[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

                              ----------                              

                           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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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;
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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 
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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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \20\ https://www.medicare.gov/nursinghomecompare.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
                             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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www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-
proposed-regulatory-provisions-promote-program-efficiency-0. Accessed 
March 4, 2019.
58.  Grabowski D. ``Nursing Home Certificate-of-Need Laws Should Be 
Repealed.'' Health Affairs Blog 2017.
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certificate of need and moratoria policy on change in nursing home beds 
in the United States.'' Med. Care. Jun 1997;35(6):574-588.
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on the Price of Nursing Home Care.'' Journal of Industrial Economics. 
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61.  Grabowski DC, Angelelli JJ. ``The relationship of Medicaid payment 
rates, bed constraint policies, and risk-adjusted pressure ulcers.'' 
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of 
Certificate-of-Need Laws on Nursing Home and Home Health Care 
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2016;73(1):85-105.
63.  Zimmerman S, Bowers BJ, Cohen LW, Grabowski DC, Horn SD, Kemper P. 
``New Evidence on the Green House Model of Nursing Home Care: Synthesis 
of Findings and Implications for Policy, Practice, and Research.'' 
Health Serv. Res. Feb 2016;51 Suppl 1:475-496.
64.  Lewis RJ. ``SNFs need to `tough it out' for the first part of 
2005.'' Long Term Living. 2005;54:62-64.
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Handbook of Health Economics. Amsterdam: Elsevier Science, North-
Holland.; 2000:955-994.
66.  Chou SY. ``Asymmetric information, ownership and quality of care: 
An empirical analysis of nursing homes.'' J. Health Econ. Mar 
2002;21(2):293-311.
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Postacute Care Choices.'' Health Affairs Blog 2017.
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nurse staffing in nursing homes: The role and limitations of the Online 
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Assoc. Jan-Feb 2005;6(1):27-33.
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``Nursing home staffing and its relationship to deficiencies.'' J 
Gerontol B Psychol Sci Soc Sci. Sep 2000;55(5):S278-287.
70.  Kash BA, Hawes C, Phillips CD. ``Comparing staffing levels in the 
Online Survey Certification and Reporting (OSCAR) system with the 
Medicaid Cost Report data: Are differences systematic?'' Gerontologist. 
Aug 2007;47(4):480-489.
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Data: A Comparison With the Ohio Department of Health Annual Survey of 
Long-Term Care Facilities.'' Oxford, OH: Scripps Gerontology Center, 
Technical Report 3-01; 1999. Report No.: Technical Report 3-01.
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Data Submission Payroll-Based Journal: Long-Term Care Facility Manual 
2015.
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in 11 Nursing Homes.'' New York Times 2018.
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081418%20
SNF%20Staffing%20Quality%20Letter.pdf.
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Facility Staffing Levels.'' 2018; https://oig.hhs.gov/reports-and-
publications/workplan/summary
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76.  Werner RM, Konetzka RT, Polsky D. ``Changes in Consumer Demand 
Following Public Reporting of Summary Quality Ratings: An Evaluation in 
Nursing Homes.'' Health Serv. Res. Jun 2016;51 Suppl 2:1291-1309.
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Appears Limited By Lack of Awareness and Initial Mistrust of the 
Data.'' Health Aff. (Millwood). Apr 2016;35(4):706-713.
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and understanding.'' Journal of Aging and Social Policy. Apr-Jun 
2009;21(2):187-208.
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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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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. 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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-
facility-where-woman-was-killed-by-nearby/article_537435a2-624c-11e7-
9288-8b8d44af7005.html

https://www.postandcourier.com/news/granddaughter-suing-west-ashley-
senior-facility-over-grandmother-killed-by/article_8207d9fa-5752-11e7-
b322-6736aac8aff9.
html

https://www.postandcourier.com/health/report-brookdale-charleston-
nursing-home-director-suspects-employees-of-stealing/article_4f4ae148-
e974-11e6-bf30-9f36642b0f
c0.html

                                 ______
                                 
               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.

                                  [all]