    [Senate Hearing 116-437]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 116-437

                           PROMOTING ELDER JUSTICE:
                               A CALL FOR REFORM

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

                                    HEARING

                                   BEFORE THE

                              COMMITTEE ON FINANCE
                              UNITED STATES SENATE

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                 JULY 23, 2019
                                   __________

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                Printed for the use of the Committee on Finance

                                  ___________

                        U.S. GOVERNMENT PUBLISHING OFFICE

    44-378-PDF                WASHINGTON : 2021

                              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

    Tinker, Megan H., Senior Advisor for Legal Affairs, Office of
      Counsel to the Inspector General, Department of Health and
      Human Services, Washington, DC.................................     5
    Dicken, John E., Director, Health Care, Government Accountability
      Office, Washington, DC.........................................     6
    Blancato, Robert B., national coordinator, Elder Justice
      Coalition, Washington, DC......................................    30
    Parkinson, Hon. Mark, president and chief executive officer,
      American Health Care Association, Washington, DC...............    32
    Smetanka, Lori, executive director, National Consumer Voice for
      Quality Long-Term Care, Washington, DC.........................    34

                   ALPHABETICAL LISTING AND APPENDIX MATERIAL

    Blancato, Robert B.:
        Testimony....................................................    30
        Prepared statement...........................................    39
        Responses to questions from committee members................    44
    Casey, Hon. Robert P., Jr.:
        ``Families' and Residents' Right to Know: Uncovering Poor
          Care in America's Nursing Homes,'' Senators Casey and
          Toomey, June 2019..........................................    47
    Dicken, John E.:
        Testimony....................................................     6
        Prepared statement...........................................    76
        Responses to questions from committee members................    82
    Grassley, Hon. Chuck:
        Opening statement............................................     1
        Prepared statement...........................................    87
    Parkinson, Hon. Mark:
        Testimony....................................................    32
        Prepared statement...........................................    88
        Responses to questions from committee members................    91
    Smetanka, Lori:
        Testimony....................................................    34
        Prepared statement...........................................   120
        Responses to questions from committee members................   126
    Tinker, Megan H.:
        Testimony....................................................     5
        Prepared statement...........................................   131
        Responses to questions from committee members................   136
    Wyden, Hon. Ron:
        Opening statement............................................     3
        Prepared statement with attachment...........................   144

                                 Communications

    Center for Fiscal Equity.........................................   147
    Center for Medicare Advocacy.....................................   148
    Cooper, Kendra...................................................   153
    Easter, Susan....................................................   155
    Inglis, Susan, R.N...............................................   157
    LeadingAge.......................................................   158
    LeadingAge Minnesota.............................................   161
    Lerner, Dean Alan................................................   163
    National Association of State Long-Term Care Ombudsman Programs..   172
    New Hampshire Health Care Association............................   174
    Platt, Kathie Northrup...........................................   192
    Whiteside, LaDawn................................................   198

                           PROMOTING ELDER JUSTICE:
                               A CALL FOR REFORM

                                  ----------

                             TUESDAY, JULY 23, 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, Scott, Lankford, Daines,
    Young, Wyden, Stabenow, Cantwell, Menendez, Carper, Cardin,
    Brown, Bennet, Casey, Warner, Hassan, and Cortez Masto.
        Also present: Republican staff: Evelyn Fortier, General
    Counsel for Health and Chief of Special Projects; and John
    Pias, Detailee. Democratic staff: David Berick, Chief
    Investigator; Rebecca Nathanson, Legislative Assistant for
    Ranking Member Wyden, and Joshua Sheinkman, Staff Director.

     OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
                  IOWA, CHAIRMAN, COMMITTEE ON FINANCE

        The Chairman. Today we will focus on an issue that has
    affected many families in Iowa, as well as the entire country:
    elder justice. Congress has a key role to play in ensuring the
    protection of our Nation's seniors, as about one in 10
    Americans aged 60 and older will fall victim to elder abuse
    each year.
        Many older Americans reside in assisted care facilities,
    nursing homes, and other kinds of group living arrangements. It
    is critical that these care facilities and staff not only
    follow the law but provide the type of care that they would
    want their own family members to receive.
        The U.S. Government Accountability Office just released a
    new report on this subject today, while the Inspector General
    at the Department of Health and Human Services issued a related
    report last month. According to the IG, one-third of nursing
    home residents may experience harm while under the care of
    these facilities. In more than half of these cases, the harm
    was preventable.
        We look forward to hearing both agencies' recommendations
    for Congress at today's hearing. In the 115th Congress, I
    introduced the Elder Abuse Prevention and Prosecution Act,
    which was enacted unanimously. It enhances enforcement against
    perpetrators of crimes targeting older Americans. Specifically,
    it increases training for Federal investigators and
    prosecutors, and designates at least one prosecutor in each
    Federal judicial district be taxed with the handling of cases
    of elder abuse. The law also increases penalties for
    perpetrators of abuse and ensures that the Federal Trade
    Commission's Bureau of Consumer Protection and the Department
    of Justice have elder justice coordinators.
        Next, we need to renew and update the Elder Justice Act.
    Years ago I joined my colleagues, led by former Chairman Hatch,
    in developing an earlier version of the Elder Justice Act,
    which was adopted in 2010. It is time for this committee to
    revisit the key programs authorized under this important law.
    It authorizes the Elder Justice Coordinating Council and
    resources to support long-term care ombudsmen and forensic
    centers to investigate elder abuse. I am working closely with
    members of the Elder Justice Coalition, whose leader is
    testifying today, on legislation to accomplish that goal.
        The Des Moines Register last year published reports
    suggesting a troubling lack of compassionate care for elder
    residents in some of the nursing homes in my State. Reports
    also surfaced in 2017 of nursing home workers in at least 18
    different facilities taking humiliating unauthorized photos of
    elderly residents and posting them on social media websites. In
    the past couple of years, I have seen an uptick in news reports
    about elder abuse done via social networking.
        In response to those reports, I wrote to social media
    companies to better understand the steps they have taken to
    prevent their platforms from being a tool of abuse. In
    addition, I wrote to the Centers for Medicare and Medicaid
    Services about this very problem. In response, in 2016 that
    Federal agency issued guidance to State health departments on
    the misuse of social media in nursing homes to make clear that
    taking photos and videos of a demeaning nature are forms of
    abuse.
        In March this committee convened an oversight hearing at
    which we heard from the daughters of two elderly women who
    resided in federally funded nursing homes. One testified that
    her mother, an Iowan, died due to neglect in a facility that--
    can you believe this?--held the highest possible rating, five
    stars, on a Federal Government website. The family discovered
    that the nursing home was subject to multiple complaint
    investigations in recent years.
        Another testified about her mother' rape in a nursing home.
    Many nursing homes offer excellent care, but these and similar
    cases around the country point to the need for greater
    oversight.
        Families facing the decision to put a loved one in a care
    facility or a nursing home deserve to have reliable tools to
    help make the best choice possible. They should not have to
    worry that their loved one will be abused at the hands of a
    caregiver.
        So I look forward to hearing from all of our witnesses on
    what more Congress can do to help ensure that government-
    provided information on nursing homes and care facilities is
    accurate and reliable, and that oversight efforts will continue
    to increase quality standards and keep them high and make sure
    that the taxpayers' money spent on these residences is spent
    well.
        I yield the floor to my ranking member, 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.
        Mr. Chairman, I want to note that you have a very long
    history of advocating for the rights of nursing home patients
    and families. And as far as I can tell, it goes back even to
    your service in the other body, in the House. You have
    consistently been pushing for these reforms. I am glad to be
    able to join you, as I mentioned.
        I was, when I was director of the Gray Panthers, the public
    member of the Oregon Board of Nursing Home Examiners. These are
    the officials who decide whether to license an administrator.
    So this is another area where I think there is an opportunity
    for a set of very significant bipartisan reforms, and I am
    looking forward to working with you.
        Colleagues, today the committee is going to look at what
    more can be done to protect seniors from abuse and neglect in
    nursing homes. Based on new reports from the Government
    Accountability Office and the Inspector General that has, in
    effect, purview over Medicare, there are two key issues for the
    committee to confront.
        The first is that instances of physical, sexual, mental,
    and emotional abuse in nursing homes appear to be on the rise.
    Second, the Federal nursing home rating system does not
    accurately reflect the prevalence of that abuse. So when it
    comes to those cases, there are good nursing homes and there
    are bad nursing homes, and the government is failing to help
    consumers determine which are which.
        So let me begin by outlining how the system is supposed to
    work. Everybody agrees that even one case--even one--of abuse
    in a nursing home is one too many. Therefore, State agencies
    are in charge of conducting surveys of nursing homes and
    investigating the reports of abuse.
        The Centers for Medicare and Medicaid Services is in charge
    of setting national standards and managing a nationwide rating
    system for nursing homes. The State agencies and the Federal
    agencies and CMS are supposed to work in close communication
    with each other so that families can figure out which homes are
    safe.
        Today, the committee is going to hear that the system is
    failing the older people it is supposed to protect. The
    Government Accountability Office studied instances of abuse in
    nursing homes over a 5-year period from 2013 to 2017. Over that
    time, the recorded number of instances more than doubled. In a
    separate study, the Health and Human Services Office of
    Inspector General also concluded that thousands of cases of
    abuse in nursing homes go unreported.
        Then there is the important issue of the broken rating
    system. The GAO study found abuse happened in homes of all
    ratings, top and bottom. A good rating did not indicate that a
    nursing home prevented abuse.
        And now I have to comment on the situation in my home State
    of Oregon. It was revealed during the auditor's investigation
    that the State of Oregon went at least 15 years without
    reporting information on cases of abuse or neglect to the
    government--15 years worth of records of physical, verbal,
    mental, and emotional abuse. Information that Oregonians needed
    to know in order to keep their loved one safe was unavailable
    on the nursing home rating system.
        Somebody in Oregon who wanted to find out if a particular
    nursing home had abusive staff would have had better luck
    reading the local police blotter. Their State and Federal
    Government failed them.
        In May, I wrote to the Centers for Medicare and Medicaid
    Services urging them to take two key steps. First, I said that
    they ought to put a warning on their website that the nursing
    home rating system does not reflect cases of abuse in my State.
    Second, I wrote that they need to go back and work with Oregon
    government officials to find all this missing information and
    fix the rating system so that it is useful and accurate.
    Anything short of that, in my view, puts older Oregonians in
    danger.
        The office of the Centers for Medicare and Medicaid
    Services has not yet responded.
        Mr. Chairman, I would ask unanimous consent that my letter
    to them be included in the record at this point.
        The Chairman. Without objection, so ordered.
        [The letter appears in the appendix on p. 145.]
        Senator Wyden. And I will just close with this. Ever since
    I was the director of the Gray Panthers--and this was years ago
    when I was a young man and I was on that Board of Nursing Home
    Examiners--I believed that there were good nursing homes in
    Oregon and across the country staffed by hardworking
    individuals who excel at their jobs. But not every home meets
    that standard. That is why we are here.
        And in the case of these new reports of studies of
    vulnerable older people, people living in nursing homes,
    specifically because they cannot care for themselves, were
    exposed to unforgivable treatment--thousands of instances of
    physical, verbal, mental, and sexual abuse, health-care needs
    unmet, squalid living conditions.
        This cannot go on. And the chairman and I have talked about
    this and have been working on it, and we believe that people
    who live in Oregon, or Iowa, or across the country have a right
    to know which nursing homes are safe and which homes are not.
        So, colleagues, this is another opportunity in the
    tradition of the Finance Committee--I see Senator Hassan here,
    who is always talking about ways in which people can get
    together, find some common ground. Here is another opportunity
    for Democrats and Republicans to work together to find
    solutions on this enormously important issue.
        The chairman has demonstrated his commitment to the rights
    of seniors over the years. Mr. Chairman, I look forward to
    working closely with you, and I know we are going to uncover
    some important information today.
        The Chairman. We will work together, yes.
        [The prepared statement of Senator Wyden appears in the
    appendix.]
        The Chairman. First of all, introducing now our first
    panel--and I welcome both of you and thank you for the work
    that you put into your testimony today, and also for the work
    that you do in this area of concern for this committee.
        Our first witness is Megan Tinker. Ms. Tinker is the Senior
    Legal Advisor to the Inspector General at the Department of
    Health and Human Services. She previously served as a Branch
    Chief for the Inspector General, directing a team of attorneys
    in conducting oversight of health programs. Ms. Tinker has
    audited both nursing homes and group homes.
        Our next witness, John Dicken, is Director of the Health
    Care team at the U.S. Government Accountability Office. He has
    led GAO's efforts to evaluate nursing home quality for many
    years. At one time, Mr. Dicken also served as legislative
    fellow for the Senate HELP Committee.
        Welcome to both of you, and I think we will start with Ms.
    Tinker.

    STATEMENT OF MEGAN H. TINKER, SENIOR ADVISOR FOR LEGAL AFFAIRS,
       OFFICE OF COUNSEL TO THE INSPECTOR GENERAL, DEPARTMENT OF
               HEALTH AND HUMAN SERVICES, WASHINGTON, DC

        Ms. Tinker. Good morning, Chairman Grassley, Ranking Member
    Wyden, and other distinguished members of the committee.
        Thank you for the opportunity to testify about the urgent
    need to protect Medicare and Medicaid beneficiaries from abuse
    and neglect. As our work shows, far too often abuse and neglect
    are hidden and unreported, leaving deficiencies uncorrected and
    beneficiaries at risk.
        Unfortunately, in almost every care setting, we have found
    troubling failures to identify, report, and address abuse and
    neglect. When lapses occur, the results can be devastating for
    beneficiaries and their families. For example, we uncovered the
    abuse of an 85-year-old woman residing in a long-term care
    facility. The owner beat the resident with a broomstick. She
    was covered with bruises, tied to a wheelchair, and her mouth
    was taped shut.
        We learned about a group home owner who forced residents to
    fight each other. As a result, a resident died. And the owners
    and employees tried to cover up the death by encasing his body
    in cement and hiding his body in a storage facility.
        In hospice, we have uncovered pressure sores leading to
    gangrene and limb amputations, maggots around a feeding tube,
    and many other disturbing examples of abuse and neglect.
        We know that most providers are delivering good care.
    However, our work reveals an alarming rate and range of
    potential abuse and neglect and missed opportunities to prevent
    it. Fundamental common-sense safeguards are lacking.
        First, data is not being used effectively to identify
    potential abuse and neglect. Second, potential abuse and
    neglect are not always being reported to law enforcement or
    State agencies. And finally, States are not ensuring that
    identified problems are corrected.
        With respect to our first safeguard, CMS, States, and
    providers need to use the data they have to identify potential
    abuse and neglect. That is what we did. Data forms the bedrock
    of oversight and ensures transparency and accountability.
        By analyzing the data, we found that one in five high-risk
    Medicare emergency room claims for nursing home residents were
    the result of potential abuse or neglect. We also found that
    Medicare beneficiaries, regardless of the setting, are
    vulnerable to potential abuse and neglect.
        Most incidents did not occur in medical facilities. In the
    majority of incidents, the likely perpetrator was a spouse or a
    family member. Medicare claims data is a powerful tool to fight
    against abuse and neglect, yet CMS does not agree with our
    recommendation to mine this data.
        Second, it is critical that potential abuse and neglect are
    reported. CMS, State agencies, and law enforcement cannot
    protect beneficiaries from harm if they do not know it is
    occurring. In nursing homes, we found approximately 27 percent
    of potential abuse and neglect incidents were not reported to
    law enforcement as required.
        We found similar problems in group homes. Worse, in
    hospice, Medicare only requires reporting when potential abuse
    or neglect involves a hospice worker, and the hospice has
    investigated, and the hospice has verified the allegation. This
    lack of reporting leaves vulnerable beneficiaries unprotected.
        Third, prompt action is needed to correct deficiencies at
    facilities that result in abuse and neglect. Our work raises
    concerns about State oversight of problematic facilities. We
    found that seven States did not always verify that nursing home
    deficiencies were corrected.
        Approximately 31 percent of those nursing homes had a
    repeat deficiency. At least half of those nursing homes had
    more serious deficiencies, including substandard care, actual
    harm, and immediate jeopardy. Ensuring that deficiencies are
    corrected is essential to the health and safety of nursing home
    residents.
        So how can this be improved? My written statement
    recommends some specific corrective actions to help improve
    oversight. Chief among them, CMS should make better use of the
    data at its disposal to help prevent abuse and neglect. Today
    we released a guide that provides a roadmap for CMS, States,
    and providers to identify unreported abuse or neglect. This, in
    turn, can lead to targeted oversight and enforcement actions to
    prevent future harm.
        The problem of hidden unreported abuse and neglect requires
    urgent attention to protect our most vulnerable beneficiaries.
    Thank you for your ongoing leadership in this area and for the
    opportunity to testify before you today.
        [The prepared statement of Ms. Tinker appears in the
    appendix.]

