Quality Rating System
CMS first created the Nursing Home Compare website in 1998 and has
regularly increased the amount of information available to
beneficiaries and their families about the quality of care in nursing
homes participating in the Medicare and Medicaid programs. In 2008, we
introduced a quality rating system that gives each nursing home a
rating of between 1 and 5 stars. CMS's Nursing Home Compare website
contains information for more than 15,000 Medicare and Medicaid nursing
homes around the country.
CMS bases the ratings of the Nursing Home Five Star Quality Rating
System on an algorithm that calculates a composite view of nursing
homes from three measures: results from their annual surveys;
performance on certain quality measures, such as re-hospitalizations
and unplanned emergency visits; and staffing levels. Copies of the
detailed annual survey reports, along with results from complaint
surveys, are available on the Nursing Home Compare website.
CMS continues to work to improve Nursing Home Compare and the Five
Star Quality Rating System. In 2016, CMS expanded the number of quality
measures included in Nursing Home Compare and the Five Star Quality
Rating System. In April 2018, we took steps to improve the accuracy of
the staffing information by using Payroll-Based Journal data, and, most
recently, in October 2018, we added new measures on hospitalizations,
falls, and care planning for functional ability. The survey information
on Nursing Home Compare and the Five Star Quality Rating System is
typically updated on a monthly basis, and quality measure and staffing
information is typically updated quarterly.
Tracking Nursing Home Staffing Data Through the Payroll-Based Journal
CMS has long identified staffing as one of the vital components of
a nursing home's ability to provide quality care. Current law \21\
requires facilities to electronically submit direct care staffing
information (including agency and contract staff) based on payroll and
other auditable data. In 2015, CMS developed the Payroll-Based Journal
system, which allows all facilities to submit their staffing data each
quarter. The data, when combined with resident census information, is
then used to calculate the level of staff in each nursing home.
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\21\ Section 1128I(g) of the Social Security Act and 42 CFR
Sec. 483.70(q).
This new staffing information is calculated using the number of
hours facility staff are paid to work each day in a quarter, instead of
the previous method of calculating staffing information using the total
number of hours facility staff worked over a 2-week period as self-
reported by the facility, and submitted about once a year. Importantly,
unlike the previous data source, the new data are auditable back to
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payroll and other verifiable sources.
In April 2018, CMS began using data from this system to post
staffing information on the Nursing Home Compare tool. The Payroll-
Based Journal data provides unprecedented insight into how facilities
are staffed, which can be used to analyze how facilities' staffing
relates to quality and outcomes. Already, the new data has helped us
identify issues, such as days with no registered nurse reported onsite.
We are deeply concerned about these issues and are working to address
them. For example, we started in July 2018 to adjust the Nursing Home
Compare ratings by assigning a one-star staffing rating to facilities
that report 7 or more days in a quarter with no registered nurse. Last
November, we announced three updates to the
Payroll-Based Journal reporting program. CMS will now use frequently
updated
payroll-based data to identify and provide State survey agencies with a
list of nursing homes that have a significant drop in staffing levels
on weekends, or that have several days in a quarter without a
registered nurse onsite. State survey agencies are required to conduct
surveys on some weekends based on this list. If surveyors identify
insufficient nurse staffing levels, the facility will be cited for
noncompliance and required to implement a plan of correction. We have
also updated the Payroll-Based Journal Policy Manual to provide
clarification on how nursing homes should report hours for ``universal
care workers'' and deduct time for staff meal breaks, and providing
facilities with new reports to ensure they are submitting data
accurately and in a timely manner. In the future, we anticipate using
this data to report on employee turnover and tenure, which impacts the
quality of care delivered.
promoting improving outcomes and quality of care in nursing homes
Making sure residents receive high-quality care--and making sure we
are meaningfully measuring the quality of care they are provided--is
critical to our efforts to improve patient safety. Patient harm
resulting from inadequate staffing or the prescription of unnecessary
medication can be just as serious as harm resulting from abuse or
neglect, and we have several initiatives in place to help facilities
improve patient outcomes and the quality of care provided.
National Partnership to Improve Dementia Care in Nursing Homes
In 2012, in response to quality and safety concerns related to the
use of antipsychotic medications among a growing number of residents
with dementia, CMS launched the National Partnership to Improve
Dementia Care in Nursing Homes. The Partnership uses a multidimensional
approach that includes public reporting, State-based coalitions,
research, provider and surveyor training, and revising surveyor
guidance to optimize the quality of care for all residents, especially
those with dementia, by reducing the use of antipsychotic medications
and enhancing the use of non-pharmacologic approaches and person-
centered dementia care practices.
Since the launch of the Partnership, there have been significant
reductions in the prevalence of antipsychotic medication use in long-
stay nursing home residents. Between the end of 2011 and the end of the
second quarter of 2018, the national prevalence of antipsychotic use in
long-stay nursing home residents was reduced by 38.9 percent,
decreasing from 23.9 percent to 14.6 percent nationwide. The
Partnership continues to work with State coalitions and nursing homes
to reduce the rate even further. In October 2017, to build on that
progress and demonstrate the Partnership's renewed commitment to
improving quality of care in nursing homes, CMS encouraged facilities
with low rates of antipsychotic medication use to continue their
efforts and maintain their success, and set a new goal for those with
higher rates to decrease antipsychotic medication use by 15 percent for
long-stay residents by the end of 2019.\22\ Among these specific
facilities, the prevalence of antipsychotic use among long-term
residents decreased by 11.7 percent between the end of 2011 and the
second quarter of 2018, indicating that we are making significant
progress towards meeting this 15-percent goal.\23\ We continue to look
for opportunities to strengthen both the survey process and enforcement
efforts to ensure that nursing homes consider non-pharmacologic
approaches when appropriate and that residents are not receiving
unnecessary medications.
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\22\ https://www.cms.gov/newsroom/fact-sheets/data-show-national-
partnership-improve-dementia-care-achieves-goals-reduce-unnecessary-
antipsychotic.
\23\ https://www.nhqualitycampaign.org/files/
Late_Adopter_Report.pdf.
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National Nursing Home Quality Care Collaborative
CMS also leads the National Nursing Home Quality Care Collaborative
with the Quality Innovation Network-Quality Improvement Organizations.
The Collaborative launched in April 2015 with the mission to improve
care for the 1.4 million nursing home residents across the country;
currently, over 78 percent of the Nation's nursing homes
participate.\24\ The Collaborative works to rapidly spread the
practices of high-performing nursing homes nationwide with the aim of
ensuring that nursing home residents receive the highest quality of
care. Specifically, the Collaborative strives to instill quality and
performance improvement practices, eliminate health care-acquired
conditions, and dramatically improve resident satisfaction by focusing
on the systems that impact quality, such as staffing, operations,
communication, leadership, compliance, clinical models, quality of life
indicators, and specific, clinical outcomes. For example, CMS and the
Quality Innovation Network National Coordinating Center released an All
Cause Harm Prevention in Nursing Homes Change Package on November 28,
2018, highlighting the successful practices of high-performing nursing
homes. The Change Package covers a wide range of strategies and actions
to promote resident safety and describes how the nursing home leaders
and direct care staff at chosen sites shared and described their
efforts to prevent, detect, and mitigate harm.\25\
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\24\ All Cause Harm Prevention in Nursing Homes Change Package,
available at: https://qioprogram.org/sites/default/files/editors/141/
C2_Change_Package_20181226_FNL_508.pdf.
\25\ All Cause Harm Prevention in Nursing Homes Change Package,
available at: https://qioprogram.org/sites/default/files/editors/141/
C2_Change_Package_20181226_FNL_508.pdf.
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Skilled Nursing Facility Quality Reporting Program and Value-Based
Purchasing Program
In recent years, we have undertaken a number of initiatives using
payment reforms to promote higher quality and more efficient health
care for Medicare beneficiaries. Implementing programs like the Skilled
Nursing Facility Quality Reporting Program and the Skilled Nursing
Facility Value-Based Purchasing Program is an important first step
towards transforming Medicare from a passive payer of claims to an
active purchaser of quality health care for its beneficiaries.
The goal of the Skilled Nursing Facility Quality Reporting Program
is to use quality measures and standardized data to promote
interoperability and give post-acute care providers access to
longitudinal information so they can better facilitate coordinated
care, improved outcomes, and overall quality comparisons. Measures
reported under the program include functional status, skin integrity,
medication reconciliation, and major falls. In addition, several
measures are calculated using claims data, meaning facilities do not
have to submit additional data for these measures. Under the program,
skilled nursing facilities and all non-critical access hospitals swing-
bed rural hospitals that fail to submit the required quality data to
CMS are subject to a 2-percentage-point reduction to their skilled
nursing facility payments for that fiscal year.
As required by law,\26\ the Skilled Nursing Facility Value-Based
Purchasing Program will apply either a positive or negative incentive
payment adjustment to skilled nursing facilities based on their
performance of the program's readmissions measure. The program's
incentive payments began on October 1, 2018, and aim to improve
individual outcomes by rewarding providers that take steps to limit the
readmission of their patients to a hospital. Also as required by law,
CMS will make publicly available facilities' performance under the
program, specifically including each skilled nursing facility's
performance score and the ranking of skilled nursing facilities for
each fiscal year.\27\
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\26\ Section 1888(h) of the Social Security Act.
\27\ Available at: https://www.cms.gov/Medicare/Quality-
Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/Other-
VBPs/SNF-VBP.html.
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moving forward
Every nursing home resident has the right to be treated with
dignity and respect, and we expect every nursing home to meet this
expectation. While nursing facilities have made progress towards these
goals, there continues to be a strong and persistent need for ongoing
improvement efforts around patient safety and quality of care in
nursing homes. CMS remains diligent in our duties to monitor nursing
homes participating in Medicare and Medicaid across the country, as
well as the State agencies that survey them, 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 health care.
______
Prepared Statement of David Grabowski, Ph.D.,
Professor, Harvard Medical School
Chairman Grassley, Ranking Member Wyden, and distinguished members
of the committee, my name is David Grabowski, and I am a professor of
health care policy at Harvard Medical School. I want to thank you for
inviting me to testify today on the important issue of protecting older
Americans from abuse and neglect in nursing homes.
On a given day, roughly 1.5 million individuals receive care from
approximately 16,000 nursing homes nationwide. These individuals have
high levels of physical and cognitive impairment and often lack family
support and financial resources. As such, these are among the frailest
and most vulnerable individuals in our health-care system. We spend
roughly $170 billion on nursing home care annually. This sector is
heavily regulated. Yet, quality issues persist in many U.S. nursing
homes.
Here is a section from a U.S. Senate Special Committee on Aging
report. In this report, the committee identified the following nursing
home abuses:
Lack of human dignity; lack of activities; untrained and
inadequate numbers of staff; ineffective inspections and
enforcement; profiteering; lack of control on drugs; poor care;
unsanitary conditions; poor food; poor fire protection and
other hazards to life; excessive charges in addition to the
daily rate; unnecessary or unauthorized use of restraints;
negligence leading to death or injury; theft; lack of
psychiatric care; untrained administrators; discrimination
against minority groups; reprisals against those who complain;
lack of dental care; advance notice of state inspections; false
advertising.\1\
If this report does not sound familiar to the Senators and their
staff, it's because it was published in 1974. I would acknowledge that
the nursing home sector has made important improvements over the past
45 years. For example, the use of physical restraints in nursing homes
has dropped. The rate of unnecessary hospital admissions and
readmissions has also fallen. And, it is important to note certain
nursing homes are providing innovative care. For example, a few nursing
homes have begun to offer small house nursing home models that offer a
less-institutional, more resident-focused living environment.
Some important changes have occurred in the nursing home sector
since the 1974 report. First, today's residents have much greater
acuity and medical complexity, suggesting their needs are much greater
relative to residents even 10 or 20 years ago. Second, nursing homes
today still deliver chronic care services for long-stay residents but
they also care for post-acute patients following a hospital stay. Post-
acute Medicare payments keep facilities afloat financially, especially
in the context of expanded home and community options, lowered
occupancy rates, and parsimonious Medicaid payments. Third, nursing
homes continue to be largely for-profit owned, but the sector has
experienced a great deal of private investment entry and corporate
restructuring.\2\-\4\ Fourth, the nursing home sector has
become much more regulated over time. In particular, the Nursing Home
Reform Act was passed as part of the Omnibus Reconciliation Act of 1987
(OBRA '87).\5\ The extensive standards established by OBRA '87 were
resident-focused and outcome-oriented, emphasizing quality of care,
resident assessment, residents' rights, and quality of life. Finally,
many market-based approaches have been implemented to encourage better
nursing home quality of care including report cards and value-based
payment.
In spite of all these changes, many of the issues identified in the
Senate report in 1974 persist today. In my testimony, I would like to
take on two issues. First, I will review the state of nursing home
quality today. Second, I will identify why we have been focusing on
this issue for nearly 5 decades. What are the underlying issues that
lead to persistent low nursing home quality?
the state of nursing home quality
Nursing home quality of care continues to be an important public
policy issue in spite of prolonged public outcry \6\-\9\ and
government commissions. \10\-\12\ Often the number of nurses
per resident is low and the staff turnover rate is high.\13\ Residents
may develop new health problems after admission from physical
restraints and missed medications.\14\, \15\ There are a
number of studies documenting mistreatment of older adults in nursing
homes.\16\ Amenities that are common within a nursing home--including
the food, activities and public spaces--are too often sub-standard.\17\
The quality of life in many US nursing homes is inadequate and large
numbers of residents suffer from isolation and loneliness.\18\
Staffing: Labor is the dominant input into the production of
nursing home care, accounting for roughly two-thirds of nursing home
expenditures. Nursing homes are predominantly staffed by registered
nurses (RNs), licensed practical nurses (LPNs) and certified nurse
aides (CNAs). Higher nursing home staffing has generally been found to
be associated with better quality of care.\13\, \19\ Nursing
homes with low staffing levels, especially low RN levels, tend to have
higher rates of poor resident outcomes such as pressure ulcers,
catheterization, lost ability to perform daily living activities, and
depression. Staffing standards may also improve working conditions,
which would increase job satisfaction and reduce nursing turnover and
burnout. Nursing home staff, especially CNAs, have very high
turnover.\20\, \21\ It is not uncommon for nursing homes to
have their entire set of CNAs change multiple times within a calendar
year. Research has found that nursing homes with higher staff turnover
have worse quality.\13\,\21\-\23\
Primary care physicians have been termed ``missing in action'' in
the nursing home setting.\24\ Some nursing homes have a nurse
practitioner onsite,\25\ but typically, a group practice covers primary
care in the nursing home.\26\ These physicians are rarely onsite at the
nursing home. For urgent issues, the physician may come visit the
resident at the nursing home, but after hours and on weekends, this is
often the exception rather than the rule. In these instances, it is
more likely that the physician transfers the resident to the emergency
room. Very few nursing homes have invested in innovative off-hour
clinical delivery models like telemedicine.\27\
Poor care practices: In the context of staff shortages, nursing
homes often use labor-saving practices to deliver care.\28\ These
labor-saving practices are typically associated with a greater risk of
morbidity and mortality. For example, managing incontinence may be
labor-intensive, through regularly scheduled toileting and bladder
rehabilitation, or labor-saving through urethral catheterization.\29\
Urethral catheterization places the resident at greater risk for
urinary tract infection and long-term complications including bladder
and renal stones, abcesses, and renal failure. Nursing homes face
similar decisions with respect to feeding residents (hand feeding
versus feeding tubes), and in monitoring and controlling residents'
behavior (monitoring by staff versus physical or chemical restraints).
Although antipsychotics are not appropriate for the majority of nursing
home residents with dementia, nursing homes often use antipsychotics to
``manage'' behavioral symptoms associated with
dementia.\30\, \31\ Feeding tubes can result in
complications including self-extubation, infections, aspiration,
misplacement of the tube, and pain. Immobility resulting from physical
restraints may increase the risk of pressure ulcers, depression, mental
and physical deterioration, and mortality.\29\ Inappropriate use of
antipsychotic medications may also result in mental and physical
deterioration.\32\
Poor outcomes and adverse events: Researchers have identified a
range of poor nursing home outcomes that could have been prevented such
as falls and pressure ulcers or delayed such as functional decline and
mortality. Many of these outcomes are reported as quality measures on
the federal Nursing Home Compare website. The transfer of nursing home
residents to the emergency room and hospital has emerged as an
important area of interest for policymakers. These transfers are known
to be frequent,\33\, \34\ costly,\35\ often preventable \36\
and potentially associated with negative health outcomes such as
iatrogenic disease and delirium.\37\ Although the rate of avoidable
hospitalizations has declined in recent years, analyses by CMS
suggested it was still 15.7 percent in 2015.\38\
Safety: Many nursing homes are not safe environments in which to
live. A large research literature documents both staff-on-resident
\39\, \40\ and resident-on-resident \41\ abuse in nursing
homes. Deficiency citations are given to nursing homes that are in
violation of Medicare/Medicaid regulations in four specific areas
(abuse; neglect by staff; criminal screening investigating and
reporting; and abuse prevention and policy development and
implementation). Twenty percent of facilities received one of these
citations in 2007.\42\ Nursing homes can also be cited for deficiencies
related to overall safety. In 2007, 33 percent of nursing homes were
cited for environmental safety issues (e.g., ``lighting levels;''
``handrails''), 47 percent for care safety issues (``medication error
rate;'' ``availability of physician for ER care''), and 60 percent for
Life Safety Inspection issues (e.g., ``fire alarm systems''). It should
be noted that some of these deficiency citations can be for relatively
minor events. Nevertheless, 16 percent of nursing homes were found to
have at least one of the most severe deficiency citations from 2000
through 2007. These deficiency citations are for actual or potential
for death or serious injury.
One important nursing home safety issue involves emergency
preparedness. This issue received increased scrutiny following the
deaths of eight nursing home residents in Hollywood, FL in September
2013 following Hurricane Irma.\43\ A facility lost electricity during
the hurricane and didn't have a generator capable of powering the air-
conditioning. A Kaiser Health News investigation suggested many nursing
homes fail to plan for even basic contingencies:
In one visit last May, inspectors found that an El Paso, TX
nursing home had no plan for how to bring wheelchair-dependent
people down the stairs in case of an evacuation. Inspectors in
Colorado found a nursing home's courtyard gate was locked and
employees did not know the combination, inspection records
show. During a fire at a Chicago facility, residents were
evacuated in the wrong order, starting with the people farthest
from the blaze.\44\
According to the article, nursing home inspectors issued 2,300
violations of emergency-planning rules over the prior 4 years, but they
labeled only 20 as serious enough to place residents in danger.
Although a third of nursing homes were cited for failing to inspect
their generators each week or test them monthly, none of these
violations was categorized as a major deficiency. This raises the
important issue of whether current safety standards are being
effectively enforced.
Low quality of life: Due to the fact that patients often spend long
periods in nursing homes relative to most health institutions, quality
of life is an important aspect of a resident's nursing home experience.
Historically, there has been much greater emphasis on the ``nursing''
rather than ``home'' part of the nursing home experience. Quality of
life may be thought of as generally corresponding to those
characteristics of nursing home care that affect the resident's sense
of well-being, self-worth, self-esteem, and life satisfaction. It's
about how the resident is treated: for example, ``having one's privacy
respected by others' knocking before entering a bathroom, or having
one's dignity maintained by not being wheeled down a hallway scantily
covered en route to the shower.''\18\
Measures such as resident or family satisfaction are important
indicators of nursing home quality. Unfortunately, many nursing homes
fall short on this domain. Nobody wants to go to a nursing home: In a
survey of community-dwelling elders, almost one-third indicated they
would rather die than enter a nursing home.\45\ And once there, many
individuals, especially family members, report low levels of
satisfaction with the care delivered.\46\, \47\
Traditional nursing homes fall short in several domains.\18\ Care
is often directed by the facility rather than the resident. Ideally,
residents should be offered choices about issues personally affecting
them like what to wear and when to go to bed. Many nursing homes are
quite institutional with long hallways with a nurse station at one end,
linoleum floors and two residents to a room. These nursing homes feel
more like a hospital than a home. The staff structure at these
facilities is often quite hierarchical with very little empowerment of
direct caregivers. Nursing homes are not just suboptimal places to
live, they are also often difficult places to work. CNAs tend to be
paid at or near the minimum wage and many workers may view retail
establishments and fast food restaurants as a better opportunity at
that wage.\48\ A more participatory management structure that engages
CNAs in the
decision-making process would help with staff turnover and performance.
why is nursing home quality such a persistent problem?
The U.S. nursing home market has a series of features that lead to
persistent low quality. The way in which we regulate and oversee care
quality, how we pay for nursing home services, how we regulate the
supply of providers, and the inability of many residents to oversee and
monitor their care all may contribute to low quality.
Payments Are Often Low and Fragmented
When it comes to nursing home care, as the old saying goes, we get
what we pay for. Due in part to the exclusion of long-stay nursing home
services from the Medicare benefit, Medicaid is the dominant payer of
nursing home services, accounting for 50 percent of revenues and 70
percent of bed-days. Medicaid payment rates are typically 70-80 percent
of private-pay prices. In many States, the average ``margins'' for
Medicaid residents are negative, suggesting the cost of treating
Medicaid residents exceeds the amount that Medicaid reimburses for
their care.\49\
The nearly 15 percent of U.S. nonhospital-based nursing homes that
serve predominantly Medicaid residents have fewer nurses, lower
occupancy rates, and more health-related deficiencies.\50\ They are
more likely to be terminated from the Medicaid/Medicare program, are
disproportionately located in the poorest counties, and are more likely
to serve African-American residents than are other facilities. Low or
negative margins for a substantial portion of a nursing home's
population strongly incentivizes facilities to prioritize the labor-
saving care delivery approaches described previously in an effort to
lower the costs of care. Moreover, a high-Medicaid census is likely to
lead to nursing home closures, which can also put seniors at risk. A
New York Times article from earlier this week suggested 440 rural
nursing homes have merged or closed over the past decade.\51\ The
article suggests many rural facilities are ``losing money as their
occupancy rates fall and more of their patients' long-term care is
covered by Medicaid, which in many states does not pay enough to keep
the lights on.''
Another payment issue is the fragmentation in coverage of nursing
home and medical services for long-stay nursing home residents.\52\
Many of these individuals are dually eligible in that Medicaid covers
their nursing home care while Medicare covers all their health care
including physician and hospital services. This ``silo'' based payment
structure introduces strong incentives for nursing homes to transfer
sicker patients to the emergency department and hospital in order to
limit the burden on their staff and also improve their potential
standing with surveyors. As the saying goes in many U.S. nursing homes,
``when in doubt, ship them out.''
The fragmented Medicaid-Medicare coverage of long-stay nursing home
residents also serves as a barrier to developing programs to prevent
unnecessary transfers.\52\ Nursing homes that invest in models and
staff to safely reduce the likelihood of hospital transfers
predominantly generate savings for Medicare, while Medicaid often must
pay for the increased cost of long-stay care in the nursing home. Thus,
State Medicaid programs have little incentive to invest in policies to
discourage transfers from the nursing home setting.
Quality Regulations Are Extensive but Oversight Inconsistent
To date, the primary approach to addressing low quality has been
regulation (see Figure 1). Regulations are extensive and the sanctions,
when enforced, can be severe, ranging from fines to probation to
closure. In particular, OBRA '87 has shaped oversight for the past 30+
years. The OBRA '87 standards overhauled nursing home regulation and
sought to hold nursing homes to a higher standard. Specifically, it
strengthened existing quality standards, elevated quality of life and
residents' rights to be of equal importance with traditional quality of
care standards, required collection of detailed assessment data
(Minimum Data Set), consolidated Medicare/
Medicaid requirements, and expanded the range of available sanctions.
OBRA '87 spurred many improvements in that it reduced physical
restraints, catheter use, psychotropic medication use, and pressure
ulcers. It also increased discussions between residents and care
providers about care plans, end-of-life, etc., while increasing
staffing levels overall. As noted in the prior section however, cracks
are very clearly evident in the current quality assurance framework.
Recent investigative reports have documented substantial lapses in
oversight processes across multiple States.\53\-\55\
Importantly, States are largely responsible for implementation of
oversight responsibilities and many of the identified gaps have been
State-specific.
The Trump administration has proposed to scale back oversight and
enforcement of nursing home rules as part of their broader movement to
reduce bureaucracy, regulation and government intervention in business.
In particular, new guidelines discourage regulators from levying fines
in some situations, such as if an incident were a ``one-time'' event
rather than evidence of a broader problem.\56\ The new guidelines would
also likely result in lower fines for many facilities. The
administration has also proposed relaxing rules around emergency
preparedness.\57\
[GRAPHIC] [TIFF OMITTED] T0119.001
Certificate-of-Need Regulations Impede Innovation
Certificate of need is an oft-used strategy to constrain health
care spending.\58\ It rests on what is termed ``Roemer's law,'' which
states ``a built bed is a filled bed is a billed bed.'' The logic goes
something like this: if a State can hold the total number of nursing
home beds down, then it will constrain the number of Medicaid
beneficiaries in those beds, which ultimately lowers overall State
Medicaid spending on nursing homes. Thirty-four States still have
nursing home certificate-of-need laws on the books.
Research has been fairly clear: nursing home certificate-of-need
laws lower access and quality of care, while increasing private-pay
prices.\59\-\61\ Certificate of need has even distorted the
size of nursing homes.\62\ The average number of beds in a nursing home
is roughly 110 in States without a certificate-of-need law and 131 in
States with a law.
Certificate-of-need laws also discourage innovation in a sector
badly in need of modernization. Many recent culture change quality
initiatives, such as the Green House and other small house models, have
highlighted the importance of capital investment towards improving
nursing home quality of care.\63\ Although data on the capital stock in
the nursing home industry are sparse, one estimate suggests the average
age of nursing home structures is about 30 years.\64\ Many older
nursing homes lack private rooms and have an institutional, less home-
like environment.
Lack of Quality Transparency
Although nursing home care is fairly non-technical in nature,
monitoring of care can often be difficult for residents and their
families. Given the high prevalence of dementia in the nursing home
population, the resident is often neither the decision-maker nor able
to easily evaluate quality or communicate concerns to family members
and staff. Furthermore, the elderly who seek nursing home care are
disproportionately the ones with no family support to help them with
the decision process.\65\ When residents did not have family member
visit during the first month of care, one study found a greater
likelihood of dehydration and urinary tract infection in for-profit
nursing homes.\66\
The Centers for Medicare and Medicaid Services produces the Nursing
Home Compare tools on the Medicare.gov website to facilitate better
consumer choice by providing data and summary rankings on the quality
of care delivered by all eligible providers.\67\ Although Nursing Home
Compare was designed to facilitate easy comparisons across facilities
on meaningful characteristics, evidence suggests that it is coming up
short.
The Nursing Home Compare tool lacks information on many of the
provider features that may be of the greatest importance to residents
and their families. For example, the website gives no information about
the amenities provided by a facility, the physical setting where care
is delivered and a patient resides, the culture and care philosophy of
the nursing home, the ability of the facility to coordinate with acute
and primary care providers, and the availability of physicians and
nurse practitioners on site. Accessing these ``data'' in the current
environment likely requires an in-person visit to a facility, a time-
consuming endeavor that requires a proactive family support system, or
a word-of-mouth recommendation from a trusted source without competing
incentives, which may not exist.
Staffing is an important quality measure used to profile nursing
homes on the federal Nursing Home Compare website. Since staffing data
were first reported on the website in 1998, Nursing Home Compare relied
on data that were self-reported by facilities based on average levels
over a 2-week look back period and rarely audited.\68\, \69\
Many researchers have questioned the completeness and accuracy of these
facility-reported staffing data.\68\, \70\, \71\
In October 2014, President Obama signed into law the Improving
Medicare Post Acute Care Transformation Act of 2014 (IMPACT Act), which
provided funding to implement section 6106 of the Affordable Care Act
requiring that nursing homes use the Payroll-Based Journal (PBJ) system
to submit auditable staffing and resident census data.\72\ Using the
PBJ platform, nursing homes were required to begin submitting payroll-
based staffing data in July 2016 on a quarterly basis. In April 2018,
the Centers for Medicare and Medicaid Services (CMS) began using
payroll data as the source for staffing information in Nursing Home
Compare and the Five-Star Quality Rating System. Daily staffing data
are now available for all U.S. nursing homes.
Policymakers are already beginning to use the payroll data in their
oversight and monitoring of facilities. CMS used the payroll data to
lower the quality star ratings at one in 11 facilities on Nursing Home
Compare, both because of low RN staffing and failure to submit
data.\73\ In the wake of a New York Times story documenting
discrepancies between payroll and administrative data,\55\ Senator
Wyden issued a letter demanding that CMS fully implement the transition
to using payroll data and pursue increased protections for nursing home
residents.\74\ Similarly, the Office of the Inspector General has
announced it will monitor CMS collection of the payroll data and
enforcement of related staffing standards.\75\
Beyond shortcomings in the Nursing Home Compare tool itself, more
work is needed to actually get this information into the hands of
consumers. We know that in its current form, Nursing Home Compare has
had limited effects on patients' actual choices,\76\ and available
evidence indicates that a considerable portion of this limited impact
could stem from a general lack of awareness, on the part of both
patients and discharge planners, that the tool even
exists.\77\, \78\ Furthermore, it appears that when hospital
case managers are aware of the tool and its accompanying quality
rankings, they are reluctant to share such information with patients
for fear of violating patient choice regulations.\79\ Patients and
providers alike need to know that help is available, and barriers to
accessing this website during the potentially stressful and hectic time
of choosing a nursing home need to be minimized.
The lack of quality transparency makes it difficult for patients
and their families to ``vote with their feet'' by choosing better
quality facilities and avoiding the lowest quality ones. In turn,
nursing homes may not face sufficient market pressure to improve care
quality or develop new models of care that better match resident
preferences. Even if residents and their families are unable to use
report card information at times of crisis, greater quality
transparency could still factor into government oversight activities
and have a positive influence on care.
summary
We have made important progress towards improving nursing home
quality over the past few decades since the 1974 US Senate report.\1\ I
would assert, however, that the nursing home sector is better but still
not well. We have a lot of work left to do. Significant quality of care
problems persist at many U.S. nursing homes. However, these problems
are not isolated to particular facilities or patients. These problems
are related to system level issues in how we pay for care, how we
regulate providers, and the inability of residents and their advocates
to monitor and oversee care. Unless we address these broader issues, we
will be discussing poor nursing home quality for another 50 years.
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79. Medicare Payment Advisory Commission. Chapter 5: Encouraging
Medicare beneficiaries to use higher quality post-acute care providers.
Washington, DC: Report to the Congress: Medicare and the Health Care
Delivery System. June 2018.
______
Prepared Statement of Hon. Chuck Grassley,
a U.S. Senator From Iowa
Good morning. I want to welcome everyone to our hearing on an
extremely important topic, elder abuse, and thank our witnesses for
joining us today.
Elder abuse--and nursing home abuse in particular--has been a topic
of ongoing concern to me for the last 2 decades. As the former chairman
of the Senate Aging Committee, for example, I conducted oversight of
the nursing home inspection process and convened hearings focused on
enhancing standards and compliance across the nursing home industry.
More recently, I sponsored the Elder Abuse Prevention and
Prosecution Act, a new Federal law that calls for training of elder
abuse investigators, collection of data on elder abuse, and
collaboration among Federal officials tasked with combating seniors'
exploitation. Its enactment was a top priority for me as Judiciary
chairman in the 115th Congress.
But Congress's work in this area isn't done. Hardly a week goes by
without seeing something about nursing home abuse or neglect in the
national news. Every family has a loved one--a mother, a father, or a
grandparent--who may someday need nursing home care. That makes this a
topic of enormous concern to every American.
And today, two such Americans are here with us to share their
heartbreaking experiences. They are both the daughters of former
nursing home residents who were victims of abuse or neglect. First,
we'll hear from a constituent and friend of mine, Pat Blank, whose
mother Virginia died in an Iowa nursing home due to horrific neglect.
This facility was fined for the mistreatment of Virginia as well as
another Iowan, Darlene Weaver. Second, I want to welcome Maya Fischer,
whose 87-year-old mother, an Alzheimer's patient, was brutally raped by
a nursing aide. In each of these cases, the victim's trust was betrayed
by the very individuals who were entrusted to care for and protect
them.
Sadly, these are not isolated cases. They could happen to anyone.
According to the Inspector General, a whopping one-third of nursing
home residents experienced harm while under the care of their federally
funded facilities. And in more than half of these cases, the harm was
preventable.
Two years ago, the Inspector General also issued an alert, warning
the public about deficiencies cited at nursing homes in 33 States. A
significant percentage of these cases involved sexual abuse,
substandard care, and neglect.
It is our job to protect America's most vulnerable citizens, and to
prevent them from becoming victims. Many, like the elderly mothers of
Maya Fischer and Pat Blank, cannot speak for themselves. Some rely on
wheelchairs and walkers just to get up from their beds. Others have
mental or cognitive disabilities that prevent them from communicating
wrongdoing. We depend on nursing homes to render the skilled nursing
care that many of our loved ones cannot provide on their own.
As chairman of the Senate Finance Committee, I'll continue to make
it a top priority to ensure our most vulnerable citizens have access to
quality long-term care in an environment free from abuse and neglect. I
intend for today's hearing to shed light on the systemic issues that
allow substandard care and abuse in America's nursing home industry and
to help lead the way to reforms.
I hope to hear from our expert witnesses, for example, about why
some nursing home abuse and neglect cases never get reported to law
enforcement, as required by law. I hope to hear that we've fixed the
weaknesses in the five-star rating system, and that we've cracked down
on social media abuse. Every American listening today can be sure I
will continue shining the public spotlight on this issue for as long as
it takes to fix these problems. It's my hope that the oversight work of
this committee will prevent elder abuse from claiming more victims, so
that we won't need to call more witnesses to testify about the horrible
abuse their mom or dad experienced in a nursing home. Thank you all for
joining us. I look forward to your testimony.
______
Prepared Statement of Keesha Mitchell, Director, Medicaid Fraud Control
Unit, Office of the Ohio Attorney General
introduction
Mr. Chairman and members of the committee, thank you for the
opportunity to appear before you today to discuss the role of the State
Medicaid Fraud Control Units (``MFCUs'') in investigating and
prosecuting patient abuse and neglect in nursing homes. I am Keesha
Mitchell, Director of the Medicaid Fraud Control Unit in Ohio Attorney
General Dave Yost's Office.
The Medicare-Medicaid Anti-Fraud and Abuse Amendments enacted by
Congress in the 1970s established the State Medicaid Fraud Control Unit
Program, and provided the States with incentive funding to investigate
and prosecute (1) Medicaid provider fraud, (2) fraud in the
administration of the Medicaid program, and (3) abuse, neglect, and
misappropriation involving the residents of health-care facilities.
Currently 49 States, the District of Columbia, the U.S. Virgin Islands,
and Puerto Rico have MFCUs. MFCUs are usually located in the State
Attorney General's office, although some units are located in other
State agencies with law enforcement responsibilities, such as the State
police or the State Bureau of Investigation. While we all operate under
unique State jurisdictional statutes, the MFCU model embraces the use
of a ``strike force'' team of investigators, prosecutors, fraud
analysts, and nurses.
When Congress created the MFCUs, it did so not only because of the
evidence of massive fraud in the Medicaid program, but also because of
the horrendous tales of nursing home abuse and neglect. The MFCUs are
the only law enforcement agencies in the country that are specifically
charged with investigating and prosecuting abuse and neglect of
residents in nursing homes. By way of example, I offer the following.
Whetstone Gardens and Care Center
An Ohio grand jury recently returned indictments against seven
current and former employees and contractors of Whetstone Gardens and
Care Center, a nursing facility located in Columbus. The defendants are
charged with Involuntary Manslaughter, Gross Patient Neglect; Patient
Neglect; Tampering With Evidence; and Forgery. Through the use of a
covert video surveillance camera, we were able to establish that
facility employees failed to provide required care and falsified
patient medical records to make it appear as though the care had been
provided. Our investigation also established that a facility resident
died from infected skin wounds because facility employees failed to
take appropriate action that would have saved his life. This
investigation is ongoing, and we've received more than 35 additional
complaints regarding care in this facility since this story aired.
Hilty Mennonite Community Nursing Home
In another case, three employees of Hilty Mennonite Community
Nursing Home pled or were found guilty of one count each of Forgery and
Gross Patient Neglect. The defendants were employed at Hilty Mennonite
Community Nursing Home on the night of January 7, 2018, when a female
resident of the facility wandered outside the facility in subzero
temperatures and died of hypothermia. Despite the fact that the
resident was wearing a WanderGuard device, which was designed to alert
staff when she traveled past sensors placed throughout the facility,
and exited the facility through a door with an alarm sensor, the
resident was not discovered missing for more than 8 hours, when the
morning staff was preparing residents for breakfast. The defendants,
who were supposed to be caring for the resident during the nighttime
hours and documented that they checked on the resident every 2 hours
throughout the night, admitted that they never even looked in the
resident's room to see if she was there.
As you may know, Medicaid is the primary payer source for most
certified nursing facility residents, with more than six in 10
residents (about 832,000 people) covered by Medicaid as their primary
payer in 2016. In the last 10 years, the Ohio MFCU has processed nearly
3,300 complaints of abuse, neglect, and misappropriation, and posted
241 criminal convictions resulting from those complaints. Under the
best of circumstances, these are challenging cases, and we are tasked
with the responsibility to speak for those who are often unable to
speak for themselves. While this is extremely rewarding work, our
efforts are hampered by a number of factors.
surveys
While we accept complaints from any and all sources, the majority
of our complaints originate with our State survey agency, the Ohio
Department of Health (``ODH''), and take the form of either surveys or
Self-Reported Incidents. The survey agency conducts both annual and
complaint surveys which, as the name would imply, are initiated in
response to specific complaints. In either case, the surveyors do not
conduct investigations, per se; they make determinations regarding
violations based on records, on-site interviews, and on-site
observations. They rarely interview staff members not present during
their visit, even if they were involved in the incident. They base
their citations on what they see, what they are told, and what they
review. This can be problematic for various reasons. As we have
confirmed in numerous investigations, facility staff are often not
truthful with surveyors, the administration encourages falsification of
information, and facility administrator's ramp up staffing during the
survey to give the appearance of readily available staff.
There is a real need for a prompt referral to State MFCUs if the
surveyors see evidence of falsification of records or have real
concerns regarding neglect or abuse of residents in the facility.
Currently we see a survey report after it is complete and after ODH has
exited the facility. The survey and the facility response to their
citations are available to the public but only several weeks after the
survey. We would like to see better collaboration between the State
survey agency and MFCUs throughout the country.
underreporting
The survey agency also responds to Self-Reported Incidents which
originate with the facilities themselves. As in many States, we
experience problems with prompt and accurate reporting. The law
requires that care facility operators promptly report to the survey
agency and law enforcement any reasonable suspicion of a crime
committed against a resident of the facility, including patient abuse,
patient neglect, and misappropriation. Unfortunately, the manner in
which the incident is reported by the facility often minimizes the
seriousness of the offense or omits relevant facts which might
otherwise cause a referral to the MFCU. By way of example, I offer the
following.
Example #1
In one example, a facility reported only that a female resident had
fallen from a wheelchair during transportation in a facility van. The
report indicated that the driver of the van had swerved to miss a deer
in the road, and that the ``effect on the resident'' was that the
resident said: ``My behind hurts.'' Our investigation revealed that the
resident was airlifted to a hospital with two fractures in her neck,
one fracture in her lower back, and fractures of both knees. The
resident died days later as a result of her injuries. During a
subsequent interview with the Nursing Home Administrator, she admitted
that she was intentionally vague in reporting the incident, at the
direction of the facility's attorney.
Example #2
In another example, a facility reported an ``injury of unknown
origin'' resulting from an ``Incident [which] occurred outside of
building.'' Our investigation revealed that the facility resident had
eloped and drowned in a pond on the facility grounds.
In both of these examples, the facilities knew exactly what had
happened to their residents, but omitted relevant facts from their
reports. We can only speculate as to why certain facilities under-
report, but it seems reasonable to assume that they are attempting to
avoid a criminal investigation by law enforcement, a complaint survey,
or a potential civil action.
It is also worthy of note that as part of a MFCU's performance
standards, we are required to report convictions to HHS-OIG for their
provider exclusion list. Not all prosecutorial agencies are required to
do this, which magnifies the importance of involving MFCUs in the
prosecution of nursing home employees. While Medicaid funded care
facility providers in Ohio are prohibited from employing excluded
individuals, all care facilities, regardless of how they are funded,
are precluded from employing individuals identified on Ohio's Nurse
Aide Registry and individuals with disqualifying criminal convictions.
We would recommend that all care facilities also be prohibited from
employing individuals identified in the following:
1. The Abuser Registry, Ohio Department of Developmental
Disabilities.
2. The Sex Offender and Child Victim Offender Database, Ohio
Attorney General.
3. The U.S. General Services Administration System for Award
Management Database.
4. The Database of Incarcerated and Supervised Offenders, Ohio
Department of Rehabilitation and Corrections.
reimbursement
Finally, the ``elephant'' in the room is staffing; both the
quantity and quality of staff and the way we reimburse nursing homes.
Current funding models often incentivize facilities to maximize profit
by increasing the relative complexity of care required by their
patients which in turn increases their reimbursement. The policy
underlying this model anticipates that the nursing home will then have
to increase staff to meet the needs of their patient population.
However, there still remains a financial incentive to decrease direct
care staffing levels to lower operating costs, regardless of the acuity
level of a nursing home's patient population. While it is important to
employ quality staff over a set number of staff, our investigations
have shown time and again that quality staff will leave an understaffed
facility due to an inability to provide required care and fear for
their licensure. Additionally many problematic facilities employ
temporary agency staff who are not familiar with the patient's ongoing
care. Let us be plain: If we want adequate staffing and quality of
care, we are going to have to pay for it. This will likely mean more
funding for long term care, and an overhaul of the Medicare and
Medicaid reimbursement models.
Autumn Healthcare of Zanesville
Autumn Healthcare of Zanesville, Inc. and Steve Hitchens were
convicted on January 9, 2017. The corporation was convicted of one
count of Engaging in a Pattern of Corrupt Activity; one count of
Medicaid Fraud; two counts of Telecommunications Fraud; two counts of
Tampering With Evidence; nine counts of Forgery; and one count of
Theft. Hitchens, the owner, was convicted of one count of Tampering
With Evidence; one count of Tampering With Records; and one count of
Forgery.
This investigation started with covert video surveillance cameras
placed in residents' rooms, followed by a detailed comparison of the
care evidenced on the video with the care memorialized in the
residents' medical records. The investigation found that Autumn Health
Care of Zanesville, through its owner and many of its managers,
habitually altered official documents to falsely make it appear that it
was regularly providing adequate care for its residents. Although the
records reflected a high level of care, the investigation found that
several patients missed treatments and were given therapy that they
didn't need in order for the company to make more money. The
corporation was ordered to pay restitution totaling $167,640.10, and
Hitchens was sentenced to 3 years community control and 100 hours of
community service.
collaboration with federal law enforcement partners
State MFCUs also actively participate with our Federal counterparts
on Elder Justice Task Forces. We believe through joint investigations,
sharing information, and regular meetings, we strengthen our efforts
nationally to protect the most vulnerable of our population who reside
in our nursing homes and other care facilities. These task forces allow
us to leverage the resources and expertise of the States and the
Federal Government, particularly where we see chain-wide systemic
patient neglect. Working together has allowed us to focus our efforts
nationally on nursing home chains for failure to provide services in
violation of certain essential requirements that the State Medicaid
programs expect skilled nursing facilities to meet. Examples of these
failures have included an insufficient number of skilled nurses to
adequately care for residents, inadequate catheter care for residents,
and inappropriate care to prevent pressure ulcers or falls.
conclusion
State Medicaid Fraud Control Units play a vital role in protecting
our Nation's nursing home residents. In order to effectively
investigate incidents of patient abuse and neglect we must ensure
timely referrals from State Surveyors to their MFCUs when they suspect
abuse, neglect or falsification of records. We must also require
nursing homes to properly report and detail incidents of patient abuse,
neglect and misappropriation or face meaningful penalties. It is
crucial that State and Federal agencies coordinate their investigations
to properly leverage our resources and expertise. Finally, States must
address the real outcomes of not properly incentivizing nursing homes
to adequately staff their facilities to achieve quality care.
______
Prepared Statement of Hon. Ron Wyden,
a U.S. Senator From Oregon
Generations ago, with Social Security, America closed the door to
the era of impoverished seniors living out their last years in
almshouses and poor farms. Decades later, with Medicare and Medicaid,
it guaranteed that seniors would have access to health care. To
continue that hard work, one of the challenges this country faces today
is ensuring that seniors in nursing homes are safe and well cared-for.
Our best nursing homes meet a high standard of care, but tragically,
not all do.
Seniors in nursing homes are among the people most vulnerable to
the life-
threatening consequences of abuse and neglect. Across this country,
that vulnerability is being exploited in unimaginably cruel ways in
nursing homes that are unsafe, under-staffed, and uninterested in
providing even the most basic, humane level of care. This morning the
committee will hear stories of seniors being sexually and physically
abused, starved, dehydrated, and left for dead. These stories,
unfortunately, are too common around the United States.
Last November, I released a report, ``Sheltering in Danger,''
examining the tragic deaths of 12 residents at a nursing home in
Florida when nursing home managers and staff failed to evacuate them
after Hurricane Irma.