    STATEMENT OF JOHN E. DICKEN, DIRECTOR, HEALTH CARE, GOVERNMENT
                 ACCOUNTABILITY OFFICE, WASHINGTON, DC

        Mr. Dicken. Chairman Grassley, Ranking Member Wyden, and
    members of the committee, I am pleased to discuss GAO's new
    report released today titled ``Nursing Homes: Improved
    Oversight Needed to Protect Residents From Abuse.'' This is the
    most recent from more than 20 years of GAO reports finding that
    too many nursing home residents are subject to abuse and that,
    despite ongoing efforts, weaknesses remain in oversight
    intended to ensure residents' safety and welfare.
        Abuse of nursing home residents remains relatively rare,
    representing less than 1 percent of all nursing home
    deficiencies substantiated by State inspectors and reported by
    CMS. However, we found that the number of abuse deficiencies
    more than doubled from 430 in 2013 to 875 in 2017. The largest
    increase was in severe cases causing actual harm or immediate
    jeopardy for residents. The increased frequency and severity of
    abuse deficiencies is disturbing, but it is important to note
    that CMS officials and stakeholders we interviewed agreed that
    abuse remains under-reported.
        To further understand the types of abuse reported, GAO
    reviewed a representative sample of 400 narratives describing
    abuse deficiencies reported in 2016 and 2017. More than half,
    58 percent, identified nursing home staff as the perpetrators.
    Other residents were the perpetrators in 30 percent. Physical
    abuse was identified in 46 percent of abuse deficiencies.
        One example was a nurse aide who grabbed a resident by both
    wrists, causing the resident to fall, bruising their wrists and
    hip. In another example, a resident kicked another resident in
    the face, and a third resident shoved and then hit a fourth
    resident and also slapped a fifth resident.
        Mental and verbal abuse was identified in 44 percent of
    abuse deficiencies. Examples include a family member visiting a
    resident who threatened to take another resident out of her
    wheelchair, leaving that resident frightened and with
    nightmares.
        Another example: a nurse assistant swore at and told a
    resident to shut up when asked to change his soiled brief, and
    put the call button out of the resident's reach under his bed.
        Sexual abuse represents 18 percent of abuse deficiencies.
    These include a resident with a history of such behavior who
    grabbed two other residents in a sexually inappropriate manner.
    In another case, a nurse aide found a medical technician
    sexually assaulting a resident who was nonverbal with severe
    dementia and totally dependent on staff for mobility.
        In my remaining time, I will highlight GAO's
    recommendations to address several shortcomings in CMS's
    oversight.
        First, we recommend that CMS require State agencies to
    report abuse, perpetrator, and type, and systematically assess
    these trends. This could help tailor prevention and
    investigation efforts and identify gaps, if the results are not
    aligned with CMS's expectations.
        Second, we recommend that CMS develop and disseminate
    guidance, including a standardized form on information nursing
    homes should report to States when incidents occur. Nearly half
    of abuse deficiencies originated from facility-reported
    incidents. However, State officials told us that documentation
    from nursing homes often lacks information needed to triage
    whether and how promptly to investigate.
        Third, GAO recommends that CMS confirm that all State
    survey agencies are investigating abuse allegations and sharing
    their results with CMS. As Ranking Member Wyden noted, this
    finding is based on a finding for Oregon, where for more than
    15 years another agency, not the survey agency under contract
    to CMS, investigated certain nursing home allegations. CMS did
    not get those investigation results, and they were not included
    on their website. Oregon changed this practice in late 2018,
    but CMS needs to ensure that no other States have similar
    compliance, and that Oregon consumers have complete nursing
    home abuse records.
        Finally, GAO recommends that CMS require State agencies to
    immediately refer any suspicion of a crime to law enforcement
    to address existing gaps that can delay or miss referrals to
    enforcement.
        We are pleased that CMS concurs with each of our
    recommendations and plans to take steps to address them. The
    sustained focus is critical to ensure that residents in nursing
    homes receiving Medicare and Medicaid payments are free from
    abuse.
        This concludes my prepared statement. I would be pleased to
    respond to any questions the committee may have.
        [The prepared statement of Mr. Dicken appears in the
    appendix.]
        The Chairman. We will have 5-minute rounds of questions.
        The first question is, Ms. Tinker, I have a constituent,
    Ms. Miller, whose father, Duane Dingman, a military veteran
    from Webster City, IA, passed away in a nursing home. She
    reports he died because of being denied his heart medication by
    nursing home personnel for 5 days. She urged that we require
    nursing homes to get a family member's signature before denying
    essential medication to a patient.
        Is Mr. Dingman's case atypical? Or do you often hear of
    similar cases about life-saving medication? And what is your
    reaction to my constituent's suggestion?
        Ms. Tinker. We are certainly aware of multiple cases where
    medication has been an issue. And in fact in our report, where
    we looked at the data about what were the top-ten deficiencies,
    one of those was an issue around medication errors. So we are
    aware that those are problems, as part of the data brief that
    we issued earlier this year.
        And it is very unfortunate and concerning that these types
    of things have occurred. And that is part of why we continue to
    recommend to CMS that they look at the data to clearly identify
    where potential abuse and neglect occur, and to be in a
    position to actually target resources to those risk areas.
        The Chairman. Last, your study indicated that there are
    problems not only with nursing homes, but with group homes and
    hospices. The problems are similar. For example, your report
    seems to suggest that neither group homes nor nursing homes
    routinely report serious cases to State officials, and even
    when they do, most of them are not forwarded by State agencies
    to law enforcement for investigation.
        Number one, is that accurate? But what other similarities
    and what differences do you find in audits of both kinds of
    facilities?
        Ms. Tinker. That is accurate. What we found in both the
    group home context as well as in the nursing home context was a
    lack of reporting at the beginning, by either the nursing
    facility or the group home. But even when those incidents were
    reported, they were not necessarily followed through and
    properly investigated.
        This raised for us significant concerns. The largest
    difference in both of these two different populations is really
    how they are regulated.
        In the group home context, the primary regulatory structure
    is around State-specific rules and regulations. And so there is
    a lot of variation in how those particular facilities are
    governed, which is part of why we issued our Joint Group Home
    Report, which provided model practices to States, giving them a
    roadmap for how to conduct comprehensive compliance oversight
    to prevent incidents of abuse and neglect.
        In the nursing home context, there is a joint Federal and
    State oversight structure that is more comprehensive in some
    ways, because it relies on the Federal Conditions of
    Participation and State survey agencies.
        The Chairman. Mr. Dicken, Senator Wyden and I, along with
    the Homeland Security Committee members, jointly requested the
    report which was released today.
        Question number one: we have heard from prosecutors that
    State nursing home inspectors focused closely on compliance
    with their regulatory checklist but not so much on closely
    collaborating with law enforcement when there is evidence of a
    possible crime.
        Do you agree?
        Mr. Dicken. Yes. We did hear that there were concerns that
    information from the State inspectors was not being conveyed as
    timely or as completely to law enforcement.
        The Chairman. To you also, do State and Federal inspectors
    receive adequate training on signs of abuse and neglect before
    conducting periodic inspections of long-term care facilities?
    What more could be done to encourage greater collaboration, if
    it does not exist?
        Mr. Dicken. Yes, thank you. Inspectors do undergo training,
    but certainly we did have recommendations that there be more
    clear guidance on the situations when there is a suspicion of
    crime and that that should be immediately referred from the
    State inspectors to law enforcement.
        We heard from some State agencies that there was currently
    confusion as to what extent those could be referred before they
    were substantiated, and we recommend that those should be
    referred immediately when there is a suspicion of crime.
        The Chairman. Senator Wyden?
        Senator Wyden. Thank you very much, Mr. Chairman. I want to
    thank both of you for your professionalism, and I have
    questions for both of you.
        Ms. Tinker, let me start with you, and going back to my
    roots as the public member of the Nursing Home Board at home in
    Oregon. What we were concerned about in particular was the
    hiring process, because people wanted to know the backgrounds
    of folks who were being hired to care for those whom they loved
    so much, their seniors. And we wanted to know whether nursing
    homes were hiring people who had committed crimes against
    seniors or other vulnerable people. And families are trying to
    get that information, obviously, as well.
        So as of this morning, are criminal background checks being
    used across the country in a reliable kind of way to prevent
    dangerous people from being hired to take care of the Nation's
    older people?
        Ms. Tinker. We recently issued a report looking
    specifically at the National Background Check Program for
    Medicaid, which obviously touches on some of these areas. And
    what we found was that 13 States still have not implemented
    background checks, and loopholes----
        Senator Wyden. No background checks at all?
        Ms. Tinker. Some of those 13 States are in process of
    implementing, and others no.
        Senator Wyden. And what about--okay, what about all of the
    States with respect to hiring dangerous people? Can you give me
    anything resembling a ballpark kind of assessment of how many
    States still have laws that could allow for the hiring of
    dangerous people?
        Ms. Tinker. What I can tell you, based on our work, is that
    those 13 States that are outstanding continue to raise
    concerns. And let me tell you a little bit about the loopholes
    that we found, which would be applicable across all States, and
    that raised concerns----
        Senator Wyden. This is very helpful. You are going to talk
    now--we have 13 States that are really a problem, but you are
    going to talk about all the loopholes that apply generally with
    respect to hiring?
        Ms. Tinker. Absolutely.
        Senator Wyden. That is very helpful. Go ahead.
        Ms. Tinker. There are two loopholes that we found as part
    of our work in the background check report that we issued
    earlier this month.
        The first loophole is that right now State Medicaid
    programs, when enrolling a provider that is high-risk, can in
    fact, if the provider is already enrolled in Medicare, forego a
    background check. However, that is even if Medicare themselves
    did not perform a background check.
        So that leaves open the possibility that somebody could
    become a provider for Medicaid and not have any background
    check in place. And when we recommended to CMS that they close
    this loophole, they did not concur with our recommendation.
        The second loophole I will tell you about today is that one
    of the other big problems is that when background checks are
    being performed, we are looking at ownership structures and who
    is responsible for providing care. As part of that, providers
    are required to self-attest their ownership. Many States do not
    verify who the owners are, which means that there could be
    criminals who are part of the ownership structure that we would
    have no awareness of and who would not have background checks
    performed.
        Senator Wyden. Thank you. And I just want you to know that
    the chairman and I and our very talented staff feel really
    strongly that there have to be robust background checks. And it
    ought to be from sea to shining sea. It is time to end this
    kind of lurching from one piecemeal approach or another and
    give families the security with respect to folks being hired.
    So we are going to follow up with you very closely on this.
        There is one matter I have to go into, in the remainder of
    my time, with Mr. Dicken, but I just wanted you to know that
    Chairman Grassley and I feel very strongly about closing these
    loopholes that you have described and background checks
    everywhere, period, full stop.
        Mr. Chairman, thank you. And I just wanted--I know you have
    a tight schedule. I am going to ask just one other question
    really quickly, but I appreciate working with you on the
    background checks.
        The Chairman. Then Senator Lankford will be next.
        Senator Wyden. Okay. Very good. On the rating system, Mr.
    Dicken, let me just kind of get to the bottom line. It is a
    mess, and it is hard for people to figure out what it means in
    terms of all of these issues relating to the abuses. You all
    seem to have made some recommendations about how to fix it.
        Why don't you just tell us what those are?
        Mr. Dicken. In past reports, GAO has made recommendations
    to try to improve the rating system. On some of that, CMS has
    made some steps and provides consumers more information about
    how the rating system is calculated.
        We also, though, have recommended that CMS provide more
    information, for example on consumer satisfaction, which they
    have not yet done but concurred with.
        We have also recommended that they make the information
    more comparable nationally. If I am a resident of Maryland and
    I have an aunt in a nursing home in Delaware, I cannot
    compare----
        Senator Wyden. How do you make the information about abuse
    more available to families and patients?
        Mr. Dicken. Right. So right now abuse is only one of the
    pieces of information that is indicated. And as noted, many of
    the homes that we found that had abuse ran the full gamut of
    the star rating system. And a consumer right now would have to
    click through multiple pages on nursing homes to get to
    information on abuse. There would need to be more direct
    information more prominently that would be indicating where
    there would be abuse citations found.
        Senator Wyden. Okay. I am over my time. Thank you, Mr.
    Chairman.
        The Chairman. Senator Lankford?
        Senator Lankford. Thank you, Mr. Chairman.
        I want to come back to this background check issue. There
    are 13 States currently that are not doing background checks
    for employees who are there--or ownership, obviously, as you
    mentioned the loopholes before.
        Does that include States that only do a State background
    check but not a national background check? Are there some
    States that are only doing a State criminal check but not doing
    national----
        Ms. Tinker. Yes. Part of the 13 States is States that might
    have current State background checks in place but have not, for
    high-risk providers, fully gone through the process of
    implementing national criminal background checks.
        Senator Lankford. So the other 37 States all do a full
    national criminal background check, not just a State only?
        Ms. Tinker. Absolutely. However, there are these loopholes
    that do allow for some opportunity to not perform those
    background checks.
        Senator Lankford. I want to go back to the rating system.
    These were similar--my questions--to what Senator Wyden was
    also talking through before. The number of employees or
    individuals who may be in the system that there may be a
    problem with, is that counted into the rating system currently?
    Can you get a five-star rating and have employees who have been
    on the sex offender registry, or have a history of abuse?
        Mr. Dicken. Yes; the rating system does not directly look
    at that. It does look at the broader issues of staffing, and of
    inspections, but it is not directly related to that particular
    issue of whether----
        Senator Lankford. Is that something that there is a
    recommendation for to say a history or previous recordings of
    abuse in this facility need to go into the rating system in the
    future?
        Mr. Dicken. So we have certainly recommended that the
    information on abuse be contained--you know, we made a number
    of recommendations that would help to identify those. Those
    would indirectly feed into the rating system, but not tie
    directly to the registry.
        Senator Lankford. We have a tremendous number of really
    high-quality facilities in Oklahoma with staff who love the
    folks they serve with, and love getting the chance to serve
    seniors in all of that care. Have you been able to note in any
    of your previous work what denotes to a family when they are
    looking, what are the common characteristics of really high-
    quality care facilities?
        For instance, local ownership. Transparency in data.
    Relationships with local hospitals. Allowing cameras to be in
    facilities owned by the patient's families.
        Have you noticed certain things that, if those things are
    present, there seems to be a higher-quality, less-abusive
    facility?
        Mr. Dicken. We did talk to nursing homes, as well as to
    inspectors, about some of the challenges and issues that would
    be in homes that were more or less likely to have abuse. Many
    of those related to staffing. We heard from staff whom we spoke
    with directly that in some homes they had resources that, if
    there were a difficult situation, if they were stretched, they
    could turn to other staff who could relieve them. Other homes,
    they said they really did not have that flexibility to turn to
    other staff, and they felt under-staffed and over-stressed.
        We also heard that there were more challenges often in
    homes that might have a diverse population, including both
    elderly and younger residents, both with cognitive issues as
    well as other issues, and that that posed more challenges.
    Certainly consumers need to look not only at the five-star
    rating, but other information that is available, and talk to
    the nursing home ombudsmen and others to find out how they are
    performing.
        Senator Lankford. So how would individuals get that
    information?
        Mr. Dicken. Well, the starting point can be the information
    on Nursing Home Compare, but going beyond that to talking to
    ombudsmen, to discharge planners in hospitals that may know
    more on local situations. It is certainly important to visit
    the homes and to talk to the staff in those places.
        Senator Lankford. So several years ago this Congress worked
    with FAA and air traffic control to be able to set up a system
    in place that FAA led the way on. So if there was a mistake
    made by a controller, aircraft got too close, in the past they
    were scored low on that, and so they were trying to hide that.
    They transitioned that to say, no, we want the mistakes to be
    more public on this, and we want to find a way to be able to
    get more information out on reporting.
        A lot of our conversation today has been about reporting.
    How do we get information out so that, if something occurs, it
    is not hidden?
        Do you have recommendations for how to change the way we do
    reporting to increase the number of reports, and so then we can
    make the changes that are necessary?
        Mr. Dicken. Yes, we did recommend that CMS revisit the
    information that facilities are required to report when an
    incident does occur. That requirement exists now in nursing
    homes, for the homes, but we found that often the information
    was not as timely----
        Senator Lankford. If there is a disincentive to report,
    then you are going to get fewer reports. But we need more
    information, not less, at the end of the day. And so I think
    that would be an area that we need to continue to be able to
    find what is a better way to be able to get more information
    out so that we do not have folks hiding it with a disincentive.
    But we have to get that out in the daylight.
        Mr. Chairman, thank you.
        The Chairman. Thank you. Senator Stabenow?
        Senator Stabenow. Thank you, Mr. Chairman. And thank you to
    you and our ranking member for continuing to keep a focus on
    this incredibly important issue. And thanks to both of you for
    your reports and your professionalism around this issue as
    well.
        I want, before asking questions, though, to just underscore
    something, when we are talking about the fact that Medicaid
    covers two out of three nursing home residents. Medicaid covers
    two out of three nursing home residents in our country, and we
    need to protect and strengthen Medicaid to make sure that
    seniors and people with disabilities are able to get the high-
    quality care that they need and deserve.
        And I say this only in context as we are doing budget
    negotiations, because the President's budget cuts $1.4
    trillion--trillion dollars--out of Medicaid and would make it
    even harder for nursing homes to maintain quality staff and
    care for loved ones. Now, we are not going to let that happen,
    but that is important in all of this context.
        When we look at this issue--and we all have or will find
    ourselves in a situation where we are looking for appropriate
    care, nursing home care, other kinds of long-term care for
    loved ones. So this touches each and every one of us. And we
    know that we have great nursing homes, great staff doing
    wonderful work around the country--and we know that is the
    majority, but it is horrific what you were saying about the
    cases where we, in fact, are finding abuse.
        At our last hearing, we heard from Ms. Patricia Blank,
    whose mother died from dehydration and neglect, and as the
    chairman talked about, Ms. Maya Fischer, whose mom was raped.
    And yet when we go to the website, the CMS Nursing Home Compare
    website, I was shocked to see that one of the nursing homes had
    a five-out-of-five quality measure rating, and the other had a
    four-out-of-five staffing rating.
        So obviously this is not working, and people cannot find
    the information that they need. So when we look at the
    situation--you talked about various pieces so far--what can CMS
    do immediately? And what would you recommend that we do
    legislatively? Ms. Tinker first.
        Ms. Tinker. The most important thing that CMS can do
    immediately is look at the data in a comprehensive way, much
    like we did and much like the guide that we released today
    recommends, so that they can identify risk areas. Where are the
    problems happening? That is what the data will allow us----
        Senator Stabenow. So they have data. They are not using it.
    They could make it a priority if they wanted to, because they
    already have the data. Is that what you are saying?
        Ms. Tinker. Yes. And then target resources to those risk
    areas that the data demonstrates are problems.
        In terms of legislative solutions, one of the legislative
    solutions we have recommended is providing Medicaid Fraud
    Control Units, which are really on the front lines of
    combating, investigating, and enforcing the abuse and neglect
    issues, broader authorities. Currently they are limited and can
    only investigate and enforce abuse and neglect that occurs
    within institutional facilities. But, as our data shows, many
    Medicare patients are actually experiencing harm in their homes
    or in public venues.
        And broadening MFCUs' authority so that they can
    investigate and enforce abuse wherever it occurs, I think would
    be a good step forward.
        Senator Stabenow. Thank you. Mr. Dicken?
        Mr. Dicken. Yes. I think we had some very complementary
    recommendations to CMS regarding, or that could immediately
    provide guidance that would clarify that the suspicion of crime
    needs to be immediately referred to law enforcement to provide
    more information. And if they could have more information on
    the abuse that is occurring, they could better target their
    prevention and investigation into those types of abuse and
    limited resources. So a number of steps I think are very
    complementary across recommendations to agencies.
        Senator Stabenow. Thank you. And then finally let me ask--
    we have the Elder Justice Act. In light of that fact, OIG
    informed CMS in 2017 that it had inadequate procedures to
    ensure the incidences of potential abuse and neglect are
    properly identified and reported. So we now have the Elder
    Justice Act, which includes reporting requirements, but they
    have not been conveyed to CMS from HHS.
        So could you talk more about why Health and Human Services
    has not directed CMS to enforce the reporting requirements that
    were put into law?
        Ms. Tinker. That is not something I can directly address. I
    think you would have to talk to the Department about why that
    decision has not been made or put together at this point.
        Senator Stabenow. Mr. Chairman, I would say we passed a
    law, and that information at this point, those reporting
    requirements are not being enforced. And I think that is an
    important----
        The Chairman. Why don't we take her suggestion, and you and
    I can inquire by letter to the Department----
        Senator Stabenow. Thank you.
        The Chairman. And I will sign it with you.
        Senator Stabenow. Thank you very much, Mr. Chairman.
        The Chairman. Senator Daines?
        Senator Daines. Mr. Chairman, thank you for holding this
    hearing today, and thank you for making it a priority to
    address the abuse and neglect we are seeing in nursing homes.
        When it comes to family members making a decision to find a
    nursing home for a loved one, the last thing they should be
    worried about is whether mom or dad, a grandfather, a
    grandmother will be safe from abuse in their new home.
        While there are a number of high-quality nursing homes
    across Montana, I am very concerned by reports that some of our
    most vulnerable patients have experienced serious harm.
    Procedures must be in place to prevent abuse from happening in
    the first place and improve the quality of care in nursing
    homes that are struggling. It is time to push past the status
    quo.
        I am very glad our committee is discussing reforms to
    combat nursing home abuse. I look forward to continuing to work
    with the chairman to protect seniors in Montana and across our
    Nation.
        I heard a very troubling story recently regarding a State-
    run nursing home in Montana that has been cited for failing to
    protect patients from harm. According to a former employee of a
    facility in Lewistown, MT, when she tried to report quality
    issues, nursing home administration officials took retaliatory
    actions against her.
        When she brought concerns to leadership, she was excluded
    from meetings in the building, and she ultimately resigned. I
    have been told that despite multiple citations, fines levied
    against the nursing home, and hundreds of thousands of taxpayer
    dollars being funneled to this facility, no one in a leadership
    position at this facility has been held accountable yet.
        When a Montanan brings a serious concern to me, it is one
    of my duties to look into it.
        Ms. Tinker, can you commit to working with me to ensure
    that Montana seniors are protected from nursing home abuse?
        Ms. Tinker. Yes. OIG is very committed to beneficiary
    health and safety across the board, both across the country and
    across all service settings, especially in nursing homes.
        Senator Daines. And what then can be done to ensure that
    those coming forward with reports of mistreatment are taken
    seriously?
        Ms. Tinker. Again, I think one of the most important things
    that can be done, and one of the recommendations that we
    continue to make, is that CMS first use the data to identify
    risk areas, but then do more in terms of training and guidance
    both to nursing facilities and to State survey agencies about
    reporting and how to properly address those types of issues,
    similar to the recommendations that my colleague, Mr. Dicken,
    has also made.
        Senator Daines. So, since our first nursing home hearing in
    this committee, I have had several Montanans reach out to me
    asking for help about how to submit a complaint regarding a
    nursing home. Whether the complaint was related to poor care,
    unsafe conditions, the feedback I received was the same: the
    current process for filing a grievance was cumbersome, as well
    as confusing.
        I am curious if GAO or the HHS IG has had any similar
    findings. Mr. Dicken, in your testimony you mentioned that
    abuse in nursing homes is often under-reported by residents,
    family, staff, and the State survey agency. Why is that? And
    what are the current barriers to reporting?
        Mr. Dicken. There are a number of issues. I think, Senator
    Daines, you mentioned one, which is, for staff, it is fear of
    retaliation. That was something you spoke to about the home in
    Montana. Certainly the need is to be able to report, whether it
    is from staff or from the nursing home itself, or from family
    members or other visitors--people report effectively and
    efficiently, and so that is the triage, so that the State
    agencies are responsible for investigating those and can triage
    them to do prompt investigations as needed and consider them as
    part of the annual survey process.
        And so the fear, as well as extensive reporting, is a real
    issue. Complaints and facility-reported incidences are
    particularly important in situations of abuse, where waiting
    for an annual survey is maybe too long.
        Senator Daines. So before I came to Congress, 12 years
    prior to that, I was in the cloud computing business, the
    customer experience business, helping companies and
    organizations improve customer experience. Oftentimes it is a
    company's, an organization's starting with the inside and
    working out. Have you tried working with a group of seniors, a
    focus group, saying, ``Try filing a complaint or a grievance
    and see how cumbersome and confusing it can be''? In other
    words, start working from the outside and work your way in with
    the folks on the front lines here who are trying to get help.
        Mr. Dicken. Yes, we welcome your suggestion on that. We did
    talk to both residents and staff during the course of our work,
    but certainly that is important to hear from families and
    consumers themselves, residents themselves.
        Senator Daines. Okay. Thank you, Mr. Chairman.
        The Chairman. Senator Menendez, you can go ahead. Senator
    Carper was waiting to be next, but you are ahead of him.
        Senator Menendez. I just offered to Senator Carper, if he
    needed to go, that I would yield to him.
        The Chairman. Okay.
        Senator Carper. Mr. Chairman, I have a student out here,
    and I am going to let them wait for 5 minutes to get a civics
    lesson.
        So, Bob, you go ahead. Thank you for your kindness.
        Senator Menendez. All right. Thank you, Mr. Chairman.
        Ms. Tinker, a recent report found that New Jersey nursing
    homes are under-staffed, and that trend seems to be occurring
    nationally. For workers providing care for the elderly or those
    with complex medical needs, it is not an easy job. It is both
    mentally and physically draining.
        GAO found that the majority of abuse occurring in nursing
    homes is perpetrated by staff. Do you think that better
    accountability and reporting throughout the system would lead
    to improved workplace environments and reduce some of the staff
    shortages that likely lead to circumstances where abuse may
    occur?
        Ms. Tinker. We don't have any work that directly looks at
    the issue of staffing and how reporting and staffing would work
    together. However, we recognize it is a serious issue, and we
    do have ongoing work right now looking specifically at staffing
    in these types of facilities. And when it is finished, we would
    be happy to come and brief you and your staff on it.
        Senator Menendez. I will look forward to that, because
    there has to be some correlation and at least some transparency
    in this process.
        Mr. Dicken, I would like to dig a little deeper into the
    process for reporting abuse. CMS only requires a State survey
    agency to refer a case to law enforcement after they
    substantiate the claim. Law enforcement is brought into these
    matters quite late in the process.
        Would a unified reporting system, one that requires
    immediate reporting by the nursing homes into a platform that
    would simultaneously send those cases to CMS, law enforcement,
    and State agencies, reduce delays and better flag potential
    abuse cases?
        Mr. Dicken. Well, we did recommend that CMS provide
    guidance to allow for that immediate referral. We did not
    specify the tools or the system that would do the reporting, as
    you are suggesting, but did recommend that CMS clarify and find
    tools that could provide more immediate reporting from State
    agencies to law enforcement.
        Senator Menendez. So if there is a--if you gave them that
    advice, obviously that flows from a view that having that
    reporting take place in a timely fashion is of value.
        Mr. Dicken. That is correct.
        Senator Menendez. So if we had a platform in which the
    reporting goes to CMS, law enforcement, and State agencies,
    everybody would know. Everybody would be on notice, and the
    ability to respond at an earlier period of time would be, I
    would think, of far more value.
        Am I missing something in that regard?
        Mr. Dicken. Certainly sharing common information with all
    relevant, whether law enforcement, State agencies, Adult
    Protective Services, Medicaid Fraud Control Units--it is
    important that all the key actors here have the information.
        Senator Menendez. Let me ask you just one follow-up. What
    potential barriers are there to unifying a reporting system,
    not only for abuse cases but to better track and weed out staff
    who have histories of abusive behavior?
        Mr. Dicken. We have not specifically examined the type of
    common reporting system you have looked at, so I cannot speak
    to the barriers of that specific reporting system. Certainly
    there is current reporting, whether it is from the facility,
    from the States, but they have different roles, whether it is a
    criminal investigation looking at administrative deficiencies
    for homes that receive Medicare and Medicaid, or being
    advocates for making sure the elder individuals are safe in all
    settings, whether it is nursing homes or others. So they do
    have different roles and jurisdictions. They do overlap,
    though, when there may be criminal activity that has led to
    abuse in nursing homes.
        Senator Menendez. Ms. Tinker, let me ask you this. The
    National Background Check Program establishes the means to vet
    nursing home employees, but only a handful of the 25 States
    that participated in the program successfully implemented the
    required range of background checks. Eight of the 10 that
    completed the program found nearly 80,000 applicants
    ineligible. These examples demonstrate the importance of
    background checks for protecting nursing home residents.
        Why do you believe that background checks have not been
    more widely adopted? What are the barriers for States in doing
    so?
        Ms. Tinker. Some of the barriers that we identified in our
    report around background checks were things like requiring
    State legislation to be able to utilize that information. And
    national criminal background checks are fingerprint-based,
    which is part of why State legislation was often required.
        In addition, doing this kind of work also often requires
    additional funding to be able to actually make sure that the
    appropriate infrastructure is in place at the State level.
        The Chairman. Senator Carper?
        Senator Carper. Thanks, Mr. Chairman. Again I want to thank
    my colleague, Senator Menendez, for his kindness.
        To our witnesses, welcome. We are delighted to see you
    here. GAO folks, we thank all of you for the work you have done
    in the last 2 years in response to requests made by Senators
    Portman and Grassley, Wyden, and myself. We are grateful for
    that.
        I think we could probably go around the members of the
    committee and everybody could tell a story about their mom or
    their dad or grandparent, aunt or uncle, who lived the last
    years of their lives in a nursing home. For my sister and me,
    the story would be our mother, who suffered from dementia. And
    at the age of about 80, we moved her up from her home in
    Florida. Of course she was actually cared for in her home by a
    home health agency, which was comprised of members of her
    church. They were like a gift from God, taking care of my mom
    for the last year that she was in Clearwater.
        My sister found a wonderful nursing home in Ashland, KY,
    about halfway between my mother's sister in Huntington and my
    sister in Winchester, KY, and my mom lived there for the last 3
    or 4 years of her life. They were a gift from God as well. They
    took great care of my mother, and I will always be grateful to
    them.
        Ironically, my sister, when we were going through my mom
    and dad's things at the house before we were to sell the house,
    my sister came across an insurance policy that provided for 2
    years of care for someone, in this case my mother, in a nursing
    home. We had no idea she had bought it.
        She also somewhere along the line in dementia put a new
    roof on the house that she didn't need, and she paid more for a
    vacuum cleaner than I would pay for some cars I have owned, but
    she got that 2-year policy that was just a huge help for her
    and for me.
        Any one of us could tell our own story, but we have been
    blessed with just great care for someone who was just very,
    very dear to us.
        Mr. Dicken, you mentioned that Delaware is one of the five
    States that GAO studied as part of its review. Based on the
    data you collected, in what areas have the nursing homes in
    Delaware performed well? And in what areas do we still need
    some improvement?
        Mr. Dicken. Thank you, Senator Carper, and thank you for
    working with us, along with Chairman Grassley and Senator Wyden
    and Senator Portman, on requesting our work.
        Delaware was one of the five States that we reviewed, and
    we spoke to the State agency, talked to the nursing homes,
    talked to others that were in the State. And we really heard
    common themes in many cases across States about the
    investigations, about the very strong care that was going on,
    as you indicated, but also the challenges of investigating.
        We saw abuse cases, as you know, in every single State.
    Delaware was a State that had abuse reported in a half-dozen
    homes during the 5 years that we reviewed. And so certainly the
    Delaware officials we spoke with provided similar information
    about the challenges of investigating, the importance of doing
    that in a timely manner, and making sure that both deficiencies
    that were cited in Delaware as well as in every other State
    would lead to effective correction of the problems that were
    identified.
        Senator Carper. All right; thank you. And I have one
    question for Ms. Tinker.
        Ms. Tinker, the Office of Inspector General for the
    Department of Health and Human Services has released several
    noteworthy reports on nursing home abusers over the last few
    years, as you know. Could you just explain to us how the
    Centers for Medicare and Medicaid Services are working to
    address the recommendations in these reports? And a follow-on,
    related question: how many recommendations made by your office
    to CMS are still outstanding?
        Ms. Tinker. Just yesterday, we released our report on our
    top recommendations that demonstrates what those top
    recommendations are that are outstanding currently with the
    Department as a whole.
        In terms of our recommendations around nursing homes
    specifically, many of those recommendations have been accepted
    by CMS. They concurred. But the most important recommendation,
    however, is one around data, as I mentioned earlier and in my
    written testimony. And that is a recommendation with which CMS
    has not concurred. We looked at all of the data related to
    Medicare beneficiaries, regardless of the setting, that
    indicated possible and potential abuse or neglect. And we
    utilized that data to identify risk areas and provided that
    information to CMS, as well as the guide that we released
    today, which really step-by-step goes through the methodology
    that we utilized. And yet CMS still continues to disagree with
    that particular recommendation and has not agreed to implement
    it.
        Senator Carper. All right. Well, thank you. Just very
    briefly, Delaware was the first State to ratify the
    Constitution, which leads off with the Preamble, which says
    something like, ``We, the People of the United States of
    America, in order to form a more perfect union''--it does not
    say to form a perfect union. Everything we do, we know we can
    do better. This is one area where we are doing better, I think,
    and we need to do better still. We thank you for your help in
    getting us to that goal. Thank you.
        The Chairman. Senator Cardin?
        Senator Cardin. Well, thank you, Mr. Chairman, and thank
    you for conducting this hearing. I want to thank both of our
    witnesses for what they do every day.
        I have visited many of the nursing homes and skilled
    nursing facilities in Maryland, and, as was pointed out by our
    witnesses, most do their work in a highly professional manner
    with great concern about the patients that they are taking care
    of, and great pride in doing it. So it is in everyone's
    interest that we get this issue about abuse done right, because
    there is a general view that is felt when there is an abuse in
    any nursing facility. So I appreciate the work that is being
    done.
        Ms. Tinker, you mentioned in your report something that I
    find very concerning. That is that most of the actual instances
    that cause harm occur in settings other than medical
    facilities.
        Maryland's Attorney General Frosh informed us that the
    Medicaid Fraud Control Unit cannot investigate matters of abuse
    outside of institutional settings because of the way the
    contract with CMS is worded.
        So my question to you is, how do we correct that? How do we
    deal with where the majority of the abuse is taking place in
    noninstitutional settings?
        Ms. Tinker. We currently have a recommendation that is
    open, asking for a legislative change that would actually
    increase the statutory authority granted to Medicaid Fraud
    Control Units so that they would be able to investigate and
    enforce potential abuse and neglect issues outside of those
    institutional facility settings. And we believe that is
    actually more important than ever, as more individuals are
    receiving care in their homes through personal care services,
    hospice, and home health.
        Senator Cardin. So will you make available to this
    committee the language you believe is necessary in order to
    make that correction?
        Ms. Tinker. We would be happy to give you that information.
        Senator Cardin. Thank you. I appreciate that.
        Both of you have referred to the importance of data. And
    both of you are indicating CMS is not providing adequate data
    to be able to identify the abuse by perpetrator or the type, et
    cetera. And both, I believe, are making recommendations that
    CMS should change that, but you are not getting the cooperation
    from CMS. Is that what I understand?
        Mr. Dicken. GAO did make a recommendation that CMS should
    have more readily available information on perpetrator and
    type. CMS did agree with our recommendation and indicates that
    they will take steps to do that. But, you know, that is a new
    recommendation.
        Ms. Tinker. OIG recommended that CMS look across all
    Medicare beneficiary data to look at specific diagnosis codes
    for potential abuse or neglect, and that recommendation is one
    that CMS did not agree with.
        Senator Cardin. And that is why I am harping on this right
    now, because, Mr. Dicken, you indicated that the data is
    necessary in order to know where you can target investigations,
    but also for prevention that it is critically important. And I
    want to talk about prevention for 1 second.
        I think we all want to see changes that make abuse less
    common. And as you pointed out, some of the abuse is under the
    direct control of the facilities, and in other cases it is the
    residents who are causing abuse. But there are steps that can
    be taken to mitigate that.
        So my question is, from the information you have, are we
    taking appropriate steps to prevent abuse? We are all harping
    on how we can get more investigations done and better
    reporting, which I support, but do we have views as to how we
    can mitigate the potential for abuse today?
        Mr. Dicken. Well, it is certainly at a place where there
    are steps being taken, but certainly more could be done. That
    is why we did recommend that there be more information that
    could help target those prevention efforts.
        Senator Cardin. I understand you want more information, but
    with what we know today--obviously, we are always impetuous for
    safety issues, and rightly so. Do you have any observations as
    to steps that could be taken today to mitigate the potential
    for abuse?
        Mr. Dicken. Well, I think what we heard, when we
    interviewed nursing home inspectors for the key issues, were
    things like screening staff. That has been talked about today:
    training staff and making sure that information is known. And
    then for the consumers, be vigilant. Family members should be
    visiting, other advocates, and an ombudsman should be present.
        So some of that is happening now, but certainly a
    continued, sustained focus on those, and continued training and
    screening efforts are still needed.
        Senator Cardin. Ms. Tinker, do you have additional points?
        Ms. Tinker. OIG's recommendations concur with GAO's, in
    that training and guidance are critical parts of prevention.
    But I would note that data and identifying risk areas is also
    critically important, so that we are training and providing
    guidance in the right places.
        If even one individual had reported in one of the instances
    that I talked about in my oral testimony, we may have been able
    to prevent harm before it occurred.
        Senator Cardin. And I appreciate it. I would make one other
    observation. We should be reporting best practices of what
    facilities are doing that had mitigated abuse and share that
    information, so we put a spotlight on what is working to
    prevent abuse.
        Thank you, Mr. Chairman.
        The Chairman. Senator Warner?
        Senator Warner. Thank you, Mr. Chairman. Thank you for
    holding this hearing. I think we all share concerns about any
    reports of elder abuse.
        In one of the earlier hearings we held on this subject, I
    raised some of the concerns I have as a former business guy
    about just some of the margins in the industry. If we look at
    Medicare in terms of skilled nursing facilities, with Medicare
    you have about an 11-percent margin, a pretty darned good
    margin. But when you blend in all the Medicaid patients, I
    think across the industry we are talking about margins of about
    half a percent. And I worry that some of the flaws we are
    seeing--before we even get to the reporting process and the
    ability to hire and retain quality individuals--may go down to
    the fact that the margins are so slim.
        If I could do a second question, one of the concerns I have
    is about any other cuts toward Medicaid, which I think would
    translate through the whole industry, putting even more
    pressures on the nursing homes to kind of hire and retain good
    quality staff.
        As I looked into this, some of the facilities in Virginia,
    some of the challenges we have seen about being able to do--and
    I know other members have raised this--reliable background
    checks, I know the HHS OIG reports have talked about some of
    the flaws in the existing background check process.
        So we have been working with some of the providers in my
    State about looking at whether the provider should be granted
    access to the National Practitioner Data Bank. And I would like
    both of you to comment on that issue and whether you think
    access to that practitioner database might improve the overall
    screening process for nursing homes.
        Ms. Tinker. We do not currently have any work looking at
    that link between the National Practitioner Data Bank and
    nursing homes. What I can tell you is that doing background
    checks and making sure you have as much information as possible
    about who you are doing business with is critically important
    to allow us to make sure that bad actors are not part of the
    program and are not in touch with and providing care to our
    vulnerable beneficiaries.
        Senator Warner. I would ask you guys to take a look,
    because wouldn't access to that National Practitioner Data Bank
    give you another review point, another checkpoint for homes
    that want to do the right kind of screening on the potential
    workforce?
        Mr. Dicken. Yes. Like my colleague, we have not