Just this week, a news report from Ashland, OR told the story of an
elderly nursing home resident who was found with mold, ulcers, and
infections after she went a week without bathing. A nurse was allegedly
stealing her pain medication, and, even after a trip to the hospital to
treat her infections, the person who was charged with her care
continued to steal her medicine until she died 17 days later. So as the
committee examines these issues today, there are a few specific matters
that need investigation.
First, the Trump budget is coming out next week, and it's a safe
wager it'll include another draconian attack on Medicaid. That program
helps cover costs for two out of three seniors in nursing homes. I'll
fight this cut with everything I've got, because it would turn back the
clock on the effort to improve care, and it would inevitably lead to
more nursing homes closing their doors.
Second, at a time when the Federal Government ought to be raising
standards and rooting out harmful, substandard care and those who
provide it, the Trump administration and CMS are going in the wrong
direction.
The basic regulations on nursing homes date back 3 decades. Since
then, a 2003 study found 20,000 complaints of exploitation, abuse, and
neglect. Reports from the National Center on Elder Abuse and a State
agency in New York found that only a slim fraction of cases get
reported. A 2014 report from the HHS Inspector General found that a
third of Medicare beneficiaries were harmed within a matter of a few
weeks of entering a nursing home.
That's why there was an effort in 2016 to update the basic rules
for nursing homes. The update required nursing homes to develop plans
to prevent infections. It mandated concrete policies and procedures to
prevent abuse, neglect, mistreatment, and theft. It said that nursing
homes shouldn't pump residents full of psychotropic drugs unless they
are necessary to treat a specific, diagnosed condition.
It banned the practice of forcing seniors to sign away their legal
rights with pre-arbitration contracts as a precondition of admission to
a nursing home. It established tougher financial penalties for nursing
homes that harm residents or fail to meet safety standards.
Come 2017, under the banner of deregulation, the Trump
administration decided to roll back those changes and more. Other
examples, related to recommendations in my ``Sheltering in Danger''
report: I'm worried Trump rollbacks will mean nursing homes are
underprepared for natural disasters in the future. And there is still
no Federal rule mandating that nursing homes have emergency power
generators. So whenever I hear the Trump administration throw around
the phrase ``patients over paperwork,'' I think of how they're letting
criminals and substandard caregivers off the hook when they hurt
vulnerable seniors.
Next, it's time for a hard look at the way the Federal Government
rates nursing homes. At a hearing in the Aging Committee years ago, I
pointed out that it was easier to get accurate reviews of washing
machines than of nursing homes.
After that hearing, the Centers for Medicare and Medicaid Services
created a new rating system that should have been a powerful tool for
seniors and their families to sort out the good homes from the bad. It
hasn't turned out that way.
Too much of the information that goes into the rating system is
self-reported. It is not a reliable indicator of quality. For instance,
one of the witnesses coming before the committee today will tell us
about how her mother passed away after suffering extreme neglect at a
facility in Iowa. That home got top marks for quality: a five-star
rating. This hearing must accelerate fixes to this system.
I'll close with this final point. I know in Oregon there are homes
and labor unions working together to set higher standards and raise the
quality of care. As a young man, I was the co-director of the Oregon
Gray Panthers, an advocacy group for older Oregonians. I also served on
the State Board of Examiners of Nursing Home Administrators, even
though the industry got State legislators to vote to keep me off it.
I spent a lot of time visiting people who lived in sordid
conditions, who needed a lot of help just to get through the day, who
were victims of scams and abuse. For me, those memories still serve as
a reminder that the job of working to ensure seniors have a dignified
retirement is never complete.
So I'm pleased the chairman has brought this hearing together.
There's a lot to be done on this issue, and I look forward to working
with both sides of the committee on it.
______
Communications
----------
AARP
601 E Street, NW
Washington, DC 20049
202-434-2277
www.aarp.org
March 5, 2019
The Honorable Chuck Grassley The Honorable Ron Wyden
Chairman Ranking Member
U.S. Senate U.S. Senate
Committee on Finance Committee on Finance
219 Dirksen Senate Office Building 219 Dirksen Senate Office Building
Washington, DC 20510 Washington, DC 20510
Dear Chairman Grassley and Ranking Member Wyden:
AARP appreciates the attention you are giving to the quality of care
and quality of life of our country's nursing home residents, the
federal standards for nursing homes, and their enforcement. Thank you
for holding the March 6, 2019 hearing entitled, ``Not Forgotten:
Protecting Americans from Abuse and Neglect in Nursing Homes.'' AARP,
with its nearly 38 million members in all 50 States, the District of
Columbia, and the U.S. territories, is a nonpartisan, nonprofit,
nationwide organization that helps people turn their goals and dreams
into real possibilities, strengthens communities and fights for the
issues that matter most to families such as healthcare, employment and
income security, retirement planning, affordable utilities and
protection from financial abuse.
AARP has been deeply concerned over recent reports and evidence of
dangerous conditions in nursing homes across the country. Ensuring the
health, well-being, quality of care and quality of life, and safety of
nursing home residents is critically needed. AARP is concerned with
regulatory and administrative actions taken by the Centers for Medicare
and Medicaid Services (CMS) over the last couple of years, as well as
potential future actions under consideration, that could weaken the
quality of care and quality of life for our country's approximately 1.3
million nursing home residents.
In 2016, CMS issued a final regulation that provided the first
comprehensive review and update for the Medicare and Medicaid
conditions of participation for skilled nursing facilities (SNFs) and
nursing facilities (NFs) (collectively ``nursing homes'') since 1991.
CMS received thousands of comments, including from AARP. The final rule
provides additional emphasis on person-centered care and addressing
residents' individual needs and preferences; improved protections
against abuse, neglect and exploitation; better planning for resident
care; and stronger protections against evictions, among other benefits.
Recognizing the comprehensive nature of the regulatory revisions, CMS
provided for implementation of the requirements in three phases over 3
years.
While many nursing homes provide quality care, media coverage and
investigations continue to document the devastating cases of potential
abuse, neglect, poor care, and even death that are too common in
nursing homes. The Department of Health and Human Services Office of
Inspector General (OIG) issued an August 2017 early alert finding that
``CMS has inadequate procedures to ensure that incidents of potential
abuse or neglect of Medicare beneficiaries residing in SNFs are
identified and reported''\1\ to law enforcement in accordance with
applicable requirements. The OIG also found that CMS was not using
available tools to enforce the requirement that skilled nursing
facilities report potential abuse to law enforcement. In a September
2017 data brief, the HHS OIG also found that overall, ``states received
one-third more nursing home complaints in 2015 than in 2011'' and that
states ``prioritized more than half of nursing home complaints into the
most serious categories--`immediate jeopardy' and `high priority.'
''\2\
---------------------------------------------------------------------------
\1\ https://oig.hhs.gov/oas/reports/region1/11700504.pdf.
\2\ https://oig.hhs.gov/oei/reports/oei-01-16-00330.pdf.
Unfortunately, these findings coincide with a disturbing trend of CMS
actions to undermine federal oversight and enforcement of nursing home
quality standards. In November 2017, CMS established an 18-month
moratorium on imposing certain enforcement remedies--specifically civil
money penalties (CMPs), discretionary denials of payment for new
admissions, and discretionary termination--for specific Phase 2
requirements under the nursing home conditions of participation final
rule, such as baseline care plans and behavioral health services.\3\
CMS would instead focus on provider and nursing home surveyor education
during this time. Regulations need effective enforcement in order to be
meaningful, and this delay in enforcement amounts to an additional
delay in implementation. CMS has also issued guidance that reduces the
amount of CMPs, such as by making per instance CMPs the default, rather
than the higher per day CMPs, for noncompliance that existed before a
nursing home survey.\4\ In the case of making per instance CMPs the
default for noncompliance before a nursing home survey, AARP notes that
such a change conflicts with the enforcement provisions in the Social
Security Act that provide for the imposition of CMPs for ``each day of
noncompliance.'' Given this, AARP has asked CMS to withdraw the
directive making this change and to notify its Regional Offices as well
as State Survey Agency Directors that they again have discretion to
impose per-day CMPs for past noncompliance as the Nursing Home Reform
Act and its implementing regulations provide.\5\ Both of these examples
weaken federal enforcement of federal nursing home quality standards.
---------------------------------------------------------------------------
\3\ https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/SurveyCertification
GenInfo/Downloads/Survey-and-Cert-Letter-18-04.pdf.
\4\ https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/SurveyCertification
GenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf.
\5\ https://www.aarp.org/content/dam/aarp/politics/advocacy/2019/
01/aarp-letter-to-cms-about-cmp-changes-final-10219.pdf.
Any weakening of the federal nursing home regulations will negatively
impact nursing home residents. For example, a state may defer
enforcement of nursing home violations to the federal government,
whereby the state assesses the greater of the federal or state penalty,
but not both. Thus, if a federal penalty is greater and then federal
penalties and enforcement are weakened, this lowers the bar, further
jeopardizing the health and safety of residents, including in states
that may already have more nursing homes providing poor quality care.
AARP state offices in a number of states, including Texas, Minnesota,
Louisiana, Oklahoma, Arizona, Georgia, Illinois, Kansas, and South
Dakota have also taken action to improve the quality, safety, rights,
and protections for nursing home residents and their families or
---------------------------------------------------------------------------
improve enforcement of standards for nursing homes.
CMS also issued a proposed rule in 2017 to reverse the existing
prohibition on the use of pre-dispute, binding arbitration agreements
in nursing home admission contracts. AARP filed comments on this
proposed rule and joined other organizations and individuals in
opposing this proposed rule. Pre-dispute binding arbitration is not
appropriate where abuse and neglect are at issue. As outlined in our
comments, we were alarmed that the provisions of the proposed rule
would very likely have dangerous and harmful impacts on nursing home
residents, as well as their families, and place them at even greater
risk than they faced before CMS addressed this issue its 2016 nursing
home conditions of participation final rule. AARP has urged CMS to
retain the prohibition on pre-dispute arbitration provisions in long-
term care facility admission contracts. In the alternative, AARP urged
CMS to simply rescind the sections of the final regulation entitled
``Reform of Requirements for Long-Term Care Facilities'' (81 FR 68688)
which addressed arbitration, rather than adopting the proposed rule. If
this proposed rule was finalized as proposed, it would remove an
enforcement tool that nursing home residents and their families can use
to hold nursing homes accountable for providing quality care. The
Office of Management and Budget (OMB) is currently reviewing this final
rule.
OMB is also currently reviewing a proposed rule that CMS is planning to
issue to ``reform the requirements that long-term care facilities must
meet to participate in the Medicare and Medicaid programs, that CMS has
identified as unnecessary, obsolete, or excessively burdensome on
facilities.''\6\ While the upcoming proposed rule has not yet been
released, the description of the proposed rule raises questions and
concerns about whether it will reverse or undo important protections
and standards for current and future nursing home residents, including
those more recently added to the current nursing home conditions of
participation. In November 2017, AARP joined other organizations and
individuals in strongly opposing current and proposed efforts to revise
the nursing home requirements of participation and delay their
implementation. We also requested that CMS retain the regulations as
issued in October 2016 and implement and enforce these requirements
according to the originally outlined schedule. We are pleased that
since then you and other leaders of Congressional committees of
jurisdiction have raised questions and/or concerns regarding CMS'
oversight and enforcement of nursing home quality of care standards and
protection of nursing home residents.
---------------------------------------------------------------------------
\6\ https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201810&RIN=0938-AT36.
CMS should maintain strong federal nursing home quality standards,
oversight, and enforcement to protect nursing home residents' rights,
health, safety, and well-being. We appreciate the Committee's efforts
to protect nursing home residents from abuse and neglect, including
this hearing and any future investigative or other work. We look
forward to working with you and your staff on these critical issues for
our nation's nursing home residents and their families. If you have any
questions, please feel free to contact me or have your staff contact
Rhonda Richards on AARP's Government Affairs staff at
---------------------------------------------------------------------------
[email protected] or 202-434-3770.
Sincerely,
David Certner
Legislative Counsel and Legislative Policy Director
Government Affairs
______
Altarum
2000 M St., NW, Suite 400
Washington, DC 20036
P (202) 828-5100
F (202) 728-9469
Statement Submitted by Anne Montgomery,
Program to Improve Eldercare, Altarum
I. Use of Data and Enhanced, Coordinated Monitoring and Enforcement to
Decrease Abuse and Neglect in Nursing Homes
Thirty-two years after passage of the Omnibus Budget Reconciliation
Act of 1987 (COBRA 1987), the quality of care in many of our nation's
skilled facilities (SNFs) and nursing facilities (NFs) remains
extremely uneven.
Changing this longstanding pattern requires a more comprehensive
strategy that includes close monitoring and full use of available data
about organizations and individuals who own and/or exercise significant
influence over the finances and operations of individual nursing homes
and chains. Information about owners and ``additional disclosable
parties'' is available in the Provider Enrollment, Chain, and Ownership
System (PECOS). In addition, safety and quality of care for frail
elders with complex medical conditions and ongoing need for daily
assistance and supports demands robust, well-trained direct care
staffing. Oversight must include closer attention to whether staffing
levels and types of staff actually meet expert recommendations issued
by CMS 18 years ago (U.S. Centers for Medicare and Medicaid Services,
Abt Associates Inc. Appropriateness of Minimum Nurse Staffing Ratios in
Nursing Homes. Report to Congress, 2001). Reliable, auditable staffing
data are available in the Payroll-Based Journal (PBJ) database
administered by the Centers for Medicare and Medicaid Services (CMS).
The PBJ data, together with information from state oversight of SNFs
and NFs on their compliance with federal safety and quality standards
from the survey and certification inspection program, quality data
derived from resident assessments and complaint investigations
submitted by residents, provide state and federal officials with
powerful tools which they can use to profile and carefully analyze--on
an ongoing basis--which facilities and chains are showing signs of poor
performance that threatens residents' safety.
Homes that demonstrate, through these data, that they are unwilling
and/or unable to address core problems of compliance with routine
safety and quality standards and understaffing can be dealt with more
forthrightly, through stepped-up oversight and coordinated enforcement
by CMS, the HHS Office of Inspector General (HHS-OIG) and the
Department of Justice (DOJ), in partnership with Medicaid Fraud Control
Units (MCFUs) and other state enforcement officials. Poor management of
facilities that causes obvious safety and quality of care problems, and
abuse, harm and neglect of residents, should not be allowed to continue
once it is discovered. Changing this pattern may necessitate more
frequent deployment of some of the tougher available remedies--provider
exclusion by the HHS OIG and termination of funding by CMS, in concert
with DOJ and in coordination with state law enforcement officials.
Congress can also exercise closer oversight of poor-performing homes
and chains through oversight hearings, investigative letters that raise
concerns and request timely information from agencies, SNFs and NFs,
and ongoing audits by the Government Accountability Office (GAO) and
the HHS-OIG.
With regard to rationale , little could provide more compelling
evidence of the significant need to improve SNF care quality than the
facts that lie at the center of the Manorcare, Skyline, Hyperion, and
Vanguard cases. In a recent Washington Post article (cited in the
Background Section), residents at Manorcare suffered drug overdoses,
pressure ulcers, broken bones and broken lives, even as they tried to
cope with a filthy, roach-infested environment. With regard to Skyline,
after the owner stopped providing funding for basic care and in some
cases for staff salaries, 122 facilities were closed, which left 5,700
residents in Nebraska, Arkansas, South Dakota, Kansas, Pennsylvania,
Tennessee, Massachusetts, Florida, Kentucky, and New Jersey with no
organized alternatives to continue the care they required.
Such stories of substandard care illustrate a longstanding trend of
poor-quality care in a significant minority of nursing homes. This was
highlighted by the HHS-OIG in a February 2014 report, which found that
an estimated 22 percent of Medicare beneficiaries experienced adverse
events \1\ during their SNF stays (HHS-OIG 2014 Report). That report,
which was referenced to by Senator Grassley at the March 6th hearing,
documented a pattern of common adverse events, including medication-
induced delirium, exacerbation of pre-existing conditions resulting
from an omission of care, and surgical site infection associated with
wound care. An additional 11 percent of Medicare beneficiaries
experienced temporary harm events during their SNF stays, such as
pressure ulcers and falls or other trauma with injury associated with
poor resident care.
---------------------------------------------------------------------------
\1\ The HHS-OIG Report defines ``adverse events'' as harm to a
resident that is the result of medical care, including failure to
provide needed care. Adverse events include medical errors but they
also include more general substandard care that results in resident
harm, occurring in the areas of medication administration, resident
care, and infections. (HHS-OIG 2014 Report).
---------------------------------------------------------------------------
II. Available Data and its Use in Identifying
Nursing Homes That Provide Poor Quality Care
As highlighted above, publicly available data can provide
investigators and regulators seeking to take action to address poorly
performing SNFs and NFs with a wealth of data to target individual
nursing homes and chains that may warrant closer scrutiny. These data
reside in: (1) the PECOS database; (2) the Nursing Home Compare
website; (3) the PBJ database; and (4) ProPublica's ``Data Store''
resource.
PECOS provides data on ownership and ``additional disclosable
parties,'' and ownership data are also available on Nursing Home
Compare. The 2008 ``Nursing Home Transparency and Improvement Act''
championed by Senator Grassley and many others requires that owners and
``additional disclosable parties''--``any person or entity who
exercises operational, management or financial control over a
facility'' or ``leases or subleases real property to the facility''--to
report their identities. It also requires reporting of the
organizational structures of various types of entities that are linked
to facilities, including the members and managers of LLCs.
CMS' Nursing Home Compare website has summary data from annual
inspections of nursing homes that are funded by Medicare or Medicaid
and monitored by the survey and certification program. Nursing Home
Compare can be searched by facility and by state and contains key
quality data about the rate of pressure ulcers, falls, antipsychotics,
reported pain and other metrics. The website also contains data about
inspection results and specific deficiencies that are cited during
inspections, and data on staffing. These data can be used to assess
whether individual homes and homes that are part of chains--including
facilities that are owned, managed, or otherwise controlled under
various types of contractual business arrangements--have staffing that
meets the minimum standard recommended by CMS' 2001 report--4.1 hours
of nursing care per resident per day.
Finally, ProPublica's datasets allow investigators to search
``Statements of Deficiencies,'' including identifying patterns of
deficiencies in nursing homes across a given state, and to search by
categories of deficiencies, e.g., ``falls'' or ``sexual abuse,'' to
find homes with particular quality problems.
In summary, federal and state agencies responsible for regulating
nursing homes and for enforcement have access to excellent information
with which to hold nursing homes accountable.
III. Enforcement Remedies That Agencies Currently
Have Available to Hold Nursing Homes Accountable
At the federal level, the primary agencies with jurisdiction over
nursing homes are: (1) CMS, (2) HHS-OIG, and (3) DOJ. When data or
surveys show that a nursing home has poor quality care, CMS has several
remedies. The agency can deny payment for new admissions; deny
additional admissions until safety and care problems are resolved; put
a temporary manager in place, as occurred in the Skyline case; or
terminate funding and close a facility, as in the Vanguard case. CMS
may also enroll a facility in the ``Special Focus Facility'' program,
which means that a nursing home is subjected to a survey every 6
months, and penalties for continued poor survey results increase. If
these homes do not improve, they can be fined more heavily and
ultimately terminated.
HHS-OIG has several remedies available as well, which include civil
monetary penalties, quality Corporate Integrity Agreements (CIA) that
typically extend for five years, and exclusion of providers from
federal funding. The HHS-OIG has a graduated series of enforcement
tools and penalties that are designed to bring a home or SNF
corporation into quality compliance. For example, the HHS-OIG can levy
financial stipulated penalties that are enumerated in CIAs on homes
that are found to be non-compliant with the monitoring and quality
improvement terms and targets featured in these agreements. Following
the expiration of, and even during the pendency of a CIA, a second
level of enforcement that CMS could operationalize is to require a
nursing home to develop and execute specific plans of correction in
areas where the SNF has experienced documented problems. If those plans
of correction fail to result in measurable, improved quality within an
agreed time frame, CMS could move to impose a denial of payment for new
admissions (DPNA). Further, in the event that quality of care in a
post-CIA SNF remains significantly problematic, CMS, working with DOJ
prosecutors that focus on nursing homes providing grossly substandard
care, could move to have a temporary receiver or state manager
appointed to run the home. The agency could also terminate payment and
close the facility. Finally, if the quality of care in multiple homes
that are part of a group or chain is extremely poor, HHS-OIG, relying
on the evidence developed by DOJ and state MCFU attorneys, could
explore whether to exclude the entire chain from participation in
federal healthcare programs.
IV. Issues to Consider
In view of the availability of these data, which can be combined to
identify poorly performing organizations and individuals who can be
aggressively monitored, CMS and DOJ can take additional steps to
discourage individuals and organizations from treating nursing homes as
if they were merely investment opportunities for private gain. CMS'
authority to terminate funding is not very frequently used; and the
HHS-OIG's authority to exclude providers is also not often used. DOJ
has the authority to bring cases, but doing so can take years. If, in
addition, the culture of collaboration and cooperation between CMS, the
HHS OIG and DOJ were strengthened to more rapidly identify the ``bad
apples'' for increased scrutiny and possible termination and exclusion,
enforcement could be better targeted and more effective. Today, too
many poor performing homes are sanctioned lightly, and many continue
operating at taxpayer expense for years.
Moreover, in the wake of Skyline, state regulators should
strengthen their due diligence in order to probe more thoroughly into
what prospective owners, operators, buyers and investors know about the
care of frail elders nearing the end of their lives, the depth of their
knowledge of applicable quality of care standards, and their
understanding of compliance requirements.
V. Additional Answers and Potential Solutions:
Improved Agency Coordination
Another important improvement strategy may be to set up an
Interagency Coordinating Task Force among the relevant agencies at CMS,
HHS-OIG, DOJ, and a representative from the state MFCUs. That Task
Force would develop and guide the implementation of processes that
assure integration of the tools that each agency has, so as to
identify, target, and remedy poor quality care in SNFs across the
spectrum. The Task Force would establish protocols and strategies for
nursing homes that require intervention under particular circumstances,
and results of this collaboration could be reported back to the
Committee at regular intervals.
Additionally, mandatory background checks based on CMS' National
Background Check Program (NBCP) should be required for all long-term
care workers, administrators, and those who exercise operational,
financial or management control over a facility or chain. More than
half of all states have now accessed funding through the NBCP to
improve, streamline and modernize their background check systems.
Comprehensive checks across all states would decrease the risk of
horrific crimes of sexual abuse, among others, that were discussed at
the Senate Finance hearing on March 6, 2019.
The motivation and background of individuals and organizations
wishing to acquire, operate and manage groups of homes and chains
warrants closer scrutiny. Arguably, the chaos resulting from Skyline
Healthcare's demise did not have to cascade across entire states if
regulators exercised stronger due diligence as the owner rapidly
acquired facilities across many states, including Kansas, Nebraska,
Pennsylvania and New Jersey.
A purely transactional approach to nursing home ownership, which
are home to many very frail people who are nearing the end of their
lives, may put them at unnecessary risk of abuse and neglect. Keeping
certain operators out of the industry in some cases may be the most
prudent course. More monitoring is also critical as well as deeper
analysis of available data and improved use of a variety of sanctions
available to different agencies that can be used more strategically to
improve the industry's overall performance and decrease the harm
experienced by residents living in poor-performing homes.
VI. Background Articles
https://www.washingtonpost.com/business/economy/opioid-overdoses-
bedsores-and-broken-bones-what-happened-when-a-private-equity-firm-
sought-profits-in-caring-for-societys-most-vulnerable/2018/11/25/
09089a4a-ed14-11e8-baac-2a674e91
502b_story.html?utm_term=.7ec34c5f42a7.
https://www.keloland.com/news/investigates/company-with-history-of-
financia1-prob1ems-puts-d-seniors-at-risk_20180816012013816/1374257644.
https://skillednursingnews.com/2018/05/eight-former-skyline-
nursing-homes-pa-sold-new-owners/.
https://www.seattletimes.com/nation-world/arkansas-regulators-want-
takeover-of-2-skyline-nursing-homes/.
https://www.northjersey.com/story/news/watchdog/2018/04/16/
thousands-nursing-home-patients-could-affected-fast-growing-nj-nursing-
home-company-trouble-nebraska/493643002/.
https://www.kcur.org/post/state-kansas-takes-control-15-
financiaIly-troubled-private-nursing-homes.
https://www.omaha.com/livewellnebraska/chain-of-nebraska-nursing-
homes-placed-in-receivership-after-missing/article_013a2693-60af-5359-
b258-c99a6325e
30c.html.
https://www.mcknights.com/news/skyline-payroll-issues-force-kansas-
to-seek-its-largest-ever-nursing-home-takeover/.
______
Statement Submitted by Kathy Arends
My Mother Darlene Weaver was diagnosed with Parkinson's and the onset
of dementia in 2014. She became a resident at Timely Mission Nursing
Home in Buffalo Center, Iowa in July of 2015.
The decision was made as a family, including Mom, for her to go to
Timely Mission. Mom knew most of the residents and staff at the
facility, her Aunt was a resident there as well. Buffalo Center was her
hometown, and more importantly we trusted Timely Mission Nursing Home
to care for our Mother.
Shortly after admission there were medication errors. Mom had been
prescribed the Exelon patch for her dementia. The instructions were
clear, apply one new patch every 24 hours and remove the old patch. The
new patch was to be applied in a different location to avoid skin
irritation.
One evening when I went to visit, I was helping her get ready for bed
when I noticed two Exelon patches on her. I brought it to the attention
of the nurse that night and then called the director of nurses right
away the following morning and expressed my concerns. I was reassured
she would take care of the problem.
It continued to happen, sometimes Mom would have two patches on,
sometimes three and at times none. Every time this happened, it
affected Mom mentally and physically in a negative way. Each time I
noticed the mistake, I made the nurse on duty aware and then would tell
the director of nurses.
After I became upset because of the constant problem the director of
nurses decided to have the nurse applying the new patch, take the old
one off and put it on a separate piece of paper in hopes it would help
them to remember to remove the old one. That didn't help, we still had
problems.
Mom was prescribed Sinemet for her Parkinson's. It was prescribed three
times a day, at specific times, on an empty stomach before meals. This
medication was important to Mom, giving her the ability to walk without
``freezing up'' and for her to stand up from a sitting position. We had
problems with this medication not being given at the prescribed times.
When the medication errors kept happening, I went to talk to a board
member. He told me he didn't want to hear my complaints and walked
away. I tried to talk to another board member, she told me the board
didn't have anything to do with the way the nursing home was run.
I contacted the Ombudsman for Timely Mission regarding the constant
problems with medication errors. I was told the nursing home had a two-
hour window to administer medication. Either two hours before the
prescribed time, or two hours after the prescribed time. My Mom was
prescribed medication, at a specific time for a medical reason. When
this medication was not given as prescribed, this also affected Mom
mentally and physically.
Mom complained to me about a CNA that would refuse to help her when she
needed it. This CNA would be verbally disrespectful to Mom and it upset
her. I contacted the administrator and the director of nurses, informed
them of the problem and told them this CNA was not allowed to work with
Mom, nor be in her room. The administration ignored what I had asked
and still allowed her in Mom's room.
I kept complaining about the CNA and the medication problems to the
director of nurses. She told me I was welcome to take Mom to another
facility. Other family members complained about problems with their
loved ones and they were told the same, they were welcome to move their
loved one to another facility. Some families lived in fear and wouldn't
complain about problems they were having. The CNA eventually quit and
went to work in Minnesota.
There were numerous times I went to visit Mom and she had green
discharge from her eyes running down her face. When I had the nurse
come in, they told me they hadn't noticed the discharge. It took the
facility days to get Mom on antibiotic drops for her eyes.
Mom's hygiene was at times not good. Some of the staff wouldn't clean
her false teeth and I would find them covered with black. Her glasses
were always dirty, her toenails never got cut unless I did them and the
food Mom always complained about.
I was told Mom couldn't have candy or homemade baked items in her room
because of ants. My Mom loved to snack! Dehydration and UTIs were a
problem and when I complained about Mom not getting enough fluids and
asked the nursing home staff to offer them to Mom, they told me if the
pitcher in her room was filled with water that is all they were
required to do.
Mom started getting upset in the evenings wondering if the CNA that had
refused to help her and had been mean to her was working. I asked some
of the other staff and they told me the CNA had been fired from her job
in Minnesota and came back to work at Timely Mission, working the
overnight shift. I again made calls to the administrator, the director
of nurses and I talked to the MDS coordinator and informed all of them
this CNA was not allowed to work with Mom, and I told them how upset
Mom was at night worrying about it and that she would cry.
In April of 2017 I received a phone call from the nursing home to tell
me Mom had a fall. I asked if she was hurt and they told me she hurt
her left shoulder, but she had full range of motion and they were
certain she was fine. An hour later they called to tell me they were
going to take Mom to the clinic to have it x-rayed just to be sure it
was ok. They called to tell me it showed no injuries.
Mom was in a great deal of pain that evening when I went to see her. I
asked the nurse if she had been given Tylenol and she told me no, that
if Mom wanted Tylenol, she had to ask for it. When I helped Mom get
ready for bed, I found a duplicate Exelon patch on her left shoulder,
the shoulder she had injured. She had two patches on again.
She needed a lot of assistance to get into bed, to go to the rest room
and to get out of bed that night when I was there. I told the nurse
when I was leaving that Mom needed help with everything and asked her
to please make sure Mom got help.
In the morning I called the director of nurses about the duplicate
patches and told her Mom needed help with everything because she was in
so much pain from her fall. I asked her to have a call button necklace
put on and she agreed to do it. Every time I went over to see Mom, she
didn't have the call button on. The nurses kept taking it away from Mom
because they said they didn't have time to answer it every time she
pushed it--she still wasn't getting assistance like she needed.
The pain in Mom's shoulder continued, she wasn't eating well, and she
was in bed a lot. When I expressed my concern about her not eating and
the fact that she was losing weight, the MDS coordinator told me she
hadn't lost weight. Two days later the social worker called me to tell
me they were going to increase Mom's supplement drink because she had
lost a significant amount of weight.
Mom developed a cough the middle of May and by the end of May it had
gotten worse. I told the director of nurses Mom needed antibiotics
because she sounded terrible. She did nothing. I called Mom's doctor
numerous times about the cough, each time I was told the director of
nurses told the doctor that Mom didn't have a fever, her lungs were
clear, and Mom said she felt fine.
June 12, 2017, the nursing home called to tell me Mom had another fall.
Again, I asked if she was hurt and the nurse told me she was okay and
was resting in bed. I got another call shortly after that and they told
me they were taking her to the clinic just to make sure her shoulder
was okay. I got in my car and went to the clinic they took her to; I
didn't tell anyone I was going to the clinic.
I walked through the clinic door and my Mom was sitting in a wheelchair
holding her left arm with her right hand, shaking and crying, sitting
there all alone. As I sat there with her, I noticed her left foot was
on the floor and not on the wheelchair foot rest. I asked her to pick
up her foot and put it up so when I pushed her back to see the doctor,
I wouldn't hurt it. She looked at me sobbing and told me she couldn't
move her leg, it hurt too bad.
The doctor at the clinic knew they would not be unable to get Mom out
of the wheelchair because of her injuries. He called the ambulance to
have her transported to the hospital. When they moved her from the
wheelchair to the stretcher, her pain was excruciating.
In the emergency room the doctor came to tell us the result of Mom's x-
rays. Broken left shoulder, broken left upper arm where a massive black
and blue mark was that went all the way around her arm, broken left hip
and other injuries. My Mom looked at me with tears running down her
face and said, ``No more, Kathy. . . . I can't do it any more.''
She was admitted to Hospice the next day and passed away June 18, 2017
from her injuries and pneumonia in both lungs. The hospice doctor told
me he wanted the medical examiner to come in when Mom passed away. When
the medical examiner was done examining Mom's body, she ordered a
complete autopsy. The results of the autopsy were devastating. I
immediately filed a complaint with the Department of Inspections and
Appeals, as I had done prior about other complaints.
A 63-page report dated 09/01/2017 found the nursing home guilty of many
violations. Sadly, some of the violations in this report were
repetitive ones that occurred starting in January 2007. Timely Mission
Nursing Home had approximately 65 violations after the Department of
Inspections and Appeals completed investigations during this time
period.
Had Timely Mission Nursing Home been held accountable years ago, maybe
lives could have been saved, maybe my Mom's life could have been saved,
maybe Virginia Olthoff could have been saved.
Timely Mission Nursing Home failed my Mom, the Department of
Inspections and Appeals failed her, the broken elderly care system
failed my Mom. She lost her life while the individuals that should have
been held accountable, went on with their lives, getting jobs in
different states working with the elderly.
Darlene Weaver, a mother of three, a grandmother of six and a great
grandmother of eight, we will never forget her.
Kathy Arends
______
Letter Submitted by Jeanette Armstrong
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
RE: Hearing ``Not Forgotten: Protecting Americans From Abuse and
Neglect in Nursing Homes,'' held on March 6, 2019
March 13, 2019
Subject: Experiences with overmedication of my husband.
Many years ago, my husband, a brilliant space scientist, began showing
signs of dementia. I now identify it as Frontal Lobe dementia based
upon his symptoms such as changes in personality and behavior problems.
When care of him in the home became unsafe and exhausting, our family
made the decision to move both of us to a senior living facility which
had a dementia treatment component. We moved the end of March 2017. By
May 2017, he was moved to the site for dementia patients. Actually I
was told by the facility administrator that he was not in a safe
situation with me, and if I did not move him, I could be charged with
elder abuse.
I believe he was overmedicated including with over the counter drugs.
For example, he had trouble with diarrhea. To me, it made common sense
to reduce or remove the stool softeners and laxatives from the array of
drugs he was taking but I felt that my input had no effect.
He had many trips to hospitals. During one trip to the hospital, his
blood pressure was slightly elevated and the hospital doctor put him on
medicine to lower his blood pressure. He had never had a blood pressure
problem, and while in the hospital and upon returning to health care at
home, all blood pressure results were normal or below. I could not
convince them to consider looking at removing that medication or to
lower the dose. One of the side effects of low blood pressure is
falling which is a side effect of several of the other medicines he was
on and, of course, he fell and went through periods when he could not
walk.
He had 2 stays at St. Johns in Leavenworth in the Senior Behavioral
Health section. I understand the purpose was to regulate medications. I
was given the feeling if I did not consent to his going there, I would
have to find a new place immediately.
It seemed as if when a new drug was added, nothing was reduced or taken
away. In December, 2017, he fell and could not get up. We spent the
first 3 weeks in December in the hospital trying to ``detox'' him and
get him up and walking again. On the day of release, December 23, I
wondered about the delay in the release papers. In talking with the
discharge nurse, I discovered the hospital was told that the facility
where we were living would not take him back unless he came back on all
the medications he was on when he left. They were waiting for the
Doctor to get out of a meeting to write the prescriptions.
I was very upset. I had already found another care facility where I
could move him, but they could not take him until the 26th of December
because of already committed holiday staff schedules. At a point, I
thought that we were going to have to live in the hospital lobby or a
motel, as I refused to take him back to Facility One. The issue was
finally resolved because the nurse, who I believe did not have the
authority to make the medication decisions, was no longer a member of
the staff. She is on the staff of another nursing home in the area.
He did go back to Facility One and I was able to get him moved to
Facility Two within a couple of months. He died June 2, 2018 in the
second facility.
Another practice of both homes that I thought was marvelous to begin
with but now I am beginning to doubt, is that both homes had their own
doctor. Transporting a dementia patient to a doctor's office, waiting
in the waiting room and the treatment room is not a pleasant
experience. Facility One doctor was in Topeka and every two weeks his
nurse came around, evaluated the patients and, as I understood,
reported back to doctor and prescription changes were made. I never met
this doctor. Facility Two had a local doctor who did actually come into
the facility and evaluate patients. I did meet and talk with this
doctor several times.
I tried to keep up on the drugs they were giving him, the dosages and
side effects and the interactions. Not being a medical doctor, I had to
assume the facilities, nurses and doctors knew what they were doing. I
regret that assumption, but dementia is a hard disease to treat and I
am not sure what other path our family could have taken.
______
California Advocates for Nursing Home Reform et al.
650 Harrison Street, #2
San Francisco, CA 94107
www.canhr.org
California Advocates for Nursing Home Reform, Center for Medicare
Advocacy, Justice in Aging, Long Term Care Community Coalition,
National Association of State Long-Term Care Ombudsman Programs, and
National Consumer Voice for Quality Long-Term Care
The above organizations would like to thank Chairman Grassley and
Ranking Member Wyden for holding the March 6 hearing, ``Not Forgotten:
Protecting Americans From Abuse and Neglect in Nursing Homes.'' No one
who heard Patricia Blank recount the extreme dehydration and subsequent
death of her mother in an Iowa nursing home and Maya Fischer talk about
the brutal rape of her mother in a Minnesota facility during this
hearing will ever forget their stories. The horrific suffering of both
nursing home residents and that of others calls for a serious
examination of how to combat and end nursing home abuse and neglect. As
consumer advocates representing the experiences and interests of
nursing home residents nationwide, we take this opportunity to offer
recommendations for preventing or addressing abuse and neglect of
residents and to respond to statements and testimony made during the
hearing.
Abuse and neglect of nursing home residents occurs far too often. They
are at increased risk due to the prevalence of dementia and dependency
on caregivers for personal care. The systems designed to protect
residents and hold facilities and perpetrators accountable have not
been as effective as they should be.
Strong, clear actions need to be taken immediately to protect residents
and prevent others from suffering the same indignities and fate as the
mothers of Patricia Blank and Maya Fischer. To that end, we offer the
following recommendations.
I. RECOMMENDATIONS
1. Congress should oppose any weakening of resident protections by
urging the Centers for Medicare and Medicaid Services (CMS) to retain
the Requirements of Participation for Long Term Care Facilities as
issued in October 2016.
In October 2016, CMS published revised federal nursing home regulations
that had been developed over a 4-year process of listening to
consumers, nursing home providers, and health care experts, including
formal notice and comment.\1\ These regulations include important new
standards that better protect vulnerable individuals and reduce the
likelihood of resident harm, such as robust requirements for staff
training and prevention, reporting and responding to abuse, neglect and
exploitation.
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\1\ Federal Register, Vol. 81, No. 192, October 4, 2016, 42 CFR
Parts 405, 431, 447, 482, 483, 485, 488, and 489.
CMS has indicated its intention to change these already revised and
improved nursing home regulations in order to reduce the supposed
burden on nursing home operators. This would be a mistake; the
protections in the current regulations are sorely needed. Nursing home
residents as a whole are more vulnerable than when the nursing home
regulations were first released in 1991. Residents' acuity level has
increased, and the majority have some form of dementia. The increased
prevalence of physical and cognitive impairments makes residents more
at risk of abuse and neglect, as evidenced by the CNN investigative
report that exposed widespread sexual assault in nursing homes across
the country, including the rape of Maya Fischer's mother.\2\ In
addition, poor care, abuse, and neglect continue to be a problem
nationwide as documented by studies and reports.\3\
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\2\ Blake Ellis and Melanie Hicken. ``Sick, Dying and Raped in
America's Nursing Homes.'' CNN Reports. February 22, 2017.
\3\ Adverse Events in Skilled Nursing Facilities: National
Incidence Among Medicare Beneficiaries (February 2014) OEI-06-11-00370.
Nursing Facilities, Staffing, Residents, and Facility Deficiencies,
2009-2015. Prepared by: Charlene Harrington, Ph.D., Helen Carrillo,
M.S., University of California San Francisco, and Rachel Garfield,
Kaiser Family Foundation.
The 2016 rules respond to these issues and safeguard residents. For
instance, as noted above, there are stronger protections related to
abuse, neglect and exploitation. In addition, facilities must annually
assess the needs of residents and determine what resources, including
numbers, types and competency levels of staff, are necessary to provide
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the required care and services.
2. Congress should call on CMS to: (1) reverse the decision to set
per-
instance, rather than per-day, Civil Monetary Penalties as the default
financial remedy for violations; and (2) end the persistent under-
identification of resident harm in nursing homes.
During the hearing, Dr. Goodrich testified that there are a range of
enforcement sanctions, including Civil Monetary Penalties (CMPs) which
CMS can impose when a facility is not in compliance or serious abuse
has been verified. However, although CMS theoretically has a wide range
of enforcement remedies, actual use of these remedies has been
relatively narrow. One of the major reasons for inadequate enforcement
is the failure to appropriately assign ``scope and severity'' levels.
Most deficiencies are assigned a ``no harm'' severity level. In fact,
in 2015 only 3.4% of all health violations were identified as having
caused any harm to a resident, despite the documented evidence on
survey reports frequently showing otherwise.\4\ The scope and severity
levels are critical because they determine the enforcement remedies
that can be imposed--and a no-harm level rarely leads to any
enforcement action, let alone a meaningful enforcement action.
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\4\ ``Safeguarding NH Residents and Program Integrity: A National
Review of State Survey Agency Performance,'' LTCCC (2015).
Inadequate nursing home oversight is further weakened by policy changes
that CMS has already implemented. Many of these changes correspond to
requests from the nursing home industry and were made without public
notice or comment. In November 2017, CMS placed an 18-month moratorium
on major enforcement of several key regulations that became effective
that same month. Other changes lead to lower and less frequent fines.
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Examples include:
Making per instance CMPs the recommended remedy rather than per
diem fines in all but a few limited circumstances. The result is
generally lower penalties imposed for noncompliance.
Allowing CMPs to be optional instead of mandatory when Immediate
Jeopardy does not result in serious injury, harm, impairment, or death.
Changing how remedies are selected and factors to consider
giving CMS Regional Offices (ROs) discretion. For instance, ROs can
take into consideration whether the cited noncompliance is a one-time
mistake or accident.
These changes are counterproductive. The threat of fines is a critical
deterrent to abuse and substandard care, particularly when they are
large enough to impact a facility's act ions. Yet policy revisions are
already having an effect: the average fine is now $28,405 compared to
$41,260 in 2016.\5\
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\5\ Jordan Rau. ``Trump Administration Cuts the Size of Fines for
Health Violations in Nursing Homes.'' Kaiser Health News. March 15,
2019.
3. Congress should pass legislation requiring a minimum staffing
standard of at least 4.1 hours of direct care nursing time per resident
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per day.
The relationship between staffing levels and quality of care has been
well established. When there is not enough staff, residents suffer
physically. They experience painful pressure ulcers, malnutrition,
dehydration, infections, preventable hospitalization, injuries, and
more. Severe lack of staff, when combined with stress and burnout, are
factors that can lead to neglect and abuse.\6\
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\6\ Catherine Hawes, Ph.D., ``Elder Abuse in Residential Long-Term
Care Settings: What Is Known and What Information Is Needed?'' National
Academy of Sciences 2003.
Insufficient staffing occurs because federal law requires no minimum
staffing standard for nursing homes. Medicaid and/or Medicare certified
facilities must have ``sufficient staff'' to meet residents' needs, but
this provision is vague and ambiguous. The lack of specificity means
that the decision about staffing levels is up to individual nursing
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homes. Facilities often cut staffing to maximize profits.
A 2001 study by the federal government determined that a nursing home
resident needs at least 4.1 hours of care per day: 2.8 hours from
nursing assistants, 0.55 hours from licensed practical nurses, and 0.75
hours from registered nurses.\7\ This is the minimum amount of care
needed to prevent common quality of care problems like pressure ulcers,
dehydration, and losing the ability to carry out daily tasks like
eating, dressing, and walking. As of December 2018, U.S. nursing homes
provided an average of only 3.5 total care staff hours per resident per
day, significantly below the recommended 4.1 hours.\8\
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\7\ Abt Associates for U.S. Centers for Medicare and Medicaid
Services, ``Appropriateness of Minimum Nurse Staffing Ratios in Nursing
Homes.'' December 2001.
\8\ Long Term Care Community Coalition News Alert: ``Latest Data
Indicate Low Staffing Is Persistent and Pervasive.'' February 2019.
4. Congress should ban the use of pre-dispute arbitration agreements
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in nursing homes.
A pre-dispute arbitration agreement in a nursing facility is signed by
a resident during the admissions process, when he or she will know
nothing about any future dispute that may be subject to the arbitration
agreement. Generally, residents or their family members sign these
agreements because they feel that they have no choice, and during times
of great stress and confusion.
Pre-dispute arbitration agreements are inherently unfair and dangerous
for consumers. They lessen nursing facility accountability by forcing
residents into secret proceedings when seeking redress. This hides
allegations of abuse, neglect and poor care from the public and
regulators, which diminishes the consequences of negligent care by
providing cover for poorly performing facilities. Fewer consequences
can allow substandard care to continue, leading to more, not fewer,
injuries, and greater costs to taxpayer-funded programs like Medicare.
Civil court cases help deter bad actors, thereby protecting residents.
Congressional action is needed. The 2016 regulations include a
provision barring pre-dispute arbitration, but the government declined
to appeal preliminary injunctive relief in a Mississippi federal court
that barred the enforcement of the regulation.\9\ Subsequently, CMS
proposed a regulation that not only would allow pre-dispute arbitration
agreements but would, for the first time, explicitly permit nursing
facilities to require pre-dispute arbitration agreements as a condition
of admission.\10\
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\9\ Am. Health Care Ass'n v. Burwell, 217 F. Supp. 3d 921 (N.D.
Miss. 2016).
\10\ 82 Fed. Reg. 26,649 (2017).
5. Congress should (1) update minimum funding and maintenance of
effort provisions for the State Long-Term Care Ombudsman Program in the
reauthorization of the Older Americans Act (OAA) to reflect the most
current fiscal year; and (2) increase the current OAA Title VII State
Long-Term Care Ombudsman Program authorized funding level to $35
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million.