    specifically looked at the National Practitioner Data Bank, but
    we did hear that currently it can be very time-consuming to
    look at, and it would require looking at State-specific nursing
    aide registries or other licensing requirements. And so the
    ability to have more information that cuts across and
    coordinates across State information is certainly something of
    concern.
        Senator Warner. It would just seem to me that, obviously,
    when you get into data banks, you have to have appropriate
    privacy controls and not misuse, but if nursing homes had
    access to this information, I think personally it would
    actually improve the screening process and allow us to move
    forward.
        I do want to raise the question, as well, about some of my
    concerns about the potential cuts on Medicaid funding. If we
    saw--and it seems to me just logical that if some of the
    proposals did either block-grant Medicaid or further cut
    Medicaid funding--if we are talking about homes that operate on
    a half-point margin--and again, for somebody with business
    experience, that is a pretty thin margin in almost any
    business--wouldn't those cuts in Medicaid funding put even
    further downward pressure on the nursing home facilities, which
    would then lead to lower-quality folks working in the nursing
    homes because, again, the financial pressures would constantly
    be pushed downward?
        Do you both want to, in my last minute, go ahead and make a
    comment on that, related to Medicaid funding?
        Mr. Dicken. Certainly, staffing is a key cost for nursing
    homes, and so it is certainly also highly related to quality
    and preventing abuse. And so, while we have not specifically
    looked at the particular measures in that, that is a key issue
    to be focusing on as we look at this.
        Ms. Tinker. I would agree with my colleague from GAO. We
    currently have ongoing work looking specifically at staffing
    levels and the importance and ramifications of that. We would
    be happy to come in, once our work is complete, and give you
    and your staff----
        Senator Warner. I would love to have that because, you
    know, I think we all see the bad examples, and we want to see
    some corrections. But we have got to make sure the businesses
    remain viable enough so they can actually afford to hire the
    appropriate people.
        In the second panel, I am going to want to drill down a
    little bit on the ability to get CNAs into some of our, in some
    of the facilities in a better way.
        Thank you, Mr. Chairman.
        The Chairman. Senator Hassan?
        Senator Hassan. Well thank you, Mr. Chairman. And I want to
    thank both of the witnesses, not only for being here today but
    for your work.
        And just before I ask my question, I did want to say that I
    wanted to note my strong opposition to the administration's
    decision last week to once again allow nursing homes to use
    forced arbitration agreements for patients in their care and
    their families. Nursing home residents should not be subjected
    to coercion that this new rule could allow, a coercion that
    would essentially force them into limiting their rights in
    order to access the care they need.
        This is particularly true in light of the increasing
    instances of abuse reported by our witnesses today. Residents
    and their families should be allowed to pursue a full range of
    legal options against nursing homes that fail to prevent the
    kind of abuse and neglect we are talking about in this hearing.
    And I think it is very troubling that the administration is
    reversing a rule that we have now that just bans any kind of
    forced arbitration agreements between nursing homes and their
    residents, or the resident's family.
        I did want to ask a question. Much of what I had on my list
    has been covered, so I think what I would like both of the
    witnesses to take from this hearing is that you have a lot of
    us who are very interested in working with you to make sure
    that, when it comes to the rating system that we have for
    nursing homes, we find a better way of making sure that that
    rating system reflects the true quality and alerts potential
    residents and their families to any history of abuse or neglect
    that nursing homes have.
        But I did want to drill down on one more thing with you,
    Ms. Tinker. I found it concerning that, according to your
    report and your testimony, the Department of Health and Human
    Services does not require all incidents of potential abuse or
    neglect and related referrals to law enforcement to be recorded
    and tracked in the existing tracking system. Could you talk a
    little bit more about that, and any steps Congress might take
    to help ensure that the Department is appropriately tracking
    these incidents going forward?
        Ms. Tinker. We did find that, in fact, those were not
    incidents that needed to be tracked and reported into the
    current database that CMS uses. And we made a recommendation to
    CMS that they change that particular requirement, and CMS
    concurred with us.
        Senator Hassan. So they concurred. And they can do that
    without any congressional action, is what you are telling us?
        Ms. Tinker. That is my understanding.
        Senator Hassan. Okay. Well, thank you. I look forward to
    the second panel as well, and I yield the rest of my time.
        The Chairman. Thank you. Senator Casey?
        Senator Casey. Thank you, Mr. Chairman. I want to commend
    Chairman Grassley and Ranking Member Wyden for having this
    hearing and for their work on this issue.
        I think what I am about to say is true of other States. I
    know that in Pennsylvania and across the United States there
    are nursing homes that serve their residents well and treat
    them with dignity, care, and kindness--the dignity, care, and
    kindness they deserve. But it is outrageous, and that is an
    under-statement, to hear stories of abuse and neglect in
    nursing homes that do not live up to those high standards.
        It is for this reason that I partnered with my Pennsylvania
    colleague, Senator Toomey, to shed light on poor-performing
    nursing homes. And I will get into the detail of those numbers.
    We launched an investigation into a Federal initiative which
    goes back a number of years, the Special Focus Facility
    Program, that targets these poor-performing homes. The names of
    nursing homes in this program are made public. But unbeknownst
    to families nationwide, there is a list of more than 400
    additional nursing homes identified each month also needing
    urgent intervention.
        So to be specific, we have made public, or the government
    has made public, participating facilities in this Special Focus
    Facility Program, about 88 facilities. The candidate list, that
    additional 400, approximately 400 homes, the candidate list was
    not made public until recently. So the participants, 88, add up
    to .6 percent of all nursing homes. The candidates, the 400 or
    so, add up to 2.5. Add them together, it is 3.1 percent of
    15,700 facilities. So it is a low number by percentage, but
    when you consider what is happening in some of those 3.1
    percent, it is a lot of problems.
        Prior to our investigation, few had knowledge of this list,
    this longer list of 400 or so, and even a smaller circle knew
    the names of the facilities on it. Our investigation concluded
    with the release of the secret list, alongside a report that
    found a number of things.
        Number one, a nursing home's participation in this
    oversight program for poor performers is not readily
    transparent or easily understood among would-be residents or
    their families. There is no information on Nursing Home Compare
    for explaining the reasons for a facility's participation in
    the program, the length of time it has been in the program, or
    whether it has improved.
        Number two, candidates for the program receive no
    additional oversight.
        Number three, several candidates' facilities possessed star
    ratings that were misleading. Approximately 48 percent of
    candidates had a quality rating of three stars or higher, and
    there were even 9 facilities that performed poorly enough to be
    candidates for the program but received perfect staffing and
    quality ratings on Nursing Home Compare.
        I ask unanimous consent, Mr. Chairman, that this report--
    and it is entitled ``Families' and Residents' Right to Know:
    Uncovering Poor Care in America's Nursing Homes''--this report
    that Senator Toomey and I worked on, I ask consent that this
    report be made part of the record.
        The Chairman. Without objection.
        [The report appears in the appendix beginning on p. 47.]
        Senator Casey. Last month, Senator Toomey and I secured a
    commitment from the Centers for Medicare and Medicaid Services
    to make this previously undisclosed list of nursing homes
    public. Now that the administration has heeded our calls for
    greater transparency, we need to do more. Senator Toomey has
    agreed to work with me on legislation strengthening programming
    for nursing homes that consistently fail to meet the high
    standards we should expect of every facility.
        I am committed, and I know others are, to finding solutions
    to lift up, lift up nursing homes that are doing right by their
    residents and make sure that those facilities that are falling
    short are subjected to needed oversight. I look forward to
    working with Senators Grassley and Wyden on this. I also remain
    concerned about other areas of transparency. We know that,
    through the Affordable Care Act, Congress recognized cost
    reporting on Medicaid dollars received by nursing homes as
    critically important.
        So, Mr. Dicken, in the remaining seconds I have, why is the
    accessibility of cost reporting and spending information so
    important? That is question one. Question two: what has CMS
    done to follow up on your agency's recommendations to make this
    information more accessible and reliable?
        Mr. Dicken. Thank you. In a 2016 report, GAO did look at
    the requirement that CMS make cost information available. They
    have reported raw data on their website, but this information
    is really important for transparency of information on
    expenditures, for the reliability of it, and really for public
    confidence in the financial data.
        We made recommendations to improve the accessibility of
    that cost data, as well as the accuracy and the completeness.
    CMS did agree with our recommendation to improve the
    accessibility, but unfortunately has not yet taken steps on
    accuracy, as more recently indicated, because they believe that
    the cost of doing so would outweigh the benefits.
        They did not agree with our recommendations on improving
    the accuracy and completeness. So GAO maintains both
    recommendations have not yet been addressed by CMS.
        Senator Casey. Thanks very much. And, Ms. Tinker, we are
    grateful you are here as well. I will send you a question for
    the record. Thank you.
        The Chairman. Thank you, Senator Casey. Senator Brown?
        Senator Brown. Thanks, Mr. chairman. I appreciate that. Ms.
    Tinker, thank you for joining us. Both of you, thank you for
    joining us.
        In 2018, OIG issued a report titled ``Solutions to Reduce
    Fraud, Waste, and Abuse in HHS Programs'' with OIG's top
    recommendations. One of the top 25 unimplemented
    recommendations relates to skilled nursing facilities. Let me
    quote it briefly: ``CMS should analyze the potential impacts of
    counting time spent as an out-
    patient toward the 3-night requirement for SNF services so that
    beneficiaries receiving similar hospital care have similar
    access to these services.''
        Would you briefly elaborate on those recommendations,
    please?
        Ms. Tinker. I am sorry, I am not familiar enough with that
    particular piece of work to elaborate on it, but we would be
    happy to come and have our experts brief you and your staff.
        Senator Brown. Okay; I appreciate that. In terms of, I mean
    I think you know, I assume you know the issue enough to know
    the importance of our legislation improving access to Medicare
    coverage in time of sickness so patients and their families
    should not have to worry about whether or not Medicare will
    reimburse their care based on a billing technicality. So I am
    hopeful. And I ask any of my colleagues listening today to join
    us in that legislation.
        Let me ask a question to both of you. The list of GAO
    reports and OIG reports on nursing home neglect and abuse goes
    back more than 20 years. In my State it has gone back even
    further than that, investigations from State government on
    nursing home abuses. It is not a new problem. It is an old one
    we have not solved. It is an old one that is about to get worse
    as more baby boomers age and require care in these facilities.
    What will it take to make the system safe? Is it not time to do
    something different from what we have done in the past?
        I will start with you, Mr. Dicken, and then Ms. Tinker.
        Mr. Dicken. You are right that we have had, in our case,
    more than 20 years of reports, not just on abuse but overall
    concerns about oversight of care, neglect, and poor care in
    some nursing homes. And so we have seen changes have been made.
    There have certainly been efforts. There is more information
    available than there was 20 years ago.
        But when we look at trends over time, we see really mixed
    results, that there have been increases recently in complaints
    about nursing homes. Other clinical indicators have been
    focused on preventing falls. Antipsychotics and other things
    like that have improved.
        So there are changes. There is more information, but
    unfortunately some of the same systemic issues that we have
    seen over the last 20 years remain and require really continued
    vigilance by this committee that has been active in this issue,
    by CMS, and by the States.
        Senator Brown. And, Ms. Tinker, as you answer the same
    question, would you also roll into your answer any differences
    you see over the years as you have studied these facilities and
    how they are managed between for-profit facilities and not-for-
    profit facilities? And maybe lead with that part of the answer,
    and then if you want to comment on Mr. Dicken's thoughts.
        Ms. Tinker. We have not examined the differences between
    for-profit and nonprofit facilities. When we do our work, we
    are really agnostics to that because we are looking, regardless
    of where it occurs.
        Senator Brown. Should we be agnostic on that?
        Ms. Tinker. Oh, I think, in looking at abuse and neglect,
    we need to look for it anywhere that it happens, and in----
        Senator Brown. But do we not need an analysis the next
    level down if it is more serious in for-profits than not-for-
    profits? Does that not suggest a different policy response?
        Ms. Tinker. Certainly that is possible. But we do not have
    work that looks specifically at that difference. And without
    that, it would be difficult for me to comment on what that
    might look like.
        What we know is that, across the board, abuse and neglect
    occur, and we do not have all of the necessary safeguards in
    place.
        Like Mr. Dicken said, we have seen changes over time in
    terms of use of antipsychotics in inappropriate ways, and that
    has definitely improved over time. However, there is obviously
    more to be done.
        Again, one of the things I think that is very important is
    that, over time, our ability to both have the appropriate data
    available and also then to perform sophisticated data analytics
    so that we can identify risk areas has improved drastically in
    the last 20 years.
        We now have better ability to utilize data to identify risk
    areas and then take the appropriate steps to correct them.
    However, as we continue to do this and issue reports talking
    about how we have utilized that data--including the guide that
    we issued today, that we hope will empower CMS and State
    providers to do the same kind of data analytics that we have
    performed--we continue to hear from CMS that they do not agree
    with implementing that particular recommendation.
        Senator Brown. Thank you. I assume it would not be
    difficult to go to the next step, taking the analyses that you
    have done on abuses in dozens and dozens of nursing homes, if
    asked by Congress with GAO and the Inspector General, to be
    able to look and see if this group is for-profit, this group is
    not-for-profit. Maybe one is worse than the other, or maybe
    not. Correct?
        Ms. Tinker. We would definitely be willing to talk with you
    and your staff about potential work.
        Senator Brown. Has GAO listed the difference between for-
    profit and nonprofit?
        Mr. Dicken. So we do provide information in our report on
    different characteristics of homes, including profit status. We
    did find that for-profit nursing homes were about two-thirds of
    the nursing homes and were about 78 percent of the homes with 2
    or more years where we found deficiencies and about 73 percent
    of homes with a deficiency in 1 of the 5 years we looked at.
        Senator Brown. That is not insignificant, a statistically
    insignificant number.
        Mr. Dicken. So we did--you know, these are representative
    from looking at 5 years of data. What occurred during those 5
    years for abuse deficiencies was somewhat higher. We note that
    there are a lot of factors, that the mix of patients that may
    be in homes by different status and other things were also
    related. So there are a number of factors, and we did not look
    at those across multiple factors that may affect them.
        Senator Brown. Thank you.
        The Chairman. Senator Cortez Masto?
        Senator Cortez Masto. Thank you. I thank you both. I also
    want to thank Chairman Grassley for holding the hearing on this
    important subject.
        Ms. Tinker, let me start with you. In your testimony you
    stated that when Medicare beneficiaries residing in nursing
    homes are admitted to the emergency room, 20 percent of the
    time that visit is the result of abuse or neglect on the part
    of the beneficiary's nursing home.
        It is clearly a problem. Let me ask you this. We have heard
    from stakeholders that this trend is improving, that skilled
    nursing facility quality is improving. Would you agree with
    that?
        Ms. Tinker. We looked at a snapshot in time in 2016 when we
    pulled that data, and so we did not look at trends overall in
    terms of whether the nursing facility quality was improving. In
    another report that we did, we did look at a larger snapshot,
    and we did find a slight increase that occurred in terms of the
    number of deficiencies that occurred in 2017.
        So again, it is a small number overall, but we do have
    concerns about abuse and neglect increasing.
        Senator Cortez Masto. So how do we ensure that we are
    tracking that over time instead of having to do these
    snapshots? Is there a way that we can implement reporting,
    tracking, data analytics to verify that this is ongoing and we
    can look at it at any time, the public can look at it, the
    family members can look at it to see what is going on? Is there
    a way to do that?
        Ms. Tinker. Well certainly, that is very aligned with the
    recommendation that we made to CMS to look at overarching
    Medicare data for signs of potential abuse or neglect and to
    utilize that data to identify risk areas. And we will continue
    to recommend that.
        Senator Cortez Masto. But it has not been implemented yet?
        Ms. Tinker. No. And in fact, CMS did not concur with that
    recommendation.
        Senator Cortez Masto. Okay; that is disappointing. Let me
    ask you this. In your written testimony, the second statement
    you make is that CMS, States, and providers must ensure that
    potential abuse and neglect is recorded to enable oversight and
    prevention. ``Reported'' to whom?
        Ms. Tinker. So reporting requirements vary. So we are
    talking about reporting to State survey agencies so that they
    can actually investigate and look at what happened. We are also
    talking about, where suspected criminal things have occurred,
    reporting to law enforcement.
        Senator Cortez Masto. So talk a little bit about law
    enforcement, because this was my concern that I saw in your
    report: that there was not timely reporting to law enforcement
    when there was concern that criminal activity was occurring.
        Ms. Tinker. Absolutely. So when you talked about our
    statistic of one in five potential abuse or neglect cases
    occurring, out of those one in five, 84 percent of them were
    not actually reported as appropriate, based on our finding.
        Senator Cortez Masto. And why is that a problem?
        Ms. Tinker. That is a problem because, when law enforcement
    and appropriate reporting entities do not have the information,
    they cannot take the steps to investigate and take appropriate
    corrective actions about abuse and neglect.
        Senator Cortez Masto. And let me bring it down to a level
    even closer to that, as somebody who was a former prosecutor
    and Attorney General: you want to preserve the evidence.
        Ms. Tinker. Absolutely.
        Senator Cortez Masto. You want to know immediately if there
    is potential criminal activity. You file that so that you can
    preserve the evidence, put the facts together, learn, do an
    investigation. And if there is a delay in that, then there is a
    delay in holding somebody accountable based on the facts and
    evidence. You lose that evidence. Is that correct?
        Ms. Tinker. That is absolutely a possibility.
        Senator Cortez Masto. And how long are we talking the delay
    has occurred before any type of referral to law enforcement?
        Ms. Tinker. In that specific report, we found no evidence
    that any reporting had occurred at all in 84 percent of the
    cases.
        Senator Cortez Masto. And that to me is very disturbing. In
    particular, as somebody who had oversight over the Medicaid
    Fraud Control Units in the State of Nevada, I think this to me
    is an area that should be immediately referred, whether you
    think it is happening or not, and law enforcement will make
    that determination. But it should be immediately referred. And
    we are falling short in that sense.
        Let me ask you, Mr. Dicken: you state in your testimony
    that you found that substantiated reports of abuse in nursing
    homes increased from 2013 to 2017, with the largest increase in
    the most severe types of abuses. To what do you attribute that
    trend?
        Mr. Dicken. Yes, and we did see that doubling overall, as
    well as concerning that those abuses, the portions of those
    abuses that caused actual harm or put residents in immediate
    jeopardy, were a larger share. You know, we looked at factors
    that could complicate this. We do not specifically have reasons
    why it has doubled in 2017 from 2013, but we do know that there
    are things such as the mix of residents, staffing issues,
    challenges that have been cited as reasons why abuse is
    challenging. Those existed in 2013 and 2017, so I am not saying
    that is why they increased, but certainly more awareness of
    this and other things may be contributing.
        We do know that, while CMS has made some changes more
    recently in their inspection process, that was constant during
    the 5-year period we looked at.
        Senator Cortez Masto. Thank you. Thank you, both. I
    appreciate it.
        The Chairman. All right. That concludes our first panel.
    Thank you for your testimony today, and we will now seat the
    second panel.
        [Pause.]
        Senator Daines [presiding]. All right, welcome. First I
    want to extend a warm welcome to Bob Blancato of the Elder
    Justice Coalition. As its national coordinator, Bob works with
    hundreds of organizations dedicated to fighting elder abuse.
    Chairman Grassley has known and respected Bob for many years,
    starting with the 17-year tenure on the staff of the House
    Select Committee on Aging. Bob has been a member of the board
    of the AARP and the National Council on Aging. He has also
    served as State president of AARP Virginia. Bob has
    participated in several White House conferences on aging. In
    2015, he was appointed to the CMS Advisory Panel on Outreach
    and Education. I commend Secretary Azar for his wisdom in
    adding Bob to the National Advisory Committee on Rural Health.
        Our next witness, Mark Parkinson, is the former Governor
    and Lt. Governor of Kansas. He now leads the trade association
    representing most of the Nation's nursing homes, group homes,
    and assisted living facilities. He also once owned a nursing
    home. Welcome, Governor Parkinson.
        Our final witness is Lori Smetanka. Ms. Smetanka is
    executive director of the National Consumer Voice for Quality
    Long-Term Care. Her nonprofit represents other advocates, long-
    term care ombudsmen, and residents of nursing homes. Previously
    Lori spent a dozen years as director of the National Long-Term
    Care Ombudsman Resource Center.
        All right, we will start with Mr. Blancato. Please proceed.

     STATEMENT OF ROBERT B. BLANCATO, NATIONAL COORDINATOR, ELDER
                   JUSTICE COALITION, WASHINGTON, DC

        Mr. Blancato. Thank you, Mr. Chairman. It is an honor to be
    here this morning, Chairman Grassley. I want to thank him for
    his enduring commitment and leadership on issues impacting
    older adults for more than 40 years, and Senator Wyden for his
    distinguished record of leadership and advocacy for older
    adults.
        Thanks also to Evelyn Fortier and John Pias with the
    chairman, and David Berick and Rebecca Nathanson with Senator
    Wyden, for their help.
        The nonpartisan Elder Justice Coalition for the past 16
    years has been the national voice promoting elder justice by
    advocating for Federal policies to prevent elder abuse.
        Let me start with a question, or our plea: what are we
    waiting for? Financial elder abuse costs its victims more than
    $3 billion a year and has been labeled the crime of the 21st
    century. More than one in 10 older adults is a victim of abuse.
    Elder abuse victims are four times more likely to be admitted
    to nursing homes and three times as likely to hospitals.
        What are we waiting for? The average victim of elder abuse
    is an older woman living alone between 75 and 80. Today, 46
    percent of women over 75 live alone, and that number is rising.
    And new and even more disturbing, is the growing link between
    elder abuse and the misuse of opioids. Our coalition working
    with Adult Protective Services in four States found a double-
    digit increase in elder abuse cases tied to opioid abuse.
        This is a national emergency. But today it is about
    renewing and expanding a commitment from almost 10 years ago
    when the first Elder Justice Act became law. A new bill can be
    a catalyst for taking the kind of action we need to.
        There are two key dimensions to the Federal role which we
    need to affirm. First, since less than 5 percent of older
    adults live in nursing homes, we need to invest money into
    elder abuse prevention programs at the State and local level to
    find better solutions. Second, the Federal role is to pass but,
    more importantly, enforce laws so Federal funds are not an
    enabler of elder abuse occurring either in the community or in
    long-term care facilities.
        We urge you to keep the first core elements of the Elder
    Justice Act in your new bill: dedicated funding for Adult
    Protective Services, enhanced training and support for the
    Long-Term Care Ombudsman programs, and providing grants for the
    establishment of elder abuse forensic centers.
        The main features of the Elder Justice Act were to achieve
    dedicated and adequate funding for Adult Protective Services.
    Neither has been accomplished. APS caseloads across the country
    are increasing, according to the national service. There was a
    15-percent increase in reported cases between 2017 and 2018
    nationally, with over 100-percent increases in States like New
    York and Minnesota over the past 7 years. And most recently, we
    have new cases tied to opioid abuse in a number of States.
        But their resources are declining. APS needs an adequate
    authorization of funds. First, let us make APS a priority in
    any future set-aside of funds under the Victims of Crime Act,
    because APS, like VOCA funds, go to direct assistance services
    for crime victims. So please consider this in the upcoming
    legislation.
        With the ombudsman program, let a new bill fund grants for
    better training to address resident complaints about abuse and
    neglect, and grants for training of the nursing home workforce,
    which would benefit both residents and the ombudsmen.
        Also consider having some funding for ombudsmen to be
    provided through the Medicare trust fund, as called for by the
    Leadership Council on Aging organizations. Let us keep the good
    work of the Elder Justice Coordinating Council going. Fourteen
    different agencies are effectively coordinating resources to
    help tackle elder abuse. And yes, it is time for an advisory
    board on elder abuse and for forensic centers. Too many older
    adults end up in emergency rooms with physical injuries. Some
    might be fall-related, some might be elder abuse. Not enough
    emergency departments know how to distinguish. Forensic centers
    can help.
        We look forward to improving Nursing Home Compare. Mr.
    Chairman, I was at your hearing when Ms. Blank testified about
    her mother dying from the neglect in a five-star facility. That
    went beyond the pale.
        The GAO report validated what nursing home residents and
    advocates have said for a long time. Much of the abuse and
    neglect and exploitation that take place is severely under-
    reported. Better oversight by CMS is so needed.
        Resident safety must be the top priority. We need to be
    more aggressive about tying conditions of participation to
    ensuring that facilities are free from abuse and neglect. We
    must prevent future horror stories in nursing homes tied to
    natural disasters. We hope you will address this in your bill,
    especially developing and implementing emergency response
    plans.
        Mr. Chairman, we know of your pioneering work in combating
    social media abuse in long-term care facilities and look
    forward to how this can be addressed in your new bill. We
    commend the work, and we hope you will continue to update the
    authority to promote criminal background checks of perspective
    employees in long-term care facilities.
        Since only six States participated and submitted the right
    data to make the criminal background checks the last time, and
    only 3 percent of people were qualified, we must do better.
        I commend Senator Wyden for his work on improvements in the
    next version of this program, and we look forward to working on
    this.
        I want to note, there are fine nursing homes staffed by
    high-quality staff. I know this. My mother was in one. We
    should not stigmatize all nursing homes. The focus is on those
    facilities that do not meet the standards, but also on lax
    Federal enforcement of laws enacted to prevent abuse. We suffer
    from an intergenerational cycle of abuse: child abuse to
    domestic violence to elder abuse. The Federal response to child
    abuse goes back more than 40 years, domestic violence, more
    than 25, and reports are decreasing in both. But we still lag
    on elder abuse, and failure to improve can be one of the worse
    examples of agism in public policy.
        Thank you, Mr. Chairman.
        The Chairman. I am sorry I was not here to introduce you. I
    would have romanced about the years we started out on the House
    Committee on Aging. You were a staff person, and I was a
    freshman Congressman and an original member of the first year
    of that committee and served there while I was in the Congress.
    So I am sorry I was not here. I was down the hall at Judiciary.
        Mr. Blancato. It is great to be here. Thank you.
        [The prepared statement of Mr. Blancato appears in the
    appendix.]
        The Chairman. Governor Parkinson?