Under the federal Older Americans Act (OAA), every state is required to
have a State Long-Term Care Ombudsman Program (LTCOP) that addresses
complaints and advocates for improvements in the long term care system.
Each state has an Office of the State Long-Term Care Ombudsman, headed
by a full time State Long-Term Care Ombudsman who directs the program
state wide. Trained individuals designated as ombudsman representatives
by the State Ombudsman directly serve residents.
Among other duties, long-term care ombudsmen investigate and seek to
resolve complaints made by or on behalf of residents of long-term care
facilities. This includes complaints about abuse. Ombudsmen are
directed by what the resident wants and must adhere to strict
confidentiality laws. Depending on the situation and resident consent,
ombudsmen may make a referral to the appropriate protective service,
regulatory, or law enforcement entity and/or pursue a range of advocacy
strategies with the goal of doing as much as the resident wants them to
be do. Ombudsmen may also provide training to facility staff on abuse
prevention.
The LTCOP, in many states, struggles to provide residents with regular
access to help due to insufficient funding. LTCOPs are stretched so
thin because funding has not increased significantly in the last
decade. Many programs have not recovered from funding cuts that
occurred beginning in 2008. This means that many residents cannot
receive the advocacy, assistance and support they need to obtain
quality of care and quality of life.
6. Congress should: (1) request a GAO study into the financing of
long-term care facilities , specifically looking at how federal funds
are used; and (2) pass legislation requiring (a) audits of cost
reports, (b) transparency through detailed financial reporting that
includes disclosure of finances regarding related-party companies and
owners, (c) limits on how much money in administrative costs a nursing
home can claim and how much profit they can make from those public
funds, and (d) any additional dollars allocated for Medicare and/or
Medicaid funding for nursing homes be spent on direct care only.
Under the Nursing Home Reform Law, one of the duties of the Secretary
of Health and Human Services is to ``promote the effective and
efficient use of public moneys.''\11\ Yet neither the Secretary,
government officials nor the public know whether Medicare and Medicaid
dollars are being spent appropriately and responsibly. Medicare does
not audit financial cost reports, and financial reports do not reveal
the hidden profits, such as inflated payments for management, pharmacy,
staffing and therapy services made to other companies owned by the same
persons or entities who own the facility.
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\11\ 42 U.S.C. Sec. 1395i-3(f)(1)
In addition, there are no requirements for how nursing homes spend
federal funding. Some nursing home operators disproportionately use
public dollars to pay for salaries, administrative costs, and other
non-direct care services.\12\ For instance, the New York State Attorney
General recently filed a complaint against an operator, alleging that
the operator diverted Medicaid funds away from residents and ``paid
such monies for their own benefit through companies they owned or
controlled.''\13\ An article in The New York Times reports that
related-party transactions have become a ``common business arrangement,
[as] owners of nursing homes outsource a wide variety of goods and
services to companies in which they have a financial interest or that
they control.''\14\
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\12\ ``Medical Loss Ratios for Nursing Homes: Protecting Residents
and Public Funds.'' Joint Statement from the Center for Medicare
Advocacy and the Long Term Care Community Coalition.
\13\ ``Ex-owners of nursing home face felony charges.'' The Daily
Star. Denise Richardson. June 7, 2018.
\14\ ``Care Suffers as More Nursing Homes Feed Money Into Corporate
Webs.'' New York Times. Jordan Rau. January 2, 2018. Christopher H.
Schmitt. ``The New Math of Old Age: Why the nursing home industry's
cries of poverty don't add up.'' Investigative Report. U.S. News and
World Report. September 30, 2002.
7. Congress should pass legislation regarding corporate accountability
that requires CMS to: (1) establish minimum federal criteria for
assuming ownership or management of Medicare and/or Medicaid funded
nursing homes; and (2) deny or revoke a facility's Medicare enrollment
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if an owner is affiliated with a previously revoked facility.
There is a growing number of acquisitions/mergers/deals in which large
numbers of nursing homes are taken over by corporations, with little to
no scrutiny of the corporations' financial capacity or experience and/
or history of providing care.
Nursing home chains can sell their homes to companies with a
track record of poor care. This is exactly what happened when Avante, a
Florida-based nursing home chain, sold its North Carolina nursing
facilities to SentosaCare. SentosaCare had a history of substandard
care, with large numbers of violations.\15\
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\15\ Richard Craver, ``Avante plans to sell six NC nursing homes,
including three in Triad,''
Winston-Salem Journal (April 18, 2018).
Corporations buying facilities may have no previous experience
in running nursing homes. Skyline was considered an ``unknown firm,''
while The Philadelphia Inquirer noted the general lack of information
about the company.\16\
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\16\ Maggie Flynn. ``Troubled Skyline Highlights Problems With
Under-the-Radar Skilled Nursing Operators.'' Skilled Nursing News.
April 12, 2018.
Owners with a seriously troubled history are permitted to start
a new company and repeat the history. For example, in the mid-1990s,
there had been bankruptcy and sudden closings in facilities owned by
Jon Robertson.\17\ However, in 2006 he started a new company, Utah-
based Deseret Health Group, which went on to experience the same
problems.\18\
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\17\ Eric Slater, ``Entrepreneur Fades From View as Empire
Collapses; Business: Critics say owner of shuttered nursing homes,
including one in Reseda, lived lavishly amid unpaid bills,'' Los
Angeles Times (October 23, 1997).
\18\ H.B. Lawson, ``Nursing home faces closure; Deseret Health
Group closing facilities in several states, Saratoga facility put on
chopping block Friday,'' The Saratoga Sun (May 6, 2015).
Owners are allowed to buy or sell nursing homes even if they are
in financial distress. When Skyline took over 18 nursing homes in South
Dakota, it was already struggling to pay its bills in other states. In
Kansas where Skyline had 15 facilities, the executive director of the
Kansas Health Care Association stated, ``I honestly don't believe the
Skyline people had a year's worth of working capital.''\19\
---------------------------------------------------------------------------
\19\ Kelsey Ryan and Andy Marso. ``How a small company above a N.J.
pizza parlor put Kansas nursing home residents at risk.'' The Kansas
City Star. April 15, 2018.
The failure to assess whether owners and managers are qualified and
competent is harming residents, who may have to relocate if their
facilities are forced to close following bankruptcy. The resulting
transfer trauma experienced by many residents can lead to physical,
mental, and emotional decline, and sometimes even death. The federal
government needs to establish standards to ensure that individuals and
companies who have such an impact on resident health and safety are
---------------------------------------------------------------------------
capable and fit to do so.
8. Congress should make the National Background Check Program
mandatory.
Current background check systems do not adequately protect nursing home
residents from exploitation and abuse. A 2011 report by the Office of
the Inspector General (OIG) found that 92 percent of nursing facilities
employed at least one individual with at least one criminal
conviction.\20\ Additionally, nearly half of nursing facilities
employed five or more individuals with at least one conviction.\21\
Most convictions were for property crimes (e.g., burglary, shoplifting,
writing bad checks), and an alarming number of convictions were for
crimes against persons, including sex crimes. The same report found
that only 10 states require both an FBI and a statewide criminal
background check for prospective employees. This means that in many
states, prospective employees' out-of-state convictions go undetected
and those with records of abuse are often hired by nursing
facilities.\22\
---------------------------------------------------------------------------
\20\ Department of Health and Human Services, Office of the
Inspector General, Nursing Facilities' Employment of Individuals With
Criminal Convictions (2011).
\21\ Ibid.
\22\ Ibid.
The National Background Check Program (NBCP) was created to address
these problems. It is a voluntary program that provides non-competitive
grants to states in order to help them implement and improve employee
background check systems in long-term care facilities. The program is
administered by the Centers for Medicare and Medicaid Services (CMS) in
consultation with the Department of Justice (DOJ) and the Federal
---------------------------------------------------------------------------
Bureau of Investigation (FBI).
A 2016 DHS report found that 25 states have participated in the
program. It also found that the NBCP screened out 30,025 individuals
with a history of patient abuse or a violent criminal background
through September 30, 2014.\23\ Congress should build on this program's
success and make it mandatory so residents in all states receive this
important protection.
---------------------------------------------------------------------------
\23\ Department of Health and Human Services, Office of the
Inspector General, National Background Check Program for Long Term-Care
Employees: Interim Report (2016).
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II. RESPONSE TO WITNESS TESTIMONY
In addition to the above recommendations, we find it necessary to
comment on issues raised by some of the witnesses and their answers to
questions during the hearing. Specifically:
Medicaid reimbursement
During the hearing, Dr. David Grabowski testified that the Medicaid
rate was too low and ``you get what you pay for.'' He indicated that
rural nursing homes were closing because the Medicaid reimbursement
rates were inadequate and cited the New York Times article \24\ that
focused on the closing of Mobridge Care and Rehabilitation Center in
South Dakota.
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\24\ Jack Healy. ``Nursing Homes Are Closing Across Rural America,
Scattering Residents.'' The New York Times. March 4, 2019.
Before concluding that the Medicaid rate is too low, we urge Committee
members to consider three points. First, as noted earlier, the amount
of money nursing homes allocate to administrative costs and profits,
instead of care, is not known. This could mean that the problem may be
how nursing homes choose to spend their Medicaid dollars, rather than
lack of sufficient money. For this reason, we urge Congress in
recommendation #5 to request a GAO study into the financing of long-
term care facilities, specifically looking at how federal funds are
---------------------------------------------------------------------------
used.
Second, more money does not necessarily mean better quality care.
Despite Medicare reimbursement rates of approximately $550 or more per
day, a Department of Health and Human Services Office of Inspector
General Investigation found that \1/3\ of Medicare beneficiaries
receiving skilled nursing facility services experienced harm within 16
days of admission, and almost 60% of that harm was determined to be
preventable.\25\
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\25\ Adverse Events in Skilled Nursing Facilities: National
Incidence Among Medicare Beneficiaries (February 2014) OEI-06-11-00370.
Nursing Facilities, Staffing, Residents, and Facility Deficiencies,
2009-2015. Prepared by: Charlene Harrington, Ph.D., Helen Carrillo,
M.S., University of California San Francisco, and Rachel Garfield,
Kaiser Family Foundation.
Third, Skyline's takeover of Mobridge and the corporation's subsequent
failing may have been a significant factor in the closing of the
facility. At the beginning of 2017, Mobridge was bought by Skyline
Healthcare Inc. By April 2018, a divisional vice president in charge of
Skyline facilities in South Dakota sent emails to the South Dakota
Department of Health stating that employees across the group in the
state had not been paid, and the facilities only had enough
housekeeping and laundry supplies for four more days of operation, and
food for residents for five more days.\26\ In May, the state put a
receiver in place, but by November the receiver petitioned for
Mobridge's closure, claiming significant and unsustainable losses.\27\
A similar pattern could be seen in Skyline facilities elsewhere, for
example in Nebraska and Kansas, where states sought court-approved
receiverships or otherwise took over the nursing homes in order to
assure that residents would continue to receive food, medicine and
care.\28\
---------------------------------------------------------------------------
\26\ Bart Pfankuch. ``Wave of SD nursing home closures hitting
hardest in rural small towns.'' The Brookings Register. March 17, 2019.
\27\ Ibid.
\28\ Toby Edelman. ``Buying and Selling Nursing Homes: Who's
Looking Out for the Residents?'' Center for Medicare Advocacy.
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Nursing Home Compare and the Five-Star Rating System
We are concerned that the many comments and questions about the
accuracy of Nursing Home Compare and the Five-Star Rating system at the
hearing indicate an over-reliance on data in consumer selection of
nursing homes.
While improvements are needed, Nursing Home Compare and the Five-Star
Rating System are not a fool-proof indication of a nursing home's
quality. Consumers must be encouraged to use other factors, such as
onsite visits, whenever possible in evaluating a facility. Conditions
in long-term care facilities can change so rapidly that the information
reported may already be out-of-date, particularly if there has been a
change in the administrator or director of nursing, or if the facility
has recently been bought by a corporation.
Additionally, when CMS implemented a revised survey process on November
28, 2017, the agency imposed a freeze on health inspection data used to
calculate the health inspection star rating. As a result, the most
recent inspection has not been included in the five-star rating system.
While the freeze is scheduled to end in April 2019, prospective
residents and their family members researching facilities during this
time period have received incomplete information.
Unfortunately, too many consumers have such limited choices of nursing
homes that information about quality is often moot. Consumers and
families seeking a nursing home after hospitalization are frequently
given very limited time to decide about a long-term care facility, and/
or may be directed towards a facility with which there is a referral
arrangement with the hospital. Additionally, a growing number of
consumers in Medicaid managed care plans have little to no choice of
nursing homes (as of 2017, 24 states had Medicaid Long-Term Services
and Supports programs \29\ while others are limited by geographical or
other constraints.
---------------------------------------------------------------------------
\29\ Elizabeth Lewis, Steve Eiken, Angela Amos, Paul Saucier. ``The
Growth of Managed Long-Term Services and Supports Programs: 2017
Update.'' January 29, 2018. Truven Health Analytics.
---------------------------------------------------------------------------
Improvement in quality care
In his testimony, Dr. David Gifford said that the quality of nursing
home care has improved dramatically. Nevertheless, the following data
show that quality is still elusive for too many nursing facilities:
Almost 21% of nursing homes received a deficiency at the level
of harm or immediate jeopardy \30\
---------------------------------------------------------------------------
\30\ Charlene Harrington, Ph.D., Helen Carrillo, M.S., University
of California San Francisco. Rachel Garfield, MaryBeth Musumeci, Ellen
Squires, Kaiser Family Foundation. ``Nursing Facilities, Staffing,
Residents and Facility Deficiencies: 2009-2016.'' April 2018.
---------------------------------------------------------------------------
42% of nursing homes had either a one-star or two-star rating
for health inspections \31\
---------------------------------------------------------------------------
\31\ CMS provider data, processing date: February 1, 1019.
---------------------------------------------------------------------------
42% of nursing homes had chronic deficiencies three years in a
row \32\
---------------------------------------------------------------------------
\32\ ``Chronic Deficiencies in Care: The Persistence of Recurring
Failures to Meet Minimum Safety and Dignity Standards in U.S. Nursing
Homes.'' Long Term Care Community Coalition. 2017.
---------------------------------------------------------------------------
20% of nursing home residents--approximately 250,000
individuals--are administered antipsychotic drugs that are life-
threatening \33\
---------------------------------------------------------------------------
\33\ Long Term Care Community Coalition News Alert November 2018:
Latest Data on Nursing Home Antipsychotic Drugging. 2018Q2 MDS Data
(N0410A: Medications--Medications Received--Antipsychotic).
---------------------------------------------------------------------------
7.5% of nursing home residents--approximately 95,000
individuals--have unhealed pressure ulcers even though research shows
that almost all pressure ulcers are preventable \34\
---------------------------------------------------------------------------
\34\ ``Safeguarding NH Residents and Program Integrity: A National
Review of State Survey Agency Performance,'' Long Term Care Community
Coalition. 2015.
---------------------------------------------------------------------------
A 2014 U.S. Office of Inspector General (OIG) report found that
33% of Medicare residents experienced adverse events or harm within 16
days of admission to a skilled nursing facility. Almost 60% of the harm
was determined to be avoidable.\35\
---------------------------------------------------------------------------
\35\ ``Adverse Events in Skilled Nursing Facilities,'' DHHS OIG,
February 2014.
---------------------------------------------------------------------------
Nursing Home Regulations
Since January 2017, CMS has systemically worked to rollback resident
protections through proposed revisions of current regulations. Dr. Kate
Goodrich stated in her testimony that this relaxing of rules was aimed
at ``paperwork and administrative requirements'' that ``may be getting
in the way of patient care.''
The changes CMS is pursuing cannot be characterized as focused just on
``paperwork.'' In addition to reversing the ban on arbitration
agreements described earlier, here are examples of what the agency is
targeting:
Development of care plans for residents within 48 hours of
admission. Nursing home residents have significant care needs, and
appropriate care must be provided from the first day. To protect
residents during their vulnerable first days in the facility, the
federal government in 2016 strengthened care planning regulations.
Elimination of these requirements could lead to poor care, injury and
death.
Reporting serious bodily injury due to abuse or neglect within 2
hours. Delayed reporting reduces the chances of providing prompt
assistance to abuse victims and finding forensic evidence. The 2016
regulations addressed this problem by mandating that severe harm be
reported within two hours. However, this timeframe for reporting may
now be extended. Permitting additional time before severe harm is
reported means residents may not get help quickly enough and preserving
vital evidence in an investigation may be jeopardized. Lessening any
requirements related to abuse reporting leaves residents at greater
risk of abuse.
Protections against evictions. Across the country, nursing homes
are discharging residents against their will and sending them to
inappropriate and unsafe settings, such as homeless shelters. Residents
who are kicked out like this can experience harm and may never recover.
To better protect residents from improper evictions, the 2016
regulations require nursing homes to notify local ombudsman programs
whenever a nursing home moves to evict a resident. Long term care
ombudsmen are advocates for nursing home residents. When ombudsmen are
notified, they can contact the resident and/or representative and
provide assistance if requested. Most of the time ombudsmen are
successful in resolving a problem or concern that has triggered the
proposed discharge, thereby reducing inappropriate discharges. This
notification requirement may be eliminated or modified, leaving
residents without much needed assistance.
Conclusion
The organizations listed at the beginning of this statement thank the
Committee for bringing attention to the care and treatment of our
country's nursing home residents, who, too often, feel as if they are
invisible and forgotten. The failure to address long-standing problems,
and current and possibly future rollbacks of protections, are sending a
strong message to residents that they are also being abandoned. We
stand ready to help the Committee ensure that residents are not
forgotten, and that nursing home safety and oversight are strengthened,
not weakened.
______
Letter Submitted by Linda S. Carlsen
March 11, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
This letter is meant to highlight what I believe is most important to
residents and their families for all nursing homes and extended care
living facilities. If each resident could be afforded the dignity of
having a safe place, adequate staff, the best health and supportive
care available and the freedom to make his or her own choices whenever
possible, we would have a place for our loved ones where their living
conditions were better than they are now. There are so many concerns
that these needs are not being met and haven't been met for a very long
time.
I have a personal story that I would like to share because it changed
my life and to some extent, the lives of my family members. My step-
father was a dentist for 50 years in Illinois where he had his own
practice. After he retired, he moved to Arkansas where he stayed until
he was too sick to be alone and away from his family. I was his only
living relative and I felt the need to move him to Kansas where he
could be with us and I could take care of him.
I promised him I would never put him in a nursing home but he didn't
want to live with us, so when an extended living facility opened up, I
jumped at the chance to get him an apartment with the understanding
that I would visit him every day and that our family would see him as
often as they could. Unfortunately, he was in the hospital because of
heart problems more than his apartment and it became clear that I
needed more care for him. My promise of not putting him into a nursing
home had to be amended to finding the best nursing home for him.
Years before I had been on a community project that looked at all
aspects of care for our aging population. I was the chair of the
subcommittee on nursing homes in our area and I personally visited all
the nursing homes in Johnson County. My step-father had no signs of
dementia and together we visited the nursing homes that I thought might
work for him and he was a part of the process every step of the way.
After tours and talking to the administrative staff, we decided on a
place where we hoped he would get the support he needed. Honestly, I
was most interested in the staff and the location whereas he wanted the
best ```bricks and mortar.''
He could come and go if he felt like it but as time went by, he didn't
leave the nursing home. He didn't want to talk about his days in the
nursing home and I knew there was something more going on than he was
letting me know. He was hiding the fact that he didn't always get his
medication, that his bed was dirty much of the time, that his food came
any time of the day and that no one was there to help him at night.
Every day after work, I would visit him and I began seeing more
bruising on his body. Bruising of the skin is natural for an older man
in his 80s but this was more than normal bruising of the thin skin of
his arms and legs. I started looking for bed sores and other signs of
neglect. I believe he was afraid to tell me how he got the bruises.
When I questioned the staff about what my stepfather had told me, they
denied everything he said but told me I could take him someplace else
if I wasn't happy with their services. But the catch was, I didn't know
where else to take him. I began coming more than once a day so that I
could make sure he got his medications, had a clean bed and ate
something. That worked for a while but everything changed one day when
I visited him as usual after he had been at the nursing home for one
month.
He was in bed and had a back brace on and told me that he had gotten up
to go to the bathroom at night and he had fallen and had been given the
back brace. The head nurse suggested that I take him to the hospital
for x-rays. I was not notified when the accident happened or I would
have had him transported by ambulance to the hospital. He had fractured
vertebrae, broken ribs and more bruising. The back brace was of no
help!
That incident along with the other red flags of neglect prompted me to
move him to another facility. I quit my job and spent most of the day
with him at the new facility, taking over the jobs the staff should
have been doing.
He had had rheumatic fever when he was in dental school and he lived
much longer than his doctors ever expected him to live but after the
fall, he was incapacitated and I believe that hastened his death. Had
proper intervention occurred, he might have had a more comfortable
ending.
I have been a board member of Kansas Advocates for Better Care for
eleven years because I know we make a difference. I can't change what
happened to my loved family member but I can help others know that
there is help for them through Kansas Advocates for Better Care and
other limited resources.
Sincerely,
Linda Carlsen
______
Center for Fiscal Equity
14448 Parkvale Road, #6
Rockville, Maryland 20853
Statement Submitted by Michael Bindner
Chairman Grassley and Ranking Member Wyden, thank you for the
opportunity to present our comments on this vital issue. We will omit
the restatement of our usual four-part tax reform proposal, but will
mention that we propose that all Medicare, Medicaid, Affordable Care
Act and Health Insurance Exclusion funding will be through our proposed
Net Business Receipts/Subtraction Value-Added Tax (NBRT or SVAT).
Our income and inheritance surtax (which taxes cash disbursements from
estates and sale of estate assets as normal income), will fund
withdrawals from the Medicare Trust Fund, which should be phased out
when Baby Boomers have all retired.
Care for the sick and elderly was provided by families prior to the
establishment of Social Security. Extended families provided shelter,
income and health care because they had to. Allowing seniors to live
independently freed the nuclear family to move without taking everyone
with them. This led to a crisis in health coverage for those seniors
left behind.
The logic of social insurance led to both Social Security, Medicare and
Medicaid. This provided care for everyone regardless of accidents of
birth or death. Without it, families with no surviving parents or
grandparents would pay nothing, where only children might have to pay
for both parents and their in-laws. This inequality still happens with
housing and it strains many marriages.
Nursing home care is currently provided outside of Medicaid for the
wealthy who can self-finance (although this does not necessarily
guarantee quality if children or conservators get greedy), by spending
down assets or through Medicaid once the assets are gone. Catastrophic
insurance can be used as an alternative to spending down assets,
although this is usually on available to wealthier individuals.
For most of us, nursing home care can be provided by state facilities,
for profit facilities and religious (mainly Catholic) health systems.
Public facilities are being overcome by privatization efforts and often
are dependent on local budgets. They are a big ticket item that seems
easier to cut, although this is often penny wise and pound foolish,
resulting in bad care and spurring privatization.
Private facilities can be good or bad, depending upon rates charged and
the quality of the staff. Sometimes one does not imply the other and
Medicaid limits may lead to cutting corners, especially in staffing.
Often, it takes a great deal of oversight by families to provide decent
care, although they may just be witnesses to profit driven care which
abuses their loved ones rather than being able to correct it.
Religious care is better because it usually lacks a profit motive and
can, along with Medicaid funding, provide better care, although this
may also lead to using members of the order who are not as well trained
as professional staff. This meets the needs of many seniors, especially
in rural states. Indeed, religious care holds a monopoly in some areas
are for profit facilities close. Sadly, some systems in urban areas
have the same bias to highly paid CEOs and lower paid staff.
In all systems, the need to save can lead to attempts to bust unions or
to negotiate for substandard nursing wages or use of lower-skilled
staff. Governmental oversight helps matters, but budget cuts can leave
such units understaffed with unreasonable caseloads. The choice between
care for patients and oversight is a continual balancing act for CMMS
and states.
Medicare for All would provide an ever growing pool of beneficiaries
with Medicare benefits at Medicaid prices, with the difference being
paid by either a payroll tax (employee employer) or with an NBRT/SVAT,
which would tax both labor and profit, as above. This is a change in
funding, not a guarantee of quality. Cooperative health care, however,
can provide better care for less money.
In the long run, employers, especially ESOPs and cooperatives e could
replace health care services for both employees, the indigent and
retirees and opt out of Medicare for All and receive an offset for
NBRT/SVAT levies. This would allow them to hire their own doctors and
arrange for hospital and specialist care with an incentive to cut cost
and the ability to do so.
Expanding the number of employee-owned companies and cooperatives could
be established with personal retirement accounts. Accounts holding
index funds for Wall Street to play with will not help. Accounts should
instead hold voting and preferred stock in the employer and an
insurance fund holding the stocks of all such firms. NBRT/SVAT
collections, which tax both labor and profit, will be set high enough
to fund employee-ownership and payment of current beneficiaries.. All
employees would be credited with the same monthly contribution,
regardless of wage. The employer contribution would be ended for health
care at all levels.
ESOP loans and distribution of a portion of the Social Security Trust
Fund could also speed the adoption of such accounts. Our Income and
Inheritance Surtax (where cash from estates and the sale of estate
assets are normal income) would fund reimbursements of the Trust Fund.
Thank you again for the opportunity to add our comments to the debate.
Please contact us if we can be of any assistance or contribute direct
testimony.
______
Center for Health Information and Policy (CHIP)
Statement of Dr. David E. Kingsley
Introduction
It is disconcerting that a half century after passage of Medicaid,
it is necessary for the U.S. Senate to hold yet another hearing
regarding pervasive abuse and neglect in the nursing home system.
Throughout the decades of Medicaid-funded skilled nursing care,
celebrated cases of abuse and neglect have driven Senate hearings,
reform legislation, and salacious stories in newspapers and other
media. And yet scandals in nursing homes continue unabated.
The efficacy of one more hearing on nursing home abuse is
questionable. Not much will change unless elected officials and
advocates recognize the systemic and structural factors causing
substandard care. In this testimony, I will discuss three major
characteristics of the U.S. nursing home system responsible for the
lack of acceptable care in America's nursing homes: (1) privatized, for
profit care, which is becoming increasingly financialized, (2) the
welfare medicine philosophy underlying the system, i.e., Medicaid, and
(3) devolution of much of the responsibility for funding and quality to
the states.
A profit oriented medical care system combined with means-testing
and state control have created intractable problems for attempts at
major reform of government funded long-term care. Indeed, history
suggests that senators' criticism and even outrage expressed at senate
hearings have only minor impact on the structure and functioning of the
overall nursing home system. For instance, less than 10 years after
Medicaid began to fuel the growth of a private, for-profit, long term
care industry, the Senate Subcommittee on Long-Term Care held hearings
for the purpose of determining what the nation was receiving for the
billions of dollars of federal support for long-term care.\1\
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\1\ U.S. Senate, Special Committee on Aging, Subcommittee on Long-
Term Care (1974), ``Nursing Home Care in the United States: Failure of
Public Policy.'' Washington, DC: U.S. Government Printing Office.
The committee's report concluded that public policy failed to
``produce satisfactory institutional care--or alternatives--for
chronically ill older Americans.'' Furthermore, it stated that ``this
document--and other documents to follow--declare that today's entire
population of the elderly, and their offspring, suffer severe emotional
damage because of dread and despair associated with nursing home care
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in the United States today.''
When considering the state of the U.S. nursing home system in 2019,
one is struck by the subcommittee's statement in 1974 and its
similarity to today's nursing home system:
Efforts have been made to deal with the most severe of
problems. Laws have been passed; national commitments have been
made; declarations of high purpose have been uttered at
national conferences and by representatives of the nursing home
industry.
But for all of that, long-term care for older Americans stands
today as the most troubled, and troublesome, component of
entire health care system.\2\
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\2\ U.S. Senate, Op. Cit., page III.
The conclusion was that the taxpaying citizens were not getting
what they deserved and what they were paying for. Despite billions
spent, the system was rife with abuse, neglect, and scandal. It still
is. In fact, taxpayers are no longer funneling mere billions of dollars
into the nursing home system, they are paying hundreds of billions in
taxes for care which appears to make few people satisfied with what
they are getting. Poor care and a dehumanizing environment in a large
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proportion of skilled nursing facilities are practically the norm.
However, day-to-day abuse and myriad examples of low-quality care
are symptoms. The underlying systemic and structural causes of low-
quality care must be recognized and addressed. Indeed, in the following
I will elaborate on each of the three structural problems and how they
negate minor reforms and tweaks. Without recognition of systemic causes
of low-quality and dehumanizing care, results of well-meaning advocacy
on the part of legislators and nursing home advocates will be resisted
and evaded by the industry.
Privatization, Profit, and Increasing Financialization
As Dr. Grabowski indicated in his testimony regarding the public's
view of nursing homes, ``a third of people surveyed would rather die
than be placed in one.'' Preferring death or not, hardly anyone wants
to spend any of his or her old age in a nursing home. Why, after
channeling hundreds of billions of taxpayers' funds into the nursing
home industry each year, are taxpayers so dissatisfied with what they
are receiving for such a huge expenditure?
Because of the primacy of earnings and ROI, it is not surprising
that the nursing home system in the United States is reviled by the
citizens who pay for it. In a capitalistic enterprise, the primary duty
of management is to shareholders. This is appropriate in other sectors
of the economy but of necessity in a profit-oriented medical system the
quality of care must be reduced for the sake of marketing, return on
investment, and high executive/managerial salaries.
Given that managers at the operations level are discharged with the
responsibility to take care of shareholders and optimize return on
investment, a portion of tax funds intended for patient care will be
diverted to satisfy expectations of suppliers of capital. Therefore,
managers are naturally pressured to maintain an understaffed, low-
skilled, and low-paid workforce.
The quality of food, facilities, and supplies is determined by
either the patients' ability to pay or by the level of state and
federal government reimbursement (see my discussion of means tested,
lower-tier, welfare-medicine below).
It is common for advocacy groups to press state legislatures to
more closely monitor facilities and to force them to enhance quality of
care. Industry lobbyists, resisting such attempts, commonly point to
inadequate reimbursement and plead hardship at legislative hearings.
Perhaps because of the treatment of Medicaid as lower tier medicine and
therefore not worthy of higher reimbursement the industry has a case.
On the other hand, the industry's case is weakened by its
opaqueness and increasingly complex legal and financial corporate
structures. It is difficult for advocates and legislators to rebut
hardship pleas without access to corporate financial information. As
the industry has adopted increasingly complex financial and legal
structures, transparency has become an even bigger problem.
Indeed, the only real innovations in the industry since 1950
pertain to financial restructuring benefitting the industry--often with
a negative effect on care. No significant changes have emerged in the
design of facilities, management of patients, and organization of care.
The total institution remains the paradigm for arranging the daily life
of patients. Patients are regimented and dehumanized through rigid,
uniform schedules, tasteless institutional cuisine, and mind-numbing
boredom in sterile, impersonal surroundings. The total institution is
conducive to the economies and efficiencies essential for the highest
profit and the lowest costs.
From inception of the nursing home industry in 1950 when amendments
to the Social Security Act allowed for reimbursement to vendors
providing medical services, a ``bottom-line'' mentality was set in
place and has become a primary feature of the nursing home system.
Because federal and state reimbursements were mostly for care of the
poor, the spend down became a major structural feature of the U.S.
nursing home industry. As the system has developed, the spend down has
become a major transference of middle-class assets to wealthy corporate
owners and investors. Welfare medicine as exemplified by Medicaid,
drives middle-class assets up to wealthier classes--increasing the
disturbing trend in wealth concentration in the top one percent.
Following passage of Medicaid, major financial innovations
significantly impacted the U.S. economic system. Two innovations, the
limited liability corporation and the private equity firm have affected
the nursing home industry in a major way.
Embedding a single facility within a network of LLCs is a
widespread practice. Typically, in these networks, the operation is an
LLC owned 100% by another LLC. Direct ownership in the parent LLC can
include one or several owners with a direct interest. Indirect
ownership often includes a complicated network of entities and
individual investors. Property is often owned by a commercial real
estate firm or an REIT.
A nursing home in a small Kansas community illustrates the complex
and opaque nursing home legal and financial structures found throughout
the United States.
MCPHERSON OPERATOR, LLC
1601 N MAIN STREET
MCPHERSON, KS 67460
(620) 241-5360
Ownership: For profit--Corporation
Legal Business Name: MCPHERSON OPERATOR LLC
Owners and Managers of MCPHERSON OPERATOR, LLC
5% OR GREATER DIRECT OWNERSHIP INTEREST
KANSAS OPERATOR LLC (100%), since 02/25/2015
5% OR GREATER INDIRECT OWNERSHIP INTEREST
BARRES, LLC (NO PERCENTAGE PROVIDED), since 02/26/2015
T AND C CAPITAL ASSETS, LLC (NO PERCENTAGE PROVIDED),
since 02/26/2015
WINDWARD HEALTH PARTNERS LLC (NO PERCENTAGE
PROVIDED), since 02/26/2015
CRINO, BRYAN (NO PERCENTAGE PROVIDED), since 02/26/2015
FEUER, SCOTT (NO PERCENTAGE PROVIDED), since 02/26/2015
LINDEMAN, STUART (NO PERCENTAGE PROVIDED), since 02/26/2015
PASSERO, JOSEPH (NO PERCENTAGE PROVIDED), since 02/26/2015
OPERATIONAL/MANAGERIAL CONTROL
MISSION HEALTH COMMUNITIES LLC, since 02/26/2015
BORZUMATO, ANDREW, since 02/26/2015
FARRIS, SHARMIN, since 02/26/2015
RUSSELL, RICHARD, since 02/26/2015
OFFICER
LINDEMAN, STUART, since 02/26/2015
RUSSELL, RICHARD, since 02/26/2015 \3\
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\3\ Source: https://www.medicare.gov/nursinghomecompare/ownership-
info.html#ID=175437.
The indirect owners listed above include a private equity firm
(Winward Health Communities, LLC), which includes in its portfolio the
company shown as the operational/managerial control entity (Mission
Health Communities LLC). Mission Health Communities holds itself out as
the company operating nearly 30 facilities in Kansas. However, it
doesn't appear in the list above as having any direct or indirect
ownership. Stuart Lindeman, the CEO of Mission Health Communities is,
according to the information provided by CMS, an owner. Bryan Crino,
Scott Feuer, Joseph Passero are principles in Skyway Capital Partners,
---------------------------------------------------------------------------
a private investment firm.
The intricate web of entities and the legal arrangements: reduce
risk of investors for neglect and abuse leading to lawsuits.
Furthermore, complicated accounting procedures render the return on the
capital of investors indecipherable and unknowable. With knowing who
benefits and how they benefit from depreciation allowances, interest
deductions, and other forms of tax accounting, the low profit of margin
claims of industry lobbyists is meaningless.
Who is Responsible? Who is Making Money? And How Much Are They
Making?
In the 1950's, low-interest FHA real estate loans to proprietary
interests fueled a commercial real estate component of nursing home
system, which attracted investors with no interests in caring for the
disabled and frail elderly. Trading in real property and exercising
generous tax subsidies through depreciation allowances and deductions
for interest on borrowed capital, is as salient a feature of the
nursing home industry as is the care for patients in facilities.
By becoming increasingly financialized,\4\ the industry has
mirrored the larger macro-economic trend of the U.S. economy over the
past few decades. To the detriment of operations and productive
activities, nursing home corporations are increasingly driven to
enhance return on investment through financial channels. Shadow banking
has increasingly replaced traditional banking as a source of financing
for the growing number of buyouts, mergers, and acquisitions. When
global capital markets drive investment and managerial behavior, the
moral and ethical perspective of medical care is separated from the
purpose of the enterprise. In the age of global capital flows, the idea
of home-town banks lending to local enterprises in the business of
providing care to the elders of the community becomes something of a
cherished memory.
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\4\ For a definition of financialization, see: Krippner, Greta
(2005), ``The financialization of the American Economy.'' Socio-
Economic Review, 3, p. 174: ``I define financialization as a pattern of
accumulation in which profits accrue primarily through financial
channels rather than through trade and commodity production. Financial
here refers to the provision (or transfer) of liquid capital in
expectation of future interest, dividends, or capital gains.''
Shadow banking in the nursing home industry can be illustrated by a
nursing home in the tiny rural community of Cherryvale, Kansas. The
following ownership information was derived from the Nursing Home
---------------------------------------------------------------------------
Compare website:
CHERRYVALE NURSING AND REHABILITATION CENTER
1001 W MAIN STREET, PO BOX 366
CHERRYVALE, KS 67335
(620) 336-2102
Ownership: For profit--Corporation
Legal Business Name: CHERRYVALE MANAGEMENT, LLC
Owners and Managers of CHERRYVALE NURSING AND REHABILITATION CENTER
5% OR GREATER DIRECT OWNERSHIP INTEREST
CHERRYVALE MANAGEMENT, LLC (NO PERCENTAGE PROVIDED), since 05/14/2007
CORNERSTONE GROUP HOLDINGS INC (NO PERCENTAGE PROVIDED), since 09/01/
2018
NOVOTNY, MICHELLE (NO PERCENTAGE PROVIDED), since 09/01/2018
NOVOTNY, WILLIAM (NO PERCENTAGE PROVIDED), since 09/01/2018
5% OR GREATER INDIRECT OWNERSHIP INTEREST
PATTERSON, CHARLES (50%), since 09/01/2018
OPERATIONAL/MANAGERIAL CONTROL
CHERRYVALE MANAGEMENT, LLC, since 05/14/2007
NEW PARADIGM SOLUTIONS INC, since 09/01/2018
OFFICER
NOVOTNY, MICHELLE, since 09/01/2018
NOVOTNY, WILLIAM, since 09/01/2018
MANAGING EMPLOYEE
RITCHEY, OLGA, since 09/01/2018
Four entities are shown by CMS to have direct ownership in the
facility. One entity, Cornerstone Group Holdings, Inc., is the Family
Office of the super-rich, McCloskey family, which is most certainly
unfamiliar with either Cherryvale, Kansas or Cherryvale Nursing and
Rehabilitation Center.
The website for Comer Group Holdings \5\ describes the financial
institution as follows:
---------------------------------------------------------------------------
\5\ http://cstoneholdings.com/.
Cornerstone Holdings is a private investment company backed by
the Family Office of Tom and Bonnie McCloskey. Its mission is
to create long-term wealth for the family by making selective
investments into operating businesses and real estate ventures.
Due to its discretionary capital, Cornerstone is incredibly
opportunistic and capable of being very flexible in how it
---------------------------------------------------------------------------
structures its investments.
It is unlikely that Tom and Bonnie McCloskey have any idea that the
facility has the lowest possible Nursing Home Care rating (1 on a scale
of 1 to 5). A family office is an investment firm set up to manage the
money of a single, super-rich family. It is discharged with
responsibility for as high an ROI as is possible, not with high quality
nursing home care.
As another example of financialization and shadow banking
involvement in the nursing home industry, since 2000, private equity
firms have been taking over major chains in leveraged buyouts. In a
2010 report, the General Accounting Office noted that of the ten
largest nursing home chains in the United States, nine had been bought
out by private equity firms in leveraged buyouts. The buyout of Golden
Living by Fillmore Capital and the buyout of HCR ManorCare by the
Carlyle Group have proven disastrous for these two chains (2nd and 3rd
largest in the U.S.) as well as for the states in which they are
located. Worst of all, the patients and their families suffer when hot
capital flows in and out of large nursing home businesses.
It is not uncommon for P.E. firms to load up the companies they
take over with the debt incurred in leveraging the buyout. A minor
portion of the purchase is leveraged with P.E. firm equity but they are
intent on recouping that investment while leaving debt owed to
suppliers of capital on the books of their target. It is the P.E.
philosophy that costs can be reduced through ``improved'' management
practices. Typically, this has meant that operations can be squeezed
through cuts in staff, food quality, and so forth. Among those who have
a professional interest in the nursing home system, it is well-known
that it is not unusual for operations to operate at a bare bones
minimum.
The Fillmore Capital and Carlyle Group buyouts left a trail of
insolvent facilities in several states. Through a series of financial
maneuvers such as selling off property and setting up untenable
leaseback arrangements, both P.E. firms were able to funnel enough
money out of the chains to recoup their equity and provide a return to
investors. The CEO of the bankrupt HCR ManorCare left the company with
a $116.7 million golden parachute.\6\
---------------------------------------------------------------------------
\6\ (https://www.toledoblade.com/business/2018/03/05/Former-
ManorCare-CEO-nets-116-million-in-bankruptcy-deal/stories/20180305146).
These Golden Living and HCR Manorcare bankruptcies left a string of
insolvent facilities for states to grapple with. A large proportion of
these were taken over by a New Jersey couple without a track record in
the nursing home industry. Within a couple of years, the couple's
business, known as Skyline, was insolvent with nearly 100 facilities
nationwide unable to meet payroll and buy food and other supplies. In
the state of Kansas alone, approximately 30 facilities were taken over
---------------------------------------------------------------------------
by the state due to insolvency.
The state of Kansas has turned a large number of these facilities
over to Mission Health Communities, which is in the portfolio of a P.E.
firm. At this time, it is not known what proportion of capital invested
in the nursing home industry is flowing from P.E. and other shadow
banking sources. However, it is likely that small,
medium-sized, and large chains will be bought out by P.E. firms. This
does not bode well for the quality of care and the on-going problem of
abuse and neglect.
Welfare Medicine and State Control
As chair of the powerful House Ways & Means Committee, Congressman
Wilbur Mills engineered a welfare medicine component to accompany
passage of Medicare in 1965. Mills and his fellow Southern Democrats
knew that a universal Medical program such as Medicare would have great
potential for expansion to the rest of the population. For a variety of
reasons they feared the impact of such a powerful federal program on
states rights and the rigid racial hierarchy undergirding Southern
culture and the plantation capitalist system.
The deal Mills made with Johnson insured that Medicare would pass
with some post-hospital nursing care. However, he insisted on what he
called a ``three-layer cake:'' Medicare would include hospitalization
(Part A) and a voluntary component for physician care (Part B). The
``indigent'' needing hospitalization, physician services, and long-term
care would be required to prove they were poor enough to receive
government provided medical care.
Nursing home care was not shunted off into Medicaid as an
afterthought. States, especially Southern states, desired to retain
considerable control over monitoring and funding of what they surely
knew would become a massive industry. Southern Democrats knew that
facilities owned and operated for the most part by private enterprise
with a major proportion of funding and regulation at the state level
could be expected to maintain cultural expectations regarding race and
class. This was the best deal the Southern Democrats could hope for in
their zeal to maintain a segregated, strong, states-rights culture and
economy.
Medicaid is medical care for the deserving poor. Unfortunately, in
U.S. medical care, the care the poor deserve is of a lesser quality
than that provided to patients with health insurance or have the means
to pay out of pocket for their care. The lower tier nature of Medicaid
was built into the nursing home system. Welfare is stigmatized as
government assistance to individuals who are not responsible enough to
save and plan for their senior years.
These attitudes toward welfare are deeply embedded in American
culture. The philosophical underpinnings of the Elizabethan Poor Laws
were imported to the North American continent prior to the founding of
the United States. These include the notion that minimal or subsistence
care at the lowest level possible prevents the poor from becoming too
comfortable on the dole. Although it makes absolutely no sense--
especially for the frail elderly in long-term care--the idea was
imported into contemporary government medicine. There could be no other
explanation for the lower reimbursement for Medicaid than for Medicare.
It sends a message regarding the worth of a Medicaid patient versus
that of a private pay patient.
Devolving a considerable amount of responsibility for funding and
regulating nursing homes to the states places financial stress on state
budgets that must be balanced. Furthermore, states are diverse in their
fiscal capabilities and ideologies. Like welfare and recipients of
assistance in general, Medicaid and its beneficiaries are stigmatized.
In some state cultures, the poor are particularly singled out for
opprobrium. Anti-welfare ideologies along with anti-tax, anti-
government sentiments, has led to draconian cuts in Medicaid in many
states.
State legislatures and stage agencies have been subject to capture
by the industry. The AHCA has staff and members in all 50 states. A
revolving door between the industry and state employment is common.
With the resources for campaign contributions and lobbying, the
industry has an asymmetrical relationship with advocates for residents.
Politics is about who gets what, when, and how. And who gets what,
when, and how depends on who has power. In the United States,
especially lately, money is the most potent form of power. Very few
states have nursing home advocacy organizations with paid staff. Even
if they were able to raise funds for political contributions, they
would be prohibited from doing so since they are typically 501(c)(3)
non-profit organizations. Even the funds the existing advocacy
organizations have to devote to legislature pales in comparison to the
industry's resources.
If ongoing abuse and neglect are to become problems of the past,
funding and regulation must be a federal responsibility. The federal
government has a constitutional duty to promote the general welfare.
Furthermore, with the capability of creating debt and financing
programs and infrastructure, the federal government has the resources
to create the type of nursing home facilities and care that promotes
end-of-life dignity.
Summary
Decade after decade, legislators and advocates have attempted to
reform the nursing home system. Failure to address structural/systemic
causes of poor-quality care has resulted in maintenance of built in
causes such as privatization, means-testing, and state level power
while the industry has moved toward increasingly sophisticated, complex
financial structures. The flow of capital from the shadow banking
system along with the opaque nature of financial and legal networks
operating increasingly throughout the nursing home industry will
further destabilize a wide number of enterprises operating long-term
care facilities.
It appears as though ultra-high-net worth individuals and families
have been investing in nursing homes as a means of protecting their
assets from taxes and inflation. This is a classic example of shadow
banking in a business sector that is becoming increasingly
financialized. Unfortunately, innovations accompanying financialized
systems allow for secrecy and opaqueness of financial information.
As the nursing home industry becomes increasingly financialized,
the purpose of caring for the elderly as a corporate mission becomes
less salient in the business of operating skilled nursing facilities.
One might say that the business of making money from money with elderly
patients as the underlying commodity is emerging as the purpose of the
business.
The financial complexity and veil of secrecy characterizing
contemporary structures and modus operandi of nursing home corporations
presents serious difficulties for advocates and legislators attempting
reform. It is difficult to obtain the information needed to determine
the amount of taxpayer funds siphoned from care into return to
investors. Without that knowledge, the industry's excuse for deplorable
conditions, i.e., low reimbursement cannot be evaluated. Nor can
legislators and the public understand, advocate for, and plan for the
appropriate level of reimbursement.
Given the professional care necessary for a patient with dementia
or needing intense care with toileting, turning over in bed, the
question becomes: ``what should the level of reimbursement be for
meeting the needs of the patient in such circumstances?'' We also
should ask, ``what amount of funding is required to create a real
`home-like environment' in what are now dehumanizing, total-
institutions?''
The federal government cannot leave these questions to the states.
The taxing and budgeting problems of state government will override any
significant reform of the nursing home system. Only the federal
government can research, plan, and fund public policy necessary for
ending the shameful system now in place for the care of frail elders.
Finally, the welfare philosophy of ``medical indigence'' and means-
testing must be ended so that middle-class families are not required to
descend into poverty and the stigma of welfare in order to receive
long-term care. Indeed, the stigmatizing nature of welfare medicine
serves as a psychological barrier to support on the part of the broader
society for increased funding.
______
Statement Submitted by Kendra Cooper, Attorney at Law
P.O. Box 2496
Woburn MA 01888-0996
www.kendracooperlaw.com
Tel. 617-448-0185
Fax. 781-944-6929
Senator Grassley, Ranking Member Wyden, and members of the Finance
Committee, thank you for tackling the difficult subject of the ongoing,
widespread abuse of elders in nursing homes and long-term care
facilities. Over the past 20 years, I have witnessed elder financial
exploitation and abuse through the mechanisms of powers of attorney,
guardianships, conservatorships and the court system. While some
dismiss such abuse and exploitation as rooted in ``family'' problems, I
see from a different perspective, with families of elders targeted and
manipulated by a wide range of trusted parties and entities, including
some in the nursing home industry. Those with real property to
liquidate are particularly valued.
Abusers and exploiters come in many forms. Sadly, they may be doctors,
lawyers, court officials and judges. They also may be administrators
and their long-term care facilities who are charged with assisting
families and the elderly through their twilight years, yet all the
while profiting from the eider's vulnerability. Private pay elders in
facilities are particularly prized and, while money may not be
exchanged directly for bringing an elder to a facility, rewards may be
realized in other ways for abusers. Financial institutions, hospital
staff, social workers, medical personnel, ministers, deacons and
realtors may also profit when elders lose their civil rights and the
legal system takes control.
To improve the treatment of elders, it must be admitted and
acknowledged that some parties collectively collude and racketeer to
further their own self interests. These abusers work against the
interests of the elderly and their families, spending down an eider's
assets until those assets are gone and the eider's ``usefulness'' as a
private pay resident has ended. Elders with nothing more to be taken
are in danger of quietly suffering an untimely death.
In one particularly well-documented Massachusetts/Maine interstate
``granny snatching'' abuse and exploitation case, an elderly, legally
blind woman was taken from her home in Massachusetts to a facility
hundreds of miles away in Maine. She then was misdiagnosed with
dementia by a speech pathologist whose determination was then relied
upon by the medical doctor who signed the guardianship application.
Though a doctor's evaluation of capacity was required by Maine law for
the guardianship proceeding, that medical doctor never actually
examined the elder to determine her incapacity. Court documents show
the speech pathologist later claimed he was unaware the elder was
legally blind when he evaluated her.
The Maine Supreme Judicial Court (SJC) in its Memorandum of Decision
declined to hear the elderly woman's case. The SJC considered the
Appeal of the guardianship appointment ``untimely,'' allowing the court
to bypass the substance of the Appeal and avoid making a ruling that
may affect other similarly flawed guardianship appointments. The elder
in question, penniless and no longer a private-paying resident, died
within months of this Memorandum, her legal options exhausted. Doctor's
Notes obtained after her death revealed a methodical effort on the part
of the elder's guardian and the attending nursing home physician to
progressively drug (using morphine) the legally blind elder to death,
beginning shortly after the SJC Decision.
Over a 5-year period, the elder was isolated in three Maine facilities
and her phone access and mail tightly controlled. Though the elder
received services from Mass Eye and Ear Infirmary while living in her
Massachusetts home, Maine services for her blindness were declined by
the guardian (according to nursing home administrator testimony). The
elder was kept in the dark and never allowed to return to Massachusetts
alive.
Few are concerned about the circumstances of an elder's death. Abusers
and exploiters know elder deaths tend not to be investigated and, in
the case of this elderly woman, the Maine medical examiner's office
refused to conduct an autopsy, claiming it was unnecessary ``due to
age'' and the fact the elder died in a care facility.
Georgia passed a law (HB 72) in 2015 making it a felony for groups of
people and entities to collude and racketeer to financially exploit an
elder. However, if cases are not acknowledged and investigated properly
at the lowest levels, it is unlikely abusers will ever be prosecuted.
In 2015, the Maine Attorney General released a Task Force Final Report
on Financial Exploitation of the Elderly. Acknowledged in the report is
``a pervasive lack of training for all professionals in the system,
including law enforcement, prosecutors, judges and court personnel''
and adult protective services (APS) on how and when to report to law
enforcement.
Unfortunately, Maine is not an anomaly among our states and little
effective change has occurred. In October 2014, a Massachusetts Special
Commission Report on Elder Protective Services also warned of a lack of
training of investigators in financial exploitation and cautioned
against the screening out of abuse complaints without adequate
investigation of exploitation. That report expressed a need for better
abuse prevention protocols among law enforcement, district attorneys,
Elder Protective Services (EPS) workers and the implementation of
Financial Abuse Specialist Teams (FAST).
While the national Elder Abuse Prevention and Prosecution Act 2017
(EAPPA) is a start, the provisions for training prosecutors only touch
the surface of the problem. Financial exploitation of elders is
commonplace throughout the country and, when elders are transported
across state lines by perpetrators who ``venue shop'' for a willing
Probate judge to help isolate the elder, families often face
insurmountable obstacles. Unlike kidnapped children, the court too
often takes a dim view of the value of elder lives and it is not a
priority to return them to their homes and make them whole. Few people
are willing to help the elderly and even fewer are willing to fight to
protect their assets. In far too many situations, the elderly can be
drugged, misdiagnosed with dementia and eliminated. Such cases also may
be profitable for pharmaceuticals and the nursing homes.
Greater Federal oversight is needed on how guardianships are obtained
and retained, along with increased scrutiny of every step that takes
away elder civil rights, whether powers of attorney, guardianships or
conservatorships. Abuse and exploitation can happen to anyone, poor or
rich, average or exceptional. Wire transfers of assets can occur in
minutes but recovery of stolen elder assets is rare. We need better
training in the patterns of financial exploitation, especially for law
enforcement, protective services, prosecutors, judges and court
officers. When abuse in facilities is reported, there needs to be
action taken by states and the Center for Medicare and Medicaid (CMS)
and the records of their findings should be made readily available to
reporters of the abuse.State and federal agencies and the courts should
not be allowed to obstruct and withhold access to records to conceal
nursing home abuse from families of loved ones.
Abusers and exploiters know the flaws and gaps in the protections of
elders. As the ranks of the ``baby boomer'' generation swell in
retirement age, financial abuse and exploitation of elders is a
lucrative, growing industry that demands Federal oversight and
accountability, not the least of which is the nursing home/long-term
care business where elders and their families are most vulnerable to
exploitation.
Thank you for this opportunity to raise some of my concerns with your
committee.
______
Letter Submitted by Margaret A. Farley, Attorney at Law, P.A.
900 Massachusetts St., Suite 600
Lawrence, Kansas 66044
Telephone: (785) 842-2345
Facsimile: (785) 856-0243
March 19, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
Dear Senators:
I am writing to submit my statement for the record regarding the March
6, 2019 Senate Committee on Finance hearing, ``Not Forgotten:
Protecting Americans from Abuse and Neglect in Nursing Homes.'' I am
fairly certain that the goal embodied in the title of the hearing was
not met.
I have been advocating and working for a better standard of quality of
care of nursing home residents in Kansas for almost 40 years. I have a
BSN and I am a practicing attorney. My job as a discharge planning RN
in a Kansas City area hospital in the late 1970s and early 1980s was to
refer patients to local nursing homes if necessary when they were ready
to leave the hospital. That was when I learned first-hand how bad
nursing homes could be. Several individual families I referred to one
nearby nursing home which always had openings returned to me to
complain about the poor care. I organized a meeting of local nursing
homes at the hospital, called it a quality of care committee, and
warned the nursing homes if I had repeated complaints from families
about the care of their loved ones, I would not refer discharged
patients to them. It was a mere drop in the ocean towards quality care.
While I was at the hospital because I felt I had a duty to do so as a
licensed nurse, I searched for enlightenment and help on the appalling
problem of poor nursing home care which I had discovered. I learned
about Kansans for Improvement of Nursing Homes (KINH--founded in 1975)
and found that organization and two of its co-founders, Petey Cerf and
Harriet Nehring, operating out of a closet, a hopeful starting point
for a solution to the problem of poor nursing home care. KINH later
changed their name to Kansas Advocates for Better Care (KABC). I found
that I was not alone: that other people found nursing home care
appalling and wanted to work for better care for this forgotten
population.
Petey Cerf, on behalf of KINH, delivered written testimony on more than
one occasion which became a part of the Congressional record, when
extensive testimony on the hazards of life in U.S. nursing homes was
given during the late 1970s and early 1980s. Those hearings were
substantive and in depth. Petey's work over several years, ``Inside
Kansas Nursing Homes'' allowed probably a hundred or more families a
voice for the trauma their loved ones suffered due to nursing home
abuse and neglect. Petey recorded and then transcribed their stories.
Over the years KINH, a/k/a for the last 20 years or so, KABC, now under
the leadership of Executive Director Mitzi McFatrich, has provided
informed testimony on bills, introduced new bills, commented on state
and federal regulations, held statewide public meetings for the public
and for nursing home nurses, administrators and social workers, worked
in conjunction with the University of Kansas Medical Center in Kansas
City, Kansas on annual professional workshops, urged new regulations,
served on statewide committees, provided education to nursing home
staff, pleaded with the state legislature for increased staffing,
increased quality of staffing, etc. We have made significant progress
but it is not enough.
As a nurse and attorney from Kansas, I have been an activist and
advocate, joining the voices of thousands of others who care about
nursing home residents over the past almost 40 years. I served as a
board member of KINH in the early 1980s, the executive director of KINH
(now known as Kansas Advocates for Better Care) from 1990-1996, the
president of the board of directors of KABC, the president of Consumer
Voice from 1998-2000, and currently serve as secretary of the board of
KABC. I am also a practicing attorney, representing persons who have
been injured, abused, neglected or killed by nursing facility or
assisted living or rehabilitation/SNF care for the last 20 years.
I respectfully ask that this Committee at least identify and reference
the long ago congressional reports in the 1970s and 1980s and 1990s and
2000s or combine them with the record for this hearing. It will serve
as a truer timeline and status report on whether we actually have
forgotten or not over the years. The conclusion is irrefutable. While
the quality of care may tick up or down a bit, we are, in so many ways,
right back where we started.
Senator Grassley, be aware that I recently visited a friend in an Iowa
nursing home and it was as appalling as any I have ever seen. So
although I sat on the stage with you in the 1990s at a Consumer Voice
conference in DC, I have to say your passion about poor nursing home
care is not working even in Iowa. Have you given up? Is that why such a
half-hearted effort for a hearing on nursing home abuse and neglect?
When I was visiting in Iowa, I observed open verbal abuse against two
separate individuals between a group of residents and another
individual--taunting/denigrating/humiliating; no staff member
intervened; residents were sitting in the dining room waiting for
dinner to be served for over an hour. Residents had to beat each other
to the table they wanted. A cold grilled cheese sandwich and cold green
beans were served on a Saturday night for dinner. My friend couldn't
stomach the food. No one from the staff offered her different food
about what I say, including the twinkling unanswered call lights. I
could go on. I felt as though I had stepped back in time to nursing
home care in the 1970s portrayed by Mary Adelaide Mendelson in her
ground breaking book, ``Tender Loving Greed.''
Women and men raped in nursing homes; confused old people are abused
and neglected and dropped and thrown and ignored and told to wait to go
to the bathroom when everyone in the facility knows that they cannot or
will not follow such commands, or they are told to go in their diapers,
or their bed; they become dehydrated because no water is available--
often visible but impossible to reach--they suffer fractures and
untreated UTIs and decubitus ulcers and are drugged for ``bad
behaviors,'' etc. But if they are not cognitively capable to report
what happened and what the harm was (did she know she was being raped--
what's the harm?) crimes go uncharged and civil cases are dismissed or
reduced before juries or in settlements.
Most residents in nursing homes have cognitive disorders. Almost no
training on dementia is provided to persons entering the workforce,
CNAs, CMAs.
I was very disappointed that there was no representation at all from
consumer advocacy organization at the national level or even state
level. This committee gave the nursing home industry association a
voice (the American Health Care Association) but gave no voice
whatsoever to the national consumer association (Consumer Voice) or any
state associations or the Ombudsmen also resident advocates, or state-
wide consumer advocacy organizations which comprise the membership of
the Consumer Voice. I feel for the two women who gave heart wrenching
articulate and real life testimony and whose family members suffered
intolerable care. But the scales were grossly unbalanced. That wasn't
fair was it? Was that intentional? Clearly there were too few witnesses
and the breadth of the experience and expertise of the witnesses far
too limited. Also AMOA, the Society for Post Acute and Long Term Care
Medicine, physicians who serve as treating physicians and medical
directors, could have enlightened the Committee. Where were the
associations who represent nurse aides (who do most of the daily work
of nursing home care by far)? Where were rehabilitation therapists? The
mental health specialists (Do you know how common depression is in
nursing homes? Where were the long term care RNs and LPNs?
If you want additional anecdotal testimony: At least two of my family
members, my father (within the last 5 years) and my paternal
grandfather (about 25 years ago) were injured or killed by poor nursing
home care. Both suffered falls due to negligent care resulting in
serious injuries. My father died as a result. My grandfather never
walked again. Preventable falls kill many people living in nursing
homes. This is always caused by insufficient numbers of staff who may
be undersupervised or undertrained. Why do I say that? Because if
someone was there in attendance and properly trained and supported,
that person would not have fallen. We freely allow people to fall in
nursing homes and ruin the rest of their lives, as major fractures in
late life mostly do. We all look the other way.
The industry says Medicaid doesn't pay enough. I think there is some
truth to that--but let's test the theory. Have them open all of their
books and let's examine them. After all, the federal government is
paying for a big chunk of the care they provide. Testimony from the
industry at your hearing was that negative margins are experienced on
the Medicaid side but 12% margins are common on the Medicare side. And
the big players in the nursing home industry have gamed the system for
years. Many make money through layers of corporations and through
REITs. And the rates for private pay residents are completely
uncontrolled. People actually think they will get better care for more
money. It's a myth. And guess what happens to people who have been
gouged into poverty on their private pay rates and still aren't dead
yet? They go on Medicaid. Wouldn't it make better sense to reasonably
regulate private pay rates since we all pay for Medicaid care once the
money runs out?
To inform the Committee I suggest you ask the American Association for
Justice to provide examples of the cases which their members have
brought on behalf of nursing home residents. Not just two people:
thousands of people. And for the sake of all that is sacred, drop the
Trump-renewed burden of arbitration on people injured by nursing home
care. Other than to further upset the balance of power between
consumers of nursing home care, there is ZERO reason to allow nursing
home corporations to extract agreements for pre-dispute arbitration as
a condition of entry into a nursing home. Give an old person and their
sorrowful family a fighting chance at least.
Better staffing, better training and better supervision will fix most
of the problems of poor care. Despite consumer advocates' demands for
reasonable staffing standards for almost 50 years, no standards have
been implemented other than the requirements for RN and LPN coverage in
the Nursing Home Reform Law. Only in the last few years has the public
been privy to pay stub info. Always before, the information has been
unauditable self-reports. When KABC has introduced bills to increase
staffing--the Kansas industry representatives have said that they
already staff at the levels we promote in our bills; the very next day
they say they cannot do it because of a staffing shortage. The
workloads for many nurse aides are almost abusive. They and their
charges carry the weight of understaffing. Who wants to work under such
conditions for low pay?
My last point in this running monologue: Assisted living type
facilities are in fact nursing facilities of yesterday without the
protection of the federal nursing home reform law. There is big money
there and we don't regulate them at the federal level, and we barely do
at the state level. That has to change or we are just inviting further
unnecessary injury and suffering and death.
Respectfully submitted,
Margaret A. Farley, JD, BSN
______
Letters Submitted by Molly Flowers, R.N.
``Have Your Family and Friends Involved: Family and friends can help
make sure you get good quality care.'' From_``Your Rights and
Protections as a Nursing Home Resident'' (Medicare.gov;
downloads.ems.gov)
If you don't have family or friends you don't get ``good quality
care.'' The Government website suggests family and friends are a
necessity to getting ``good quality care'' in nursing homes. Aren't
nursing homes paid to give care? Do we think they get paid to give poor
quality care? Are residents without family and friends left sucking
hind teat because they have no one who ``can help make sure [they] get
good quality care.'' This statement is an admission that you will be
neglected unless you have an outside advocate. And it shows the depth
of our acceptance that nursing homes' employee staff who seemingly are
beyond anyone's control neglect and abuse old, weak and dependent ones.
Molly Flowers, RN
______
From: Molly Flowers
Date: Wednesday, August 2, 2017
Subject: Substandard and Discriminatory Nursing Care in Dallas County
Nursing Homes
To: webmaster
Dear Texas Board of Nursing (BON) Board Member, Mrs. Patti Clapp,
The mission of The Board is to protect the public. And the public needs
protecting! As a human being and native of Dallas County who was raised
by sacrificial parents I am sickened by what I have observed in Dallas
County's Nursing Homes. As a Registered Nurse I am disgusted! We
subject our weak, old and broken ones to conditions that are deplorable
and reprehensible. We permit a level of nursing neglect that would get
acute care's doors closed. We wait for Austin and Washington to pass
laws. We discuss reimbursement and staffing (which, by the way, are NOT
the problems). We determine what healthcare we'll avail to immigrants,
indigents, homeless, jailed, pediatric, maternity, and HIV clients. Yet
we completely ignore the neglect with which we care for our old,
broken, defenseless and weak ones?
Why do we tolerate this substandard (by practice standards) and
discriminatory (by demographics and treatment goals) nursing care in
Dallas County Nursing Homes? Why do we consistently pitch it off to
State, or Ombudspeople. Why do we put up with this third-world-country
of nursing in Dallas??
My parents stayed in four different Dallas nursing homes from September
2009, through November 2016. During their stays I visited nearly daily
for four years, then daily for three years. I witnessed firsthand
through the eyes of a registered nurse and daughter this substandard
and discriminatory nursing care.
I have emailed and/or discussed my concerns with Texas Board of
Nursing, Am Nurses Association and various other nursing entities, Dall
as County Hospital District, two DCHD Board of Managers members, DADS
Regional Director Paul Campbell, Senator Cornyn, Senator Huffines, and
Rep Marchant. In 2014, I met with Susana Sulfstede of The Senior Source
to tell her about the starvation and dehydration and neglect I was
witnessing. In 2014-2015, I wrote thirteen complaints to DADS against
one nursing home. And when that nursing home expelled my parents I
wrote a fourteenth complaint. In 2015, I participated in a conference
call with CMS, Senior Source ombudsmen, and State Liaison to address
starvation and dehydration. I met with local Office of Inspector
General to report Medicaid fraud, waste, and abuse in the form of care
reimbursed, but not given. In April I filed a complaint with the ACLU
for Violation of the Older Americans Act of 1965, Title 1, Section 101,
Paragraphs 2 and 4 by Dallas County Nursing Homes. I sent a letter
similar to this one to each of Dallas County's four County
Commissioners and Commissioners Court Judge Clay Jenkins. I asked my
commissioner for a resolution that Dall as County will not tolerate
substandard and discriminatory nursing care and medical care in its
nursing homes. I asked for a citizens' task force with Commissioner
backing for traction and credibility to describe the problems, identify
fixes, plan, implement and review.
We MUST work to make Texas nursing homes safe! We MUST bring them up to
the same standards in nursing practice that we have in acute care.
Investigate for yourself these and all of Texas' nursing homes on DADS'
website. Research the owners, the money behind them, and the neglect
with which some owners manage these homes. Read the citations and
reviews and ask yourself, is this what I would want?
I am told today's substandard nursing care is because nurses today do
not know the Nursing Practice Act, their standards of nursing, and the
rules that govern their practice. I don't recall excuses ever being any
part of any nursing plan of care. Whatever the cause, the buck's
destination is always the same: the nurse!
I was NEVER going to put my precious beloved parents Mom (92 years old
when she died November 2016) and Daddy (93 years old when he died
November 2015), he a dentist for fifty years across from SMU, co-
founder of the Dallas Chapter LSU alumni club, lifetime member of
SERTOMA International, precinct chairman and volunteer on five medical
missionary trips to Honduras, into nursing homes. But, God had other
plans. And what I saw of nursing made me sick; MAKES me sick to this
day.
Additionally, families are robbed of an invaluable commodity in the
form of time meant to be spent in the presence of our loved ones being
spent on nursing duties. I'll say that again: time meant to be spent in
the presence of our loved ones is stolen away from us as we spend it to
do the work of the nurses- over and over and over again. We must spend
time meant to be spent in the presence of our loved ones to track down
staff to change Mother, or to put Daddy to bed, or to give pain
medication. Or, we must spend time meant to be spent in the presence of
our loved ones to complain to DADS about nursing neglect. We must spend
time meant to be spent in the presence of our loved ones to talk on the
phone with administration, or meet with them in person about one
nursing problem or another. We must spend time meant to be spent in the
presence of our loved ones to teach a director of nurses about the
respiratory care of the post pneumonia geriatric patient!
As families, our jobs are to love our loved ones. Our jobs are to sit
with them, to comb their hair, to paint their nails, to watch movies or
football games with them, or to look at photos, or share meals. Nursing
homes have stolen countless hours from us by requiring us to provoke
their nurses into doing their jobs! We will never get those hours back.
Finally, I can tell you there is nothing in place now in the complaint
mechanism of the Board of Nursing to protect the public. I can report a
nurse (IF the home will give me the last name of the nurse). The nurse
will blame the Certified Nurse Aide (CNA). The CNA will blame the
resident (he/ she refused, had a visitor, was asleep, said 'not now').
And the BON will find no fault.
What's it going to be for Dallas County Nursing Home residents? STOP
the neglect, the starvation, the dehydration, and the deprivation in
these heinous places. STOP the substandard and discriminatory nursing
care in Dallas County Nursing Homes. Require that all Dallas County
Nursing Home Nurses, RN's and LVN's, practice according to the same
standards as acute care nurses, that is, according to the Nursing
Practice Act and Standards of Practice for Professional Nursing in the
State of Texas.
Most Sincerely,
Molly Flowers, R.N.
______
From: Molly Flowers
Date: Thursday April 27, 2017
Subject: Nursing Homes
To: [email protected]
Why do Dallas County Nursing Homes hire staff who can't speak English,
medical directors who don't see residents, nurses who can't do basic
assessments, administrators who don't leave their offices? Why are they
owned by corporations who don't allocate funds for hot water tanks, for
instance, and ample supplies for bedside care?
Why do families have to fight for decent care? And why don't they sue
for back wages for doing the facilities' work? Why don't nurses and
CNAs feed residents? Or hydrate them? Why don't med aids know what
they're giving? Why doesn't OIG have more fraud cases of Medicaid/
Medicare dollars buying care not given? Five things acute care has that
long term care hasn't. Why not?
(1) Vigorous staff recruitment and retention in the form of
competitive reimburse package: benefits+salary+tuition reimbursement
(don't squeal to me about facility reimbursement; these owners are
loaded)
(2) Vigorous relationship with the outside world (medical students,
nursing students, therapy students, advanced degree students (MBA, MHA,
MPH), researchers, Joint Commission, families, volunteers, churches,
do-gooders, special projects/certifications/studies/grants)
(3) Just Culture
(4) Vigorous in-house compliance, ethics, safety, clinical training
(5) Progressive discipline leading to termination of long term care is
discriminatory and substandard. It is healthcare we would not tolerate
for maternity, trauma, pediatric, or AIDS patients.
Shame on Us.
Molly Flowers, R.N.
______
Subject: List emailed to CMS Investigator Susanna Cruz, RN, MSN at her
request August 13, 2015--names changed
Good afternoon, Miss Cruz.
Thank you for your time this morning. This is to re-cap the highlights
of the conversation that took place on the telephone between Joyce,
private duty sitter for my father, you and me. Mother has been in
nursing home 7 years: XYZ facility, 2009-2012, ABC facility, 2012 to
present. Father has been in ABC facility going on 8 months.
I am in ABC facility daily M-F evening through bedtime and weekends by
4pm until after 8pm--sometimes as much as 10 hours each Saturday and
Sunday.
ABC facility has been without hot water since Thursday, August 6.
Father has not been bathed since Wednesday August 5th. Hot water lack
began July 29th, but prior there were periods when it was off, then on,
then off, then on, for some weeks.
Issues and concerns have for many months been reported, documented and
addressed to administration, state, DON, staff nurse, CNAs and outside
agencies.
It has become routine for CNAs to state to resident/family/sitter that
they are ``short staffed'' and therefore unable to assist resident as
requested for toileting, getting out of bed, getting dressed in a
timely manner. Privately paid sitters must routinely remind staff to
refresh Mother's empty O2 canisters.
Privately paid sitter routinely helps a blind resident at lunch because
facility staff do not help, nor come to table to inquire of him if he
needs help.
I told DON and Administrator that 2 CNAs stood Mother from wheelchair
to bed when it was ordered and stated on her room door that she uses
total lift to stand. Administrator and Regional Clinical Director (on
conference call) had me come to meeting (DON broke down on icy roads)
and told me perhaps mother is not a fit for the facility and perhaps I
should move her to another nursing home. Both CNAs continued to work
with Mother and Father. Administrator said CNAs felt I was
investigating their work with my mother and I should check my approach.
Mother did not receive a bath for over 2 weeks. I asked the Unit
Manager if Mother could change to morning bath schedule, she said sure
and Mom started routinely getting bathed. Peter, CNA told me recently,
``No, we're short-staffed'' when I asked if Mom got a bath.
Joyce, private duty for Father x5 years, M-F 8a-4p said when State
comes in all staff run around, show-up in the dining room, but when
state leaves, they go back to not doing what they should do.
I asked repeatedly for months for Daddy to be allowed to get up at his
request in the very early morning (6am) as per his preference and
lifetime habit. DON and night nurse said that's fine. CNAs on nights
and ones coming in at 6 refused, telling him, ``there is nothing going
on, stay in bed'' so it never happened until recently a 7p-7a private
sitter had enough of my complaining to them and started bugging CNAs to
death so they would do it and they did. I have prevented MANY falls
being in the dining room while Florence and Tami and Wilson sit at the
nurse's station, no CNAs present.
Mom is a choke risk has been for all the time she has been there, yet
Wednesday, August 5th, she ate alone at table with a couple residents
in dining room, no staff in dining room at 7 p.m. having gotten out
late from beauty shop. I told veteran CNA she is choke risk and needs
to be supervised, she said oh, she did not know . . . that's another
thing, CNAs aren't kept abreast of tx care plans and changes.
In 4 years I have never seen supervisor, DON nor Administrator in the
evening. No oversight, supervision. No leadership ever checks on what
the nurses are doing.
Currently there are 3 residents who wander and go in and out of
residents' rooms. CNA Lucy told me, what can you do? They wander . . .
I complained to Wilson, nurse he went and retrieved one. A resident
recently punched out one of the roamers.
Sitter recently had laundry personnel get Patient X a different wc
because hers was caked with stool, food and urine. Sitter sits for
another resident but has known Patient X for a long time.
Joyce reported observing a female resident fall out of her wheelchair
onto the footrests and wound nurse said, ``Man down,'' and nurse Chris
picked her up and put her back in her wheelchair and then pushed her
back to the table in the dining room.
I report things to State. There is more I can send you if you are
interested.
Molly Flowers, R.N.
______
Letter Submitted by Paul Greenwood
U.S. Senate
Committee on Finance
Re: March 6, 2019 Full Committee Hearing
``Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing
Homes''
To the committee members:
My name is Paul Greenwood. I am a licensed attorney in California and
also am qualified as a lawyer in the United Kingdom. Last March I
retired from the San Diego District Attorney's Office after working as
a deputy district attorney for 25 years.
In January 1996 I was asked by my office to begin an elder abuse
prosecution unit and I served as lead prosecutor in that capacity for
the next 22 years until my retirement. I now spend much of my time
teaching and training others around the nation on elder abuse
investigations and prosecutions.
I have been involved in the prosecution of over 750 felony cases of
elder abuse and neglect including homicides, sexual assaults, neglect,
physical and emotional abuse and financial exploitation. California has
an excellent statute, namely Penal Code section 368 which defines two
types of victims--elders aged 65 years or older and dependent adults
aged 18-64 with either a physical or mental disability.
I am pleased that this committee has seen fit to take a closer look at
the problem of elder abuse and neglect in nursing homes. However, I
would urge the committee to broaden its scrutiny to include not only
skilled nursing homes but also assisted living and unlicensed
facilities.
One of my major frustrations is the fact that our office received very
few investigative reports of abuse and neglect in an institutional
setting. The majority of the cases that I prosecuted originated from a
community setting. Therein lies the biggest challenge for this
committee--how do we get such incidents that occur in nursing homes to
be channeled to law enforcement.
In the last four years of my assignment we were able to make some
impact in redressing the lack of referrals from assisted living
facilities. The initiative was inspired by a series of articles that
appeared in our local newspaper, the San Diego Union Tribune in
September 2013 entitled ``Crimes go uninvestigated at care homes.'' As
a result our County Board of Supervisors gave our office additional
monies that allowed us to hire additional investigators and allocate
another prosecutor to our elder abuse unit. I spent a year developing a
protocol with the local office of the California Attorney General (AG)
and with the Department of Social Services Community Care Licensing
(CCL) which is the state agency responsible for the licensing of
assisted living facilities. As a result CCL began to share reports by
e-mail with my office and with the Attorney General.
The arrangement that we established was to designate my office or the
local Attorney General's office as the lead prosecutor agency in
alternate months for any CCL referrals that rose to the level of
criminal abuse or neglect. The three agencies would meet on a regular
basis to discuss cases and apportion resources and as a result there
has been a welcome increase in the number of successful prosecutions.
Unfortunately we have not been able to replicate a similar system with
the state agency that oversees licensing of skilled nursing facilities.
Having been involved in elder abuse and neglect prosecutions for many
years I am convinced that the only effective approach is through the
use of multi disciplinary teams.
Here are some issues that I have encountered that I believe are
barriers to protecting residents of long term care facilities from
abuse and neglect:
Local law enforcement is rarely called to a facility to
investigate allegations of neglect or abuse.
The Long Term Care Ombudsman's office is heavily dependent on
volunteers and is often conflicted because of a resident's insistence
that nothing be done to report the abuse or neglect.
The state agencies responsible for ``investigating'' violations
in nursing homes are not proactive enough to share their findings in a
timely fashion with law enforcement or the county prosecutor's office.
And here are some recommendations that I respectfully submit could have
a positive impact on the protection of residents:
Each State agency that has oversight on issuing and revoking
licenses for nursing homes be mandated to share reports of alleged
abuse and neglect in a timely fashion with local law enforcement, the
County Prosecutor's office and with the State Attorney General's
office.
Counties in every state should develop a multi disciplinary task
force to discuss ways to share information and develop protocols for
investigation and prosecution of abuse and neglect. Such task force
members should include at a minimum a representative from local law
enforcement, the County prosecutor's office, the state Attorney
General's office, the Ombudsman, Adult Protective Services, the state
licensing agency referenced above and regional medical facilities.
Develop training for all first responder EMTs, paramedics and
hospital triage staff so that when a resident is admitted with indicia
of abuse or neglect there is a protocol for an immediate referral to
local law enforcement.
If the state has mandatory reporting laws, to encourage
prosecutors to consider prosecuting a facility that has willfully
failed to make a timely report of such abuse or neglect to the
appropriate authorities.
Each county or region should develop a blueprint along the lines
of the San Diego County blueprint that we developed last year and which
is attached.
Establish training for local law enforcement and prosecutors on
how to investigate and prosecute cases of resident neglect.
In conclusion I strongly feel that the key to protection from abuse and
neglect is to be found at the county level. The challenge is for us to
create protocols all over this country that provides for a timely
referral to local law enforcement, the County prosecutor's office and
the state Attorney General's office to ensure that investigations are
conducted. In regions where resources on the ground are stretched, I
hope that the U.S. Attorney's elder justice coordinator can provide
some assistance in suggesting additional support.
I urge this committee to invite the director of each of the 50 state
agencies that issues and revokes licenses for long-term care facilities
to submit a report outlining what arrangements are currently in
operation for sharing their findings of abuse and neglect violations
with local law enforcement. Getting that data (or lack of it) will give
the committee insight into what I see as the most pressing issue for
reform.
Paul Greenwood
Retired elder abuse prosecutor
Consultant and trainer
______
SAN DIEGO COUNTY ELDER AND DEPENDENT
ABUSE BLUEPRINT 2018
COORDINATED. CARING. COMMUNITY RESPONSE.
HISTORY
In the summer of 2017, San Diego District Attorney Summer Stephan began
a formal planning process to coordinate San Diego's community response
to elder abuse. Because of a rise in elder abuse prosecutions, as well
as the impending explosion of the elder population, the District
Attorney brought together countywide stakeholders on November 3, 2017
for a first-ever ``think-tank'' of experts, including professionals
from all disciplines that serve as touchpoints for elder and dependent
adults. Those experts identified gaps and needs in our community, and
set goals for the future. District Attorney Stephan then convened a
larger Elder and Dependent Abuse Summit on March 1, 2018, where this
Blueprint was unveiled and endorsed. For the first time, our county has
a formalized written set of goals and guidelines to enable us to
utilize best practices as we collectively serve our elders and
dependent adults.
MISSION STATEMENT AND VALUES
This Blueprint commits San Diego County to a coordinated community
response to Elder and Dependent Adult Abuse. We are committed to
thoughtful, prompt, thorough and effective services to the victims we
serve. We will strive to utilize best practices in our fields, as well
as to cooperate, collaborate, communicate and train with others
dedicated to this mission.
NEED FOR A COUNTYWIDE BLUEPRINT
The United States Census Bureau reports that by 2050, the world's
population aged 65 and older will increase to almost 1.6 billion
people. One in six people will be 65 or older in 2050. In San Diego
County, almost 23% of the population is projected to be over age 65 by
the year 2050, which is a 10% increase from 2015. The County of San
Diego's Adult Protective Services data is consistent with these
predictions, as there has been a 17.1% increase in new cases assigned
for investigation compared to fiscal year 2007-2008. In fiscal year
2015-2016, there were a total of 13,755 reports of suspected abuse. San
Diego community partners will prepare for this growth and strategize
how best to serve our seniors.
Our civilization will be judged on how we treat our youngest
and our oldest members
--Summer Stephan, San Diego County District Attorney
NECESSARY DEFINITIONS
Elder: any person 65 years or older (CA Penal Code section 368(g),
Welfare and Institutions Code section 15610.27)
Dependent Adult: any person between the ages of 18 and 64 who has
physical or mental limitations that restrict his or her ability to
carry out normal activities or to protect his or her rights. (PC
368(h), W&I 15610.23(a))
Caretaker: any person who has the care, custody, or control of, or who
stands in a position of trust with, an elder or dependent adult,
whether paid or not. (PC 368(i))
DISPATCHER RESPONSE
Dispatchers are an integral part of the community response to elder
abuse because they are a first touchpoint to the abuse. Dispatchers
should continue their education on signs of abuse and receive ongoing
training on Alzheimer's and other related dementias.
PATROL RESPONSE
Responding peace officers play a crucial role in creating successful
outcomes for Elder and dependent adult victims. Patrol officers and
deputies in San Diego County will strive to do the following when
feasible:
Become educated about various elder and dependent adult abuse,
and penal code sections accounting for physical and financial abuse, as
well as neglect. The most relevant code sections are contained in
ADDENDUM A.
Request Emergency Protective Orders when legally appropriate in
order to best protect elder victims.
Treat elder and dependent adult citizens with dignity and
respect.
Follow interview guidelines in ADDENDUM B for interviewing
elders and dependent adults.
Recognize that elder or dependent adults may have difficulty
narrating events, appear to be poor historians, or lack short term
memory, which adds to their vulnerability.
Document the scene using the San Diego Countywide Elder and
Dependent Adult Abuse Supplemental contained in ADDENDUM C.
Cross-Report to Adult Protective Services (APS) by calling 1-
800-510-2020 (from within San Diego County area codes) or 1-800-339-
4661 (from area codes outside San Diego County) and follow-up by
sending a written report of documented suspected abuse within two
working days, or reporting through the Aging and Independence Services
Web Portal at www.aiswebreferral.org, which does not require any follow
up written report. (W&I 15640(c) and 15658.)
Obtain a signed medical release from potential victims.
Interview caregivers separately. In some situations, the
caregiver may be the abuser.
Recognize victim cooperation is not always necessary for
prosecution. Each dispatched call or case should be investigated on its
own evidentiary merits.
Consult with a supervising Elder Abuse Deputy District Attorney
or Deputy City Attorney to determine whether the case is more than
simply ``civil'' in nature.
Physical Abuse/Endangerment Cases: Document all injuries, obtain
statements from each elder or dependent adult and document the demeanor
of the elder or dependent adult. Photograph or videotape the suspected
crime scene, and document any physical evidence and the general
appearance of the residence. Seize any objects used to injure the elder
or dependent adult and document any medications present at the scene
and any pertinent medical history or conditions. Interview the medical
personnel available. Reports: (1) Prepare an initial crime report in
all cases of suspected physical abuse or endangerment and (2) Cross
report to APS (see section below titled, ``cross reporting
requirements.'')
Financial Abuse: Determine the identity of the reporting party,
any relationship between the reporting party and the elder or dependent
adult, and why the reporting party notified law enforcement. Determine
the dates of economic loss, how the loss was discovered, and who
discovered the loss. Obtain sample signature of the elder or dependent
adult. Identify and interview, when feasible, all witnesses who may
have relevant information. Interview any caregivers to determine their
duties and responsibilities, including any financial agreements or
loans provided to a caregiver by the elder/dependent adult. Obtain
written consent to request bank records, credit statements, real estate
loan documents and other relevant financial information. When feasible,
document and collect all accessible financial documents pertaining to
the suspected financial abuse.
Neglect cases: Neglect occurs when a caretaker or custodian
fails to act with a degree of care that a reasonable person would have
used when caring for an elder or dependent adult. Officers should do
their best to document all physical evidence and consider videotaping
the living conditions.
Special Considerations/Circumstances with Domestic Violence
involving the Elderly: On occasion domestic violence offenders may be
elderly or extremely infirmed. In some cases it may be possible to
establish that an elderly offender is not competent, not aware of their
actions and/or was previously diagnosed by a physician or Adult
Protective Services (APS) of not being competent to make their own
decisions as a result of dementia or a related disorder of cognitive
decline. It is important to be aware that some offenders present a
significant health risk due to the shock of incarceration and or
removal from their normal place of residence as a result of their
advanced age or significant medical condition or diagnosis of
Alzheimer's or other related dementia. In addition to investigating/
documenting the domestic violence incident as outlined in the San Diego
County Law Enforcement Domestic Violence protocol, some or all of these
options may be applicable based on the individual set of circumstances
as alternatives to arrest/booking:
Obtaining an Emergency Protective Order (EPO)
and ensuring family members can keep the victim and offender in
separate locations
Evaluate for 5150 W&I and if feasible/and or
appropriate, commit offender to either an LPS designated
hospital or CMH
Contact/request local or available PERT
(Psychiatric Emergency Response Team) team
Complete an arrest report indicting the
offender was released pursuant to Penal Code section 849(b) or
taken into custody and released thereafter to a competent third
party who will assure the safety of both the victim and the
offender
Contact the duty Adult Protective Services/
Aging and Independent Services representative (1-800-510-2020)
for additional resources to keep the victim safe and separated
from the offender if the offender cannot be incarcerated/
booked.
Cross-Report to APS (see ADDENDUM G)
INVESTIGATION RESPONSE
Follow-up investigations are necessary in many elder abuse cases, as
first responders may not be in the best position to gather all existing
evidence. Follow-up investigations in San Diego County when feasible
should include:
Determining the victim is safe and whether there is a need for
emergency housing.
Cross-reporting to APS.
Making contact with the assigned APS social worker, Ombudsman or
Department of Justice for the possibility of joint investigation or
sharing of information when appropriate and if necessary.
Obtaining any prior APS referrals if they exist.
Verifying that the initial investigation by patrol addressed all
elements of the reported crime.
Obtaining and viewing all available evidence, including medical
information, photographs, bank, checking and financial records.
Determining if more evidence should be collected or obtained.
Follow-up interview of victim as soon as possible, preferably
videotaped, and outside the presence of caregiver or others present in
the home.
Attempting to interview the suspect when legally appropriate,
preferably videotaped.
Attempting to make appropriate law enforcement notifications if
suspect remains unidentified.
Taking advantage of other countywide resources if needed,
including those listed in ADDENDUM D.
Obtaining a signed medical release from victim if not already
received by patrol.
If victim is conserved, obtaining conservator-signed release,
along with paperwork that documents the conservatorship.
Interviewing the victim's treating physician or other medical
professionals that interviewed the victim.
Conducting follow-up interviews with neighbors, family members,
or others that may have information or evidence about the incident.
Conducting a recorded pretext call if necessary, reasonable, and
warranted.
Executing warrants for electronics that may contain relevant
evidence.
Collecting dispatch 911 recordings for current incident and any
past incidents.
Sharing and preserving body-worn camera evidence.
Collecting physical or documentary evidence related to the
crime.
Obtaining handwriting samples from the victim and the suspect.
Have the suspect sign his/her name, as well as the victim's name.
Documenting the suspect's access to victim's financial
information.
PROSECUTION RESPONSE
The San Diego City Attorney's Office and the San Diego County District
Attorney's Office will dedicate specially trained prosecutors to handle
elder abuse cases vertically. Prosecutors are strongly encouraged to do
the following when feasible and legally appropriate:
Become familiar with best-practices in the field of Elder and
Dependent Adult Abuse prosecution.
Participate in outreach to elevate awareness and education in
the community about elder and dependent adult abuse.
File Penal Code section 368 crimes either as misdemeanors or as
felonies.
Request Criminal Protective Orders.
Oppose case continuances due to the vulnerable nature of elder
victims and witnesses when legally appropriate.
Conduct conditional exams of elder or dependent adult victims in
order to preserve their testimony.
Treat all victims and witnesses in a trauma-informed way with
dignity, respect, and care.
Use experts including handwriting analysts, forensic
accountants, wound care experts, civil attorneys, geriatricians,
geriatric psychologists, psychiatrists, and deputy medical examiners to
provide evidence related to necessary elements of the elder abuse
crimes.
Be familiar with the ``San Diego County Prosecutor Elder and
Dependent Adult Case Preparation Checklist'' attached in ADDENDUM E.
Use a prosecutor-checklist to enhance collection of evidence and
have consistency in case preparation such as the one attached in
ADDENDUM E.
Make efforts to secure victim restitution as early as possible
in the criminal process.
Elicit victim testimony with full-cross examination as soon as
possible after charging, due to Crawford v. Washington 6th amendment
concerns.
Participate in ongoing training and education in the field of
Elder and Dependent Adult Abuse.
Achieve consistency and uniformity when possible in case
issuance, handling, and resolution.
RESTRAINING ORDERS
Restraining orders are one of the most important public safety tools we
have to protect elder and dependent adults. All criminal justice system
partners should familiarize themselves with the available restraining
order options available in ADDENDUM F, obtain restraining orders for
victims if appropriate, and enforce restraining orders according to the
Penal Code. (Penal Code sections 836(c)(1); 13701; 13710 136.2;
1371(c); 136.2(h)(2).) Criminal Protective Orders in elder or dependent
adult cases may be valid for up to 10 years. (Penal Code section
368(l).) Officers shall enforce out of state protective orders or
restraining orders that are presented to them if (1) the order appears
valid on its face, (2) the order contains both parties' names, and (3)
the order has not yet expired. ``Out of state orders'' include those
issued by U.S. Territories, Native Tribes, and military agencies. (Full
Faith and Credit Provision of the Violence Against Woman Act, Family
Code sections 6400-6409.) This protocol should be read in conjunction
with the San Diego County Domestic Violence and Children Exposed to
Domestic Violence Law Enforcement Protocol adopted in 2015.