    STATEMENT OF HON. MARK PARKINSON, PRESIDENT AND CHIEF EXECUTIVE
       OFFICER, AMERICAN HEALTH CARE ASSOCIATION, WASHINGTON, DC

        Governor Parkinson. Thank you, Mr. Chairman. I am here this
    morning to let you know that we want to be your partner in
    addressing these issues. I am the president of the American
    Health Care Association. AHCA represents over 10,000 of the
    15,000 nursing homes in the country, and we really appreciate
    your attention on these matters.
        My background is public service, but my life's work has
    been long-term care. My wife and I built and owned nursing
    homes in Kansas, and we worked inside of them. We did not own
    them passively; we worked side by side with our CNAs for many
    years. So we know first-hand how important this work is, and
    how difficult it is, but it is incredibly important.
        The people who live in our buildings are terrific people,
    and they deserve exceptional care. The stories that we have
    heard today are completely unacceptable. There really is no
    level of abuse and neglect that should be tolerated--none at
    all. Our position is that any case of abuse and neglect is
    really one case too many.
        But we do want to be your partner. When I interviewed for
    this job back in 2010, I was pleased that the leadership of the
    Association told us that they wanted to head in a new
    direction. Providers had been seen as part of the problem on
    quality and not the solution, and they wanted to change that.
        And so I enthusiastically took this position in 2011, and
    we got to work. We hired David Gifford, who at the time was the
    Secretary of Health in Rhode Island. We developed a quality
    division at AHCA. It is now our largest division. And we
    decided that we wanted to try to improve quality across the
    country, the metrics across the country. It is a hard thing to
    do.
        We knew that we would need new solutions to do it. And so
    we did that. We sat down with CMS and we agreed to some
    specific quality measures that we agreed to improve by a
    specific amount at a specific date. We doubled down on our
    quality award program, and we started bringing quality
    solutions to the Hill, like our value-based purchase program
    that we voluntarily brought to the Hill and ultimately became
    law.
        I am happy to tell you that these approaches have worked.
    Senator, when you look at the clinical outcomes which have been
    measured in great depth for many years, between 2011 and now we
    have had significant improvements in re-hospitalizations and
    decrease in the use of anti-psychotics, in reports of pain, in
    reports of urinary tract infections, various other things. We
    have seen improvement.
        Today's report, which of course we have not had a chance to
    review yet--it was just released today--is obviously disturbing
    in indicating an increase in abuse and neglect. But we will
    apply the same rigor that we have to the other problems that we
    faced in the industry, and I believe that we can get the same
    kind of results.
        I am proud of the results that we have achieved, but I do
    not tell you about them because I am proud, I tell you about
    them because I think they provide an important guidepost to how
    we can achieve additional improvement in the future.
        We have to work together. We have to collaborate. And there
    are things that can be done in payment that also incentivize
    outcomes and that have been very successful.
        Again, we look forward to reviewing the report in depth and
    coming up with specific suggestions, but there are some things
    that we would encourage you to consider adding to the Elder
    Justice Act that we think might help solve this problem
    immediately.
        First, we do need a better background check system. Every
    State does have a background check for CNAs, but they only
    reveal the bad actors from that State. We do not have access to
    the national database that would allow us to see when someone
    has moved from State to State, and that is a big cause of the
    problem.
        Secondly, we think that you should add patient satisfaction
    to Nursing Home Compare. When we want to go out to a
    restaurant, or look at a hotel, we go to the Internet and we
    look at reviews. You cannot do that on Nursing Home Compare
    because patient satisfaction is not there. There are a lot of
    clinical indications, and that is really good to have, but what
    people really need to know is from prior patients and prior
    family members, is this a good place or a bad place? And we
    would really encourage CMS to add it.
        Thirdly, we need help with workers. There is just a massive
    shortage of workers, and if we do not fix that problem, a lot
    of these other things are going to be difficult to address.
        And finally, reimbursement does come into this. Two-thirds
    of the people who live in nursing homes are funded by Medicaid.
    There is a dramatic under-funding of Medicaid. As was indicated
    earlier, the overall margin in nursing homes is less than one-
    half of 1 percent. Hundreds of buildings went bankrupt last
    year. It is very difficult to bring people along on our quality
    journey when they are having to be so focused on whether or not
    they can keep their doors open or not.
        So again, we greatly applaud these efforts. We look forward
    to collaborating with you on solutions. We believe that, as
    challenging as these problems are, and as horrible as some of
    these stories have been, we can keep this from happening in the
    future. Thank you, Mr. Chairman.
        The Chairman. Thank you, Governor. And you said you wanted
    to work with us. So consider my door open to considering your
    points of view.
        Governor Parkinson. Terrific. Thank you.
        [The prepared statement of Governor Parkinson appears in
    the appendix.]
        The Chairman. Ms. Smetanka?

       STATEMENT OF LORI SMETANKA, EXECUTIVE DIRECTOR, NATIONAL
       CONSUMER VOICE FOR QUALITY LONG-TERM CARE, WASHINGTON, DC

        Ms. Smetanka. Thank you, Chairman Grassley, Ranking Member
    Wyden, and members of the committee. Thank you for holding this
    important hearing.
        Under Federal law, each nursing home resident is to receive
    care and services that help attain and maintain their highest
    possible physical, mental, and psychosocial well-being.
    However, reports such as we have been hearing today continue to
    indicate that more must be done to protect residents from abuse
    and ensure quality care and life.
        We can do better, and I offer recommendations that we
    believe will make a difference for residents.
        First, we need to require standards for a sufficient
    workforce. The relationship between staffing levels and quality
    of care is well-documented. When there is not enough staff,
    residents suffer. Lack of staff, when combined with stress and
    burnout, are factors that can lead to abuse and neglect. A
    recent analysis of staffing data shows that the majority of
    days, nursing home staffing levels are below what CMS expects.
    Nursing homes fail to properly staff registered nurses and
    reduce staffing levels on evenings and weekends.
        Federal standards in this area are lacking, and thus we
    call on Congress to establish and enforce minimum requirements
    for numbers of direct-care staff, including the presence of
    registered nurses on-site 24 hours per day.
        Secondly, we should establish standards and oversight for
    ownership and operation of facilities. Significant changes in
    the ownership and management of nursing homes have seen an
    increase in corporate facilities and private equity ownership.
    Many of the decisions that affect care, including budgets and
    staffing levels, are made at the corporate level, yet oversight
    is limited to individual facilities.
        It is not unusual, however, to see patterns of poor care
    across facilities owned by the same companies. In addition, no
    meaningful Federal criteria exist when approving Medicare and
    Medicaid certification for evaluating financial or management
    capacity to successfully operate a facility. CMS largely relies
    on State licensure processes, many of which are also lacking.
        The collapse of Skyline Healthcare in the spring of 2018 is
    a tragic example of the impact on residents, workers, and
    systems when proper vetting and oversight of providers does not
    occur.
        Congress should pass legislation to hold corporations
    accountable when patterns of poor care are identified across
    their facilities, establish minimum criteria for approving and
    disapproving Medicare and Medicaid certification, and enact a
    medical loss ratio that limits administrative costs and
    profits.
        Thirdly, we suggest implementing, enforcing, and preventing
    the rollback of standards. Maintaining a strong oversight and
    enforcement system is key in preventing and addressing abuse
    and neglect, yet problems go unsubstantiated or under-cited,
    and changes in CMS policy have resulted in a nearly 30-percent
    reduction in the average fine.
        Strong resident-focused regulatory standards are critical
    to protecting rights and preventing poor care. The issuance
    last week of CMS's final rules allowing predispute arbitration
    and proposing rollbacks to the current nursing home rules are
    steps in the wrong direction.
        Instead, we recommend that Congress incorporate into
    statute important provisions from the 2016 nursing facility
    regulation, such as the requirement for an annual facility
    assessment and a ban on predispute arbitration, and also,
    expand and strengthen requirements for the Special Focus
    Facility program, including rules for graduating from the
    program, and penalties.
        We additionally recommend that Congress enact legislation
    that requires residents and their designated agents be informed
    of the possible risks and side effects of antipsychotic drugs.
        Fourth, we suggest increasing transparency of information.
    Because choosing a long-term care facility is a decision that
    is often made quickly and in a time of stress, the information
    on Nursing Home Compare must be reliable, comprehensive, and
    easily understandable.
        CMS has made improvements in the information, yet
    additional steps can be taken, such as eliminating the
    inclusion of self-
    reported data in the ratings calculations and adding an icon
    for facilities with abuse deficiencies.
        And lastly, we suggest strengthening and funding elder
    justice provisions. The need for action to strengthen elder
    justice reporting, prevention, and response continues. Better
    screening of individuals seeking to work in a long-term care
    facility through a Federal background check system is necessary
    to screen out those with criminal records who pose a danger to
    residents.
        Congress should amend the National Background Check Program
    and require all States to participate in and fulfill the
    requirements of the program. Further, reauthorization and full
    implementation of the Elder Justice Act, including requirements
    to report suspicions of crime, and funding for the ombudsman
    program, are important and impactful steps that Congress can
    take.
        In conclusion, increased prevalence of physical and
    cognitive impairments make nursing facility residents more at
    risk of abuse and neglect. Failure to prevent or report abuse
    is unacceptable. It prolongs the victimization and suffering of
    those being abused and puts other residents at risk as well.
        In this time of increased attention on resident abuse and
    neglect, we need to take stronger action to protect residents,
    not go backwards. We stand ready to work with the committee on
    these issues. Thank you.
        [The prepared statement of Ms. Smetanka appears in the
    appendix.]
        The Chairman. Thank you. Since there is a vote going on, I
    thought I would ask one question and then, if you folks can ask
    one question, we will shut it down then, because I do not think
    we are going to get anybody back here this afternoon.
        My one question goes to Bob. It is about the Elder Justice
    Coordinating Council. I think it plays an important role in
    ensuring information sharing by Federal agencies. Should its
    role remain the same? Or should Congress charge it with new and
    different responsibilities?
        And then I will put the rest of my questions in the record.
        [The questions appear in the appendix.]
        Mr. Blancato. Thank you, Mr. Chairman. We are big fans of
    the Elder Justice Coordinating Council. We think it was one of
    the great accomplishments of the Elder Justice Act. You have 14
    different Federal agencies aligning to work on many fronts that
    deal with the multi-faceted issue of elder abuse, from cracking
    down on robocalls, which the DOJ and FCC and FTC are doing, to
    coordinating the use of volunteers for take-back drug days,
    like Senior Corps and the Administration for Community Living.
    But we should see, are there any Federal agencies missing? We
    should look at that so we can suggest a possible modification
    of their roles so they can offer input on future elder justice
    legislation.
        We suggest they might want to call a summit with our
    coalition and other groups, State and local coalitions, and
    multidisciplinary groups operating in local areas. And I also
    say they should take their meetings out of Washington. They
    need to go on the road with the Elder Justice Coordinating
    Council, because most of the activity is outside of Washington.
    So those are my recommendations.
        But we urge you to go forward and continue it.
        The Chairman. I am going to leave, and I am going to call
    on Senator Hassan, and then Senator Cortez Masto. And, Senator
    Cortez Masto, you will be the last one, so shut it down. And I
    want to say ``thank you'' for your participation.
        Senator Hassan. Well thank you, Mr. Chair, for holding this
    hearing with these two excellent panels, and thank you all for
    your testimony, and I am sorry that we have a vote scheduled
    right smack in the middle of it.
        I will follow up with all of you about what we can do to
    help with staffing and retention, recruitment and retention,
    because it is something I hear about all the time. But I
    wanted, Ms. Smetanka, to focus with you on an issue of
    particular concern for me that relates to individuals who
    experience complex disabilities, who are living within nursing
    home settings.
        While the ultimate goal is to move more individuals who
    experience disabilities into their communities and homes, the
    reality is that many individuals still live in institutional
    settings, often at nursing homes that can meet their complex
    care needs.
        In addition, aging individuals who experience disabilities
    face additional health complexities and are particularly
    vulnerable to the kinds of abuse and neglect that we have
    discussed here, particularly in the earlier panel. For example,
    these individuals may be unable to communicate to report
    instances of abuse or neglect, or struggle to advocate for
    their best interests when abuse or neglect occurs.
        Time and again, instances of abuse and neglect are reported
    that disproportionately impact individuals with disabilities.
        So, Ms. Smetanka, as we work toward prevention efforts, do
    you have any suggestions as to how we can best protect this
    unique population from abuse and neglect?
        Ms. Smetanka. Thank you, Senator, for that question. We
    agree with you that this population needs specific protections.
    And so, having a strong Long-Term Care Ombudsman Program is
    certainly critical for protecting the whole population that is
    living in long-term care facilities. Proper funding so that
    ombudsmen can be present and onsite as much as possible to
    interact with residents and respond to concerns and complaints
    that they have--and also to prevent abuse from occurring--is
    really critical.
        But I think also having enough staff on hand to ensure that
    these residents are receiving proper care and services is
    absolutely necessary. If enough staff are not on hand, not only
    does it put stressors on everyone else working in the facility,
    but it also affects the care that they are receiving, and it
    ensures that there are not enough eyes looking at what is
    happening in a facility if people are not able to communicate
    their own needs and what is happening to them themselves.
        Senator Hassan. Well, thank you very much. And I will
    follow up with the other two panelists as well on this issue.
    But in the interest of time, I yield the rest of my time to
    Senator Cortez Masto.
        Senator Cortez Masto [presiding]. Thank you, Senator
    Hassan.
        Thank you, all three of you, for being here. And I so
    appreciate the recommendations. I know there is still time to
    digest the report that came out, but I appreciate you coming
    forward.
        So, Governor, let me direct my question to you. And first
    of all, I thank you for the Association being here. I also want
    to say I have worked in the past with so many associations, and
    I think there is an important role to play. There are good
    players, and we have heard that. There are good facilities out
    there. But there are also bad ones, and we need to weed them
    out. And I have always found that the associations are always
    helpful in doing just that. And I think that is what we see
    here today.
        But let me ask you this. There is some common ground we had
    on recommendations, but one of them that I heard was to require
    standards when it comes to staffing.
        I am curious, Governor, what you think about that and the
    impact it would have.
        Governor Parkinson. I have worked thousands of shifts on
    the floor and, you know, there are times when you can have a
    fantastic CNA and accomplish more than when you have two or
    three who are just not up to snuff. In the aggregate, it is
    always good to have more people than to have less. But the
    industry has actually done a pretty good job of it. Our average
    number of hours per each resident right now is at 3.87, which
    is actually considered to be pretty high. There are some people
    who are at the very far end, I think, as reflected by the
    testimony today, who would want a requirement of about 4.1
    hours per resident per day.
        There has been an analysis of that. It would cost about $6
    billion, and I think that is the reason that CMS and Congress
    have backed off. Our position has been that if there is a
    mandatory staffing requirement that would be paid for, we are
    all for it. But if it is not paid for, there is just no
    practical way to do it.
        I will also tell you there is an anomaly with the current
    economy. It is so hard to get people in a number of States that
    have their own State staffing requirements. They have had to
    back off just because it has really been challenging.
        But in the aggregate, we would agree that having more staff
    is certainly better than having fewer. It just becomes an issue
    as to what are our priorities as a country to pay for these
    services. And so far, our priorities have not been up to snuff.
        Senator Cortez Masto. Thank you. Does anybody have a
    response to that?
        Ms. Smetanka. I would just argue that having more staff on
    hand has been shown to improve quality of care. That is what
    the data does show. And I do think we need to look at how the
    money is currently being spent by long-term care facilities.
    And so we would encourage Congress to evaluate and audit, and
    require auditing of the data and how the money is spent that
    long-term care facilities receive, and how it is used, so that
    we can really assess what additional funds are needed to bring
    more staff into these places.
        Senator Cortez Masto. Thank you. Let me say ``thanks'' to
    everyone who participated in today's hearing. Let me close by
    saying that any written questions members may have for the
    record need to be submitted by August 6th.
        And with that, this hearing is adjourned. Thank you.
        [Whereupon, at 12:35 p.m., the hearing was concluded.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

                                  ----------

                   Prepared Statement of Robert B. Blancato,
                 National Coordinator, Elder Justice Coalition
        Chairman Grassley, Ranking Member Wyden, it is an honor to be
    invited to testify this morning. We commend Chairman Grassley and
    Ranking Member Wyden for this hearing and the important topics around
    elder justice it will address. I know with respect to Chairman Grassley
    it is just one more example of a commitment to issues related to older
    adults that spans more than 40 years. Ending elder abuse, neglect, and
    exploitation is a bipartisan issue and goal.