PSYCHIATRIC EMERGENCY RESPONSE TEAM (PERT)
The Psychiatric Emergency Response Team consists of specially trained
officers and deputies who are paired with licensed mental health
professionals. Together, they respond on-scene to situations involving
people who are experiencing a mental related crisis and have come to
the attention of law enforcement. The PERT team is a tremendous
resource for law enforcement in the response to elders who may have
Alzheimer's or other related dementias. PERT teams are encouraged to
continue collaboration and cooperation with law enforcement and
participate in cross-training with community partners so PERT teams can
best support law enforcement and elderly perpetrators/victims.
CROSS-REPORTING
Depending on the location of the abuse, the type of abuse, and whether
the suspect is a licensed health practitioner, law enforcement, adult
protective services, and the local ombudsman are required to cross-
report incidents of abuse, and report the results of their
investigation of referrals or reports of abuse to the respective
referring or reporting agencies listed in ADDENDUM G (W&I 15640).
MANDATED REPORTING
Welfare and Institutions Code sections 15630-15632 mandate that certain
individuals must report any abuse or suspected abuse to elders or
dependent adults. Mandated reporters shall make a report whenever the
mandated reporter:
In his/her professional capacity or within the scope of his/her
employment;
Has knowledge of or observes abuse or neglect;
Is told by an elder or dependent of abuse or neglect; or
Reasonably suspects abuse or neglect. (W&I 15630.)
What happens if a mandated reporter does not report? A mandated
reporter who fails to report an incident of known or reasonably
suspected elder and dependent abuse or neglect is guilty of a
misdemeanor, and can be fined or sentenced to jail time. (W&I
15630(h).)
Who is a mandated reporter? (W&I 15630(a).)
Any person who has assumed full or intermittent responsibility
for the care or custody of an elder or dependent adult, whether or not
he or she receives compensation.
Administrators, supervisors and any licensed staff of a public
or private facility that provides care or services for elder or
dependent adults.
Elder or dependent adult care custodian.
Health practitioner.
Clergy member.
Employee of the Adult Protective Services agency.
Law enforcement.
All officers and employees of financial institutions.
When and how must a mandated reporter make the report? Mandated
reporters shall report by telephone or the confidential internet
reporting tool immediately or as soon as practicably possible. If
reported by telephone, a written report shall be sent, or an internet
report shall be made within two working days.
Telephone Call: Immediately or as soon as practically possible, call
Adult Protective Services at 1-800-510-2020 (from within San Diego
County area codes) or 1-800-339-4661 (from area codes outside San Diego
County).
If abuse occurred in long-term care facility call Long Term Care
Ombudsman at 1-800-640-4661.
Written or confidential internet report: Within two working days, fill
out form SOC 341 or SOC 342 (financial institutions).
Online Submissions: www.AISWebReferral.org Mandated reporters can
register ahead of time and be approved to submit non-emergent reports
24/7 and no paper SOC 341/342 is required with this method.
Can a mandated reporter be civilly liable for reporting abuse? No.
Mandated reporters shall not be civilly or criminally liable for any
report made. (W&I 15634.)
Confidentiality of mandated reporter: The reports made pursuant to W&I
sections 15630, 15630.1, and 15631 shall be confidential and may be
disclosed only to persons or agencies who legally are entitled to the
information, such as Adult Protective Services, a local law enforcement
agency, the office of the District Attorney, the office of the City
Attorney, the office of the Public Guardian, the Probate Court, members
of multidisciplinary teams who use the information for prevention,
identification or treatment of abuse or elderly or dependent persons,
and all others listed in W&I 15633.5.
OMBUDSMAN REPORTING REQUIREMENTS
The Long Term Care Ombudsman will ask all victims or authorized
representatives if they want law enforcement or the Bureau of Medi-Cal
Fraud involved. If the victim or victim's authorized representative
consents, the Ombudsman shall cross-
report known or suspected criminal activities to local law enforcement
or to the Bureau of Medi-Cal Fraud & Elder Abuse as soon as possible
and must follow up with a written report within two working days. (W&I
15640(d).) If the Ombudsman's office learns of any instance of neglect
occurring in a health care facility that has seriously harmed any
patient or reasonably appears to present a serious threat to the health
or physical well-being of a patient in that facility, it shall
immediately report by phone and in writing within two working days to
the bureau. If the victim or potential victim of the neglect withholds
consent to being identified, the report shall contain circumstantial
information about the neglect but shall not identify the victim or
potential victim. (W&I 15640(d).)
SUSPECTED SEXUAL ABUSE OF AN ELDER OR DEPENDENT ADULT
When sexual abuse is suspected, efforts should be made by all community
partners to treat the elder victim with dignity and care, with the
recognition that many victims delay in their disclosure of sexual abuse
for reasons including but not limited to fear, shame, embarrassment,
and self-doubt. Ideally, repeated interviews should be kept to a
minimum, and all criminal justice and community partners involved
should do their best to communicate and collaborate with one another in
a search for the truth. Victims should be notified that they have the
right to a support person of their choosing pursuant to Penal Code
sections 679.04 and 264.2. Crime reports and cross-reports should be
made pursuant to the sections in this protocol titled ``Cross-
Reporting.'' Documentation of the physical evidence and crime scene is
important, as are any injuries to the victim. Coordination with and
dispatch of the Sexual Assault Response Team, according to department
policy, should be done as quickly as reasonably possible to ensure any
appropriate examination can be conducted with consent of the elder
victim, or with consent from the victim's legal guardian, conservator,
or attorney in fact for health care. Exams are activated by calling
760-739-2150 (business hours) or through the 24-hour phone line at 888-
211-6347 (holidays, weekends, after business hours). Recorded
interviews should be made for suspects, and documentation made of all
statements made by suspects. When taking a suspect into custody, law
enforcement should follow any department policies regarding collection
of evidence or performing a standard rape kit on the suspect.
AGING AND INDEPENDENCE SERVICES
Aging and Independence Services (AIS) provides services to older
adults, people with disabilities, and their family members, to help
keep clients safely in their homes, promote healthy and vital living,
and publicize positive contributions made by older adults and persons
with disabilities. AIS operates a call center that provides aging and
disability resource information for the community as well as serves as
the hotline for reporting elder and dependent adult abuse. AIS commits
to continued collaboration and partnership with criminal justice
agencies dedicated to serving the elder population and dependent
adults.
ADULT PROTECTIVE SERVICES
AIS operates Adult Protective Services, which serves adults 65 and
older and dependent adults 18 and older, who are harmed or threatened
with harm, to ensure their rights to safety and dignity. APS
investigates elder and dependent adult abuse, including cases of
neglect and abandonment, as well as physical, sexual and financial
abuse. APS commits to partner and collaborate with other criminal
justice agencies dedicated to the prevention of and response to elder
and dependent adult abuse. APS further commits to involvement with the
San Diego Elder and Dependent Adult Death Review Team, which reviews
elder and dependent adult deaths in the County of San Diego to
determine if system-wide changes or improvements should be made.
LONG TERM CARE OMBUDSMAN
The County of San Diego's Long Term Care Ombudsman (LTCO) program is a
part of AIS. LTCO advocates for residents in long term care facilities,
such as nursing homes, as well as investigates abuse in other licensed
facilities. An Ombudsman listens to concerns, provides information and
assistance when requested, and will investigate and resolve complaints
related to care or personal rights. The Long Term Care Ombudsman
commits to partner and collaborate with criminal justice agencies
dedicated to the prevention of and response to elder and dependent
adult abuse.
OFFICE OF THE PUBLIC ADMINISTRATOR/
PUBLIC GUARDIAN/PUBLIC CONSERVATOR
Within the Office of the Public Administrator/Public Guardian/Public
Conservator, the Public Administrator serves as the administrator of
decedent estates and attends to their final affairs, at times involving
issues of abuse and neglect of older adults and adults with
disabilities. The Public Guardian serves as the legally-
appointed conservator for persons found by the Probate Court to be
substantially unable to attend to their own care needs and/or
effectively manage their assets, particularly where no other person is
able and available to reasonably act on their behalf. Frequently,
Public Guardian conservatees are frail, residing in skilled nursing
facilities, and previously the victims of abuse and/or neglect. The
Public Conservator serves as the legally-appointed Lanterman-Petris-
Short (LPS) conservator for persons struggling with grave disability
due to a mental illness and therefore acts to secure stabilizing
treatment services and evaluate the need for conservatorship re-
establishment on an annual basis. The Office of the Public
Administrator/Public Guardian/Public Conservator commits to partner and
collaborate with other criminal justice agencies dedicated to the
prevention of and response to elder and dependent adult abuse.
CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, COMMUNITY CARE LICENSING
DIVISION, SENIOR CARE PROGRAM OFFICE
Community Care Licensing (CCL) commits to continue their existing
collaboration with the Office of the Attorney General as well as the
San Diego District Attorney's Office and San Diego City Attorney's
office to best protect elders and dependent adults residing in Assisted
Living facilities and community care facilities. CCL will continue to
be a valued partner in the assisted living facility coordinated program
sponsored by County Supervisor Dianne Jacob and refer suspicious cases
to the Attorney General, the District Attorney, or the City Attorney
when appropriate.
ATTORNEY GENERAL'S OFFICE
The Attorney General's Bureau of Medi-Cal Fraud and Elder Abuse (AG)
serves as a valued community partner in the Assisted Living Facility
program sponsored by County Supervisor Dianne Jacob, as well as a
partner with the San Diego District Attorney's office sharing
jurisdiction to investigate and prosecute elder and dependent adult
abuse in other institutional settings, including nursing homes and
hospitals. The AG will continue to collaborate with other stakeholders
to best protect elders and dependent adults.
SUSPICIOUS DEATH/HOMICIDE
An unexplained or suspicious elder or dependent adult death should be
treated as a homicide until a complete investigation including autopsy
has been performed. Do not presume that all elder deaths are natural
simply because of the age or physical limitations of the deceased.
REMOVAL OF FIREARMS FROM THOSE LEGALLY
PROHIBITED TO POSSESS THEM
Law enforcement should be familiar with the laws surrounding firearm
relinquishment of those individuals who cannot legally possess them.
(Penal Code section 18100 et. seq.) When law enforcement verifies that
a restraining order has been issued, the officer shall make reasonable
efforts to determine if the restraining order prohibits the possession
of firearms and/or requires the relinquishment of firearms. If the
order prohibits firearms possession, when feasible and reasonable, the
officer will make reasonable efforts to:
Inquire whether the restrained person possesses firearms (ask
the restrained person or the protected person).
Query through the California Law Enforcement Telecommunication
Systems (CLETS) and the Automated Firearms System (AFS) to determine if
any firearms are registered to the restrained person.
Receive or seize prohibited firearms located in plain view or
pursuant to a consensual or other lawful search. (PC 18250(a).)
ELDER AND DEPENDENT ADULT DEATH REVIEW TEAM
The County of San Diego Elder Death Review Team meets quarterly to
review suspicious elder and dependent adult deaths occurring in San
Diego County. The goal of the multidisciplinary team is to identify
risk factors associated with these deaths, maintain statistical data,
facilitate communication between involved investigative agencies, and
identify any system improvements that could have been made surrounding
the suspicious death. Information gathered by the Elder Death Review
Team and any recommendations made by the team are used to develop
education, prevention, and if necessary, prosecution strategies that
will lead to improved coordination of services for families and the
elder population. This Blueprint serves as a re-commitment by community
partners to continue participation and support of this important
multidisciplinary team and routinely provide data to the public in a
report.
EMERGENCY MEDICAL TECHNICIANS AND
PARAMEDIC FIRST RESPONDERS
First responding Emergency Medical Technicians (EMT), Paramedics (PM)
or EMT/PM firefighters play a crucial role in creating successful
outcomes for elder and dependent adult victims. First responders in San
Diego County strive to do the following when feasible:
Become educated about physical, financial and neglect elder
abuse.
Treat elder and dependent adult with dignity and respect.
Request law enforcement response when Elder abuse is suspected
by or reported to EMS/Fire personnel.
Follow applicable guidelines in ADDENDUM B when assessing elder
and dependent adults for a medical complaint or injuries.
Recognize that elder or dependent adults may have difficulty
narrating events, appear to be poor historians, or lack short term
memory, which adds to their vulnerability as potential victims.
Document the scene and all injuries using electronic patient
care record (ePCR).
Cross report to APS by calling 1-800-510-2020 and follow up by
sending a written report of documented suspected abuse within two
working days, or complete an AIS Web Referral. (W&I 15640(c).)
Interview caregivers separately. In some situations, caregiver
may be the abuser.
Neglect cases: Neglect occurs when a caretaker or custodian
fails to act with a degree of care that a reasonable person would have
used when caring for an elder or dependent adult. First responders
should do their best to document all physical evidence and consider
keeping EKG monitor on for entire incident.
CONCLUDING COMMITMENT
San Diego Community Partners and Stakeholders have come together to
collaborate on this important protocol. This Blueprint signifies our
ongoing commitment to a coordinated community response to elders,
seniors, and dependent adults so they are served with dignity,
compassion, and the highest quality of care.
ADDENDUM A: Relevant Penal Code Sections: Elder and Dependent Adult
Abuse
------------------------------------------------------------------------
------------------------------------------------------------------------
Acquiring Access Cards Without Consent 484e
------------------------------------------------------------------------
Battery on an Elder 243.25
------------------------------------------------------------------------
Caretaker Defined 368(i)
------------------------------------------------------------------------
Dependent Adult Defined 368(h)
------------------------------------------------------------------------
Dissuading a Witness from Contacting the Police 136.1
------------------------------------------------------------------------
Domestic Violence 273.5
------------------------------------------------------------------------
Elder Defined 368(g)
------------------------------------------------------------------------
Elder Abuse False Imprisonment 368(f)
------------------------------------------------------------------------
Elder Abuse Physical Felony 368(b)(1)
------------------------------------------------------------------------
Elder Abuse Physical Misdemeanor 368(c)
------------------------------------------------------------------------
Elder Abuse Financial , Caretaker Felony > $950 368(e)
------------------------------------------------------------------------
Elder Abuse Financial, Non-Caretaker Felony > $950 368(d)
------------------------------------------------------------------------
Forgery 470
------------------------------------------------------------------------
Forging Access Cards 484f
------------------------------------------------------------------------
Grand Theft Felony > $400 487
------------------------------------------------------------------------
Fraud or Embezzlement: Two or more related felonies 186.11(a)
------------------------------------------------------------------------
Loss exceeds $100,000 186.11(a)(3)
------------------------------------------------------------------------
Loss exceeds $500,000 186.11(a)(2)
------------------------------------------------------------------------
Sentencing Enhancements
------------------------------------------------------------------------
------------------------------------------------------------------------
Physical Abuse Causing GBI 368(b)(2)
------------------------------------------------------------------------
Victim under 70 years old + 3 years 368(b)(2)(A)
------------------------------------------------------------------------
Victim 70 years or older + 5 years 368(b)(2)(B)
------------------------------------------------------------------------
Physical Abuse Causing Death 368(b)(3)
------------------------------------------------------------------------
Victim under 70 years old + 5 years 368(b)(3)(A)
------------------------------------------------------------------------
Victim 70 years or older + 7 years 368(b)(3)(B)
------------------------------------------------------------------------
Committing any felony & Causing GBI + 3 years 12022.7
------------------------------------------------------------------------
Repeat Offenders, Victim is 65 or Over
------------------------------------------------------------------------
Generally + 1 year 667.9
------------------------------------------------------------------------
Anal or Genital Penetration with Foreign Object + 2 667.10
years
------------------------------------------------------------------------
ADDENDUM B: Suggestions for Interviewing Elders
and Dependent Adults
Special Concerns When Interviewing Older Victims
Interviewing older victims requires special care and patience. Simple
measures such as treating the person with respect and asking permission
to enter the home or to be seated can help the victim to feel less
anxious. Other strategies include:
Speak slowly and clearly, and be patient in waiting for a
response.
Keep your weapon out of sight--a weapon can be frightening.
Address the victim by name, but do not use first names as this
is considered disrespectful by many elderly persons. You might ask,
``Is it okay if I call you Mrs. Smith?''
Tell the victim you are there to help.
If the person is having difficulty remembering when an event
occurred, offer memory cues like ``At the time of the event, what
television program were you watching?''
For hearing impaired persons, eliminate as much background noise
as possible and use visual cues. Speak directly to the victim, looking
at them when you speak.
Allow the victim to describe the incident in his or her own
words.
Be patient and reassuring. Some older people, particularly,
those in crisis, may need time to collect their thoughts and may need
to take frequent breaks.
Acknowledge the victim's anxiety and try to discern its cause.
For example, you may say, ``You seem anxious. Is there anything in
particular you are worried about? Are you concerned that your relative
will find out that you have talked with me?''
Keep questions short and simple.
Ask open-ended questions that encourage further discussion.
Even if the victim appears to be somewhat confused, do not
discount the information.
Make every effort to obtain the fullest possible response before
relying on information from others.
Do not discount a complaint because the victim is unwilling to
cooperate.
Assess the likelihood of retaliation. If a threat is present,
arrange for protection.
Determine whom the victim first told about the abuse/neglect/
fraud.
Show the victim records or other documents that suggest abuse.
Record his or her response to each one that is in dispute.
Conclude the interview in such a fashion that the victim feels
free to contact the investigator again.
Ensure that the victim is capable and has the means for follow-
up contact. If not, take measures to facilitate follow-up with the
victim.
Determine whether the witnesses are likely to be intimidated,
made to feel guilty, or threatened with reprisal for providing
testimony.
Victims With Dementia or Diminished Capacity
When interviewed patiently, persons with dementia, Alzheimer's disease
or other illnesses that diminished capacity, can often provide useful
information. A sensitive approach to interviewing the person with
diminished capacity may yield valuable results. Following are some
strategies that may make the police interview more productive:
Keep the interview area quiet and as free as possible from
environmental distractions (e.g., TV or open window with traffic
noise).
If possible, conduct the interview in the morning, to avoid the
effects of ``sundowning.''
Begin the interview with orienting information, such as the
purpose of the interview and what you would like to accomplish.
Offer a few words of reassurance.
Relax and be yourself. Your degree of calmness is quickly
sensed, just as any anxiety will be sensed.
Acknowledge the person's feelings. It shows your concern and
that you are trying to understand his or her point of view.
Speak slowly and in a soothing tone, without infantilizing the
individual.
Give the person with diminished capacity ample time to respond.
Repeat questions as needed, using simple and concrete words.
Remember that what has been asked may take longer to be
understood.
Give simple directions, one step at a time.
Distraction or redirection may help to calm and refocus an
individual who is upset.
Document non-verbal reactions. For example, if the individual
becomes agitated, frightened, or mute when asked about a certain person
or situation, there may be a reason.
For further suggestions see Interviewing Techniques for Victims of
Elder Abuse Who May Suffer From Alzheimer's Disease or Related
Dementia, 2004 by Sue Beerman and Arlene Markarian.
Cultural Issues
Our community is diverse. Cultural factors may inhibit the reporting of
elder abuse crimes or cooperation with the police in some cases. It is
important to have an understanding of the cultural factors that might
influence the victim or the victim's family. Cultural norms of
perseverance, silent suffering and quiet endurance are valued in many
communities. These qualities are also associated with victimization.
Consequently, elders may deny or minimize problems, or refuse to
cooperate with authorities.
Some cultures place great value on family interdependence and multi-
generational households. They may fear the social consequences of
bringing shame to the family. Some cultures believe that maintaining
community or family honor is more important than the interests of the
individuals and that the authorities should not be involved in what
they consider ``family matters.''
Laws and customs in some countries forbid intervention in family
affairs without the family's permission. Elders who are immigrants may
also have fears in relation to police based on experiences in their
country of origin. They may not know they have rights in this country
regardless of their immigrant status. They may fear deportation if the
police get involved. Empathy and reassurance can help to reduce these
fears.
Good cross-cultural communication begins with respect. As you would
with any older victim/witness, begin by addressing a person formally,
using his or her last name. Cultural beliefs often emerge during
interviews. While a gentle touch on the shoulder may be comforting to
some elderly victims, in some cultures this is considered an intrusion
or offensive.
In some cultures it is considered disrespectful to make eye contact
with an authority figure such as a police officer, while in others it
is rude not to make eye contact. Some victims may be reluctant to
reveal injuries that are covered with clothing due to cultural customs
of modesty or religious beliefs. Be careful not to interpret an
unwillingness to show injuries as an indication that there are no
injuries.
While culture does play a significant role in shaping a person's
behavior, it should not be seen as an automatic predictor of how a
given victim will respond. Each case is unique and should be assessed
keeping relevant aspects of culture in mind.
Language
Many elders who live in insular ethnic communities do not speak
English. In these situations it is important to use an impartial
interpreter. Avoid using a family member, friend or neighbor to
communicate with the victim or with the suspected offender. This is
likely to bias the translation. The interpreter may be involved in the
abusive situation or may give an inaccurate translation due to their
personal bias. The victim may also be reluctant to speak honestly in
front of an acquaintance or family member.
Fears the Victim May Have
Victims may fear retribution, such as isolation or emotion/verbal
abuse. The abuser may be an adult child or grandchild. It may be very
difficult for a parent to testify against a child. The abuse may cast
doubt on their ability to live alone and they will be placed in a
nursing home. The abuser may be a spouse of many years.
Suggested Interview Questions: Financial Abuse
Background Information
What is your name?
Do you have any close relatives? (Identify nature of
relationship, names, addresses, phone numbers of any relatives)
Who are some of your close friends? (Identify names, addresses,
phone numbers and length and nature of relationship)
Are you close to any of your neighbors? (Identify names and
addresses)
Does anyone visit you on a regular basis?
When is the last time you saw a doctor? Who is your doctor? Who
took you to your last doctor's appointment?
Have you been diagnosed with any medical condition?
Housing Questions
Where do you live?
Do you own your home? How long? Who is on the title of the
house?
How long have you lived in your current residence?
Does anyone live with you? (Identify names and relationships) Do
they pay rent?
Do they provide any services for you in exchange for staying
there?
Caretaker
Do you have a caretaker?
How long has caretaker been involved with your care?
Does caretaker get paid? If yes, how much?
Who takes care of bills or finances?
Who signs the checks?
Do you drive? (Who takes elder to appointments, shopping, etc.)
When did you stop driving?
Does anyone other than the suspect provide any services for you?
If so, describe.
General Finance Questions
Who handles your finances?
Who writes the checks?
Who pays the bills?
Who does your taxes?
What is your monthly income? (Amount and sources of income)
What are your monthly expenses? (Describe some of them)
Have you ever given anyone permission to sign your name? Use
your credit card?
Place their name on any of your banking accounts?
Have you signed any documents lately? If so, what were they?
What are the balances on your bank accounts? Credit card
accounts?
Do you have investment accounts? With whom?
Do you have a will or trust? Does anyone have a valid Power of
Attorney for you?
Do you have an attorney? (Name and phone number, if available)
Suspect Related Questions
How long have you known the suspect? How did you meet the
suspect?
Does the suspect provide any services for you? If so, describe.
Who hired the suspect?
How is the suspect compensated for any services provided?
Did you ever give the suspect any loans or gifts (monetary or
otherwise)?
Does the suspect owe you any money?
Do you owe the suspect any money?
Is there anyone else who can do the things the suspect currently
does for you?
Case Specific Questions
Do you recognize these documents?
Do you recognize these signatures?
Why did you agree to the transaction(s)?
Who spoke to you before you agreed to the transactions(s)?
What was your understanding of the agreement?
Interview Suggestions for Neglect or Physical Abuse
Background information
Name.
Do you have close relatives? Who are some of your closest
friends?
Are you close to any of your neighbors?
Does anyone visit you on a regular basis?
Do you get meals brought in with ``Meals on Wheels'' or another
agency?
Housing
Where do you live?
Do you own your home? Who has title to the house?
How long have you lived there? Does anyone live with you? Do
they pay rent?
Does anyone provide you any services in exchange for living with
you (i.e., take you to appointments, clean your house, etc.)
Caretaker
Do you have a caretaker? For how long have you had this
caretaker?
Does the caretaker get paid? If yes, how much?
Who takes care of bills or finances?
Who signs the checks?
Do you drive? When did you stop driving?
Financial
Who handles your finances?
Who writes the checks?
Who pays the bills?
Who does your taxes?
Do you have a will or trust? Does anyone have a valid Power of
Attorney for you?
Do you have an attorney?
How long have you known the suspect?
How did you meet the suspect?
Who hired the suspect?
Does the suspect provide any services to you?
How is the suspect paid for any services provided?
Did you ever give the suspect any loans or gifts?
Does the suspect owe you any money?
Do you owe the suspect any money?
Who is generally responsible for taking care of you?
How long have they been taking care of you?
When was the last time you saw a doctor?
Will you sign a medical release form? (If yes, have elder/
dependent adult sign the form, or if Power of Attorney, ask that
individual to sign)
Physical Abuse
Did you have any physical injuries before this incident?
Were those injuries reported? If not, why not?
What happened to you during the current incident?
Who did this to you?
When did this happen?
Did the person tell you why he/she did it to you? What
specifically did the suspect say?
Did you see a doctor regarding the injury?
What doctor?
Obtain consent for medical release from victim or person with
Power of Attorney over victim.
Techniques for Interviewing Suspects in Elder or Dependent Adult Cases
Advise the suspect of his or her Miranda rights if conducting a
custodial interrogation.
Encourage the suspect to relate the incident in her or his own
words.
Note the suspect's attitude or demeanor during the interview.
Determine the relationship between the suspect, victim, and
witnesses.
Look for behavioral indicators of abuse.
Note statements that are inconsistent with other findings and
evidence.
If handwriting is an issue, collect handwriting samples
(financial crimes).
Show the disputed documents to the suspect one at a time, and
then record his or her response to each one.
If the suspect admits to abuse, ask him or her to specify
precisely what he or she did and record it.
Do not communicate hostility or disbelief.
Suggested Questions for Caretakers Who May Also Be Suspects:
Background Questions
Name.
Address.
DL Number.
Contact Information.
Relationship With the Victim
How do you know the victim? For how long?
Who lives with the victim?
Do you live here? If yes, for how long?
Do you pay rent or do you receive room and board in exchange for
services you perform for the victim?
Are there any other relatives living in the area? Do they visit
and how often?
Current Medical Care
Is the victim currently under a doctor's care?
What is the doctor's Name?
When was the last time the victim saw a doctor?
Did you take the victim to the doctor? If not, who did?
Medical History
Is there any recent or past history of accidents, illness,
disease, or mental health issues regarding your relative?
Explain details and dates of any medical diagnosis.
Does the victim take any medications? If yes, how often and how
much?
Where is the medication stored?
Who gives the victim their medication(s)?
Describe the victim current mental state. Is he/she slow,
forgetful, trusting, easily influenced?
Legal Issues
Is the elder conserved? If so, when and by who?
Does anyone have valid Power of Attorney over the elder?
Does the elder have a will or trust? If so, who are the
beneficiaries and have there been any recent changes made to it? Who is
the trustee? Successor trustee?
Who is the elder's attorney? Name and contact information.
Are you the victim's conservator? If so, since when?
Do you have a valid Power of Attorney over the victim? If so,
since when?
Background on Becoming the Caretaker
How did you get to be the caretaker?
Who hired you?
What was your training for this job?
How long have you been the caretaker?
How are you coping with the caregiving responsibilities?
Current Duties
Are you the only caretaker?
Who, if anyone, assists you in caring for the victim? What is
his/her name? What does he/she do specifically?
What are your duties as it relates to:
Medication?
Toilet assistance?
Cooking/cleaning services?
Shopping?
Paying bills?
Elder/Dependent Adult's Financial Situation
What is the elder's monthly income and from what sources?
(Social Security, pension).
What are the elder's monthly expenditures?
Is the elder in debt or at financial risk?
Where does your relative bank and is anyone joint on the
accounts?
Does anyone else have access to the elder's bank accounts, ATM,
credit cards, etc. and why?
What are the current balances on the victim's banking & credit
card accounts?
Suspect's Involvement With Victim's Finances
What are you paid? How are you paid? How often are you paid?
Does the victim owe you any money? If so, how much and what for?
Who is responsible for the victim's finances/bills? Who pays the
bills?
If you pay the bills, how long have you been doing so? Does
anyone else help?
Do you make any deposits of your own money into the elder's
account? If so, why, how much and how often?
Do you have access to the victim's savings or checking accounts?
Money market accounts? Investments? Is your name on any of these
accounts? If so, why?
Do you have access to the victim's credit cards? Have you ever
had permission to use the victim's credit card?
Have you or someone else withdrawn money from any account or
financial institution on behalf of the elder? If so, why, what for, did
you have permission and was it paid back?
Have you or the elder singed any documents recently? (i.e.,
loans, deeds, promissory notes, Power of Attorney, etc.)
Have you written any checks for the elder and had them sign the
check?
Have you ever had permission to sign the victim's name?
Who writes the checks (to pay the victim's expenses)?
Who, if anyone, do you talk to before making a financial
decision on behalf of the victim?
Has the victim given you any gifts, money or loans?
Do you have any promissory notes showing loans to you from the
victim or from the victim to you?
Suspect's Current Financial Situation
Are you employed anywhere else? Where and how long?
Do you have any bank accounts? How many and where?
Is the victim joint on any of your accounts?
Have you received an inheritance recently or won any money?
Have you or anyone else taken a trip or vacation with the elder
or at the elder's expense? If so, who, when, where, and how much did it
cost?
What are your sources of income? What are the total amounts per
month? Any recent inheritances, unusual winnings?
Ask Specific Questions About the Current Case
Obtain as many details as possible.
If appropriate, show the suspect any documents to verify
signatures.
Concluding Questions:
Have you ever been arrested? If so, what for and are you
currently on probation or parole? If so, name of probation officer/
parole agent.
If needed, what is the best way to contact you in the future?
Is there anything else you think I should know or want to say
about this case?
Suggested Questions for Suspects Who May Be Contractors,
Landscapers, Handyman, etc.
Background Questions
Name.
Address.
DL Number.
Contact Information.
Background on Suspect's Business
How long have you been in business? Are you a sole proprietor or
incorporated? Number of employees?
Have you entered into any type of verbal or written contract for
services or home repairs with the elder? If so, describe the dates,
necessity of work and pay received. Obtain copies of contract or
receipts.
Do you have a valid state contractor's license for the work
performed? If so, contractor's license number and bonding company.
Has any disciplinary action ever been taken against your
license? If so, when, where and what for?
Do you maintain separate financial accounts for your business?
(i.e., a business checking or savings accounts versus personal banking
accounts)
Do you maintain a business office or work from your home? Obtain
a business card and/or document all contact information.
Is your business the only source of income? If not, what is your
secondary source of income and how much does that source contribute to
your finances?
Information on the Current Case
How were you contacted for the job? (i.e., through neighborhood
solicitation, phone book, word of mouth, or friend)
Was a building permit obtained prior to beginning the job?
Obtain copies.
Did you sub-contract work out to another party or person? If so,
is that person licensed, was the work completed and did you pay them?
ADDENDUM C: San Diego Countywide Elder and Dependent Adult Abuse
Supplemental
[GRAPHIC] [TIFF OMITTED] T0119.002
[GRAPHIC] [TIFF OMITTED] T0119.003
ADDENDUM D: San Diego County Resource Guide
ELDER AND DEPENDENT ADULT ABUSE AND NEGLECT
_______________________________________________________________________
Adult Protective Services (800) 510-2020
Adult Protective Services (APS) investigates reports of abuse and
neglect. Trained professionals assist elder and dependent adults who
are harmed or threatened with harm. This may include physical, sexual,
and financial abuse, mental suffering, neglect or abandonment by
another, and self-neglect. Anyone can report elder and dependent adult
abuse.
_______________________________________________________________________
Law Enforcement
For emergencies, call 911. Non-emergency numbers:
Carlsbad Police Department (760) 931-2197
Chula Vista Police Department (619) 691-5151
Coronado Police Department (619) 522-7350
El Cajon Police Department (619) 579-3311
Escondido Police Department (760) 839-4722
La Mesa Police Department (619) 667-1400
Oceanside Police Department (760) 435-4900
National City Police Department (619) 336-4411
San Diego Police Department (619) 531-2000, (858) 484-3154
San Diego Sheriff's Department (858) 565-5200
Your local Sheriff and police and departments investigate crimes
against elders and dependent adults based on the jurisdiction where the
incident occurred.
According to California State Penal Code 368 P.C., the State of
California considers those persons age 65 and older to be elders.
Persons 18-64 years old who have physical and/or mental limitations
that restrict their ability to carry out normal activities or to
protect their rights are considered dependent adults.
Information on Elder Abuse Crimes: www.sdsheriff.net/elder and
www.sdcda.org
_______________________________________________________________________
San Diego County District Attorney's Office
and San Diego City Attorney's Office
These offices are committed to the successful prosecution of those
committing crimes against elders and dependent adults.
Victim advocates are also available to assist with safety planning,
support, referrals, court accompaniment and processing of Victim
Compensation and restitution applications.
San Diego City Attorney's Office, Victim Services Coordinators: (619)
236-6220
San Diego County District Attorney's Office, Victim Assistance Program:
Central (619) 531-4041, East (619) 441-4538, South (619) 498-5650,
North (760) 806-4079
ORDERING POLICE REPORT(S)
_______________________________________________________________________
Victims have a right to one free copy of their police report. Contact
the responding law enforcement agency in the jurisdiction in which the
incident occurred. Requests for reports can be made to most
jurisdictions through the mail or in-person. The following information
is necessary to request a report copy: name of the parties involved,
date and location of incident, and the report number if available.
Bring identification if you go in-person to pick up your report.
RESTRAINING ORDERS
_______________________________________________________________________
Victims of Elder and Dependent Adult Abuse may file for a civil
restraining order at no cost.
There are free clinics available to assist you in the application
process: www.sdcourt.ca.gov and select the ``Civil'' tab and then
select ``Harassment Restraining Order.''
Arrive early. Be prepared to spend a minimum of one-half of a day to a
full day at the court to obtain your restraining order. Arrive a
minimum of two hours before the clinic closes.
Things to bring with you when you complete your paperwork, if
available: Address of the person you would like restrained; date of
birth for the person you would like restrained; physical description of
the person you would like restrained; photographs of any injuries (if
applicable); and a copy of the police report(s) if any.
OTHER LOCAL RESOURCES
_______________________________________________________________________
Senior Mental Health Team
(800) 510-2020 Assesses and initiates appropriate
actions for older adults age 60+
with mental health issues.
Currently serving East County,
Central, and North Coastal areas.
Long Term Care Ombudsman
(800) 640-4661 Investigates reports of abuse in
nursing homes and residential care
facilities, and advocates for
residents' rights.
Public Guardian (858) 694-3500 May be appointed conservator by the
Probate Court when it is determined
that someone is unable to care for
himself/herself physically and/or
financially and no family members
or alternates are available.
Public Administrator (858) 694-3500 Performs estate administration for
people who have died with no family
member or other person to handle
their affairs.
Public Conservator (858) 694-3500 A mental health conservator can be
court ordered for people who are
gravely disabled as a result of a
mental disorder.
Meals on Wheels (800) 573-6467 Nutritious meals delivered to homes
by caring volunteers. www.meals-on-
wheels.org
Methamphetamine Hotline
(877) 662-6384 24 hour hotline for treatment
information and to report criminal
activity related to meth use in San
Diego County.
NATIONAL WEBSITES
_______________________________________________________________________
Elder Justice Coalition www.elderjusticecoalition.com
National Adult Protective Services
Association www.napsa-now.org
National Center on Elder Abuse https://ncea.acl.gov
National Clearinghouse on Abuse in
Later Life www.ncall.us
National Committee for the
Prevention of Elder Abuse www.preventelderabuse.org
National Organization for Victim
Assistance www.trynova.org
U.S. Department of Health and Human
Services, Administration on Aging www.hhs.gov/aging/index.html
ADDENDUM E: San Diego County Prosecutor Elder and Dependent Adult Case
Preparation Checklist
Victim
Name__________________________ Case
Number_________________________
Prosecutor__________________________
__ Date___________________
Interviewing Strategies:
v Privacy: Speak in private, away from family members and suspects,
especially if unsure whether family members will be witnesses and/or
defendants.
v Advocate: Consider having an advocate present.
v Remove distractions: Turn off cell phones and find a quiet room.
v Make the meeting accessible: Meet with older persons at their
home, whenever possible.
v Address any needs, questions or concerns that the victim may have:
Prior to starting the interview, including physical and medical ones.
If unable to address these needs, connect him/her with a professional
who can assist.
v Develop rapport: Develop a relationship and him/her feel
comfortable. A few ways are to ask about his/her family, life, career
or other interests. Avoid being patronizing or fraternizing (e.g.,
using first name without permission, raising your voice, physical
contact, talking down, baby talk).
v Be Patient: Ask the victim questions one at a time and allow him/
her time to respond. Older adults may need more time to process the
questions and their responses, so be patient.
Preparing for Court:
v Identify Needs and Arrange Accommodations: Inquire with the victim
about needs pertaining to mobility, language and communication (e.g.,
translators, interpreters, assistive devices), oxygen, medication,
nutrition, hydration, and other medical treatment. Incorporate
accommodations into all parts of the criminal justice process including
court-room appearances and pre-trial meetings.
v Transportation: Work with the victim and Victim Witness staff to
determine travel arrangements and transportation needs for attending
meetings and hearings. Ensure that someone other than he suspect or the
suspect's allies provide the transportation.
v Tour the Courtroom: Arrange a tour in advance for the victim
through Victim Witness and court staff. Review where the victim will
sit and the court process.
v Waiting Room: Identify a comfortable place, away from the court
room, for the victim wait,
v Scheduling: Consider the victims medical and other special needs
when scheduling. Select the times for court appearances and testimony
of the victim at times/days that work best for him/her. One victim is
present, avoid delays.
------------------------------------------------------------------------
------------------------------------------------------------------------
Evidence Collection 4 Complete?
------------------------------------------------------------------------
Psychological/psychiatric evaluation of victim
* If capacity, consent or undue influence may
be an issue
------------------------------------------------------------------------
Victim deposition or testimony with full-cross
examination, as soon as possible after
charging (Crawford)
------------------------------------------------------------------------
Videotape the victim at the early stage of the
investigation to include:
------------------------------------------------------------------------
Victim's perception of time, place or
place
------------------------------------------------------------------------
Facts: Consent
------------------------------------------------------------------------
Facts: Perpetrator's identity
------------------------------------------------------------------------
Facts: Review docs/evidence. Ask victim to
sign his/her name in the video
------------------------------------------------------------------------
Facts: Impact of crime. Include a walk-
through video of abuse or neglect crime
scene if possible
------------------------------------------------------------------------
Medical Evidence
------------------------------------------------------------------------
Medical Records of current and underlying
conditions from emergency room, nursing
facilities, treating physicians, dentist,
pharmacy, others
------------------------------------------------------------------------
Specific medical documents including lab
reports, x-rays, nurses' notes, social
worker's notes
------------------------------------------------------------------------
Medications--Include actual bottles/containers
for prescriptions to show physician and
pharmacy, possession and full/empty status
given recommended dosage over time from the
date of the last refill
------------------------------------------------------------------------
Adult Protective Services records of current
and prior contacts
------------------------------------------------------------------------
Law enforcement contacts with involved parties
and witnesses including 911 tapes, arrest
reports, and criminal histories
------------------------------------------------------------------------
Jail records including phone calls and visitor
logs by or on behalf of the suspects
------------------------------------------------------------------------
Other
------------------------------------------------------------------------
Financial Records
------------------------------------------------------------------------
Credit card reports
------------------------------------------------------------------------
Investment account records
------------------------------------------------------------------------
Credit reports
------------------------------------------------------------------------
Victim's bank records
------------------------------------------------------------------------
Checkbook registers
------------------------------------------------------------------------
Suspect's bank records
------------------------------------------------------------------------
Other
------------------------------------------------------------------------
Legal Documentation
------------------------------------------------------------------------
Powers of attorney
------------------------------------------------------------------------
Prior civil cases
------------------------------------------------------------------------
Court/protection orders
------------------------------------------------------------------------
Property deeds
------------------------------------------------------------------------
Wills and trusts
------------------------------------------------------------------------
Advanced directives/living wills
------------------------------------------------------------------------
Conveyances
------------------------------------------------------------------------
Guardianship/conservatorship documents
------------------------------------------------------------------------
Other
------------------------------------------------------------------------
Consultation With Experts
------------------------------------------------------------------------
Forensic accountants
------------------------------------------------------------------------
Handwriting analysts Geriatricians
------------------------------------------------------------------------
Geriatric psychologists and psychiatrists
------------------------------------------------------------------------
Medical Examiner
------------------------------------------------------------------------
Wound care experts
------------------------------------------------------------------------
Civil attorneys
------------------------------------------------------------------------
Other
------------------------------------------------------------------------
Interviews
------------------------------------------------------------------------
Witness who can describe the victim's
condition, level of functioning, activities,
and interaction with the defendant at the
time of the incident and before. Include a
description of changes over time.
------------------------------------------------------------------------
Medical providers (prior and current)
------------------------------------------------------------------------
Family and friends
------------------------------------------------------------------------
Banking/financial
------------------------------------------------------------------------
Hair stylists/barbers
------------------------------------------------------------------------
Local businesses
------------------------------------------------------------------------
Faith community
------------------------------------------------------------------------
Acquaintances/social
------------------------------------------------------------------------
Neighbors
------------------------------------------------------------------------
Adult day care services
------------------------------------------------------------------------
Adult Protective Services
------------------------------------------------------------------------
Civil attorneys
------------------------------------------------------------------------
Social services (Meals on Wheels, etc.)
------------------------------------------------------------------------
Payees for expenses the suspect paid with
the victim's money
------------------------------------------------------------------------
Physical Evidence
------------------------------------------------------------------------
Photo and video documentation:
------------------------------------------------------------------------
Crime scene, including if relevant, the
contents of the refrigerator, cupboards,
and medicine cabinets (including actual
bottles/containers for prescriptions to
show physician and pharmacy, possession
and full/empty status given recommended
dosage over time from the date of last
refill)
------------------------------------------------------------------------
Suspect's living area
------------------------------------------------------------------------
Victim's living area
------------------------------------------------------------------------
Major new purchases by the suspect
------------------------------------------------------------------------
Victim's body--injuries over time
------------------------------------------------------------------------
Victim's body--signs of neglect
------------------------------------------------------------------------
Clothing victim was wearing at time if
incident (include adult diapers if
applicable)
------------------------------------------------------------------------
Bedding
------------------------------------------------------------------------
Writing/journals/letters
------------------------------------------------------------------------
Locks on outside of doors
------------------------------------------------------------------------
Photos and videos related to conduct
------------------------------------------------------------------------
Defendant's and victim's ISP records
------------------------------------------------------------------------
Legal file for victim's civil attorney
------------------------------------------------------------------------
Nutritional supplements
------------------------------------------------------------------------
Medications and supplies
------------------------------------------------------------------------
Restraints and bindings
------------------------------------------------------------------------
Assistive devices (or lack thereof)
------------------------------------------------------------------------
Defendant's computer, flash drives, etc.
------------------------------------------------------------------------
Checkbooks, check registers
------------------------------------------------------------------------
Adapted from the Prosecuting Elder Abuse Cases: Basic Tools and
Strategies by the National Center for State Court, Williamsburg, VA
ADDENDUM F: Protective Orders and Restraining Orders
PROTECTIVE ORDERS AND RESTRAINING ORDERS
There are many different forms of protective and restraining orders.
Sometimes your case will involve Elder Domestic Violence. Peace
officers should refer to the Countywide Domestic Violence and Children
Exposed to Domestic Violence Law Enforcement Protocol for more
information specific to Domestic Violence restraining orders.
If the case involves Elder Domestic Violence (intimate partner abuse
between elders, or when an elder is the victim of intimate partner
abuse), peace officers should consider the general policies and statues
below:
I. GENERAL POLICY:
Domestic Violence restraining/protective orders shall be
enforced by all Law Enforcement officers. This includes orders
from other states. (PC 13701, PC 836(c)(1).)
II. MANDATORY ARREST POLICY:
PC 13701(b) states that law enforcement shall arrest an
offender, absent exigent circumstances, if there is probable
cause that a DV restraining order/protective order has been
violated. (PC 13701(b).)
PC 836(c)(1) states that the officer shall make an arrest
even without a warrant, and whether or not the violation
occurred in the officer's presence. (PC 836(c)(1).)
* Important: Per Penal Code section 13710(b), the terms and
conditions of a Restraining or Protective Order remain
enforceable, notwithstanding the acts of the parties, and may
be changed only by order of the court. This means that,
``protected persons'' are not in violation of protective orders
when they acquiesce or invite the restrained party's contact,
and should not be arrested. (PC 13710(b).)
In situations where mutual protective orders have been
issued, liability for arrest applies only to those persons who
are reasonably believed to have been the dominant aggressor.
(PC 836(c)(3).) In those situations, before making an arrest,
Law Enforcement shall make reasonable efforts to identify, and
may arrest the dominant aggressor involved in the incident. The
dominant aggressor is the person determined to be the most
significant, rather than the first aggressor. In identifying
the dominant aggressor, Law Enforcement shall consider a) the
intent of the law to protect victims or domestic violence from
continuing abuse, b) the threats creating fear of physical
injury c) the history of Domestic Violence between the persons
involved and d) whether either person involved acted in self-
defense. (PC 836(c)(3).)
III. WHAT IS A ``DOMESTIC VIOLENCE RESTRAINING ORDER/PROTECTIVE
ORDER?''
Any order that enjoins one person from contacting another.