        The Elder Justice Coalition is a non-partisan 3,000-member group
    dedicated to advancing elder justice policy at the Federal level,
    whether through passage and implementation of legislation or through
    regulatory action. We were established in 2003 at the time the first
    Elder Justice Act was introduced. Many of our members provide direct
    services to elder abuse victims, such as the National Adult Protective
    Services Association and the National Association of State Long-Term
    Care Ombudsmen, or provide public outreach and advocacy on elder abuse,
    such as the American Society on Aging's elder abuse advocacy focus and
    online elder abuse gerontology course.
                            elder abuse: the numbers
        We all know the sad numbers. Here are just a few. Justice
    Department figures say one in ten older adults are victims of elder
    abuse.\1\ We also know from reports that victims of financial elder
    abuse lose at least $3 billion a year, with other reports suggesting
    dramatically higher losses.\2\ The FBI reports that in 2017 alone
    almost 50,000 people over 60 lost a total of $342.5 million to Internet
    scams.\3\
    ---------------------------------------------------------------------------
        \1\ https://www.justice.gov/elderjustice.
        \2\ https://www.sec.gov/files/elder-financial-exploitation.pdf.
        \3\ https://pdf.ic3.gov/2017_IC3Report.pdf.

        According to the Elder Justice Roadmap report published by the
    Departments of Justice (DOJ) and Health and Human Services (HHS), elder
    abuse victims are four times more likely to be admitted to nursing
    homes \4\ and three times more likely to be admitted to hospitals.\5\
    Residents of understaffed nursing homes are 22 percent more likely to
    be admitted to hospitals due to neglect.\6\
    ---------------------------------------------------------------------------
        \4\ Lachs, M., Williams, C.S., O'Brien, S., and Pillemer, K.
    (2002). ``Adult Protective Service use and nursing home placement.''
    The Gerontologist, 42(6), 734-739 (pp. 736-737).
        \5\ Dong, X.Q., and Simon, M.A. (2013). ``Elder abuse as a risk
    factor for hospitalization in older persons.'' JAMA Internal Medicine,
    173(10), 911-917.
        \6\ Centers for Medicare and Medicaid Services. (2001).
    ``Appropriateness of Minimum Nurse Staff Ratios in Nursing Homes,''
    Phase II Final Report. Baltimore, MD: Author (pp. 1-7).

        This same Federal report noted that many elder abuse victims have
    organic conditions such as dementia, brain injuries and other factors
    that lead to diminished or limited cognitive capacity. They are more
    ---------------------------------------------------------------------------
    susceptible to abuse, neglect and financial exploitation.

        Add one other sad reality--research says the average victim of
    elder abuse is an older woman living alone between 75 and 80.\7\
    According to the Census Bureau, today more than 46 percent of all women
    over 75 now live alone.\8\
    ---------------------------------------------------------------------------
        \7\ http://www.newhopeforwomen.org/elder-abuse.
        \8\ https://www.pewsocialtrends.org/2016/02/18/1-gender-gap-in-
    share-of-older-adults-living-alone-narrows/.

        Elder abuse is non-discriminatory. It claims nameless victims and
    big names too like Mickey Rooney, Brooke Astor, Stan Lee, and Casey
    ---------------------------------------------------------------------------
    Kasem.

        Elder abuse is current--consider these headlines just from the past
    few days:

              [California] senior facility worker charged with identity
            theft, elder abuse.\9\
    ---------------------------------------------------------------------------
        \9\ https://sfbay.ca/2019/07/18/senior-facility-worker-charged-
    with-identity-theft-elder-abuse/.
    ---------------------------------------------------------------------------
              Eight charged since March creation of [Michigan] Elder Abuse
            Task Force, Attorney General says.\10\
    ---------------------------------------------------------------------------
        \10\ https://www.mcknightsseniorliving.com/home/news/eight-charged-
    since-march-creation-of-elder-abuse-task-force-attorney-general-says/.
    ---------------------------------------------------------------------------
              Powder Springs, [Georgia] man convicted of elder neglect in
            death of 91-year-old.\11\
    ---------------------------------------------------------------------------
        \11\ https://www.mdjonline.com/news/powder-springs-man-convicted-
    of-elder-neglect-in-death-of/article_62586024-a97c-11e9-9dd3-
    dbf7423595ef.html.
    ---------------------------------------------------------------------------
              [California] massage therapist suspected of raping a 77-
            year-old and sexually assaulting clients.\12\
    ---------------------------------------------------------------------------
        \12\ https://www.latimes.com/california/story/2019-07-18/massage-
    therapist-suspected-of-rape-elder-sexual-assault.

                             the elder justice act
        Early next year, we will observe the tenth anniversary of the
    signing into law of the Elder Justice Act (EJA). Many of the members on
    this committee were supporters of this bipartisan bill. It was a
    landmark law at the time and its benefits can be seen in the following:

              It included a first-time definition of elder justice in
            Federal law, unifying statutes with undefined references to
            ``elder abuse'' and ``elder justice.''
              A total of $46 million has been appropriated by Congress for
            activities previously never funded for elder justice, including
            the National Adult Maltreatment Reporting System, or NAMRS;
            Elder Justice Innovation Grants; and a first-time Federal home
            for Adult Protective Services.
              The Elder Justice Coordinating Council's formation and work
            in developing more coordination and initiatives at the Federal
            level on elder abuse prevention.

        Our Coalition calls for five core features of the Elder Justice Act
    in a new Elder Justice Reform Act:

              Dedicated funding for Adult Protective Services (APS);
              Strengthening the Long-Term Care Ombudsman Program;
              Continuing the important work of the Elder Justice
            Coordinating Council;
              Authority for an Advisory Board on Elder Abuse, Neglect, and
            Exploitation; and
              Funding for elder abuse forensic centers.

        Let me elaborate on each of these.
    Adult Protective Services
        Dedicated funding for APS was the centerpiece of the original Elder
    Justice Act. It came about because APS is the only nationwide civil
    system authorized under State law to investigate reports of elder
    abuse, and State and local funding is too limited to support the
    demands upon APS. While the majority of States use some portion of
    their Social Services Block Grant allocation to provide funds for Adult
    Protective Services, it is far too inadequate. Moreover, the EJA
    provisions for APS provide the foundation for improving consistency in
    services between States, as we have done with child protective
    services.

        The reality is that less than 5 percent of older adults live in
    nursing homes. Elder abuse prevention, like so many other services, is
    a community-based issue. We absolutely need to provide APS with
    adequate funding to do their work in investigating, treating and
    preventing elder abuse. We have failed to accomplish this to date.

        We have an opportunity to renew this effort. There are two possible
    solutions. The first is to authorize adequate and dedicated funding for
    States' Adult Protective Services offices to enable them to respond to
    the growing and increasingly complex reports of elder abuse, neglect
    and exploitation that all APS programs face.

        The second opportunity that could provide more APS funding would be
    for a set-aside of funds distributed from the Victims of Crime Act
    (VOCA) Crime Victims Fund to go to direct assistance services for
    victims of elder abuse, neglect and exploitation. APS must be a
    priority eligible entity for that set-aside for this reason. All forms
    of elder abuse, apart from self-neglect, are crimes and its victims are
    crime victims. APS by its very nature assists victims by investigating
    the allegations of abuse and providing and referring victims to
    essential community services to keep victims safe from further abuse
    and to remain able to live in their homes and communities.

        Allowing for these VOCA resources and fully funding the
    authorization in the bill for APS could be very instrumental in
    enabling APS to respond effectively to the growth in serious abuse
    cases. We are hopeful your bill will include not only the set-aside
    language but an improved definition of victim services and who can
    provide it.
    Long-Term Care Ombudsman Program
        Core grants to improve the State long-term care ombudsman program
    are also critical. Here again, we hope we can build up from the
    proposed authorization levels in this bill to ensure adequate funding
    for this important program.

        Ombudsmen are the eyes and ears in facilities. According to the
    National Ombudsman Reporting System, in 2017 ombudsmen made more than
    29,000 visits nationwide. These visits give residents a chance to speak
    up about abuse. In 2017, ombudsman programs investigated more than
    5,000 cases of abuse, neglect, or exploitation in assisted living
    facilities, and over 11,000 cases in nursing homes. In 2016, ombudsman
    and their trained volunteers investigated 199,493 complaints made by
    129,559 individuals. Ombudsmen were able to resolve or partially
    resolve 74 percent.

        We have an opportunity to remedy a shortcoming from the original
    EJA which authorized a number of important programs that either
    supported the ombudsman program directly or strengthened other programs
    or parts of the long-term care systems with which the ombudsman work.

        Unfortunately, the funding was never appropriated for the two grant
    programs that would have supported ombudsman services and elder abuse
    related training to better equip ombudsman representatives to address
    resident complaints about abuse and neglect. Neither was funding
    provided for the training of the nursing home workforce which would
    benefit both residents and ombudsmen. We sincerely hope some of this
    can be remedied through your upcoming bill.

        We also respectfully recommend that separate authority be provided
    to allow funding for ombudsman to be provided through the Medicare
    trust fund, a position supported by the Leadership Council of Aging
    Organizations.
    Elder Justice Coordinating Council and Advisory Board
        Another core part of the original EJA is the Elder Justice
    Coordinating Council (EJCC). We see that as one of the enduring
    successes of the EJA, accomplished by strong implementation work by
    both the Obama and Trump Administrations. Today, 14 Federal agencies
    are communicating and meeting with each other through working groups to
    learn more about how to coordinate their resources and activities in
    the elder abuse prevention space. This constitutes a smart use of
    Federal funds by using what we have and making it more effective
    through coordination. I am also pleased to note that the EJCC is
    embarking on a stakeholder listening session process beginning next
    week at the annual meeting of the National Association of Area Agencies
    on Aging. At this juncture I would like to salute Kathy Greenlee from
    the Obama administration and the current co-chairs of the EJCC Lance
    Robertson and Toni Bacon for their great work.

        We also strongly support the convening of the complementary
    citizen-based Advisory Board on Elder Abuse, Neglect, and Exploitation.
    Its value can be as an expert panel to advise the Federal Government,
    including the EJCC, on stories, best practices, and statistics from the
    field.
    Forensic Elder Abuse Centers
        The final core item from the original EJA is its call for grants to
    establish forensic elder abuse centers. The Elder Abuse Forensic Center
    model is designed to provide case review by a multidisciplinary team,
    consultation, assessment, tracking, and help to implement person-
    centered case plans in the most complex cases of abuse, neglect,
    exploitation, and self-neglect of older adults. Research published by
    The Gerontological Society of America States that ``elder abuse
    forensic centers improve victim welfare by increasing necessary
    prosecutions and conservatorships and reducing the recurrence of
    protective service referrals. Elder abuse forensic centers provide a
    process designed to efficiently address client safety, client welfare
    and protection of assets.''\13\
    ---------------------------------------------------------------------------
        \13\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4944537/.

        It is time the field of elder abuse had access to specialized
    forensic centers to assist in so many aspects of the work around
    prevention, including and especially in hospital emergency rooms or
    clinics to discern whether an older adult who comes in with a bruise
    has had a fall--or possibly, has been physically abused.
                         nursing home reform positions
        Overall, we also commend your strong interest in promoting
    meaningful nursing home reform. It is meaningful for residents and
    their families.
    Nursing Home Compare
        Regarding reforms to Nursing Home Compare, I was in the audience at
    your hearing in March 2019 when Patricia Olthoff-Blank testified about
    her mother dying from dehydration and neglect in a facility that had
    received a 5-star rating from CMS. That brought the need for reform
    front and center. We hope HHS after its evaluation will recommend
    adding consumer satisfaction data to the rating system. We are advised
    that a good existing model may already exist in the HHS Agency for
    Healthcare Research and Quality (AHRQ). After all, this was to be to
    the benefit of consumers to begin with.
    Oversight and Reporting Provisions
        We agree with all efforts to enhance Federal oversight into abuse
    and neglect in nursing homes. One method would provide for development
    and the offering of training to State and Federal surveyors on best
    practices for identifying and reducing adverse events in LTC
    facilities. This provision grew out of a recommendation from a 2014
    report from the Office of the Inspector General (OIG) of HHS. Hopefully
    this can be included in the legislation.

        The testimony and report provided to the committee by the United
    States Government Accountability Office reflects what nursing home
    resident advocates have been saying for many years. It validates the
    fact that much of the abuse, neglect, and exploitation that takes place
    behind the closed doors of long-term care facilities is severely
    underreported by residents, family, staff, and the State survey
    agencies. There are various reasons for this including the fear of
    retaliation, but CMS acknowledges the fact. Unfortunately, the GAO
    report shows that abuse deficiencies more than doubled over the 5-year
    period from 2013 to 2017, and we believe that this was likely the case
    in assisted living facilities as well. These were often cases
    categorized at the highest levels of severity, ``causing actual harm to
    residents or putting residents in immediate jeopardy.''

        This data and the shocking fact that it may be just the tip of the
    iceberg, make this hearing and the bill that you are developing even
    more urgent. Better oversight by CMS is needed that includes tools that
    nursing homes are mandated to use to record and report abuse and
    perpetrator type. We need to be sure that reports are made in a timely
    manner for the treatment and safety of the resident.

        For us to achieve reform, we must focus on the prompt reporting to
    the appropriate law enforcement agency or Adult Protective Services
    offices by both nursing homes themselves and by State and Federal
    surveyors of suspected incidents of potential abuse or neglect at
    skilled nursing facilities (SNFs) and group homes receiving
    reimbursement from either Medicare or Medicaid.

        In fact, according to the OIG, SNFs failed to report an estimated
    6,608 instances of potential abuse or neglect (as identified in high-
    risk hospital ER Medicare claims) to the Survey Agencies in 2016, and
    additionally, approximately 27 percent of abuse and neglect claims were
    not reported to law enforcement by mandatory reporters, even though all
    States require certain individuals to report suspected abuse, neglect,
    or exploitation of vulnerable adults.\14\
    ---------------------------------------------------------------------------
        \14\ HHS Office of Inspector General, ``Incidents of Potential
    Abuse and Neglect at Skilled Nursing Facilities Were Not Always
    Reported and Investigated'' (A-01-16-00509), June 2019.

        Further, we have not been as aggressive as we should about tying
    conditions of participation in the Medicare and Medicaid programs to
    ensuring that nursing homes and long-term care facilities are free from
    abuse and neglect.
    Resident Safety
        We strongly support the idea of mandating that HHS work to better
    promote awareness on nursing home safety and hospital safety efforts by
    methods such as posting on the HHS website a list of potential nursing
    home events, including events that are not commonly associated with SNF
    care, to help nursing home staff better recognize adverse events.

        Our Nation has heard enough horror stories associated with natural
    disasters and the special vulnerability of nursing home residents. From
    New Orleans to Hollywood, FL, we have seen terrible conditions caused
    by hurricanes and floods. This needs to be specifically addressed in
    your bill. The key must be the coordination between State, local and
    tribal governments and the Federal Emergency Management Agency on
    developing and implementing emergency response plans.