(Orders issued pursuant to Family code section 2040, Family
Code section 6218, Penal Code section 136.2, and those issued
by a Criminal Court pending a criminal proceeding, and
Emergency Protective Orders.)
IV. HOW TO DETERMINE WHETHER THE ORDER IS VALID:
A. Law Enforcement can check with dispatch to see if a
served order is on file.
B. Law Enforcement can access full information about the
terms of the order through SDLAW.
C. Law Enforcement can also check on www.sdsheriff.net which
lists limited restraining order information for all protective
orders that are entered into CLETS.
D. Law Enforcement can also call the Sheriff's Department
24-Hour Law Enforcement Line (law enforcement only) at (858)
974-2457 and ask the following questions:
1. Is there a restraining/protective order on file?
(If so, it will be filed under the name of the restrained
party)
IMPORTANT: If Sheriff personnel cannot verify the
order, it may still be enforceable. If the responding officer
believes in good faith that an order presented to him or her at
the scene is valid and the suspect was on notice (see questions
B through E below), a private person's arrest may be made even
though the Sheriff's Department was not provided a copy to
enter into DVROS.
2. What is the date of the order? When did/does the
Order become effective?
3. What is the expiration date? Has the Order expired?
4. What are the terms of the order? For instance,
whether peaceful contact is allowed is important information in
determining whether a violation has occurred.
5. Was the restrained person served with the Order? Is
there a Declaration of Service on file or has another officer
given the needed notice to the person to be restrained?
E. NO RECORD OF SERVICE. If no record of service exists:
1. Advise the restrained person that there is an Order
in effect,
2. Give a copy of the Order to the restrained person
or, if no copy is available to give, have the terms of the
Order read over the phone and then verbally inform him/her of
those terms,
3. Advise him/her that s/he is now subject to the
terms of the Order and can be arrested for any further
violations,
4. Notify the Sheriff's Department and report that you
have served a copy of the Order on the defendant (The Sheriff
will record your name, ID number, date, time and location that
the suspect received notice),
5. Prepare and sign a Proof of Service, and
6. File the Proof of Service as part of the report.
Investigations personnel shall ensure the original Proof of
Service is filed with the court issuing the Order and a copy
retained with the police report.
V. VICTIMS SHALL BE ADVISED ABOUT AVAILABILITY OF EMERGENCY PROTECTIVE
ORDERS:
An Emergency Protective Order (EPO) can be an important tool
for law enforcement in the prevention of future violence. Law
Enforcement shall inform victims of the availability of EPO
when they have reasonable grounds to believe there is an
immediate and present danger 1) of Domestic Violence based on
the person's allegation of recent abuse or threat of abuse, or
2) the EPO is necessary to prevent the occurrence or recurrence
of Domestic Violence. If the person requests such an order, the
officer shall request an EPO from the court. (Family Code
sections 6275, 6251, 6250, PC 646.91.)
A. EPOs are available 24-hours a day, 7-days a week.
B. This is not just an after-hours or weekend remedy.
C. The fact that no crime has yet been committed does not
eliminate the duty to advise victims about EPOs.
D. Law Enforcement does not need permission from victims or
the request from victims in order to request an EPO from the
court. Law Enforcement can request EPOs on their own. (See
Family Code 6250(a).)
E. Whether the respondent is in custody or the protected
person left the home for safety reasons should have no bearing
on the availability of an EPO, and should not be factored into
the immediate and present danger determination.
F. If a Protective Order is obtained, a Crime/DV Incident
Report shall be prepared on the incident.
VI. HOW TO OBTAIN AN EMERGENCY PROTECTIVE ORDER:
This procedure may be utilized 7 days a week, 24 hours a day.
A. If a protective order is being sought, the officer will
complete Form EPO-001 (rev. 1-07) Application for Emergency
Protective Order (CLETS).
B. After court hours, weekends and holidays, the officer will
telephone the duty judge through the duty telephone at the
Sheriff's Office at 858-974-2493 (this is a non-public number).
C. During court hours (8:00 a.m.-5:00 p.m.) the officer will
contact a judge through the Family Court at 619-844-2942 (this
is a non-public number).
D. Upon approval by the judge, the officer will complete Form
EPO-001 (rev. 1-07), Emergency Protective Order (CLETS). This
order may be granted for up to five (5) full court days and
will expire at 5:00 p.m. on the last specified court day.
E. The officer will provide the pink copy of the application
and the order to the issuing agency and the canary yellow copy
to the protected party. The officer will submit the white copy
of the application to the restrained party. The goldenrod copy
of the application will be attached to the crime report for the
court.
F. The officer requesting the Order shall carry copies of the
order while on duty. (Pen. Code, Sec. 13710(c) requires the law
enforcement officer to make a reasonable effort to serve the
restrained party with the EPO.)
G. The officer will encourage the protected party to carry a
copy of the Emergency Protective Order with him/her.
H. Make sure to fax the front and back pages of the approved
Emergency Protective Order to the Sheriff's office at (858)
974-2492 whether or not the EPO was served to the restrained
party.
I. Verbal admonishment by a law enforcement officer shall
constitute valid service of the order under the following
conditions:
a. Verbal admonishment must be conducted in person.
b. The terms and conditions must be read to the restrained
person. Terms and conditions can be obtained by calling (858)
974-2457.
c. Advise restrained person to go to the local court to
obtain a copy of the order containing the full terms and
conditions of the order per Family Code section 6383(g).
PREPARE A CRIME REPORT FOR EVERY DV RESTRAINING ORDER/PROTECTIVE ORDER
VIOLATION.
Law enforcement should always prepare and submit a crime report of the
appropriate restraining order violation regardless of whether or not
the suspect is still present at the scene.
A. Out of State Orders
Officers shall enforce out-of-state protective or restraining
orders that are presented to them if conditions below are met.
``Out-of-state'' orders include those issued by U.S.
Territories, Indian tribes, and military agencies.
1. The order appears valid on its face.
2. The order contains both parties' names.
3. The order has not yet expired. (Full Faith and Credit
Provision of the Violence Against Women Act, Family Code 6400-
6409.)
Officers should check CLETS to determine if the order has been
registered in California. If the order is not registered, an
attempt should be made to contact the foreign jurisdiction or
its registry for confirmation of validity.
If validation cannot be substantiated, contact the Duty Judge
for an EPRO, but the out-of-state protective or restraining
order must still be enforced if it meets the above criteria. If
not registered in California parties should be advised to
immediately register the order through the Family Court.
B. When it appears the protected party invited the Restraining Order
violation
Occasionally, officers may encounter a situation wherein a
protected party has encouraged or invited a restrained party to
violate the terms of an order by initiating contact. Officers
should remember that the order remains in effect until canceled
by the court, and that the restrained party is the only person
in violation of the order in such a situation. (PC 13710(b).)
ADDENDUM G: Cross-Reporting RequirementsPLAW ENFORCEMENT CROSS-REPORTING
REQUIREMENTS
------------------------------------------------------------------------
LOCATION OF ABUSE CROSS-REPORTING REQUIREMENT
------------------------------------------------------------------------
Long term care facility Long Term Care Ombudsman Program (1-800-
510-2020) and the State Department of
Public Health (916-558-1784) and to
the licensing agency. (W&I 15640(e).)
------------------------------------------------------------------------
State mental health hospital or Refer to the office of Protective
a state developmental center Services (916-651-7185) or Regional
Center (858-576-2996)
------------------------------------------------------------------------
Anywhere else Adult Protective Services (APS)
telephone report to (San Diego: 1-800-
510-2020) and (outside San Diego: 1-
800-339-4661) and send written report
within two working days, or complete
referral to the AIS Web Portal.
www.AisWebReferral.org
------------------------------------------------------------------------
TYPE OF ABUSE CROSS-REPORTING REQUIREMENT
------------------------------------------------------------------------
Any case of known or suspect Local Law Enforcement
abuse
------------------------------------------------------------------------
Any case of known or suspected Attorney General's Bureau of Medical
criminal activity Fraud and Elder Abuse (1-800-722-0432)
------------------------------------------------------------------------
WHO COMMITTED THE ABUSE CROSS REPORTING REQUIREMENT
------------------------------------------------------------------------
Licensed Health practitioner Appropriate licensing agency
------------------------------------------------------------------------
ADULT PROTECTIVE SERVICES CROSS-REPORTING REQUIREMENTS
------------------------------------------------------------------------
LOCATION OF ABUSE CROSS-REPORTING REQUIREMENT
------------------------------------------------------------------------
Long Term Care facility Shall immediately inform reporting
party that he or she is required to
make the report to the Long Term Care
Ombudsman program or to a local law
enforcement agency. Shall not accept
the report by phone but shall forward
any written report received to the
long term care ombudsman.
------------------------------------------------------------------------
TYPE OF ABUSE CROSS-REPORTING REQUIREMENT
------------------------------------------------------------------------
Financial abuse Prior to making any cross report of
allegations of financial abuse to
local law enforcement, APS shall first
determine whether there is a
reasonable suspicion of any criminal
activity (W&I 15640(a)(1)).
------------------------------------------------------------------------
Any case of known or suspected Local law enforcement
criminal abuse
------------------------------------------------------------------------
Incidents of suspected abuse Cross report to any other licensing or
public agency charged with
responsibility for investigation of
incidents of suspected abuse (W&I
15640(b)).
------------------------------------------------------------------------
WHO COMMITTED THE ABUSE CROSS-REPORTING REQUIREMENT
------------------------------------------------------------------------
Licensed Health Practitioner Cross report to appropriate licensing
agency
------------------------------------------------------------------------
______
Letter Submitted by John M. Harper
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
Re: SENATE HEARING ON ABUSE AND NEGLECT: ``Not Forgotten: Protecting
Americans From Abuse and Neglect in Nursing Homes'' (Wednesday, March
6, 2019)
Submitted By: John Harper, Systems Advocate, Independent Living, Inc.,
441 East Main St., Middletown, New York, 10940
Friends:
Thank you for this opportunity to provide written testimony regarding
the above cited Senate Hearing. I offer the following points to
consider.
Research has shown that when abuse and/or neglect occurs in the nursing
home setting, one or more of the following played a part in causing
harm to a resident or patient:
1. Negligent hiring.
2. Understaffing.
3. Inadequate training.
4. Breach of statutory or regulatory obligations, and
5. Medication errors.
Signs of such abuse and neglect include:
1. Poor personal hygiene.
2. Unsanitary living conditions.
3. Physical issues from lack of nutrition.
4. Loss or lack of mobility.
5. Unexplained injuries.
6. Psychological issues.
When a person reaches moment in his or her life when self-care requires
assistance, the first priority is to ensure that every attempt possible
is made for the individual to enjoy the most integrated setting and to
the extent possible remain in one's regular night-time residence. If
that is not possible, then, and only then, should a congregate setting
be considered.
As with any congregate care service model, such as a nursing home, the
quality of service is directly tied to the capacity and competency of
the Direct Care Practitioners. This Practice must include eligibility
criteria for potential practitioners, be valued within the service
industry and include a competitive compensation in order to attract the
level of professionalism which is required to consistently deliver the
highest level of quality care.
A standardized curriculum of training, resulting in a credential, must
be developed to address, comprehensively, all of the necessary best
practice skills and competencies needed to ensure quality service.
Candidates in such training must be tested and required to fulfill on-
going continuing education in the field annually to maintain
credentialing.
A universal Code of Ethics specific to this particular practice which
reflects the desired culture to be developed and maintained in the
nursing home setting must be formulated and adhered to. Any deviation
from the Code must be addressed in a timely, uniform and consistent
manner.
Respectfully Submitted
John M. Harper
______
Hebrew Home at Riverdale
Statement of Daniel Reingold, MSW, JD, President and CEO
Chairman Grassley, Ranking Member Wyden, and members of the Committee,
on behalf of The Hebrew Home at Riverdale, New York and the SPRiNG
Alliance (Shelter Partners: Regional, National and Global), I submit
this statement for the record of the Senate Finance Committee hearing,
``Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing
Homes.'' It is important that this hearing will shed light on this
small part of a much larger national epidemic of elder abuse.
We share the Committee's commitment to the quality of care and quality
of life of residents in nursing homes. We unequivocally condemn abuse
and neglect, whether in a nursing home or in the community. We do not
excuse abusive or neglectful treatment of older adults, who deserve
respect and dignity as they age, and where they age.
Our nursing home, The Hebrew Home at Riverdale, is a non-profit
organization serving poor older adults of all faiths for over a
century. The Hebrew Home has been dedicated to community service since
its founding in 1917, when a small synagogue in Harlem opened its doors
as a shelter for poor, homeless, elderly people. Now recognized as one
of the best nursing homes in the country, we push the boundaries of
what's possible in skilled nursing care. Innovative programs like
vision care, therapeutic activities, college courses, memory care, and
exercise programs are underscored by individual attention and passion
for our residents--which makes a real difference in their quality of
life. Ideal for a range of older adults--from those needing assistance
with the tasks of daily living to those requiring specialized
treatments and ongoing care-we take pride in transforming the landscape
of aging, every day. This past October, I was recognized by the senior
healthcare field's highest award--the Award of Honor--at the LeadingAge
Annual Conference in Philadelphia, Pennsylvania. The Award of Honor is
the highest award LeadingAge bestows. It is presented to an individual
who has been provided transformative leadership in aging services to
advance the common good. I am grateful to have accepted the Award of
Honor on behalf of the thousands of dedicated people who care for our
nation's most vulnerable older adults every day.
The Hebrew Home serves more than 18,000 people in the greater New York
City area. Our organization encompasses residential healthcare,
rehabilitation, palliative care, low-income HUD housing, middle income
housing communities, and a Medicaid managed long term plan. Our
community services division offers a full spectrum of healthcare and
supportive services to help maintain the independence of older persons
who choose to remain in their own homes. This includes long term home
health care and in-home personal care.
In 2005, we opened the Harry and Jeanette Weinberg Center for Elder
Justice on the Hebrew Home campus. It was then the nation's first
temporary shelter for victims of elder abuse residing in the community
and is today a national leader and advocate in the fight against elder
abuse.
The mission of the Harry and Jeanette Weinberg Center for Elder Justice
at the Hebrew Home at Riverdale is to champion justice and dignity for
older adults. We are pioneers of safe shelter for older adults
experiencing abuse. Through the inception of the SPRiNG (Shelter
Partners: Regional, National, and Global) Alliance, we assist
communities around the United States and the world in adopting our
flexible model to create their own unique version of shelter. My
testimony will address care within nursing homes but also raise the
critical need to address abuse in the larger community and the role
elder care providers can play to protect older adults.
Elder Abuse Is a Serious and Complex Problem
Elder abuse is large yet poorly understood problem that often cannot be
addressed in the same way that we address domestic violence.\1\ Almost
90% of elder abuse occurs in the community, often perpetrated by
family, friends, caregivers, and financial or other trusted
``advisors.'' As with child abuse and domestic violence, elder abuse is
under-reported. Elder abuse victims may be dependent on the perpetrator
financially, physically or emotionally; they may be unable to access
assistance because of physical and mental impairments (e.g., dementia).
In addition, the older adult may not know who to ask for help, or where
it is safe to make a report. As the Otto and Quinn report notes, there
is a dearth of appropriate interventions for victims of elder abuse.
---------------------------------------------------------------------------
\1\ See e.g., Otto and Quinn, ``Barriers to and Promising Practices
for Collaboration Between Adult Protective Services and Domestic
Violence Programs'' (National Center on Elder Abuse, May 2007).
As Senator Cortez Masto noted in her questions to the second panel at
the hearing, there is no one entity responsible for assuring protection
for older adults in the community. The Elder Justice Coordinating
Council, created with our support in 2010 by the Elder Justice Act,
serves as a critical center for the federal government to assess,
coordinate and improve federal and local response to elder abuse. The
valuable work done by the EJCC underscores the need to have equally
robust and significant investment by communities, a role that the elder
abuse shelter movement effectively addresses. I have been proud to work
with the EJCC in their important work.
Prevention of Abuse in Long-Term Care Settings
In many ways, it is easier to address prevention of elder abuse in
nursing homes and other long-term care entities than it is in the
community at large. These are contained by settings; the owner/provider
hires, fires and trains staff; and the requirements for care are set by
regulation and contract.
Providers must follow extensive regulations and corporate compliance,
to ensure that regulatory requirements are met and care is delivered
not just appropriately but at the highest level and with the greatest
concern for the resident. But compliance alone does not guarantee
quality.
Leadership and staffing are the two key elements that ensure high
quality care and services. Leadership sets the tone--as a mission-
driven, faith-based organization, The Hebrew Home is committed to
preventing all forms of elder abuse, neglect, and exploitation, and our
entire body of staff understands and shares this commitment. Leadership
includes creating a workplace culture of safety, transparency, dear
reporting lines, upper level professionals who know how to respond to
changes in resident conditions.
Not only does the Weinberg Center for Elder Justice address the needs
of elders in the community, it has also transformed the way our staff
looks at our own residents. We have been providing person-centered,
trauma-informed care, for over a decade. We screen for elder abuse at
every entry point into the nursing home, and the Weinberg Center Team
responds to any red flags of elder abuse, throughout the residential
and rehabilitative care provided at the Hebrew Home. The impact of the
shelter and of the type of care provided to abuse victims on the Hebrew
Home cannot be over-stated.
In Shelter: The Missing Link in a Coordinated Community Response to
Elder Abuse, published by the Center in January 2019 (available at
weinbergcenter.org), we noted at pp. 16-17:
If we think of elder abuse at all, we tend to understand it as
a discrete response to a known victim of abuse. But a system
that shelters even a small number of older victims annually can
have benefits that accrue to many, many elders throughout a
community. This payoff is perhaps most visible within care
facilities. Once facility staff understand the dynamics of
elder abuse--and staff training is essential--they're more
likely to become attuned to comments, behaviors and other signs
by non-shelter residents that might indicate ongoing or past
abuse. Opportunities to stop abuse, ideally early on, and to
support healing are created where they probably would not have
been.
Care facilities often believe they're helping to solve a
problem ``out there'' in the community, as opposed to one under
their own roof, but victims of elder abuse are everywhere.
Recent data collected by the Hebrew Home backs up this common
sense conclusion.
In addition to providing skilled nursing and assisted living
levels of care, the Hebrew Home operates a sub-acute
residential and rehabilitation center on its main campus. Using
an evidence-based screening tool developed by the Weinberg
Center (cite omitted) that focuses on circumstances and events
within the past year, as well as current and future risks,
Hebrew Home staff screened 536 rehab patients over a yearlong
period from May 2017 to May 2018. Nearly 12 percent, or 63
individuals, had positive indicators for abuse, roughly
mirroring the rate of elder abuse in the community at large-
typically cited as affecting 10 percent of adults.
More generally and over time, trauma-informed care provided to
shelter clients can influence a facility's culture, fostering
environments where the experiences and desires of residents are
more likely to be seen, heard and honored.
For nursing home and other care facilities, we find that the key
elements to ensuring the best quality of care and quality of life for
our residents is more than rules-based care--it is in the environment,
the training, the recognition of the individual's needs and interest,
the desire to serve. As a leader, I have the responsibility not only to
ensure that the rules are followed but that the conditions are in place
to enhance the work we do.
Sheltering Abused Elders: The Weinberg Center for Elder Abuse
Prevention and SPRiNG Alliance
Elder abuse in the community is difficult to detect, and even when
suspected, difficult to address. As noted above, it is estimated that
10 percent of older adults have been or are being abused, and that 90
percent of elder abuse victims do not live in nursing homes or other
care settings. To put it differently, current estimates indicate that
there are far more victims of elder abuse living in the community with
no regulatory oversight than the total number of residents living in
all U.S. nursing homes. And the amount of money stolen from older
adults each year exceeds fifty percent of the national cost of Medicaid
for nursing home care. I urge the Committee to expand its inquiry to
this population of forgotten older adults. We know that it is difficult
for victims of domestic violence to escape the cycle of poverty, to
find the resources and emotional strength to leave the abusive
relationship, as well as to find a safe haven. But it is even more
difficult for older adults who can suffer from cognitive and physical
disabilities. Traditional domestic violence shelters are not equipped
to meet the needs of a person with dementia, or who is bed bound, as
the Otto and Quinn paper note. This gap in service led to the
collaboration between the Pace Women's Justice Center and The Hebrew
Home to integrate a shelter for elder abuse victims into the
infrastructure of the Home in 2005. The shelter is not just a setting.
The Weinberg Center provides emergency short term housing, legal
assistance and support services to victims of elder abuse. The Center
continues a long-standing partnership between the Hebrew Home and the
Bronx, New York and Westchester County District Attorneys to provide
education and training to community, social services, law enforcement
professionals and the judiciary. The Center has an outreach program
designed to target older adults most at risk, visiting senior centers,
retirement communities and shopping centers to disseminate information
about available resources. In addition to prevention and intervention,
The Hebrew Home has a research division that tracks and documents all
Center cases with the ultimate goal of helping to identify the
prevalence and incidence of elder abuse. Over the last 15 years since
the first shelter opened, we have shepherded the creation of over 15
more shelters throughout the United States, and have expanded the
vision from non-profit nursing homes to broad-based community programs.
Though the SPRiNG Alliance (springalliance.org) was founded with the
intention of spreading the shelter movement to every community with a
long-term care facility, the call for each shelter model to adapt
according to the needs and resources of each community has been clear.
Now each SPRiNG Alliance partner shares the vision of safety for older
adults, and serves as the grounds for sharing research, education and
community. The shelter movement is timely, relevant and pioneering.
First, we are mission-driven and mostly faith-based, non-profit long-
term care providers with a moral obligation to assist elder abuse
victims, and we have the knowledge and ability to do so. We provide not
only a physical place for shelter, but also medical care, social work
and legal assistance. Our goal is to safely return the older adult to
the community.
Second, preventing and intervening in cases of elder abuse in the
community, requires education and collaboration. We train judges,
lawyers, pharmacists, doormen, Meals on Wheels delivery personnel and
other professionals in the community to recognize and respond to elder
abuse; we collaborate with police and prosecutors, hospitals and
medical staff and we go directly to older adults. We involve everyone
in the community who comes into contact with an older adult who needs
assistance and protection. And we facilitate creation of multi-
disciplinary terms to efficiently and effectively address the
complexity of elder abuse cases.
Third, shelter is a way to raise awareness about elder abuse and to
help influence state and federal policies. We support expanded funding
for Adult Protective Services, training and education grants in elder
abuse recognition and response, and other similar federal efforts.
Conclusion
Creating the elder abuse shelter has been an extraordinarily rewarding
experience for our staff, our board, the community and the older adults
we have helped. We would like to see an elder abuse shelter housed in
every non-profit aging services provider in America.
I appreciate the opportunity to discuss these issues with you and
congratulate you on your efforts to bring justice to our elders. We
look forward to working with you to achieve that goal.
______
Letter Submitted by Patricia Johnson
Wednesday, March 6, 2019
I would like to thank the Senate Finance Committee for giving consumers
an opportunity to voice their views on issues concerning nursing home
practices which are often unfair, abusive, neglectful, and
discriminatory in nature found throughout nursing homes across America.
My name is Patricia Johnson, daughter and Durable Power of Attorney,
for Lillie M. Vaughan. She is a long term resident at Burcham Hills
Center for Health and Rehab in East Lansing, MI after suffering a
massive stroke, at the age of 89, in Detroit in April of 2016.
Let me share with you a little about this strong, dynamic black woman.
Born and raised in Macon, GA, she moved to Detroit, MI in 1947. She got
married, raised a family, secured employment at GM Fisher Body Plant in
Livonia, MI from which she retired with full benefits. A great cook,
gifted seamstress and tailor, dedicated church worker and went above
and beyond providing care to family and neighbors with a smile.
My battles with inner city hospital physicians were nothing short of
warfare. What gives them the right to determine care or lack thereof?
She has aphasia and dysphagia, but is able to hear and understand
conversations. Lacking the necessary resources to care for her myself,
we only had 2-3 days to find a skilled nursing care rehab center upon
discharge from hospital. On June 27, 2016, she was admitted into
Burcham Hills for rehabilitation and long term care. It has been a
roller coaster ride to this day! I will highlight some of the issues
raised by presenter Dr. Grabowski of Harvard Medical School at the
above mentioned hearing.
Primary Care Physicians `missing in action'
There has been very little direct communication with the designated
medical
director/primary care physician at Burcham Hills. In December of 2016
Lillie was sent to the emergency room with a cold, swollen violet-
colored, with weeping blisters on left leg, unresponsive and
unarousable. Lab work done revealed many out of range numbers and blood
sugar was also high and out of range as well as a UTI. The hospital
physician informed me that this condition did not develop overnight. It
appears an infection had been brewing over a two week period. Later, I
requested copies of Lillie's medical records from Burcham Hills, her
blood sugar levels had been elevated weeks prior and the nurse
practitioner had been contacted by floor nurse but did not respond.
After spending three weeks in hospital Lillie returned to Burcham Hills
on hospice due to gangrene of left leg in January of 2017 with a dim
prognosis. Through the care of the wound nurse and lots of prayer the
leg started to heal on its own.
In May of 2018 this same leg started to self-amputate at the ankle and
we went back to Sparrow Hospital emergency room and an orthopedic
surgeon, provided counsel. He was willing to do the surgery on an out-
patient basis but would not manage her overall care. Prior to this we
had never been given been the option of consulting an orthopedic
surgeon. Previously we were told mostly by Burcham Hills' staff that
she probably wouldn't survive the surgery and there would probably be a
sepsis infection. On July 17, 2018, arrangements for surgery were made,
but there was a glitch. I received an email from the nurse practitioner
which stated the surgeon wanted a PCP to admit to Sparrow Hospital. The
medical director/primary care physician does not admit to Sparrow,
therefore she was seeking a Medical Internal Service who admits for
him. Who the hell has been managing my mother's care during the past
two years?
The surgery was a success, with no sepsis infection present in Lillie's
system. The surgeon discharge orders included some physical therapy,
procedures for a prosthesis leg which would help with transfers to
wheelchair, and a sense of overall dignity to a quality of life. Again,
I have been met with opposition from the medical director/primary care
physician--``she is too weak for a prosthetic leg''--and the nurse
manager stating that there is no specific plan available according to
Burcham Hills standards, which I have seen nothing in writing. However,
I make sure Lillie is up and moving about in her wheelchair daily!
The post op checkups with CIMA group was a positive experience. Blood
pressure medication was lowered to a manageable dose and Lillie was
more awake and granted referrals for an eye exam and neurologist exam
which had not been done at Burcham Hills in over two years.
Overmedicated
Upon review of listed medications, I discovered two different
medications for acid indigestion and bowel health. Lillie has been
given Reaglan, for nausea, quite a while before I was given a consent
form to sign for use of psychoactive medication in July of 2018. I was
unaware of the ``black box warning'' by FDA on elderly women who had
been on this drug for a long time. Lillie had also been given Dilantin,
anti-seizure medication for stroke victims. At one time dosage was
greatly increased due to a low therapeutic level reading from a blood
test. During the initial exam with neurologist, questions as to why she
was on a high dosage and who prescribed it. Her medical history and
records from the stroke suffered in 2016 did not show evidence of any
seizures. An order was written to discontinue this medication due to
its side effects and recommended another drug, if seizures were noted
and an EEG was scheduled months later. No seizure activity was
indicated past or present. Why are they not held accountable? These
actions effect one's quality of life regardless of being elderly.
Lack of Transparency
I have filed numerous complaints and grievances, some come back and
changes are made, some don't, especially those requiring a detailed
written response to critical questions regarding care. Both Medicare
and Medicaid allow for residents to select their own primary care
physician. However, Burcham Hills CHA require a certification process
for outside physicians or staff to come on the premises to treat
patients. I made a request in September of 2018 and after the forms
were delivered I have not heard any feed back. I continue to advocate
for Lillie. She is strong and deserving of much better care. She just
celebrated her 92nd birthday a few weeks ago. All elderly Americans who
have contributed in some way to the betterment of society deserve
better. She has medicare (UAW Retiree Blue Cross Blue Shield) and
Medicaid. I can still take her to medical specialists. The problem does
not exist with the day to day care provided by CNAs, and RNs, but with
the nurse managers, nurse practiconers, administrators, and medical
director. Family members like myself, residents are not given a voice
when it comes to ratings and our satisfaction. We are met with many
obstacles.
Thank you for allowing a consumer's voice!
Patricia Johnson
______
LeadingAge
2519 Connecticut Ave., NW
Washington, DC 20008-1520
P 202-783-2242
F 202-783-2255
LeadingAge.org
Mr. Chairman and Mr. Ranking Member, LeadingAge appreciates the
opportunity to submit this statement for the record of the Senate
Finance Committee hearing, ``Not Forgotten: Protecting Americans From
Abuse and Neglect in Nursing Homes.''
The mission of LeadingAge is to be the trusted voice for aging. Our
6,000+ members and partners include nonprofit organizations
representing the entire field of aging services, 38 state associations,
hundreds of businesses, consumer groups, foundations and research
centers. LeadingAge is also a part of the Global Ageing Network, whose
member ship spans 50 countries. LeadingAge is a 501(c)(3) tax-exempt
charitable organization focused on education, advocacy and applied
research.
Since its founding in 1961, LeadingAge has stood for quality nursing
home care. We participated in the development of the Nursing Home
Reform Act, enacted as part of the Omnibus Budget Reconciliation Act of
1987 (OBRA '87). We have worked with the Centers for Medicare and
Medicaid Services on the development of regulations to carry out OBRA.
We have taken leadership roles in numerous initiatives like Quality
First and Advancing Excellence in America's Nursing Homes, designed to
give nursing homes tools and accountability measures to improve care.
We and our 38 state associations provide extensive educational
resources for our nursing home members not only on regulatory
requirements and how to comply, but also on the deeper and more
extensive issues of developing sound and forward-thinking leadership,
recruiting and retaining well-qualified staff, and best practices for
meeting the challenges of caring for extremely frail and vulnerable
people. Our goal is for every nursing home in the country to be a place
where any of us would be willing to live if we needed the level of care
nursing homes provide.
Some recent examples of quality enhancement efforts our members and
state associations have initiated:
Safe Care for Seniors, a program spearheaded by LeadingAge Minnesota,
is designed to eliminate preventable harm in the course of caregiving.
Through both words and actions--and with the senior at the center of
all they do--providers renew their commitment to give safe, quality
care to ensure a high quality of life for those they serve. Providers,
team members, residents and families partner together to promote a
culture of safety that allows residents to thrive in a community built
on safety, trust, dignity, and respect. Providers and individuals take
a two-fold pledge to increase the safety of the people they serve. They
promise to always treat the people for whom they care with respect and
dignity, to take steps to get to know them as individuals, and to speak
up if they see something that may be unsafe or makes them feel
uncomfortable.
Gayle Kvenvold, President and CEO of LeadingAge Minnesota put it this
way: ``. . . we began by asking this question: what is in our power to
do to bring about the best lives for our elders? And that led us to
renew our commitment to the heart and soul of our work--respect, safety
and dignity for those we serve--and to commit as a statewide caregiving
community and as LeadingAge Minnesota to some of the most meaningful
work we will ever do. This is our calling, our commitment and our
culture. Together we will prevent harm before it occurs and create a
culture of safety. Together we will help those whose lives we touch,
live their best lives.'' As the national partner of LeadingAge
Minnesota, LeadingAge will seek to build on and promote the positive
results of this initiative to our members in other states.
Another example involves two of our member nursing homes' collaboration
with Altarum in its Program to Improve Eldercare. Altarum has received
funding from civil monetary penalties collected by the state of
Michigan for a three-year nursing home culture change initiative.
LeadingAge members Martha T. Berry Medical Care Facility in Mount
Clemens and Beacon Hill at Eastgate in Grand Rapids will be two of the
six nursing homes participating in this initiative.
This ``Accelerating Quality Improvement for Long-Stay Residents in
Michigan Nursing Homes Using Culture Change'' project will involve
education and coaching from the Eden Alternative, a well-known
proponent of fundamental nursing home organizational transformation
toward truly person-centered services. Project participants will be
trained in directing their organizations' operations to services
oriented by resident choices and values. Altarum will monitor
developments at the participating nursing homes, evaluate progress, and
determine sustainability and economic impact. We and our members are
excited by this opportunity to demonstrate the ways in which the
principles of culture change can be put into practice and potentially
replicated in other areas.
We also want to mention the work done by RiverSpring Health in
Riverdale, New York. In addition to comprehensive services for its
residents, RiverSpring maintains the Weinberg Center for Elder Justice,
established in 2005 as this country's first shelter for victims of
elder abuse. The Weinberg Center provides legal, social, and care
management services to elders who have been victimized. At the Weinberg
Center, elders who have experienced physical, emotional, or sexual
abuse; neglect or abandonment; or financial exploitation can find
shelter and help to regain control over their lives. Multi-disciplinary
teams at the Weinberg Center provide trauma informed care and services
to help the older person recover, deal with legal issues, and often
return to the community.
RiverSpring Health is part of the Shelter Partners Regional, National,
and Global (SPRING) Alliance, a growing network of regional shelters
supporting older people who have been victims of elder abuse. Several
other LeadingAge members have joined the Alliance , including Eliza
Bryant Village in Cleveland, Ohio; St. Elizabeth Community in
Providence, Rhode Island; Lifespan in Rochester, New York; Jewish
Senior Life in metropolitan Detroit, Michigan; and Jewish Senior
Services in Bridgeport, Connecticut. These organizations collaborate,
sharing resources, technical assistance, and training to serve elders
who have experienced abuse.
These are only some of the examples of the work LeadingAge members do
every day to ensure the highest possible quality of care and quality of
life for older people who need long-term services and supports. We make
no apology for bad nursing home care. There is no excuse for abuse or
neglect of older people whether they are living in nursing homes or in
the larger community.
We understand and share the committee's concern about abuse and neglect
in nursing homes. We also question the accuracy and adequacy of
information now available to consumers through the Nursing Home 5-Star
Quality Rating System on the Center for Medicare and Medicaid Services
(CMS) website. As we have commented previously to Congress, the 5-Star
system compares a nursing home's performance on quality measures,
staffing, and health inspections only against the performance of other
nursing homes in the same state. A 5-Star rating means only that a
nursing home is performing much better than other nursing homes within
its state. LeadingAge believes that this system of rating nursing homes
does not give consumers as much information as they need and should
have to pick the best nursing home for themselves or their family
members.
The 5-Star system also grades nursing homes on a bell curve, which
requires some nursing homes to be graded at the one- and two-star level
and relatively few nursing homes to be graded at the four- or five-star
level. No matter how well its nursing homes may perform, no state may
have a preponderance of four- and five-star nursing homes.
While the 5-Star system was conceived as a tool to help consumers
choose a nursing home, few consumers understand the actual meaning of
the 5-Star ratings. In addition, the ratings have been applied to
contexts for which they were never intended, such as partnership in
accountable care organizations, inclusion in managed care plans, and
distribution of revenues under state Medicaid value-based purchasing
initiatives.
On June 27, 2017 CMS announced an 18-month freeze on the health
inspections portion of nursing homes' 5-Star ratings. The committee has
noted that the 5-Star freeze has prevented consumers from detecting
deterioration in a nursing home's quality that may have occurred since
the nursing home's last survey in 2017. By the same token, we have
heard from several of our member nursing homes that have committed time
and resources to improving quality but are still stuck with their
ratings from two years ago. We urged CMS to provide updated information
on Nursing Home Compare about improvements nursing homes achieve during
the freeze period.
We also have recommended that CMS should take a national approach to
rating nursing homes under the 5-Star system. In its November 2016
report, Nursing Homes: Consumers Could Benefit From Improvements to the
Nursing Home Compare Website and Five-Star Quality Rating System, the
Government Accountability Office said:
According to CMS Five-Star System documentation, the rating
system is not designed to compare nursing homes nationally.
Instead, ratings are only comparable for homes in the same
state. CMS made the decision to base the health inspection
component on the relative performance of homes within the same
state primarily due to variation across the states in the
execution of the standard surveys. Because the health
inspection component most significantly contributes to the
overall rating, this means that the overall rating also cannot
be compared nationally. However, the addition of national
ratings would be helpful for consumers and we have previously
made recommendations to CMS that would help decrease survey
variation across states.
And the 5-Star rating system should not include a bell curve. Every
nursing home should have the potential to achieve a 5-Star rating by
providing the highest-quality services. Every nursing home should be a
place where we would not be reluctant to live or have a family member
go to live when that level of care and services is needed.
An incident to be discussed at the committee's hearing, of the death of
an Iowa nursing home resident due to reported neglect and inadequate
care, is disturbing. It is the kind of incident for which no excuses
can be made.
The case to some extent illustrates the challenges faced by rural long-
term care providers and by people living in rural areas who need long-
term care. According to news reports, Patricia Blank's mother, Mrs.
Virginia Olthoff, lived at the Timely Mission Nursing Home in Buffalo
Center, Iowa.
Buffalo Center is a town of 891 people, whose population is both aging
and declining, according to census data. The town is 86 miles from the
nearest moderate-sized city, Rochester, Minnesota. Timely Mission is
the only nursing home in Buffalo Center, and the town has no home
health care provider or hospital. Timely Mission has 46 beds certified
for Medicare and Medicaid but currently has 38 residents, giving it an
82% occupancy rate.
During 2018, LeadingAge held town hall conversations in every state
where we have members. Overwhelmingly we heard from our members,
especially in rural areas, about the difficulties they have recruiting
and retaining staff. This is true not only of certified nursing
assistants, the backbone of the long-term care system, but also
administrators, nurses, social workers, pharmacists, mental health
professionals, and other essential care providers. We would note that,
according to news reports, Timely Mission had no administrator at the
time the incident in question occurred.
Concern reportedly has been expressed that as a result of care
deficiencies that resulted in Mrs. Olthoff's death, CMS assessed a fine
of $77,462. Questions have been raised as to whether the amount of that
fine was appropriate, given the egregious circumstances in this case,
and whether a much heavier fine should have been imposed, for example
by using the per-day calculation CMS has used in the past.
Again, we make no excuses for bad care. However, we think the impact of
steep fines on small, stand-alone nursing homes needs to be considered.
The fine CMS assessed on Timely Mission likely had a measurable impact
on the nursing home's finances. A fine approaching $1 million, which
might have been assessed under the per-day method of calculation,
almost certainly would have caused the facility to close.
And what of that? Do we care whether an underperforming small nursing
home in a rural area gets closed as a result of fines for care
deficiencies? We think the committee should care. Because what happens
to the 36 people now living at Timely Mission if it closes down? Where
are they supposed to go? Alternative nursing home care is many miles
away; home care services are even more distant. Maybe we should all be
responsible for contributing to constructive solutions that improve
care and preserve the ability of rural Americans to have access to
nursing home services if they need them.
What happens to the people who work at Timely Mission if it closes? In
many rural communities, the local nursing home is the primary source of
employment. If another provider were to take Timely Mission's place,
who would the new provider be able to recruit to provide the long-term
services and supports residents of the area will need as they age?
LeadingAge represents many rural long-term services and supports
providers who do an outstanding job in caring for their residents and
clients. Residents of rural areas need and deserve the highest quality
of long-term services and supports. But the challenges of financial and
human resources that generally prevail in the long-term services and
supports field are magnified in rural and frontier areas where the
working-age population is declining, the aging population is growing,
and health, long-term care, and human resources are few and far
between. This is a concern not only for us as providers but also for
those representing individuals and families who need long-term services
and supports.
We need to consider whether the imposition of fines that might amount
to several times a nursing home's annual revenues is the best or only
way to ensure quality. We would note that the Nursing Home Reform Act
of 1987 provides an array of remedies for care deficiencies in addition
to civil monetary penalties; these remedies include directed plans of
correction, in-service training, and appointment of temporary
management. A recent Health Affairs article, ``The Future of Nursing
Home Regulation: Time for a Conversation?'' by David Stevenson comments
that:
[I]t is important to note that there is relatively limited
evidence about whether penalties effectively deter poor-quality
care and what their optimal level or form might be.
We believe it is time to forge a new path forward: one of close
collaboration between providers, policymakers, regulators and consumers
that will better help providers meet the challenges faced to achieve
the type of care older adults need as they age. Nursing homes play a
critical role in our healthcare system and will continue to do so. This
is not an us versus them situation. We--providers, policymakers,
consumers and elected officials--are all in this together. We ask for
an honest conversation on how all providers, and rural ones in
particular, can attract and retain the staff they need; a clear
assessment about the true costs of care, and how the nursing home
oversight system can effectively promote systemic organizational change
leading to measurable and sustained quality improvement within nursing
homes. We owe it to older adults and those who care for them to figure
this out.
______
Long Term Care Community Coalition et al.
The Long Term Care Community Coalition, Center for Medicare Advocacy,
National Consumer Voice for Quality Long-Term Care, Justice in Aging,
California Advocates for Nursing Home Reform, and National Academy of
Elder Law Attorneys thank the Senate Finance Committee for holding the
March 6, 2019, hearing ``Not Forgotten: Protecting Americans From Abuse
and Neglect in Nursing Homes.'' Our organizations are dedicated to
improving the lives of long-term care residents across the country and
are writing this Committee to highlight both recent and ongoing
concerns that place nursing home residents at risk of experiencing
abuse, neglect, and other forms of harm.
As this Committee knows, the Nursing Home Reform Law requires every
nursing home to provide residents with the services they need to attain
and maintain their ``highest practicable physical, mental, and
psychosocial well-being.''\1\ To ensure that residents receive the care
that they need and deserve, the law and its implementing regulations
detail specific resident rights and protections that all nursing homes
must adhere to when they voluntarily participate in Medicare, Medicaid,
or both. Unfortunately, the Centers for Medicare and Medicaid Services
(CMS) has been rolling back these resident rights and protections,
often at the request of the nursing home industry, for the purpose of
reducing so-called provider ``burdens.''\2\
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\1\ 42 U.S.C Sec. 1395i-3(b)(2).
\2\ See, e.g., Don't Abandon Nursing Residents, CANHR et al.,
available at https://nursinghome411.org/dont-abandon-nursing-home-
residents-series/.
The following actions represent only a few of CMS's deregulatory
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efforts over the past 2 years:
1. CMS placed an 18-month moratorium on the full enforcement of
eight standards of care.\3\ These standards relate to important
resident protections, such as baseline care planning, staff competency,
antibiotic stewardship, and psychotropic medications. The moratorium
means that nursing homes will not be financially penalized when these
safeguards are violated.
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\3\ Temporary Enforcement Delays for Certain Phase 2 F-Tags and
Changes to Nursing Home Compare, Ref: S&C 18-04-NH, CMS, November 24,
2017, available at https://www.cms.gov/Medicare/Provider-Enrollment-
and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-
Letter-18-04.pdf.
2. CMS shifted the default civil money penalty (CMP) from per day
(for the duration of a violation) to per instance.\4\ The New York
Times reported that ``the change means that some nursing homes could be
sheltered from fines above the maximum per-instance fine of $20,965
even for egregious mistakes.''\5\
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\4\ Enforcement Weakens as Civil Money Penalties Shift From Per Day
to Per Instance, Center and LTCCC, available at https://
www.medicareadvocacy.org/enforcement-weakens-as-civil-money-penalties-
shift-from-per-day-to-per-instance/.
\5\ Jordan Rau, ``Trump Administration Eases Nursing Home Fines in
Victory for Industry,'' The New York Times (December 24, 2017),
available at https://www.nytimes.com/2017/12/24/business/trump-
administration-nursing-home-penalties.html.
3. CMS issued a notice of proposed rulemaking (NPRM) to roll back
emergency preparedness requirements. Most notably, the proposed rule
would allow nursing homes to review their programs and train staff
every two years instead of annually.\6\
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\6\ Medicare and Medicaid Programs; ``Regulatory Provisions to
Promote Program Efficiency, Transparency, and Burden Reduction,'' 83
Fed. Reg. 47686 (September 20, 2018), available at https://
www.govinfo.gov/content/pkg/FR-2018-09-20/pdf/2018-19599.pdf.
4. In response to industry lobbying, CMS is carrying out plans to
revise the federal nursing home Requirements of Participation to
``reform'' standards that have been identified as ``excessively
burdensome'' for the nursing home industry.\7\ The Requirements were
recently revised in October 2016 (for the first time in 25 years) to
better address longstanding problems, including persistent abuse and
neglect.\8\ These standards need to be implemented, not watered down.
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\7\ Requirements for Long-Term Care Facilities: Regulatory
Provisions to Promote Program Efficiency, Transparency, and Burden
Reduction (CMS-3347-P)(Section 610 Review), Office of Information and
Regulatory Affairs (Fall 2018), available at https://www.reginfo.gov/
public/do/eAgendaViewRule?pubId=201810&RIN=0938-AT36.
\8\ ``Medicare and Medicaid Programs; Reform of Requirements for
Long-Term Care Facilities,'' 81 Fed. Reg. 68688 (October 4, 2016),
available at https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/
2016-23503.pdf.
Nursing home residents are some of the most vulnerable individuals in
the nation. CMS's deregulatory agenda puts residents in danger of
experiencing harm or being placed in immediate jeopardy of health,
safety, or well-being. This potential for resident harm is in direct
opposition to the HHS Secretary's duty under the law. The law makes
clear that the Secretary is responsible for assuring the ``requirements
which govern the provision of care in skilled nursing facilities . . .
, and the enforcement of such requirements, are adequate to protect the
health, safety, welfare, and rights of residents and to promote the
effective and efficient use of public moneys.''\9\ CMS's deregulatory
actions indicate that the Secretary is ignoring this long-standing
mandate.
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\9\ 42 U.S.C. Sec. 1395i-3(f)(1).
CMS's efforts are even more dangerous because they exacerbate existing
problems in nursing homes. Multiple reports from the HHS Office of the
Inspector General (OIG) and the Government Accountability Office (GAO)
document persistent and widespread problems facing nursing home
residents. For instance, a 2014 OIG report found that one-third of
Medicare beneficiaries experienced harm within, on average, 15.5 days
of entering a nursing home; the OIG stated that 59 percent of these
events were preventable.\10\ Similarly, a 2008 GAO report highlighted
that studies since 1998 indicate state surveyors ``sometimes understate
the extent of serious care problems in homes because they miss
deficiencies. . . .''\11\ Such persistent problems over the years have
created greater insecurity for residents, requiring additional
legislation and regulations, not less.
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\10\ Daniel R. Levinson, Adverse Events in Skilled Nursing
Facilities: National Incidence Among Medicare Beneficiaries, HHS OIG
(February 2014), available at https://oig.hhs.gov/oei/reports/oei-06-
11-00370.pdf.
\11\ Federal Monitoring Surveys Demonstrate Continued
Understatement of Serious Care Problems and CMS Oversight Weakness, GAO
(May 2008), available at https://www.gao.gov/assets/280/275154.pdf.
---------------------------------------------------------------------------
The following problems indicate only some of the ongoing concerns:
1. Citations. More than 95 percent of all citations for violations of
the federal minimum standards of care result in findings of no resident
harm.\12\ A ``no harm'' citation does not mean that the resident did
not, in fact, experience pain, suffering, or humiliation. However, a
finding of ``no harm'' all too often does mean that the nursing home is
not penalized for poor care.\13\
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\12\ Nursing Home Data Compendium 2015 Edition, CMS, available at
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
CertificationandComplianc/Downloads/nurs
inghomedatacompendium_508-2015.pdf.
\13\ See generally, Elder Justice: What ``No Harm'' Really Means
for Residents, LTCCC and Center, available at https://
nursinghome411.org/news-reports/elder-justice/.
2. Staffing. Staffing is essential to resident care and quality of
life. Too often, insufficient staffing is the underlying cause of other
health violations.\14\ By law, nursing homes must have a registered
nurse on duty for eight consecutive hours and 24-hour licensed nurse
services every single day.\15\ These two requirements are recognized as
the minimum necessary to ensure that residents receive the ``skilled
nursing'' care and monitoring that they need and which facilities are
paid to provide. However, CMS noted in a 2017 memorandum that about 6
percent of nursing homes that submitted nurse staffing data for the
third quarter of 2017 had 7 or more days with no reported RN hours and
that 80 percent of these days were on weekends.\16\ The New York Times
further described the federal data as documenting that, for at least
one day in the last quarter of 2017, 25 percent of nursing homes
reported no registered nurses at work.\17\
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\14\ The New York Times Shows Nursing Homes Are Not Meeting
Staffing Requirements, LTCCC and Center, available at https://
nursinghome411.org/the-new-york-times-shows-nursing-homes-are-not-
meeting-staffing-requirements/.
\15\ 42 U.S.C. Sec. 1395i-3(b)(4)(C).
\16\ Transition to Payroll-Based Journal (PBJ) Staffing Measures on
the Nursing Home Compare Tool on Medicare.gov and the Five Star Quality
Rating System, Ref: QSO-18-17-NH, CMS (April 6, 2018), available at
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
SurveyCertificationGenInfo/Downloads/QSO18-17-NH.pdf.
\17\ Jordan Rau, ``It's Almost Like a Ghost Town. Most Nursing
Homes Overstate Staffing for Years,'' The New York Times (July 7,
2018), available at https://www.nytimes.com/2018/07/07/health/nursing-
homes-staffing-medicare.html.
3. Antipsychotic Drugs. About 20 percent of nursing home residents are
administered antipsychotic drugs every day.\18\ However, less than 2
percent of the population will ever have a diagnosis for a clinical
condition (e.g., Schizophrenia) identified by CMS when it risk-adjusts
for potentially appropriate uses of these drugs. In a 2011 statement
addressing widespread and inappropriate use of antipsychotic drugs in
nursing homes, the HHS Inspector General stated that ``[g]overnment,
taxpayers, nursing home residents, as well as their families and
caregivers should be outraged--and seek solutions.''\19\ Nevertheless,
7 years later, in the absence of meaningful enforcement, the problem of
overuse and misuse of antipsychotic drugs is still widespread.
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\18\ Despite Promised Crackdown, Citations for Inappropriate
Drugging Remain Rare, LTCCC (November 8, 2018), available at https://
nursinghome411.org/ltccc-news-alert-despite-promised-crackdown-
citations-for-inappropriate-drugging-remain-rare/.
\19\ Daniel R. Levinson, Overmedication of Nursing Home Patients
Troubling, HHS OIG (May 9, 2011), available at https://oig.hhs.gov/
newsroom/testimony-and-speeches/levinson_051011.
asp.
4. Transfer and Discharge. CMS has stated that ``facility-initiated
discharges continue to be one of the most frequent complaints made to
State Long Term Care Ombudsman Programs.''\20\ Although the Nursing
Home Reform Law places specific restrictions on when and how a resident
can be transferred or discharged, many residents fall victim to
inappropriate and unsafe discharges. Residents have been discharged to
unsafe and inappropriate settings, such as homeless shelters, storage
units, and motels.
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\20\ An Initiative to Address Facility Initiated Discharges That
Violate Federal Regulations, Ref: S&C 18-08-NH, CMS (December 22,
2017), available at https://www.cms.gov/Medicare/Provider-Enrollment-
and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-
Letter-18-08.pdf.
5. Ownership. The buying and selling of nursing homes and the transfer
of licenses to new managers raise questions about who these operators
are and whether there are sufficient state and federal law,
regulations, and practices in place, and meaningfully enforced, to
protect residents.\21\ For instance, Skyline Healthcare took over 100
nursing homes across the country starting in 2015 before ultimately
collapsing in 2018.\22\ Officials from various states indicated that
Skyline facilities were at imminent risk of running out of necessary
food and medication, and were unable to meet payroll. Many of Skyline's
nursing homes were acquired from Golden Living, another chain that was
sued by the Pennsylvania Attorney General in 2015 for providing poor
care to residents.\23\
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\21\ Joint Statement on Turmoil in the Nursing Home Industry, LTCCC
and Center, available at https://nursinghome411.org/wp-content/uploads/
2019/01/LTCCC-CMA-Joint-Statement-on-Turmoil-in-the-Nursing-Home-
Industry.pdf.
\22\ Kimberly Marselas, ``Skyline's implosion continues with
Pennsylvania takeover,'' McKnight's Long-Term Care News (May 3, 2018),
available at https://www.mcknights.com/news/skylines-implosion-
continues-with-pennsylvania-takeover/.
\23\ Wesley Robinson, ``Harrisburg, Camp Hill nursing homes among
14 sued by state,'' Penn Live (July 1, 2015), available at https://
www.pennlive.com/midstate/index.ssf/2015/07/
14_nursing_homes_of_chain_name.html.
Nursing home residents are in need of urgent action to protect their
quality of care and quality of life. Given the ongoing problems that
already exist in nursing homes, CMS's deregulation places residents at
an even greater risk of experiencing harm. We applaud the Senate
Finance Committee's decision to hold a hearing on nursing home resident
abuse and neglect, and hope that this Committee will continue to shine
a spotlight on these issues until real change occurs and is sustained.
Our organizations would like the opportunity to work with this
Committee on future hearings and legislation to find solutions to these
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problems.
Contact Information:
Richard J. Mollot, Executive Director
Long Term Care Community Coalition
212-385-0355 | [email protected]
Toby S. Edelman, Senior Policy Attorney
Center for Medicare Advocacy
202-293-5760 | [email protected]
Dara Valanejad, Policy Attorney
Center for Medicare Advocacy
Long Term Care Community Coalition
202-293-5760 | [email protected]
Lori. O. Smetanka, Executive Director
The National Consumer Voice for Quality Long-Term Care
202-332-2275 | [email protected]
Robyn Grant, Director of Public Policy and Advocacy
The National Consumer Voice for Quality Long-Term Care
202-332-2275 | [email protected]
Eric Carlson, Directing Attorney
Justice in Aging
213-674-2813 | [email protected]
Natalie Kean, Staff Attorney
Justice in Aging
202-621-1038 | [email protected]
Janet Wells, Public Policy Consultant
California Advocates for Nursing Home Reform
202-550-0209 | [email protected]
Tony Chicotel, Staff Attorney
California Advocates for Nursing Home Reform
415-974-5171 | [email protected]
Michael Connors, Long Term Care Advocate
California Advocates for Nursing Home Reform
415-974-5171 | [email protected]
David M. Goldfarb
National Academy of Elder Law Attorneys (NAELA)
703-942-5711 #232 | [email protected]
______
Letter Submitted by Cherrie A. Miller
To Senator Grassley,
I am writing to you today regarding the death of Duane M. Dingman. I
want to give you an accurate picture of the events that led up to my
Dad's death. You are one of the very few who have taken the time to
listen to what is actually happening in Iowa. As you have witnessed
with the death of Mrs. Olthoff, Inspections and Appeals does absolutely
nothing to monitor the nursing homes, care facilities, and hospice
providers who are supposedly providing care to those who are most
vulnerable. In the case of Mrs. Olthoff, Buffalo Center retained a 4
star rating. In the case of my Dad, the director of Windsor Manor and
the nurse were fired and went across town and got the same jobs at
another facility the next day. Inspections and Appeals gave Unity Point
Hospice a citation and monitored for one year. That was it.
Kepro did an investigation into the death of my Dad and they said what
Unity Point did was cruel and he suffered to die. In their report they
stated that Unity Point did NOT ``meet the minimum standard of care.''
Kepro is the investigative branch of Medicare. The staff at Kepro is
comprised of doctors and nurses who have worked in hospice or directly
with it.
Dad is a two time veteran. I went to the head of the Veteran's
Administration for the state of Iowa. We met with the head physician.
They were also appalled at the lack of care my Dad was given.
I have filed formal complaints to the Iowa Board of Nursing about the
hospice nurse who withdrew Dad's heart medication without our knowledge
and or consent. I specifically told them not to do that because he was
in congestive heart failure. We found out by accident what they had
done. They are going to keep an eye on her. Do you have to hurt a
certain number of people before any action is taken? What is that
number?
I have filed a formal complaint with the Iowa board of Medicine. Dr.
Nikki Ehn was his physician for several years. She removed all his
medications based on a call from a ``case manager'' that she had never
met in her life. The family was never notified. They are going to keep
an eye on her too. Please keep in mind the heart medicine that was
helping to provide some comfort for him is about the size of a BB. What
happened to care, comfort, and the ``do no harm'' oath? They were done
with him.
I have notified the Iowa Attorney General's office and talked with the
office of the Governor of Iowa, Kim Reynolds. Senator Ernst has a
formal report and so does Congressman Kevin Yoder for the State of
Kansas. It is the office of Kevin Yoder that finally got my Dad his
well-deserved veteran benefits.
At the federal level I have also called the division of Medicare.
I absolutely want to testify before the committee on Elder Abuse and
Neglect. We have done a lot of talking and filing reports, now it is
time to do something for those who need and deserve care. You have the
power to do that.'
Respectfully,
Cherrie A. Miller
______
We are filing this complaint against Unity Point Hospice, Fort Dodge,
Iowa, on behalf of my deceased Father, Duane M. Dingman of Webster
City, Iowa. This complaint specifically addresses their failure to meet
a ``standard of care.'' On September 22, 2015, Amanda Gascho, the case
worker from Unity Point removed all of my Dad's medications without our
permission. At my insistence, all medications were to be reinstated
immediately. She did not comply with the families instructions. We were
not told the medications had not been reinstated. On September 26,
2015, the week-end hospice worker named Erin informed us that Dad had
not received any medications except Oxycodone for the last 4 days.
Specifically no Lasix for the congestive heart failure. Erin left
shortly after that. She did not stay to see if he was comfortable or
that the medications were reinstated. We never saw Unity Point Hospice
again. On the fifth day, the 27th, he was filled with fluid and he
struggled for over 3 hours and finally died. It was a horrible
nightmare. Our family is sickened and devastated over this. I watched
him die a very difficult death and no one showed up to help.
The entire point of hospice care was to provide comfort to Dad in the
final weeks of his life and for a peaceful transition when the time
came. In their records they noted in the plan they made that this was
the family's wishes. They did none of it.
Please meet my Dad. I have enclosed his memorial for you. If you look
at the back you will see he is a two time veteran that proudly served
in World War II and the Korean conflict. He was honorably discharged
twice. He was married to my Mother for 57 years and the resided at
their home for over 50 years. He worked at Electrolux for 43 years and
retired with an impeccable record. At the age of 84, Congressman Kevin
Yoder helped my Dad get the VA benefits he so richly deserved.
At the beginning of September 2015, as a family we decided to start
hospice care for Dad. We were given Unity Point's name by Windsor
Manor. We chose them because they were fairly close to Webster City and
when it was critical they could be there. We were told by the Windsor
nurse that they will come on week-ends to provide care. This was very
important to us because we wanted to be sure that they would be
available to keep him as comfortable as possible and especially during
the transition time. Early on, the care was minimal. They did vital
signs and actually spent very little time with Dad. The aids at Windsor
Manor were carefully monitoring his oxygen levels, vital signs, helping
with showers and daily care. On several occasions I suggested they came
to help at meal time, taking him out in his wheelchair for fresh air,
or going to the cafe for a cup of soft serve ice cream, or assisting
with showers. They were not receptive to that. One Unity Point employee
said they did not have time for that and they don't do that. During
that month they gave him 2 showers, a massage and I insisted Mandy take
him out for fresh air on September 22, 2015--very reluctantly she did.
Early on they wanted to stop his medications. We said none would be
stopped other than three vitamins. On September 17, 2015, Dad was
having difficulty and the Windsor Nurse called me to come to Windsor. I
left Kansas City and spent the night sleeping next to Dad. He rebounded
on the 19th. I spent the day with him. My brother, Mike came and was
surprised to see me. Mike was there to see him every day about
lunchtime before he went to work. I spent the day with Dad and went
home later that day. Please note Mike was there every day and I called
at least twice a day to check on him. Dad had a telephone in his room
so we talked a lot.
On September 22, 2015, the Windsor Manor nurse, Laura Lavender, called
to say that Dad was not swallowing well and they felt it was best to
take all the medications and give him liquid morphine. We were very
apprehensive about stopping all medications, and Mike and I wanted to
talk it over. Amanda, the case manager stopped all medications. He had
been getting oxycodone every 2 hours. During that time he did not get
any morphine or oxycodone. I called the Windsor aid and she told me Dad
had not had any pain medication for over 6 hours. I spoke with Amanda.
I insisted she reinstate them all. She said all the meds were out of
the building. I told her she was wrong and to walk down to the nurses
station while I was on the phone with her. I insisted she get them,
bring them down and restart them right now. ALL the meds were there. We
did not know she only brought the oxycodone down. I stayed with her on
the phone while she gave the medication to Dad. I have phone records to
document this. According to Nikki Ehn, our family doctor, Amanda never
asked to reinstate all the meds--only the oxycodone. A critical
medicine for Dad was the lasix. This helped to eliminate the fluid from
the heart, legs, arms, and mid region. It was important for his
comfort.
On September 23rd, Dad had a good day. Mike checked on him and noted he
was doing well today. When Mike arrived for his daily check, Dad was at
the table eating. Obviously he was able to swallow. I made my normal
phone calls and things were better. During the rest of this week Mike
was dropping off the normal meds the VA sent to him at his home and
then he would bring them to Windsor Manor. He dropped off meds 3 times
that week. No one at Windsor Manor said that he was no longer getting
those meds. As far as we knew everything was reinstated as requested. I
let them know that I was coming on Saturday and planned to stay for an
extended time. The nurse did call me and told me to bring bigger slacks
because Dad was so swollen his slacks no longer fit him. I purchased 4
pairs to bring on Saturday.
On September 24th and September 25th, Dad was eating a pretty good
breakfast, moderate lunch, and not much supper. Mike noted his arms and
legs looked more swollen.
On September 26th, I called the after hours hospice line to get an
update from them. It was the hospice number they gave me to call when
we started with them. They did not know who Dad was. FOUR hours later
they figured out who he was. They routed me to a woman at her home with
a barking dog in Sioux City, and several other places. I got to Windsor
Manor and both Mike and I noted Dad's legs and arms were very swollen.
The week-end hospice worker, Erin, finally showed up. This is when we
were told Dad was only getting oxycodone. Mike stayed in with Dad while
he laid down. I went outside with my cell phone and started raising
hell to get his meds back. Erin left. We never saw Unity Point Hospice
again. At 8 PM on Saturday night Erin left me a voice mail saying she
got a hold of Nikki Ehn and all the meds were reinstated except for the
blood pressure one. The key was the lasix were reinstated. I called the
Windsor nurse. She was at a dance. The director was at a birthday
party. The only worker up front was an aid named Kay and she did not
have a key to get in the nurses office to get the meds. The director,
Jill Scott called Kay when I was standing there. Jill Scott was yelling
in the phone that I was raising hell trying to get my Dad's medicine
back. She told her she was not coming in. There was not a nurse in the
building and no one could get a key to restart the meds. We were just
stone walled--another day with no lasix. We are now on day 4 without
them. Mike helped Dad dress for bed. At that time his legs were so
heavy Mike lifted them into bed, he could no longer lift them himself.
I slept in a chair next to him. He was up and down all night. He kept
trying to spit up fluid. We later learned the Windsor nurse had all his
medications removed and sent them to Thrifty White Pharmacy. The
Pharmacy was closed and would not reopen until Monday. Dad did not make
it to Monday.
September 27, 2015, Dad woke up at 5:15 AM. I helped him in the
bathroom and then sat him in the recliner. His breathing was heavy and
labored. We are now on day 5 with no lasics. His breathing is going
from labored to wheezing. I am trying to comfort him and it is not
working. I called the director and the nurse and neither one is coming
until after lunch. Unity Point Hospice did not show up either. At that
time I am begging for help. The nurse told me we had to be dismissed
from hospice to call an ambulance. We later learned that is not true.
We learned that from one of the prosecuting attorneys for the State of
Iowa. While I stepped out to call for help, Dad panicked. I told him I
would stay close and I held his hand. With one hand I held his hand,
and the other I was calling and begging for help. The aid shift changes
and Lisa Sandkamp arrives. She used to be a hospice aid for Gehtiva. By
then it is 6:15. It is going very badly. After calling the Windsor
nurse, Lisa brought in some liquid drops. By then Dad is convulsing and
his body and face are in spasms and gasping for air. You could hear the
sound of fluid. He kept trying to spit it up. He was really struggling.
It was awful. I called Mike to come. Hospice did not show up and no one
from Windsor showed up either. Finally at 7:55 they used a cell phone
to pronounce him dead. The director from Windsor showed up and so did
the nurse. Hospice wanted to show up for grief counseling. I told them
to stay away. They did not show up when we needed them--we did not need
them now. I am not sure why the director of Windsor and the nurse
showed up. When I was begging for help, they did not show up either.
They all came running as soon as he was dead.
These people cut Dad's life short and made the final hours of his life
a nightmare. They are monsters. This is not what hospice should be. He
is a great man and he deserved better than this. Their disrespect and
disregard for his precious life is not acceptable. This family is
devastated.
Amanda J. Gascho needs to be held accountable for her actions. She is a
lot of things, hospice manager is not one of them. Nikki Ehn was his
doctor. Her inappropriate behavior is disgusting. Windsor Manor was
Dad's home for 5 years. Birthday cake and dancing are more important
than end of life help. That says a lot about them. My Dad deserved more
care, regard, and respect. I also want to make sure that this cannot
happen to another family.
The death certificate shows he died of natural causes. There was
nothing natural about it. They were not there--I was. They cannot even
speculate what the final hours of his life were like--they never showed
up when he was alive. Unity Point billed Medicare $10,000. They are all
about the money. Care and Comfort are not included when you sign an
agreement with them for hospice care
Thank you for your immediate attention to this matter. I will gladly
forward any and all documents you request.
Sincerely,
Cherrie A. Miller
______
in loving memory of
DUANE M. DINGMAN
March 16, 1928-September 27, 2015
_______________________________________________________________________
Duane Dingman, 87, of Webster City, died Sunday, September 27, 2015 at
Windsor Manor. A Celebration of Life will be held at 2:00 p.m. on
Thursday, October 1, 2015 at St. Paul's Lutheran Church with Pastor
Mark Eichler officiating. Burial will follow the services at Graceland
Cemetery with military rites by the American Legion Post #191.
Visitation will be prior to the services from 12:00 p.m. until 2:00
p.m.
Duane M. Dingman, the son of James W. and Ethel Vandeventer Dingman was
born March 16, 1928 in Webster City. He attended school in Webster
City. He enlisted in the United States Army and proudly served two
times. He enlisted on November 8, 1945 at Fort Des Moines, Iowa and
served overseas with the Third Infantry. He was honorably discharged on
March 16, 1948. He was recalled in the Korean Conflict on September 17,
1950 to Fort Hood, Texas. He was shipped overseas and served until June
30, 1951. He was honorably discharged on July 9, 1951, at Fort Lawton,
Washington.
Duane married the love of his life, Nadine F. Lunning, on November 14,
1952 at the First Baptist Church of Webster City. Duane and Nadine were
members of St. Paul's Lutheran Church and remained faithful members.
They were married for 57 years. They resided at 1623 Sparboe Court for
over 50 years. In later years Duane resided at Windsor Manor in Webster
City.
Duane was employed at Webster City Products for 43 years. He retired at
the age of 65. He is survived by two children, Cherrie A. Miller of
Overland Park, Kansas and Michael and Catheryn Dingman of Webster City.
He has two grandchildren, Jason D. and Christine Dingman of Webster
City and Teresa and Andrew Miller of Grimes; many nieces and nephews.
Duane and Nadine enjoyed many historical society events and remained
active in genealogy throughout their married life. They loved learning
about their families and helped many others locate their family members
too. Duane loved spending time with his grandchildren and was active in
their lives. For many years he enjoyed his coffee group at McDonalds.
He is preceded in death by his wife, Nadine; his parents; his brothers,
Isaac, Francis (as child), Vernon, William, Dale and Gerald; sisters,
Wilma Graham, Lillian Logston, Viola Doolittle, Belva Neubauer, Lila
Mix and Mavis Kleckner.
Duane will always be remembered as a loving husband, loving father and
a loving grandfather. We will miss you Dad, Grandpa and friend.
Memorials may be given to St Paul's Lutheran Church, Kendall Young
Library or the Alzheimer's Association in memory of Duane. Write a
personal tribute for the family at www.fosterfuneralandcremation.com.
______
Statement Submitted by Jill K. Mount, R.N., BSN, MSN, Ph.D.
I would like to thank the Senate Finance Committee for holding the
March 6, 2019, hearing ``Not Forgotten: Protecting Americans From Abuse
and Neglect in Nursing Homes.'' As a volunteer Washington State Long-
Term Care Ombudsman, I have visited nursing homes where there have been
instances of abuse and neglect.
I believe it is very important that the Centers for Medicare and
Medicaid Services not roll back on resident rights and protections
because nursing home residents need their rights to be protected.
Please do not continue the 18-month moratorium on the full enforcement
of eight standards of care. Also, please do not continue to shift the
default civil money penalty from per day to per instance because that
will shelter nursing homes from fines. I live in Washington State and
we have many different types of natural disasters including landslides,
floods, record snowfall and earthquakes. Please do not rescind the new
emergency preparedness requirements because they protect nursing home
residents when disasters like these occur. There is such great turnover
in nursing home staff that requiring emergency preparedness program
review and training staff every 2 years instead of annually will fail
to protect residents. Also, please do not revise the federal nursing
home Requirements of Participation that were revised in October 2016,
please implement these standards, do not weaken them. As Senator
Grassley noted, he has been involved in this issue for over 20 years
and yet we continue to have neglect and abuse in nursing homes.
______
Letter Submitted by Christina A. Nappo
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington DC 20510-6200
On March 9, 2019, you completed the hearing ``Not Forgotten:
Protecting Americans From Abuse and Neglect in Nursing Homes.'' On the
same day CNN reported on this hearing. Senate hearing examines
``devastating'' nursing home abuse, summing up what was discussed at
this hearing and it is this summery that I would like to respond to as
part of my response to your hearing.
CNN reported that there was only a small section of this hearing
for the victim of the increased reporting of the abuse that occurs in
nursing homes. Matter of fact it was one line that talked about the
innocent getting reported. I was that innocent who was reported on,
this is my story and how your system has failed me and has continued to
fail me for almost a year now. You want improvements on your system of
abuse reporting I seen the system fail first hand and can tell you
every part of the failure.
On May 12, 2018 I reported to work as I did for the last year with
my clean uniform, my body and hair washed, my makeup minimum and my
body spray light as not to offend any of my patients with my odor. I
punched in at the time clock signed in at the unit floor and got my
room assignments. It was Saturday night so it would be the same two
showers one with my patient who I have had for the last year and one
who I have had for a few Months, but have earned her trust and learned
her bathing ritual that she likes. Nothing different I thought until my
Floor Supervisor ``Ricky'' tried to assign a new girl Osanna Craig,
Ozzy, to Richard for her on-sight training time, she was only hired
three days ago as a permanent full time employee and just completed her
on the job school training on April 8, 2018. Richard refused to take
Ozzy so she was assigned to me; even though I was not cleared for
training I took her as long as she could keep up with me.
We took vitals from my patients as usual, fed them dinner, cleaned
up after dinner and I started my showering of my two patients. Ozzy was
with me as I entered into the shower area with my female patient a 50s
something lady who was in a wheelchair (HIPAA will not allow more
information). I undressed her placed her on the toilet and began the
first part of her showering process her shave. This patient liked to be
shaved during her shower her face, side burns, arm pits, privates and
legs. Which I did on the toilet it was less confining and the shower
did not need to be running only the sink which allowed the humidity in
the shower area to remain low until the washing process of the actual
shower.
Ozzy remained quiet and did not ask questions she observed only as
I worked with my patient, she never asked any questions and I did ask
her if she had any questions and she told me that she did not.
I transferred my patient to the shower chair and rolled him into
the shower, I washed her hair, rinsed and washed the rest of her. When
I rinsed my patient with warm water and got to her private area she
laughed and I said, ``well that is the end of our shower'' I continued
briefly to rinse her legs and turned off the water. At the same shower
event the RN who we were working under Marylou wanted to her required
skin check on my patient. Since I had Ozzy in the shower with me I left
to get Marylou for the skin check. Marylou completed her skin check on
my patient and I dressed her and took her back to her room where she
was placed into bed.
Her shower was done at 7:00-7:30 p.m. I lost track of Ozzy, she was
going on a few smoke breaks and since I didn't go on breaks I just
thought she was smoking or that she got pulled from me to do some
training, which was not uncommon. You go where you are needed almost
like a floater, so I did not question it. It was not until around 10
p.m. when I was told to report to the office that I knew that something
happened, something so wrong, something that would change my life
forever.
I entered into the office that the Floor Supervisor Rickey was in
with Nicole a new LPN, who was recently upgraded from a CNA, when she
graduated from college and earned her LPN certification. Both co-
workers that I have worked with for a year, I asked, ``what happened
now, did I miss a blood pressure or something.'' They were not joking
Rickey looked at me and asked for me to sit down. Nicole never made eye
contact, I knew it was bad. ``What's going on?'' Rickey proceeded to
tell me that, ``Ozzy has reported you as sexually stimulating your
patient in her shower.'' I was shocked. He let me read her statement,
he told me that I will be able to write a statement of what happened. I
told him what happened in the shower and that the patient does not moan
she laughs she has never moaned with me she is not a moaner.
This 21 year old 3 day employee reported that my patient moaned in
the shower when I rinsed her off with water and that I said that she
would have a days of happiness after this shower because she likes her
showers and that I asked my patient if it was okay to show her how to
wash her because I need to make sure that she does it the right way
when I am not here. This little sick girl used the word moaned not
laughed, that turned the report sexual which made the report mandated
reporting according to The Elder Law. It was Sexual and needed to be
reported.
I told Ozzy she likes her showers and would have a few days of
happiness, because she is stuck in her wheelchair 24/7 and when she is
not in bed is always in her wheelchair. Ozzy never asked any questions
during the shower so when I told her that she took it sexual since her
mind was already there with the moaning that Ozzy said my patient did.
Again, this patient never moans she only laughs. My patient is very
private and I asked her permission to show Ozzy how I bathed her the
right way before I bathed her, for viewing permission, this again in
the statement that Ozzy wrote was written sexual. I asked my patient if
I could show Ozzy how I wash you (not), Can I show Ozzy how I wash you
(in sexy tone).
Under the Elder Act and our Work Policy (Consulate of Bayonet
Point), we were to write our statements. Ozzy wrote her statement and
was sent home I wrote my statement at 11pm handed my statement into the
Floor Supervisor and was sent home. I wrote in my statement that I
thought it was a misunderstanding and that if Ozzy would have asked
questions during the shower I could have explained the showering
details that she did not understand. We all were trained by a nurse how
to give showers and I did my showers no different than anyone else so I
did not understand what part of the shower Ozzy did not understand.
After I was sent home the Risk Manager/Executive Director of the
Facility (MaryAnne Dimingo) came to the facility and Rickey told her
what happened and that he sent us both home per policy. She told Rickey
she didn't know what she was going to do and went down to her office
for 15 minutes, reportedly, she called the police, an Elder Abuse
requirement. The Risk Manager/Executive Director of the facility never
called me, to this day she never called me. She came back to Rickey in
his office and told him she called the police. She went down to my
patients room and woke her with Nicole and a nurse and asked her about
the shower I gave her at which time she said that I gave her a good
shower and that I am her favorite aide.
The Sheriff came to the facility talked to the Executive Director,
and Rickey. Never talking to my patient. Left the facility to talk to
Ozzy at a gas station for about an hour, came back to the facility to
see the shower head and came to my home and arrested me for Lewd and
Lascivious. It was 2 a.m. on Mother's Day. The arrest report had all of
Ozzy's words, none of mine, no misunderstanding, no new aide and lack
of questions during a shower, nothing. Even though I was working in
this type of field since I was 18 trained in home health, had all As in
the class that I took to become a certified nurse's assistant, Personal
Care Tech (PCT), EKG Tech, Medical Assistant, and Phlebotomist. I
worked in a hospital a year before this facility and another nursing
home a year before that with no problems and a stellar background
check.
The officer was tasked with completing the investigation that the
Executive Director should have done. This officer never met with my
patient, he met with management for a half hour before meeting with
Ozzy and talked with me for about five minutes. When he arrested me he
told me that it was his opinion and the evidence for the reason of the
arrest. I told him I know for a fact that there is no evidence because
I did not do anything wrong, I would never hurt my patients.
His investigation the investigation that should have been done by
the facility has been determined by the Attorney's that I have talked
to. Was the way to go and way they would have told their clients to
proceed with the investigation of the events. Have the police
investigate it.
As the victim in this process I have a problem with this. I had the
worst sheriff on staff, I talked to a Sgt. who told me that the
arresting officer did not do his job correctly and he should have taken
a statement from my patient even though she had trouble talking, there
were other ways she could communicate. He also said our State Attorney
does not do a no file, he never should have arrested you.
Allowing the local Sheriff to handle the investigation in this type
of matter is the worst possible outcome for anyone. My officer
complained all through my arrest that he would not be working overtime
and that if his supervisor thinks he is she has another thing coming.
My life was being shattered and he was worried about his overtime.
Abuse is a horrible thing and I do not want anyone to think that I
condone any of it, but when it is reported it needs to be investigated
the proper way no short cuts should ever be done, this is a persons'
life. In my case several persons were involved and continue to be.
I was taken to jail, my jewelry taken off my wedding rings
threatened to be cut off if I could not pull them over my fingers. My
insulin pump which was useless because the controller was at home was
taken off and put with my belongings. I was finger printed and a mug
shot was taken, I sat with the nurse who asked me if I felt like
killing myself. I was forced to undress in front of an officer holding
my naked body parts away from view as she went to get my prison clothes
I was going to be wearing for the next few hours. I was at the lowest
part of my life ever, PTSD was created.
I cried until my eyes could not make tears any longer my sugars
were in the 300 ranges, they had given me one shot of insulin when I
was checked in and did not check my sugars again. My husband made my
bail and I heard that when they were getting the group together to see
the judge in the morning. I was given my clothes back, my jewelry,
rings and an insulin pump that didn't work. I was released with no
money and no way to call home, all alone. Mother's Day morning.
Sunday morning I heard from my sons for Mother's Day; I told them
what happened. Shocked and disgusted friends and family all said sue
and asked what we were going to do. My mind broken from the arrest and
being charged with a Felony I didn't know what to do. The story hit the
news my mug shot was shown with the story that Ozzy told the police
officer, the story she wrote in her statement at work. Her confidential
statement that was not confidential, the sheriff who was to do the
investigation wrote the arrest report word for word as to what Ozzy
reported to the Executive Director, she would verify this when being
interviewed by the State Health Department Investigator Ms. V, months
later.
The Executive Director of Consulate of Bayonet Point, Maryanne,
Rickey the Floor nurse, and Linda Patton the Director of Nursing the
next day met with Ozzy to go over what happened, she did not tell the
same story and work began to suspect something was wrong with her
story. She could not even keep the days straight as she kept recalling
it as a Wednesday and it was a Saturday, and at one point she said in a
report that she was bathing my patient and wasn't even touching her.
They did not call the police on her, or do any paperwork. They had to
keep Ozzy employed due to the fact that if she was fired that she could
have sued them for reporting and them firing her, even though she lied.
My arrest story about went out all over the Internet, local news,
and worldwide news. My face, my mug shot went all over. People wanted
to kill me, reporters hacked my Facebook account and got family
information, schooling and past job information. Unfortunately for me
one of my past employers was Assisting Hands and as you can imagine the
sick people in this world had a field day with that. I was now an Aide
that taught my patients how to pleasure themselves, when you look up my
name you will find this arrest as the first story under my name it has
ruined me.
I cannot sue the Consulate of Bayonet Point for anything, they did
what they were required to do according to the Elder Act. They had a
report of abuse and followed the reporting guidelines, somewhat. Did
they have 24 hours to investigate the case before calling the police?
Yes, this was not an endangered patient. Did they investigate as they
should have--no, are there guidelines in place that tell you how to
investigate--no. Attorney's reported to me that they would have the
police do the investigation, this is their job. My Sheriff was a
training officer who did not want to work overtime.
Required data to AHCA was done, they removed me from the data base
and I was unable to work. My job fired me May 15, 2018, and did not
even tell me they just removed me from the schedule. Again, they never
called me or talked to me to this day about what happened.
Nursing homes are so afraid to talk to the employees when they are
suspended that a friend of mine was under an investigation when a
Senior woman accused a man on the shift of touching her, he was the
only man on shift so he was suspended and the police were called. When
the police came in to talk to her she said she made it up that he did
not do anything, the police cleared him through their investigation.
AHCA was contacted as required it took a few weeks to determine that he
did nothing wrong through their investigation and his work determined
that he did nothing wrong, that they lady made a false accusation. This
is what the innocent has to go through, we are accused, arrested in my
case, name ruined in my case. All the time the facility will not
contact the employee with any information. My friend was called and put
back on the schedule after two weeks of not knowing what was going on.
The Facilities are afraid of doing something wrong management needs to
be trained.
In the reports I have been able to obtain from my investigations,
my job would have hired me back after everything was cleared. I did not
know this, not that I would work for them, as they left me hanging even
after they determined that Ozzy wasn't telling the truth. They never
contacted the District Attorney's Office. My one eyed, can't walk, can
hardly talk wheel chaired Patient did and told them nothing happened,
when no my case was not getting cleared.
In Reporting Reasonable Suspicion of a Crime in a Long-term Care
Facility (LTC) Section 1150B.
Section D. Time Period for Individual Reporting.
2. All others-within 24 hours if the events that cause the
reasonable suspicion do not result in serious bodily injury to
a resident, the covered individual shall report the suspicion
no later than 24 hours after forming the suspicion.
In my case the Risk Manager/Executive Director had 24 hours to
investigate, they knew within hours of the next day that Ozzy lied
about what had happened. She changed her story five times by the time
the investigations were over. Consulate called the police immediately
and got me arrested on a Felony Charge.
3. Allegations of facility failure to comply with Section
1150B.
You have your laws written that the agencies are fearful that they will
lose the funding that they so desperately need.
For example, an allegation that covered individuals did not report
or were not informed of their duty to report under 1150B of the Act
could lead to a determination that the facility did not comply with
existing Federal requirements for reporting incidents, or provide
training and have certain policies and procedures in place. Consulate
has procedures in place a reporting system that states all parties
involved in a case will be interviewed, I was not talked to by
management and I was only asked to fill out a statement form to which I
did and then per policy I was sent home, waiting further investigation.
In my case, I was arrested by the local sheriff who did not interview
my patient, and who talked long enough to my accuser to get her whole
story written on the arrest report.
42 CFR Sec. 483.13 needs to be looked at closer; this reporting to
the director immediately is a good requirement if the director does the
required investigations which in this case is part of Consulate of
Bayonet Points reporting guidelines. MaryAnne Dimingo did not do an
investigation as required by law as part of the ``Plan in place to
investigate all suspicions of a crime.'' Turning the investigation over
to local law enforcement to investigate needs to be addressed. When the
Attorneys have told me that they would advise the facility directors to
contact the police and not do an investigation it is a violation of the
system that you have put into place.
Within three days of my arrest I got my criminal attorney for my
felony charge, at a cost of $2,000.00 to start, which I borrowed from
my sister. It could have been to start if we went to Court $5,000.00
more. Not to mention the 5 years in jail. My bail was $500.00 part was
paid by my husband the other was paid by my Mother in Law. I waited and
waited to find out what would happen with my case, my attorney had me
call work and find out if I was on paid or unpaid leave and not to talk
about anything else this was four days after the arrest. Which I did,
unpaid, I received my last pay check. I applied for unemployment and
Consulate of Bayonet Point denied me. I went to Court and found out at
my unemployment hearing that Consulate of Bayonet Point found me
innocent of charges and that AHCA found me innocent of charges. No one
called me I found out through unemployment, the referee during the case
said she thought something strange was going on with this case and told
me she was not an attorney but recommended that I get a copy of the
hearing. I did get a copy of the hearing. My last attorney I met with
said I do have a case but it is too costly on his part to have his
staff working on my case to clear my name and to get them for
defamation. He would not make money on my case and I would not get the
money I was entitled to.
The Child and Family Services (DCF) investigator had already found
me innocent. I called my Attorney once a week along with my bail bonds
man to find out if they heard anything, three Months had passed. August
22, 2018, one day before the District Attorney found that they could
not charge me with this crime and cleared me. I got a visit from the
State or Florida Health Department Ms. V, she wanted me to surrender my
CNA license the arrest came up in a finger print check. My License was
never revoked, just the ability to run a background check through AHCA.
Ms. V would end up doing all the interviewing I could not, she would be
my best Ally for information. Ms. V did her reports and the Health
Department did not file any charges on my CNA license.
My handicapped patient ended up asking her Father to take her to
the District Attorney's Office to meet with him. She met with them and
cleared this case for me. I still cannot talk to her since I had an
order of protection. Even if I could I cannot go back to the facility--
I'm shell shocked. I have PTSD, Depression, and Anxiety. I have
autoimmune disorders that are affected by stress and they are in full
force from this, sores on my head from picking and I see a counselor
two times a month to prevent myself from doing anything I would regret.
I contacted several different Attorneys they all said the same thing
Consulate of Bayonet Point followed reporting laws. They did what was
required with a suspicion of a crime. I cry every day. I am your
innocent victim, a victim of a girl in one report that just wanted some
attention. I know the employees that are innocent are stuck in the
middle of all the mess of drugs, sex, stealing and violence, but we are
out there and we are victims too it took a long time for me to be able
to call myself a victim every time you don't protect us too we are
abused over and over again and no one is fighting for us.
Christina A. Nappo
______
National Association of State Long-Term
Care Ombudsman Programs
March 14, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Building
Washington, DC 20510-6200
RE: Senate Finance Committee Hearing: ``Not Forgotten: Protecting Older
Americans From Abuse and Neglect in Nursing Homes,'' Wednesday, March
6, 2019
Chairman Grassley and Ranking Member Wyden:
Introduction
The National Association of State Long-Term Care Ombudsman Programs
(NASOP) extends its thanks to you for the hearing held on March 6 that
continued raising awareness of the plight of many nursing home
residents who suffer abuse and neglect while residing in a nursing
home. As Chairman Grassley noted in his opening remarks, instances of
abuse and neglect of nursing home residents are wide spread. Chairman
Grassley noted that the Inspector General reported that one-third of
nursing home residents experienced harm while receiving care in
federally funded nursing homes.
NASOP agrees with Ranking Member Wyden that the update to nursing home
regulations that were published in 2016 should be implemented as
originally approved to require nursing homes to develop plans to
prevent infections, policies to reduce abuse, neglect, mistreatment and
theft, stop the practice of using psychotropic drugs unless they are
prescribed for a specific, diagnosed condition, and prohibit the
practice of requesting or requiring residents to sign pre-dispute
arbitration agreements. While witnesses testified about transparency in
serving residents, arbitration often requires confidentiality of the
complaint and the outcome, obscuring the problems and the steps
proposed to be taken to correct the problems. When this happens,
residents, families, policy makers and the public are kept in the dark
about the problems in nursing homes.
Long-Term Care Ombudsman Advocacy for Residents Abused in Facilities
Abuse and neglect of residents happens far too often in nursing homes.
Residents will sometimes confide in Long-term Care Ombudsman
Representative (ORs) because residents know that ORs are advocates for
residents. Too often, residents will not give permission to the OR to
report the abuse or take any other action because the resident fears
retaliation, fears that the resident won't be believed, and because the
resident feels shame at being so vulnerable and unable to care of him
or herself as they were once able.
David Gifford testified that steps facilities can take to address abuse
are all ``after the fact.'' However, ORs regularly visit nursing homes
to educate residents about their rights and often provide in-service
training to staff about resident rights, including the right to be free
from abuse and neglect, and to inform staff about abuse reporting
requirements. These activities are before the fact, not after the fact.
These ``before the fact'' interventions could and should be a part of
the nursing home continuing training program, as well. In addition,
having more staff in the building, noted below, would also help to
prevent other harm, including reducing the occurrence and seriousness
of pressure ulcers, reducing falls, attending to residents with
cognitive declines who may communicate their needs and problems in ways
that are aggressive because they have lost the ability to communicate
in other ways.
Recommendations
Nursing Staffing
A running theme throughout witness testimony is the concern for not
enough staff in facilities. ORs often hear this complaint from
residents, families and even staff. When facilities are understaffed,
residents do not get the care, supervision and monitoring that they
should. When facilities use agency staff to provide care, residents do
not know the caregivers and are even less inclined to report to the
caregiver that they have experienced abuse. NASOP and other advocates
have long urged staffing ratios in nursing homes. It just makes sense
to set a minimum number of direct care workers and other healthcare
providers for every day of the week and every shift, relative to the
number of residents in the nursing home, because even the best staff
can't do a good job when they have too many residents for whom they are
responsible to provide care. Additional healthcare staff must also be
required based on an assessment of the resident population needs.
Improving Conditions for Nursing Home Healthcare Staff
Direct care workers are involved in the most intimate care of residents
including bathing, grooming and toileting. These workers are woefully
under paid, and are often overworked when a nursing home does not have
enough staff. If Congress increased Medicare and Medicaid
reimbursement, that increase should require that a significant portion
of that increase go toward direct care worker wages. It could also
provide for other incentives to workers. Improving worker experience
could reduce abuse and neglect in nursing homes. With more and better-
paid direct care workers, the workers have more time to spend with each
resident, more time to observe what is happening around them, more time
to redirect a resident who may be aggressive and more time to notice
when a resident has changed care needs that require additional
interventions.
Supporting Survey Agencies in Sanctioning Nursing Homes
The agencies tasked with surveying nursing homes must be supported when
they find deficiencies and determine that sanctions are appropriate.
Urge the Centers for Medicare and Medicaid Services (CMS) to support
the survey agencies' scope and severity findings. Urge CMS to continue
per diem fines, rather than per instance fines. While compliance is the
goal, without strong sanctions for violation of regulations, compliance
is a dream, not a reality.
Conclusion
I believe that every member of NASOP could relate to the committee
heartbreaking stories of resident abuse and neglect, like those of
Patricia Olthoff-Blank and Maya Fischer. Despite the claim that abuse
and neglect in nursing homes occurs only as isolated incidents,
residents experience abuse and neglect across the country. When it is
just statistics, it is easy to minimize the harm. But when it is your
own loved one, one incident is one too many.
Please support changes to address abuse and neglect in nursing homes
including:
1. At least a minimum of staff to the number of residents in a
building on all shifts, every day of the week, and requiring additional
staff to meet resident needs;
2. Increase the reimbursement for nursing home services requiring
that a significant portion of the increase go to increase wages for
direct care and other healthcare staff;
3. Requiring CMS to implement the 2016 regulations as originally
approved; and
4. Continue holding more hearings and taking other actions to
address the serious, ongoing problem of abuse and neglect for the
approximately 1.5 million vulnerable residents in nursing homes across
our country.
Sincerely,
Melanie S. McNeil
______
National Association of States
United for Aging and Disabilities
March 18, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
Dear Chairman Grassley and Ranking Member Wyden:
On behalf of the National Association of States United for Aging and
Disabilities (NASUAD), I give this statement for the record in response
to the recent Finance Committee hearing entitled ``Not Forgotten:
Protecting Americans From Abuse and Neglect in Nursing Homes'' that was
held on Wednesday, March 6, 2019. NASUAD represents the 56 officially
designated state and territorial agencies on aging and disabilities.
Each of our members oversees the implementation of the Older Americans
Act (OAA); and many also serve as the operating agency in their state
for Medicaid waivers and managed long-term services and supports
programs that serve older adults and individuals with disabilities.
Together with our members, we work to design, improve, and sustain
state systems delivering home and community-based services (HCBS) and
supports for people who are older or have a disability and for their
caregivers.
NASUAD appreciates that your committee is looking into challenges that
have occurred in facilities around the country and is seeking to
improve protections for individuals who live in nursing homes. Our
members share your interest in protecting the rights, safety, and
health and wellness of all residents in long-term care facilities. We
first want to recognize that the tragedies recounted by Ms. Patricia
Olthoff-Blank and Maya Fischer are unacceptable and that our system of
care must continue our work to prevent abuse, neglect, and exploitation
as well as to respond appropriately and effectively when such tragedies
occur.
In light of these tragedies, we think it is appropriate to consider
improvements that could assist with both prevention of and response to
abuse, neglect, and exploitation. We specifically noted the reference
to the Long-term Care Ombudsman program in Chairman Grassley's
questions of the witnesses. While we agree that the Ombudsman could be
helpful in addressing and resolving the broader operational issues
related to Nursing Homes, we note that the Ombudsman is not able to
serve the role of fact-finder or provide Adult Protective Services
(APS). In fact, the enacting regulations specifically note that co-
locating the Ombudsman and APS could represent a conflict of interest
for the program.\1\ Given the basic functions of the Ombudsman coupled
with the tragic deaths described by these family members, it makes
sense that law-enforcement or a separate APS agency would be more
likely to investigate the issues and communicate with the family.
---------------------------------------------------------------------------
\1\ 45 CFR 1324.21.
With that background, we do note that the Ombudsman program has the
responsibility to both ``identify, investigate, and resolve complaints
made by or on behalf of residents'' and ``advocate for changes to
---------------------------------------------------------------------------
improve residents' quality of life and care.''
However, the national Ombudsman program is largely underfunded and
relies heavily on volunteers. Our state members report struggles with
securing sufficient volunteers as well as with recruiting and retaining
sufficient staff for the Ombudsman programs which, in part, is due to
the limited and stagnant funding for the Ombudsman program.
Similarly, there is no dedicated Federal funding for APS or for Elder
Justice activities. Though we acknowledge that Congress has
appropriated some funding for Elder Rights Support Activities over the
past several years, this funding has been insufficient to provide APS
and related services. The Administration for Community living has
developed voluntary guidelines for APS systems \2\ which have been
reviewed by our members and are received favorably. Unfortunately,
these voluntary guidelines are largely aspirational given the lack of
Federal funding to accompany these supports. We strongly encourage the
Finance Committee to work within your jurisdiction and collaborate with
the Appropriations Committee to enact a national framework and
dedicated funding stream for APS and to also improve the capacities of
the Ombudsman program nationwide.
---------------------------------------------------------------------------
\2\ https://acl.gov/programs/elder-justice/final-voluntary-
consensus-guidelines-state-aps-systems.
We appreciate the opportunity to submit this statement and would be
happy to discuss our feedback in more detail. Please feel free to
contact Damon Terzaghi of my staff at [email protected] with any
---------------------------------------------------------------------------
questions about these comments.
Sincerely,
Martha A. Roherty
Executive Director
NASUAD
______
Pioneer Network
P.O. Box 18609
Rochester, NY 14618
(585) 287-6436 phone
(585) 244-9114 fax
www.pioneernetwork.net
email: [email protected]
Statement of Penny Cook, MSW, President and CEO
Chairman Grassley, Ranking Member Wyden, and distinguished members of
the committee, thank you for the opportunity to submit this written
statement for the hearing record. My name is Penny Cook and I'm the
President and CEO of Pioneer Network, a national nonprofit organization
dedicated to changing how our society views aging, treats elders and
provides care and support to those elders and others. We are the
umbrella organization for the culture change movement which, among
other goals, is dedicated to transforming nursing homes from
institutions to real homes for those who live there.
As Dr. David Grabowski stated in his testimony, ``Traditional nursing
homes fall short in several domains. Care is often directed by the
staff rather than the resident. Ideally, residents should be offered
choices about issues personally affecting them like what to wear and
when to go to bed . . . Many nursing homes are quite institutional with
long hallways with a nurse's station on one end, linoleum floors and
two residents in a room . . . . These nursing homes feel more like a
hospital than a home. The staff structure at these `facilities' is
often quite hierarchical with very little direct empowerment of direct
caregivers. Nursing homes are not just suboptimal places to live, they
are often difficult places to work. . . . a more participatory
management structure that engages in CNAs in the decision-making
process would help with staff turnover and performance.''
Pioneer Network is working to change this reality. We provide resources
and training to long-term care communities across the country to help
them transform their culture and create real home in their communities,
so people are living life the way they want to live it. We work with
everyone who impacts the residents from CNAs to CEOs to nurses to
dietary professionals and many more. And we believe that to sustain
this change, we need to transform the negative perceptions we have
about growing older. We convene people who work in aging and long-term
care through our annual conference, state coalitions, monthly webinars
and weekly newsletters to increase awareness, share resources and
disseminate best practices. We are trying to create the kind of culture
of care and support that we all want as we grow older.
In order to make culture change the norm in this country, we need to
move beyond the fact that it is the ``right thing to do'' and present
the business case as well as advocate for public policies that provide
incentives for providers to change the culture of their organizations
and the way care is delivered so that it is person-
centered and residents have as much control over their daily lives as
possible. As stated in ``The Prevalence of Culture Change Practice in
U.S. Nursing Homes: Findings from a 2016-2017 Nationwide Survey'' by
Susan C. Miller, Ph.D., and her colleagues at Brown University (Medical
Care, 2018), ``while more rigorous research is needed, panel studies
have found nursing home culture change adoption is associated with
reductions in Medicare/Medicaid survey deficiencies, decreases in the
prevalence of feeding tubes, restraints and pressure ulcers, and higher
resident satisfaction with the quality of care and quality of life.''
As is also stated, ``Culture change-related practices align with the
2016 nursing home Medicare/Medicaid regulatory changes mandating
person-centered care in nursing homes and with the
person-centered care directive of the Patient Protection and Affordable
Care Act (ACA)'' and ``State Medicaid Pay for Performance Programs
(P4P) that include culture change and person-centered care quality
criteria like the Kansas PEAK 2.0 program found high culture change
adoption.'' Pioneer Network advocates for more states to have P4P
programs that include these criteria as incentives for nursing homes to
deliver person-centered care.
Culture change is not only about improving the quality of care and
quality of life for nursing home residents but quality of work life for
staff. As Dr. Grabowski stated in his testimony, ``Nursing homes are
not just suboptimal places to live, they are often difficult places to
work. . . . A more participatory management structure that engages CNAs
in the decision-making process would help staff turnover and
performance.'' Pioneer Network educates providers about how to do this
as well as other ways to support CNAs so that these important
caregivers who have developed relationships with the people they take
care of will want to stay rather than get a job somewhere else. Nursing
homes that have the reputation of being a good place to work do not
have as much of a problem recruiting staff, which is a huge issue,
given the current workforce shortage. Pioneer Network is partnering
with PHI (formerly Paraprofessional Health Care Institute) on a
Workforce track at our 2019 Pioneering a New Culture of Aging
Conference in Louisville, KY in August.
As Dr. Grabowski stated in his testimony, ``Quality of life is an
important part of a resident's nursing home experience which generally
corresponds to those characteristics of nursing home care that affect
the resident's sense of well-being, self-worth, self-esteem, and life
satisfaction.'' He further stated that ``measures such as resident and
family satisfaction are important indicators of nursing home quality.''
Nursing Home Compare and the Five Star Quality Rating System currently
use quality of care measures and information about quality of life and
resident and family satisfaction are not included. Dr. Gifford pointed
out in his testimony that ``nursing homes are the only sector without a
CMS public reporting requirement on resident and family satisfaction.''
Since long-term care residents of nursing homes live in the home, it is
even more important that this be part of Nursing Home Compare and the
Five Star Quality Rating System so we sent a letter to Dr. Kate
Goodrich, Director of the Center for Clinical Standards and Quality and
Chief Medical Officer urging CMS to seriously consider adding resident
and family satisfaction to Nursing Home Compare and the Five Star
Quality Rating System.
Pioneer Network stands ready to help the Senate Finance Committee and
CMS in any way we can to improve the quality of care and quality of
life for current and future residents of our nation's nursing homes.
Sincerely,
Penny M. Cook, MSW
President and CEO
Pioneer Network
______
Letter Submitted by Judith Purdy, R.N.
March 12, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing
Homes Hearing Date: Wednesday, March 6, 2019
My 90-year-old father fell, fractured a hip and an elbow, had surgery
and then went to a skilled nursing facility for therapy to regain
mobility. He arrived on December 23rd--for 4 days no one re-positioned
him in bed nor got him up. When he turned on his call light no one
came. They failed to give him the oxygen he needed at night. There was
no medical assessment completed by the doctor of his condition or needs
within the required 48 hours.
I requested staff bathe my father, but 4-5 days later he still had not
been bathed. On day 6 when my husband was helping my father to bed, he
noticed my father's sock was wet, and when he pulled back the sock
there was a large pressure ulcer on his heel. The sock had not been
changed since his arrival on the 23rd.
I am a registered nurse, so I know more than most, but anyone would
have recognized the basic lack of nursing care, cleanliness,
medications, and oral hygiene that my father failed to receive. When my
oft-repeated requests for attention to my father's fundamental needs
were not responded to, I took action. I talked with the nurse in
charge, I asked for a meeting with the facility administration, I
called the facility's corporate office, and I called the hotline at the
Kansas Department for Aging and Disability Services--KDADS (800-842-
0078). I was prepared, giving the person who answered the hotline the
list of inaction and wrong actions that occurred. I also put the same
in writing and sent it to KDADS. The inspectors came within the week to
investigate and cited deficient practices by the facility, not only for
my father's care but for another individual as well.
You can't get something taken care of if you don't bring it forward. I
am calling the poor care that we experienced and that was happening to
others in the facility, to your attention as the higher oversight
authority. We must challenge things not done right for older adults in
nursing facilities. We must not be afraid to speak out. Otherwise who
knows how many people will be harmed.
Judith Purdy, R.N.
______
Statement Submitted by June Schneider
My mom, Millicent Anderson, fell from a Hoyer lift in November 2017 due
to negligence from the staff at Springtree Health and Rehab in Roanoke,
VA. I filed a complaint with CMS (Kepro) as well as the Department of
Health in Richmond. Kepro determined that Springtree did not provide
the acceptable standard of care for her to prevent the fall, since
there were three certified nursing assistants in the room attending to
her and transferring her in the Hoyer lift. Because of the fall, my mom
suffered a two-inch laceration to the side of her head and bled
profusely and was taken to the hospital where she received staples to
the wound. Thankfully she did not suffer any long-term adverse effects.
Which is not usually the case. I consulted several attorneys who
determined that they would not take her case because she did not die or
suffer long-term injury.
The problem with nursing homes, such as Springtree, is that not enough
staffing (especially certified nursing assistants) is mandated. There
is usually not enough staff to care for the total amount of residents
in a reasonable manner. There is also lack of communication and
supervision between the nursing staff and certified nursing assistants.
I have had multiple meetings and complaints about the standard of care
my mom receives.
Not enough family members care, or report incidents of injuries caused
by negligence. The residents are afraid to speak up for fear of
retaliation, or do not have the ``wherewithal'' to seek help. They are
not even aware that there is an ombudsman! The ombudsman is usually
overworked with one ombudsman for a large amount of nursing homes.
Adult Protective Services will visit and investigate incidents, but
nothing usually improves, they are powerless. Nursing homes also know
when inspectors are coming, even though the unannounced visits are
supposed to be a surprise, they are not in reality. When an inspection
visit is suspected, the nursing home gets everything in order to
impress the inspectors, including hiring extra staff and falsifying
information.
An attorney I consulted after my mom's fall, told me that another
problem is that our representatives in the state of Virginia (and
perhaps this is also true for other states) are shareholders in the big
companies that own the nursing homes. Medical Facilities of America
owns Springtree and most of the nursing homes in Virginia. They have
government representatives on their boards as well as ``big name''
lawyers, and they are able to ``fix things'' to avoid fines. MFA
recently joined in lobbying the government for the penalties to be
reduced in nursing homes (less fines) with the excuse that they need
less time to focus on defending fines and more time to focus on care,
which is ridiculous because they really don't care, it's all about the
money. That request was granted by the government.
The elderly in nursing homes are the forgotten of society and the
system is rigged against them. Please investigate the condition of
nursing homes across America. What is on paper is not reality because I
and the few family members who care have seen it firsthand. Thank you
for reading.
______
Letter Submitted by Laura Smart, MSW, LGSW
March 6, 2019
U.S. Senate
Committee on Finance
219 Dirksen Senate Office Building
Washington, DC 20510-6200
I attended the Senate Finance Committee hearing on March 6th, 2019
titled ``Not Forgotten: Protecting Americans from Abuse and Neglect in
Nursing Homes.'' I have been a social worker since December 1999; while
getting my master's degree in 2015, I interned at a for-profit nursing
home in Bethesda, Maryland. I was then made aware of the desperate and
dangerous places nursing homes can be. Since 2015, I have worked in 4
nursing homes as either a social worker or social worker director.
Three were for-profits and one was a non-profit. The for-profits were
by far much worse than the non-profit; however, the non-profit also had
many problems. I am going to keep this submission short due to being
mindful of the committee's numerous other submissions. I have witnessed
abuse and neglect in nursing homes--and I would describe the overall
culture to be negligent and minimizing of the urgency of human
suffering. It is as if the staff become desensitized (including myself
to a degree) in order to remain working inside a nursing home. To
formally address these serious concerns I emailed the Elder Justice
Task Force on August 7, 2016--and told them what I had witnessed and
that I would be available to them in any way (to testify, etc.)--they
did respond back thanking me for the email; but that was the last I
heard from them. After working for one of the largest for-profit
providers in this country--CommuniCare--I sent them the following
letter in December 2017:
This letter is meant to be read by the Owners of CommuniCare.
Hello, I am Laura Smart, MSW, LSW, a social worker who worked for your
company in Kensington , Maryland (from September 2016--January 2017)
and in Cincinnati at Clifton Healthcare Center (CHC) from March 2017
until October 27, 2017. I have been a social worker since 1999 and am
bound by a code of ethics and therefore am reporting to the owners of
CommuniCare the realities of what I've encountered. Many times I shared
with the administrators and upper management that the residents were
not receiving adequate care. I am going to try to paint a picture so
that you can understand what I am saying with the hope for change. At
CHC on the 3rd floor is 58 beds--2 nurses shared that floor which I
witnessed was very difficult (ideally that many beds needs to have at
least 3 nurses)--medications were passed late, wounds not properly
attended to, very little time spent with residents--29 residents for 1
nurse is not ``best practice.'' The STNA's (nurse's aides) had far too
many residents to take care of--best practice is no more than 8
residents on 1st shift--there is mountains of research to back that
up--I have attached one study but there are hundreds of peer-reviewed
studies proving that. When STNA's have 14 + residents to care for what
that means is that someone is not getting changed, fed, bathed, etc.
Often the STNA's have 14 + residents to care for which is routine on
that floor; when there are only 3 STNA's on that floor they are caring
for 19 + which is a recipe for disaster and you are approving neglect
to occur. There is also not enough activities staff. So on top of not
properly taking care of your residents physical/medical needs--their
psycho-social needs are not being met as well. To have adequate
activities--including field trips which remain very rare--would go a
long way for your residents. To have a sufficient social services
department you must have at least 3 social workers in a building of 130
+ beds. Being the social services director at CHC I also had about 70
residents that were on my caseload--that is far too many residents to
tend to properly. When all the tasks that is required (MOS assessments,
progress notes, care conferences, meetings, etc.) is laid out there is
not enough time in a day to sufficiently address those tasks so even
though I am a diligent social worker and wanted to complete everything
thoroughly, it was not possible. Ideally a social worker should not
have more than 40-50 residents--considering ail the intakes,
discharges, MOS assessments, care conferences, etc. To sum it up--you
need more staff in every department in order to properly take care of
your residents. I left your company for the sole reason of not wanting
to be a part of an organization who fails at providing adequate care.
Everything that I said above I said repeatedly to my administrators. I
don't blame the administrators however, they often said they wished
they could hire more but they had their constraints placed on them from
corporate. I am attaching many resources to assist with improving care.
Laura Smart, MSW, LSW
I then worked for a non-profit in Cincinnati, OH. I can report that
they usually had adequate staffing but the same type of culture
existed; mainly lack of compassion. With so much CMS regulations to
adhere to the majority of the day had to be spent on those regulations
instead of trying to provide a more ``person-centered environment''
approach that includes ``trauma-informed care'' towards residents, etc.
After working in four nursing homes and researching how to remedy the
current state of nursing homes in this country, here is what I believe
needs to happen:
CMS needs to befriend nursing homes staff instead of having an
adversarial stance.
CMS needs to simplify their MEGA RULES that they have initiated
and become friendly educators of their policies and procedures--instead
of being the fearful overseers of their overwhelming massive policies.
Social Workers or any staff in nursing homes should be able to
call or email CMS and get friendly advice for help requested on proper
policy enactment. Currently there is a culture of fear regarding
reaching out to CMS.
With regard to caseload size of residents to social workers in a
nursing home--the law (which I believe to be in the Social Security
Act) needs to change to 1 social worker to 50 residents instead of the
current 1 social worker to 120 residents.
A federal mandate regarding staffing for nurses and nurse's
aides needs to be established. The current law uses the word
``adequate'' staffing which is giving the industry giants (and others)
much leeway and therefore they are choosing to not properly staff their
facilities which is why they (the for-profit owners) are making
tremendous profits. The current recommended staffing ratio is for
Nurses on dayshift 1 nurse for 10-12 residents, and 1 nurse's aide for
5-7 residents.
Although I have seen and heard so much heartbreak and trauma in nursing
homes, I continue to want to work in a nursing facility while also
working on assisting with the much needed changes in policy. I recently
moved back to the DC area and will likely get a job in a nursing home
as a social worker. Although I overall enjoy working in a nursing home
at the same time I fear my own safety and license because I know that
these environments are dangerous places. I will make myself available
for any questions or comments or however I am needed to assist with
this social issue.
Thank you.
Laura Smart, MSW, LGSW
______
Letter Submitted by Ann E. Stanton
March 10, 2019
U.S. Senate
Committee on Finance
Dirksen Senate Office Bldg.
Washington, DC 20510-6200
NOT FORGOTTEN: PROTECTING AMERICANS FROM ABUSE AND NEGLECT IN NURSING
HOMES
March 6, 2019
This submission concerns my sister, Kathleen (Kitty) Koehler, who died
on July 24, 2012 after being the subject of abuse and neglect at
Manorcare Nursing Home in Pittsburgh, PA. My views come from a very
personal experience with nursing home neglect. I have had a
continuation of letters and emails to various government agencies and
elected officials at both the State and Federal levels for the past 6
years. I refuse to give up and say it was a natural death like the
physician noted on her death certificate. He told me early on that he
would never blame anyone for a person's death. He subsequently left his
position at UPMC and began working for Heritage Valley Health Systems
so the ``falsified'' death certificate will never be corrected. Several
physicians told me that her anoxic brain injury was keeping Kitty in a
vegetative state so that should have been noted as the immediate cause
of death. The signer of the death certificate also completely omitted
the respiratory arrest as a contributing factor in her death. He later
stated that he never saw the nursing home medical record and was not
interested in what happened there.
I also recently wrote to my new U.S. Representative, Conor Lamb, about
the recent article in the newspaper relating to nursing home abuse and
neglect. I explained to him the problems I have had during the past
years trying to get answers from State and Federal officials and their
ongoing cover-up of the events that took place on April 16, 2012.
My sister, Kitty, had quite suddenly developed kidney failure in July
2011 and the doctors were surprised that it came on so quickly but they
didn't have many answers. She had been diabetic for years and was
eventually placed on insulin as an adult. After three months, she
suffered a severe sepsis and was admitted to the hospital. They found
that she had a staph infection in her central venous catheter used for
dialysis. She came close to death several times while in the hospital
ICU for three weeks but with an extreme amount of excellent care, she
eventually pulled through. After being transferred to a monitored unit
for continuing care due to her debilitated state, a possible sexual
assault had occurred by a sitter. The hospital ensured us that they
would handle this situation and requested not to get the police
involved so I listened to them because there were many other severe
issues that needed my attention. That was my first BIG mistake because
they never did anything about it which I found out much later after my
sister's death. They, however, decided suddenly that Kitty needed to be
discharged for rehab two days after the report was made.
For about the next six months, Kitty was admitted and discharged from
numerous medical facilities where she was the victim of injuries or
other medical problems. She finally was ready for rehab in late March
2012 and we tried finding a nursing home that we were familiar with but
all the good ones had no beds and a waiting list. A sales rep from
Manorcare had been at the UPMC hospital that day and the patient
advocate stated that Kitty would be discharged there or she would pay
for each additional day that she remained in the hospital. There had
been three other facilities that the hospital had called but none of
them (two were UPMC facilities) would accept her so we had no other
choice.
Kitty had a couple of minor problems the first week there but she did
like the rehab therapists and they worked very hard with her to try and
get her standing and walking again. After a week, she had to return to
the hospital so her dialysis catheter could be replaced because of
kinks in the current one and her blood was not being cleaned. They sent
her back to the nursing home the same day and she passed out and the
outpatient dialysis center said they would not do dialysis for her in
that condition so it was back to the UPMC hospital. She remained in the
hospital for about five days and then it was back to Manorcare nursing
home.
They started out with problems the first day back when they set her up
in her room and forgot to provide the portable oxygen machine and she
had trouble breathing. We had to get a nurse to get one for her. They
also forgot to note her new medication that was added for Small
Intestine Bacterial Overgrowth (SIBO) which was a very specific
antibiotic to help with a chronic diarrhea condition that she had for
five years. Two GI specialists at UPMC were the first ones to do a test
to find this problem and put her on a medication. She seemed to be
doing well for a few days and then on April 13, 2012, her rehab
therapist told us it may be only a couple more weeks before she could
be discharged because she was coming along so well. They found that she
would need a special insert for one shoe because one leg was a bit
shorter than the other due to previous heel fractures in 2008 that
hadn't been treated properly. That was great news and that afternoon we
had to take Kitty out to check into ACCESS transportation since
Manorcare stated they could no longer transport Kitty to dialysis on
Saturday. ACCESS transportation could not do this because they stated
Manorcare should be providing that transportation. When we returned
back to Manorcare, her items were thrown all over the room as if
someone had been looking through her nightstand but we put everything
back and were discussing if we should report it. We went out to get
Kitty something for dinner since they were going to have a meal that
night that caused problems for her. When we returned, she was not
hungry and was having difficulty breathing. We got a nurse and Kitty's
oxygen level was very low. The nurse then held her down and tried
putting some sort of mist for her to breathe through a mask. Kitty was
struggling and fighting to get it off and her oxygen level was going
all over with highs and lows and she was getting worse. They called
their contract ambulance and when the paramedic got there, he noticed
her nasal cannula was not attached to the oxygen concentrator. He
attached it and within minutes, Kitty's breathing was back to normal.
Her appetite returned and the paramedic checked her vitals and noted
that everything was in normal limits. He gave her the option of going
back to the ER but she stated she was feeling good and we left it at
that. The nurse became upset when he told her that she should always
check to ensure that the nasal cannula is attached to the concentrator,
especially before using other techniques.
We (my other sister and I) went in on Sunday (April 15, 2012) to visit
and stayed several hours while she ate dinner which we brought in. She
talked and laughed about how well she was beginning to feel and for the
first time, she actually was full after eating her dinner. She was
going to watch TV and then go to sleep and we were going to meet her
the next day at her endocrinologist's office for her visit. She had
been having some problems with hypoglycemia and he wanted to adjust her
medications. Kitty's sugar had dropped early that morning and she was
able to call the nurse and was given juice with sugar added. They
continued that day to check it and she remained at a good level. That
night the nurse promised us that she would ensure that someone would
check on Kitty every two hours to check that her sugars weren't
dropping. THAT NEVER HAPPENED. According to the record, Kitty was given
insulin with no snack about 9:00 p.m. (they did not know if she was
asleep or not) and long acting insulin at 10:00 p.m. The next record
was about 4:00 am when they found her severely hypoglycemic.
On April 16, 2012, a nursing home aide found Kitty in an extremely
lethargic condition with altered level of consciousness shortly after
4:00 a.m. She notified the RN on duty and the RN didn't know what to do
so she called the on call doctor. I felt she should have called 911 in
order to avoid wasting time since I later found out that Kitty's sugar
was registering ``low'' . . . under 20. The doctor gave a phone order
to the RN to give a Glucagen shot and this was noted in the medical
record that it was given at 4:15 a.m. It was noted in the progress
notes, SBAR, and the Medication Administration Records. According to
the medical records, the RN noted after 20 minutes that the patient was
unresponsive and her condition was worsening and called the doctor
again and was told to call their contract ambulance. It took another 15
minutes for patient contact and they noted that oral glucose gel was
given prior to their arrival. This was one of many false statements the
RN made. The paramedics noted that Kitty went from a 5 on the Glasgow
Coma Scale on their arrival to a 3 within 10 minutes. They noted she
was having agonal breathing and placed a bag valve mask on her and
rushed her to UPMC Shadyside Hospital ER. At the hospital, Kitty's
blood pressure was 204/140.
The RN then called me at 4:49 a.m. I was not told the truth but was
told that Kitty's sugar was running a little low and they were going to
have an ambulance take her to Shadyside Hospital so they could give IV
dextrose to get her sugar up. I needed to know if Kitty was still going
to see her endocrinologist that morning but the RN said she could not
call me back when Kitty returned. She told me to call back in about two
hours because the ER is sometimes busy with emergencies and Kitty may
be there a while. I didn't think there was any reason for her to lie to
me but that's exactly what she did. ANOTHER FALSE STATEMENT. UPMC
Shadyside Hospital had me listed as the healthcare POA and emergency
contact but they also did not call when she arrived to notify me of her
condition or why she was there. In the past, they called me regularly
whenever they wanted to verify that a procedure could be performed or
to update me but no contact for this very severe problem. I waited
almost the two hours and was getting anxious when I called the nursing
home three times and the line was constantly busy. I called the
Administrator's number and left a message on her voice mail. I then
called the ER at Shadyside Hospital and asked if they sent Kitty back
yet to the nursing home. They told me that she was going to be admitted
and that she was brought into the ER in respiratory arrest and that her
sugar was not the reason for the emergency. She told me they had to put
in a breathing tube and she had continued to be unresponsive and that
her sugar was in a good range. I was told that numerous tests were
being done and no one was quite sure what happened at the nursing home
and the doctor wanted me to sign some papers when I came in later so
they could get authorization to do some very specialized tests. I was
confused and called the nursing home back again and they said they were
told not to talk to me and hung up. I knew at this point it would be my
job alone to find out what they were hiding.
That afternoon, I got a call from the Administrator to come and pick up
Kitty's belongings. They would leave boxes and to pack them and leave
without talking to anyone. While there, we noticed an empty tube of
oral glucose gel in the trash can and rubber mats lying on the bed but
no Glucagen kit. I called and told her of the lies and that I was not
done with this and asked why they did not call 911. She said 911 does
not respond to nursing homes and they had to wait for their contract
ambulance. With this information, I sent an email to Pittsburgh EMS
several days later stating what I was told. I got a call back on two
occasions from them that they do respond to nursing home and they have
responded to Manorcare in the past (without giving specifics). They
stated that nursing homes don't want to call 911 for emergencies
because a report is made of it. The EMS contact who called then said it
was a shame because they could have been there with five minutes based
on the location and could have put in an IV and gotten her to the
hospital. He told me that as healthcare POA, I should be able to figure
out if I'm entitled to the medical record which I found out I was.
The Administrator gave me a hard time about them but eventually
released them to me. I continued to ask the Administrator why Glucagen
was noted as being given and she continued to state it was. I told her
I received a copy of the report from Transcare Ambulance as Healthcare
POA and she was furious because their report showed the true nature of
this emergency. She said that if they felt it was an emergency based on
Kitty's condition given over the phone, then they should have called
911 themselves. As it was, Transcare changed the call for BLS to ALS
which costs more but they felt it was necessary. I had called both
Pharmaceutical companies that made glucagon injections to get more
information about this drug and they took a volume of information from
me for their reports. They were going to call the nursing home because
they stated you cannot put in a medical record that this was given . .
. if it was not. If it was not effective, then the nursing home would
need to contact the company or the FDA for a possible recall. Based on
the information that they said needs to be on the MAR, I began to
believe that it definitely was not given.
I sent a letter to the PA Health Department and when they called, I
told them about some problems but also told them to find out why they
said they gave Glucagen but gave oral glucose gel. The Health
Department questioned me as to how I got a copy of the medical record
because when they recently spoke to the Administrator, they were told
no one was entitled to the records. The Health Department sent me a
letter stating that Glucagen was not given on April 16, 2012 as noted
in the record but was given the previous night. Just another lie
because my sister's sugar was a bit low early morning of April 15, 2012
and she called the nurse and was given juice with sugar in it. This was
reported to me. I wondered why the PA Health Department was doing
everything to protect the nursing home but not the victim. They
eventually posted their online report on May 17, 2012 and it noted the
only problem being that the nursing home did not properly report how
much insulin was given during that week. They went on a sliding scale
and it had been reported properly the first week of Kitty's stay so
what changed? This was a ``no actual harm'' citation. What happened to
the online report that they should have done relating to the RN's
refusal to give a doctor-ordered Glucagen injection for severe
hypoglycemia? Now I saw that the PA Health Department also was involved
in a cover-up for the nursing home. The surveyors didn't care how much
suffering Kitty endured that morning for 35 minutes while they forced
oral glucose gel down her throat as she must have struggled to breathe.
The RN just wanted to get Kitty's sugar up and she succeeded while
causing a brain injury.
When I later received UPMC's medical records, I found out that Kitty
went to the hospital ER in a respiratory arrest (primary reason for
admission), hypoglycemic coma, and at the hospital they determined she
had developed an anoxic brain injury and was being treated for
aspiration pneumonia. This was in addition to C-Diff that she also got,
making her sacral ulcer much worse. Kitty remained in an unresponsive
condition for the next three months and the only feeling she realized
was pain requiring continuous pain medication. On Manorcare's
Interdisciplinary Team Discharge Summary signed on April 25, 2012, they
noted that patient was ``able to communicate needs, oriented to person,
oriented to place'' but they completely omitted that she was close to
death at discharge. After three weeks in the hospital ICU, they had to
replace the breathing tube with a trach tube and decided to do this at
bedside in the ICU. She then developed numerous infections that
required additional medications and care and developed sepsis again
when she almost died. After five weeks in that ICU, she was discharged
to a long-term acute care hospital where she remained on a vent,
feeding tube and dialysis for two months. I removed her from this
vegetative state to let her die which happened on July 24, 2012.
Physical Medicine had even tried for two weeks using brain stimulants
with no real success or change so I made that very hard decision to end
her life.
This is when I began writing to every government agency and elected
official to make them aware of the dangers in nursing homes. I found
out early on that the PA Health Department was not about to change
their online report and that is when I requested a copy of their
investigation through the Right-to-Know office which was denied and
then filed an Appeal which was also denied. I felt I had a right to
find out what actually happened at the nursing home and why they felt
justified to lie to me from the beginning. I filed an FOIA request
through HHS and was told this report should be available to me but PA
Health Department still denied it. I went through CMS and sent all the
backup information needed to show my case but these managers all stated
no actual harm and no falsification of records. I've attached a copy of
one letter that was absolutely ridiculous indicating falsification of
records does happen but the surveyors can't cite them for it.
Falsification only happens when a facility is trying to hide a
wrongdoing. I then checked with the Allegheny County Medical Examiner
to see about having a review of the case since the doctor who signed
the death certificate noted a natural death, but after waiting a month
his office said they were not interested in reviewing the records. I
requested that the PA Attorney General review the records in 2013 since
the PA Health Department did not forward the information to them but
that office refused. I then once again in 2017 requested that the new
PA Attorney General (Shapiro) review this case since there is a Crime
Code in PA that covers what occurred and they also refused. He ran on
bringing back ethics and integrity to that office but this pertained
only to his own agenda.
I have been fighting this for the past six years because my sister has
never received justice relating to her death. Several advocates have
told me to continue with my fight and others told me that the
government is protecting the nursing home because Manorcare in PA is
owned by the Carlyle Group (or was at that time) and no one will go up
against such a powerful group. I have seen that this is true. In 2013,
I did file a small claim suit against the nurse and Manorcare for my
sister's funeral/burial costs. I eventually won that suit but the
attorney from the law firm representing them told me I could continue
fighting what happened to my sister and fight for better care at
nursing homes but the settlement would state that neither I nor my
sisters could go after Manorcare for any more money. I'm sure he knew
that wrongful death in PA severely restricts who can file a lawsuit.
Kitty did not have life insurance and my other sister and I used our
personal money to pay for her funeral and burial so I felt it was their
responsibility to cover her costs. To me, this was definite proof that
her death was their fault because nursing homes don't pay out just
because they feel bad. She is with God now but I'm still here so my
fight continues.
One last item was that Manorcare sent a packet containing financial
documents that needed to be signed but they had already been done
earlier in the week. At the end was an ``Arbitration Agreement'' asking
for someone to sign and return it. I did not respond but I only found
out later how important this document was to them. They sent this to
Kitty's address a day or two after she was rushed to the emergency room
on April 16, 2012.
Thank you for allowing me to continue my fight. The pledge states
``with liberty and justice for all'' but I've found that justice is
only another word that doesn't mean anything.
Ann E. Stanton
______
Department of Health and Human Services
Centers for Medicare and Medicaid Services (CMS)
150 S. Independence Mall West
Suite 216, Public Ledger Building
Philadelphia, Pennsylvania 19106-3413
Northeast Division of Survey and Certification
_______________________________________________________________________
June 19, 2013
The Honorable Patrick J. Toomey
U.S. Senate
1150 South Cedar Crest Boulevard, Suite 101
Allentown, PA 18013
Attn: Steve Meridith
Dear Senator Toomey:
This is in response to your letter of June 6, 2013, inquiring on behalf
of your constituent, Ms. Ann Stanton.
The role of the health-care surveyor, state or federal, is to evaluate
the care given in any particular health-care setting in terms of it
meeting the minimal regulatory requirements. To the best of our
knowledge, the word ``falsification'' appears in the long term care
regulations only in regard to resident assessments (42 CFR 483.20(i)).
The ``falsification'' of the mandatory resident assessment data that is
required to be submitted through the MDS system carries a civil
monetary penalty for the person falsifying data or causing it to be
falsified. That, however, is not part of the survey process, and such
penalties would be assessed by the Office of the Inspector General.
That is not to say the falsification of records does not happen, but it
is not something in and of itself surveyors could cite as a deficient
practice. ``Falsification'' is, as you point out in your letter, a
legal distinction. The falsification of records for the purpose of
fraudulently billing Medicare would be a criminal act. ``False
swearing'' on several attestation forms used in the process of
certifying other types of providers carries civil or criminal
penalties. There is, however, no analogous ``falsification'' standard
in the survey process.
As we have previously pointed out to Ms. Stanton, there is no dispute
that the facility her mother \1\ resided in had problems with record
keeping, and the State had cited them for those issues. However, there
is no evidence to suggest that ManorCare falsified \2\ any records
pertaining to her mother's care.
---------------------------------------------------------------------------
\1\ After reviewing the letter, I realized they stated it was my
mother; it was my sister. There is no reason to falsify a medical
record unless a person has done the wrong thing.
\2\ MDS records showed false statements all through them, but no
one cared.
---------------------------------------------------------------------------
Sincerely,
Dale Van Wieren
Principal State Representative
Certification and Enforcement Branch
______
Statement Submitted by Stephanie Walker Weaver
I am writing to you in reference to the tragic death of my grandmother
Bonnie Walker. Despite the assurances by the senior living facility
where she lived that she would be safe and cared for, she suffered a
horrific and entirely preventable death. I am seeking accountability
from the facility responsible for her neglect to ensure that no one
else suffers as she did. I have become aware of a tremendous impediment
to that: forced arbitration. My grandmother, who suffered from
dementia, walked away from Brookdale Senior Assisted Living in
Charleston on July 27, 2016. It took over seven hours for anyone on
staff to notice she was missing and even longer to notify my family.
Frustrated with the fact that the staff still not found my grandmother
and was not even actively looking for her. I took it upon myself to
start searching the grounds. As I came around the back of the facility,
I observed a police officer and a staff member going out the back door
with a first aid kit. I followed behind. When we reached the pond to my
absolute horror, I saw my grandmothers dismembered remains floating in
the pond. We later learned that an alligator had killed her in the
pond.
We initially had placed my grandmother at Savannah House in January of
2016. We removed her roughly June 2016 and placed her at Brookdale. We
removed her from the Savannah House based on many things that started
to alarm us with her care and the overall facility. The activity
director quit and they were providing little to no activities for the
residence. The residence were receiving poorly prepared meals by care
staff members. My father witnessed a resident be shoved down by another
resident. No staff would help her up. My father had to assist her up.
They were also having frequent elopement issues with a resident the
ultimately ended up eloping and dying. We felt we needed to move her to
a new assisted living home and ultimately we chose Brookdale based on
their commitment to her care.
When we received the autopsy report, it showed my grandmother had not
received her medication for two days. She was back at Brookdale for 48
hours after visiting my parents that weekend at their home. It was
common for her to stay at Brookdale from Sunday evening to Thursday
evening and on weekends with my parents. My mother was told when she
spoke with staff early that week not to stay with her that they would
be monitoring her for the next few days to assess if she was needing to
go in the memory care unit. So not only did no staff check on my
grandmother early that evening until the next morning at 7:00 am. They
did not give her medication for two days. They also were not monitoring
her for the memory care unit despite the family being told to not stay
with her. They also tested five residence that January 2017 after her
death and four of the five were not receiving medications. Our family
in the short six weeks my grandmother had multiple prescriptions come
up missing. We had issues of prescriptions being destroyed by Brookdale
staff and not given back to the family. We have documentation where
charts have white out on them. The door did not alarm early that
morning when my grandmother managed to slip out. There was only one
staff member on in the evenings with over 30 residents. When the final
report came out on Brookdale from DHEC. They only received right around
$6,000 in fines. Most of the fines were not part of my grandmother
case. My grandmother was last seen on video surveillance wandering the
halls around midnight. We are still unclear of all the violations and
negligence on Brookdale's part and what really occurred in the early
hours of the morning on July 27, 2016. There are a few things I am
certain of she was not being cared for properly, she was stolen from,
and she deserved better care. My grandmother was taken from us in such
a horrific way with so many wrongful dynamics that come into play with
her story. No one deserves to die this way and suffer this way.
We are a country whose population is growing daily. We are also living
longer. We are owed better care facilities, better training and better
laws to protect our family members and future generations. I will
continue to keep telling my grandmother's story and I will continue to
fight for better care for our elders in her memory. Thank you for your
time and your efforts going into looking at this epidemic of neglect in
our care facilities that goes on nationwide.
https://www.nytimes.com/2018/12/13/business/assisted-living-violations-
dementia-alzheimers
https://www.postandcourier.com/news/charleston-assisted-living-
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https://www.postandcourier.com/news/granddaughter-suing-west-ashley-
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https://www.postandcourier.com/health/report-brookdale-charleston-
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c0.html
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Statement Submitted by Carole H. Woolfork
Subject: ``Not Forgotten: Protecting Americans From Abuse and Neglect
in Nursing Homes''
Earlier today I sat at my computer from 10:15 a.m. to 1:00 p.m. to hear
remarks from Senators and from the two panels that had been convened.
The stories of the two daughters who told of the plight of their
mothers at the time they were nursing home residents was tragic,
seemingly avoidable and heartbreaking.
Based on past experience as a nurse manager and current experience as
an advocate, I can attest to the fact that there are facilities that
strive to provide and do provide quality of care and quality of life.
However, it is also painfully obvious that many facilities fall short
of meeting that standard. Therefore, more needs to be done to
strengthen regulations and outcomes for failing to follow regulations
and meet standards.
Nursing home residents are some of the most vulnerable individuals in
the nation. CMS's deregulatory agenda puts residents in danger of
experiencing harm or being placed in immediate jeopardy of health,
safety, or well-being. This potential for resident harm is in direct
opposition to the HHS Secretary's duty under the law. The law makes
clear that the Secretary is responsible for assuring the ``requirements
which govern the provision of care in skilled nursing facilities . . .
and the enforcement of such requirements, are adequate to protect the
health, safety, welfare, and rights of residents and to promote the
effective and efficient use of public moneys.'' CMS's deregulatory
actions indicate that the Secretary is ignoring this longstanding
mandate. Multiple reports from the HHS Office of the Inspector General
(OIG) and the Government Accountability Office (GAO) document
persistent and widespread problems facing nursing home residents. In my
opinion, the following actions by CMS illustrate how existing problems
in nursing homes have been exacerbated:
Placing an 18-month moratorium on the full enforcement of eight
standards of care that relate to important resident protections--
baseline care planning, staff competency, use and monitoring of
antibiotic, and psychotropic medications. The moratorium means that
nursing homes will not be financially penalized when these safeguards
are violated.
Shifting the default civil money penalty (CMP) from per day (for
the duration of a violation) to per instance. The New York Times
reported that ``the change means that some nursing homes could be
sheltered from fines above the maximum per-instance fine of $20,965
even for egregious mistakes.''
Proposing rulemaking (NPRM) to roll back emergency preparedness
requirements. Most notably, the proposed rule would allow nursing homes
to review their programs and train staff every two years instead of
annually.
Responding to industry lobbying by carrying out plans to revise
the federal nursing home Requirements of Participation to ``reform''
standards that have been identified as ``excessively burdensome'' for
the nursing home industry. The Requirements were recently revised in
October 2016 (for the first time in 25 years) to better address
longstanding problems, including persistent abuse and neglect. These
standards need to be implemented, not watered down.
There are numerous ongoing concerns. The following describes some of
them:
More than 95 percent of all citations for violations of the
federal minimum standards of care result in findings of no resident
harm. A ``no harm'' citation does not mean that the resident did not,
in fact, experience pain, suffering, or humiliation. However, a finding
of ``no harm'' all too often does mean that the nursing home is not
penalized for poor care.
Staffing is essential to resident care and quality of life.
Insufficient staffing is often the underlying cause of other health
violations. By law, nursing homes must have a registered nurse on duty
for eight consecutive hours and 24-hour licensed nurse services every
single day. These two requirements are recognized as the minimum
necessary to ensure that residents receive the ``skilled nursing'' care
and monitoring that they need and which facilities are paid to provide.
However, CMS noted in a 2017 memorandum that about six percent of
nursing homes that submitted nurse staffing data for the third quarter
of 2017 had seven or more days with no reported RN hours and that 80
percent of these days were on weekends. The New York Times further
described the federal data as documenting that, for at least one day in
the last quarter of 2017, 25 percent of nursing homes reported no
registered nurses at work.
About 20 percent of nursing home residents are administered
antipsychotic drugs every day. However, less than two percent of the
population will ever have a diagnosis for a clinical condition
identified by CMS when it risk adjusts for potentially appropriate uses
of these drugs. In response to this concern, in 2011 the HHS Inspector
General stated that ``government, taxpayers, nursing home residents, as
well as their families and caregivers should be outraged--and seek
solutions.'' Nevertheless, currently in the absence of meaningful
enforcement, the problem of overuse and misuse of antipsychotic drugs
is still widespread.
CMS has stated that ``facility-initiated discharges continue to
be one of the most frequent complaints made to State Long Term Care
Ombudsman Programs.'' Although the Nursing Home Reform Law places
specific restrictions on when and how a resident can be transferred or
discharged, many residents fall victim to inappropriate and unsafe
discharges. Residents have been discharged to unsafe and inappropriate
settings such as homeless shelters, storage units, and motels.
The buying and selling of nursing homes and the transfer of
licenses to new managers raise questions about who these operators are
and whether there are sufficient state and federal law, regulations,
and practices in place, and meaningfully enforced, to protect
residents. A health care entity that took over 100 nursing homes across
the country starting in 2015 and collapsed in 2018. Various states
officials indicated that the facilities were at imminent risk of
running out of necessary food and medication, and were unable to meet
payroll. This is just one of many illustrations that nursing home
residents are in need of urgent action to protect their quality of care
and quality of life.
CMS's deregulation places residents at an even greater risk of
experiencing harm. Thank you to the Senate Finance Committee's decision
to hold a hearing on nursing home resident abuse and neglect. It is the
hope that this Committee will continue to highlight these issues until
verifiable and demonstrable change occurs and is sustained. Thank you
in advance for being advocates for nursing home residents, and for
exercising legislative power to facilitate changes to ensure quality of
care and quality of life for all nursing home residents, with special
scrutiny for the well-being of the frail, the voiceless, and the
vulnerable.
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