        We commend the recent work of Senators Casey and Toomey on special
    focus facilities and hope the new bill can build on this work and
    mandate that HHS release the full list of facilities in this program
    and update it on a regular basis.

        Chairman Grassley, we know of both your pioneering and long-
    standing commitment to combating social media abuses in long-term care
    facilities and hope some specific language will be included in the
    legislation.
    Background Checks
        Finally, we hope that your proposed bill will include continued
    authority to promote criminal background checks of employees at long
    term care facilities.

        Our Coalition has been very interested in this issue since it first
    appeared as a demonstration program in the Medicare Modernization Act
    of 2003. The limited outcome of that demonstration conducted in seven
    States showed why it is necessary. Back then, it was estimated that
    more than 7,000 individuals were turned away from employment because of
    what was found on their background check.\15\
    ---------------------------------------------------------------------------
        \15\ https://www.cms.gov/Research-Statistics-Data-and-Systems/
    Statistics-Trends-and-Reports/Reports/Downloads/White8-2008.pdf.

        This led to Congress passing and President Obama signing into law
    in 2010 a part of the Affordable Care Act that provided grants to
    States to implement background check programs for prospective long-term
    care employees. The program has met more limited than impactful
    success. First, only 25 States participated in the program, and within
    those States, according to an OIG interim report, there were varying
    degrees of implementation. This ranged from some States not obtaining
    legislation to enable them to conduct the checks to not having a
    process to collect fingerprints and monitor criminal history
    information after someone began employment. As a result, only six of
    the 25 States submitted enough data to CMS to be able to determine the
    percentage of prospective employees who were disqualified because of
    ---------------------------------------------------------------------------
    their background checks.

        Perhaps this is most disturbing. In those same six States, only
    three percent were disqualified. Some improvements are needed for this
    program to achieve its critically important goal--to keep criminals
    from working with older adults in long term care facilities.

        We commend Senator Wyden for his leadership on making necessary
    improvements in the background check program, particularly his support
    of requirement that SNFs who are participating in Medicare and Medicaid
    report to the HHS Secretary within six months on the nature of criminal
    or other background checks used to assess current and prospective
    personnel who serve as certified nursing assistants. This should be
    followed by an implementation of improved background checks.
                                  conclusions
        Essentially, this hearing and the legislation which will follow
    conveys some important messages. The Federal commitment to promoting
    elder justice is continued and expanded. It is our longstanding belief
    that the best role the Federal Government can play is to provide
    adequate resources to allow those programs at the State and local
    level, like ombudsmen and Adult Protective Services, to do their
    important work at top effectiveness. It is also about having existing
    Federal funds be used in a more coordinated way; extending the Elder
    Justice Coordinating Council assists in this.

        But the nursing home reforms are really the heart of this hearing.
    I note that there are plenty of high-quality nursing homes in this
    Nation staffed by dedicated persons. I know this because my mother was
    a resident in one. They are not the object here, and neither should
    they be victimized by stigmatizing nursing homes. The focus of this
    hearing are those nursing homes that fail to adhere to appropriate
    standards of care and in the process jeopardize the health and safety
    of residents.

        The fault is not only in the facility. Some of the fault rests with
    lax enforcement of laws enacted to prevent these abuses. All our
    collective efforts must be directed at achieving full enforcement of
    any law passed by Congress.

        One of the hardest decisions for any individual or family to make
    in their lifetime is to determine that a loved requires care in a
    nursing home or long-term care facility. The decision alone is heart-
    wrenching. To then compound that with uncertainty about the quality of
    care their loved one will receive is absolutely wrong. The Federal
    Government has the absolute responsibility to not enable abuse and
    neglect to occur in those facilities by providing financial support
    without accountability. Further, the Federal Government has the
    absolute responsibility to provide consumers with reliable information
    on the quality of any nursing home or long-term care facility before
    even one night is spent there.

        Sadly, we suffer from an intergenerational cycle of abuse in our
    Nation, from child abuse to domestic violence to elder abuse. Yet,
    whereas the Federal response to child abuse and domestic violence has
    been there for more than 45 years, we still lag way behind in
    addressing the very real problem of elder abuse. Our Federal commitment
    to addressing child abuse and domestic violence is paying off: reports
    of both are decreasing. This is not the case with elder abuse. Failure
    to improve the Federal response to elder abuse may be one of the worst
    examples of ageism in public policy.

        Going forward on a bipartisan basis, we must be proactive and
    persistent in our efforts to combat elder abuse and achieve elder
    justice. Hopefully, this hearing today and the legislation that will be
    introduced moves us in the right direction. The Elder Justice Coalition
    looks forward to working closely with this committee on advancing a
    potential Elder Justice Reform Act and with your colleagues on the
    Appropriations Committee to get any provisions properly funded.

                                     ______

            Questions Submitted for the Record to Robert B. Blancato
                   Questions Submitted by Hon. Chuck Grassley
        Question. What more, if anything, should we do to support elder
    abuse victims who are identified through Adult Protective Services
    (APS) offices? Are caseloads changing, and, if so, what trends are we
    seeing?

        Answer. We need to establish services nationwide that are tailored
    to older victims, including shelters like those in NY and Arizona. We
    must work to accomplish prosecution, with a new emphasis on restitution
    for those whose whole life savings have been taken.

        Currently, we are not doing enough to support APS. Nationally,
    there has been a 15 percent increase in cases just between 2017 and
    2018. In States like New York and Minnesota, there have been 100
    percent increases over past 7 years. The main funding source for APS,
    the Social Services Block Grant, or SSBG, has been held with flat
    funding for several years--even targeted for elimination--and competing
    demands for SSBG funding result in some States under-funding or not
    even funding APS at all with Federal dollars.

        With the growing indication of a link between elder abuse and
    opioid abuse, we should closely monitor some of the new funding that is
    being provided, and as we have recommended in the past, direct some of
    it into community-based programs like APS and other direct services
    groups.

        We would also like to work with you to have victim services
    provided by APS be covered under funding from the Crime Victims Fund
    authorized under the Victims of Crime Act. We would also like to ensure
    that programs authorized and funded by VOCA are giving grants to
    organizations that currently serve victims of elder abuse and suggest
    that reporting on how their funding is spent be standardized to include
    this data.

        Question. It's my understanding that the opioid crisis has fueled
    elder abuse and exploitation, with rural areas being especially hard
    hit by this crisis. What more can you tell us about this subject?

        Answer. Drug misuse has shifted to rural areas, particularly
    Appalachia, New England, and the Midwest, and it's starting to impact
    older adults. Opioid prescribing rates are higher in rural areas.
    Nearly half of adults 65+ report chronic pain, and of those, older
    adults who are low-income or living in rural areas are most likely to
    use opioids. And, to compound the crisis, some low-income older adults
    actually sell their unused opioid pills. Also, the opioid epidemic has
    created a rise in the number of grandparents caring for grandchildren
    when an addicted parent is unable to do so.

        The Elder Justice Coalition jointly with Virginia Tech conducted 4
    focus group interviews with involved stakeholders in four States and
    counties where deaths from opioids were the highest (Kentucky, Ohio,
    Virginia, West Virginia). Overall, focus group participants reported a
    25-35 percent increase in APS cases involving opioids over the past few
    years.

        Other research is showing that the most profound impact of opioid-
    related cases on APS is case complexity--where additional assessments,
    medical involvement, increased safety risk, and potentially criminal
    elements can come into play. Limited resources, especially in rural
    areas, make these cases extremely challenging.

        Question. Is the Elder Justice Coordinating Council still needed
    and why? How and to what extent does it make a difference in preventing
    elder abuse, neglect, and exploitation?

        Answer. We think the Council, thanks to good implementation work in
    both the Obama and Trump administrations, has made good progress.
    Fourteen different Federal agencies aligning is also worthy of note. We
    should look to see which Federal agencies might be missing. We suggest
    a possible modification of their role so they can offer input on future
    elder justice legislation. We suggest they should convene a summit with
    our coalition, to include all local and State elder justice coalitions.
    We also suggest that they should advocate for the President to issue
    proclamation on World Elder Abuse Awareness Day. I've also previously
    said that they should convene outside of the DC area.

        Question. Next year will mark the 10th anniversary of the Elder
    Justice Act's enactment. What amendments or updates, if any, are
    needed? Please identify concerns, if any, that you have with activities
    authorized under that statute, such as training for the long-term care
    ombudsman program and Adult Protective Services activities.

        Answer. We feel that the funding and provisions for APS, the long-
    term care ombudsmen, the Elder Justice Coordinating Council, and the
    Advisory Board, and the forensic elder abuse centers should be
    continued. We also think that the criminal background check program,
    which was not directly in the Elder Justice Act, should also be
    extended.

        The priority has to be getting elder justice programs funded
    adequately and that is everyone's job. We appreciate what you did with
    your Dear Colleague letter supporting funding for elder abuse
    prevention programs. The administration has to make it a higher
    priority in its budget; their work in certain areas of elder justice
    has been commendable like crackdowns on scams through Department of
    Justice sweeps, but funding for key programs in the Act like the Social
    Services Block Grant has been a different story.

                     Questions Submitted by Hon. Ron. Wyden
                           section 1150b enforcement
        Question. One key provision of the Elder Justice Act established
    new elder abuse reporting requirements for nursing homes (section 1150B
    of the Social Security Act). The law required immediate reporting of
    any reasonable suspicion of a crime committed against a nursing home
    resident. Enforcement measures included civil monetary penalties of up
    to $300,000. HHS has never given CMS the authority to enforce this
    provision. What is the effect of not giving the primary Federal
    regulator of nursing homes--CMS--the authority to enforce this Federal
    statute?

        Answer. There are a range of elder abuse solutions, from prevention
    to prosecution. CMS's inability to enforce the Elder Justice Act's
    civil monetary penalties involve both. I believe that we have missed
    two opportunities. First, by not imposing civil penalties, we are
    missing a chance to punish bad facilities. This could prevent further
    abuse, neglect, and exploitation, and it would show providers that the
    Federal Government is serious about the quality of care that it pays
    for in long-term care facilities. Second, we are missing the
    opportunity to ``prosecute,'' so to speak, using appropriate and
    mandated civil monetary penalties. I would imagine that such penalties
    might even gain the attention of the boards of directors of these
    facilities, who have both fiduciary and ethical responsibilities for
    the care provided.
                         reporting of abuse and neglect
        Question. We have learned from the Government Accountability Office
    (GAO) and HHS OIG that incidents of abuse are--across the board--
    inadequately reported. In Oregon, abuse investigations were not
    reported to CMS at least since the early 2000's nor incorporated into
    Nursing Home Compare. The HHS OIG estimated that more than 6,000
    incidents of abuse go un-reported by nursing homes each year. Even when
    abuse is reported, it does not appear to be effectively reported to the
    public. For example, GAO's recent report shows (at Table 2) that many
    three, four, and five star homes have incidents of abuse. More than
    half of the homes cited for abuse deficiencies in a single year are
    three, four, or five star-rated nursing homes. More than a third of the
    abuse in nursing homes with abuse deficiencies in multiple years are
    three, four, and five star-rated homes. What recommendations do you
    have for ensuring that incidents of abuse are reported and what
    recommendations do you have for ensuring that the public is aware of
    them, including changes to Nursing Home Compare?

        Answer. First of all, this lack of reporting is unacceptable--
    further, any time we are not enforcing laws and regulations that
    protect vulnerable older adults, that is unacceptable. We think that
    one approach to ensuring reporting is ensuring that any data submitted
    by a facility to CMS for purposes of star ratings should be subject to
    audit. Potentially, Nursing Home Compare could also list verified
    incidents of abuse at facilities.

                                     ______

                 Questions Submitted by Hon. Sheldon Whitehouse
        Question. Entering a nursing home can be a traumatic time for the
    patient and his or her family. Often buried deep in the patient
    admittance contracts are clauses that force patients into secret legal
    proceedings if the nursing home negligently or even intentionally
    injures or abuses the patient. Not only does this rob the patient of
    his or her constitutional right to a day in court, but it also keeps
    knowledge of the abuse secret from other potential victims.

        A 2015 Federal Government study found that less than 7 percent of
    people who'd signed arbitration agreements as part of credit card
    contracts understood that it meant they gave up their right to sue the
    company in the future.

        Do you think that nursing home patients, who are already enduring a
    stressful and emotional situation, are in a position to fully
    understand what they are signing away?

        Answer. As the Elder Justice Coalition said in our 2017 written
    regulatory comment to the Centers for Medicare and Medicaid Services
    opposing pre-dispute binding arbitration, ``Residents and families
    often feel they have no choice but to sign the agreement, or they will
    not be admitted to the facility and receive the care they need.'' They
    may not be able to fully understand the risk of signing this agreement.
    Although our members have various opinions on the rule, one of our
    members, LeadingAge, has stated as a provider organization that they
    advise their members not to make arbitration agreements a condition of
    entry into their nursing homes.

        Question. If a nursing home is abusing or neglecting patients,
    funneling any lawsuits into secretive private legal proceedings allows
    the nursing home to conceal a pattern of abuse. Correct?

        Answer. As stated in our aforementioned comment, ``Arbitration
    lessens the degree of nursing home accountability for poor care, abuse,
    and neglect.''

        Question. Don't other current and prospective patients have a right
    to know if a nursing home is mistreating its patients?

        Answer. Current and prospective patients should have access to
    information about nursing home abuse and neglect.

                                     ______

                     Submitted by Hon. Robert P. Casey, Jr.

    U.S. SENATOR BOB CASEY (D-PA)

    U.S. SENATOR PAT TOOMEY (R-PA)

    June 2019
    _______________________________________________________________________

                    FAMILIES' AND RESIDENTS' RIGHT TO KNOW:
                UNCOVERING POOR CARE IN AMERICA'S NURSING HOMES

    INTRODUCTION

    Many older Americans and people with disabilities living in nursing
    homes benefit from the care of dedicated leadership and staff members
    devoted to the health, flourishing and overall well-being of their
    residents. Investigative reporting, however, continues to identify
    facilities that fall short of the care standards required of every one
    of our nation's nursing homes. In such facilities, some residents have
    experienced outright neglect, such as going without proper nutrition or
    languishing in filthy conditions. Some older adults and people with
    disabilities have even experienced physical abuse, sexual assault and
    premature death.\1\
    ---------------------------------------------------------------------------
        \1\ ``Left to Suffer, A Five-Part Series: Part 1, Abused, Ignored
    Across Minnesota,'' Star Tribune (November 12, 2017) (http://
    www.startribune.com/senior-home-residents-are-abused-and-ignored-
    across-minnesota/450623913/); ``A Woman in a Vegetative State Suddenly
    Gave Birth. Her Alleged Assault is a #MeToo Wake-Up Call,'' Vox
    (January 7, 2019) (https://www.vox.com/2019/1/7/18171012/arizona-woman-
    birth-coma-sexual-assault-metoo); ``America's Hidden Horror: Sexual
    Abuse in Nursing Homes and Care Facilities,'' The Sacramento Bee (April
    23, 2017) (https://www.sacbee.com/news/nation-world/national/
    article146281039.html); Senate Committee on Finance, testimony
    submitted for the record of Patricia Olthoff-Blank, hearing entitled
    ``Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing
    Homes,'' 116th Cong. (March 6, 2019) (S. Hrg. 116-282); Senate
    Committee on Finance, testimony submitted for the record of Maya
    Fischer, hearing entitled ``Not Forgotten: Protecting Americans From
    Abuse and Neglect in Nursing Homes,'' 116th Cong. (March 6, 2019) (S.
    Hrg. 116-282).

    Alarmingly, recent state survey findings reveal a number of such cases.
    Over the course of several years, at just one facility in Pennsylvania,
    documented instances include an unnecessary hospitalization resulting
    from an avoidable pressure sore, an escaped resident with dementia,
    mismanagement of medications, unsanitary shower and bathroom areas and
    uncleaned oxygen tubes.\2\ Further, a years-long investigation
    conducted by PennLive revealed an unsettling pattern of poor care in
    select Pennsylvania nursing homes involving improper wound care, insect
    infestations, supply shortages and more.\3\ Unfortunately, these are
    not the only instances of drastically substandard care. This report
    examines federal oversight of our nation's consistently poor-performing
    nursing homes.
    ---------------------------------------------------------------------------
        \2\ Pennsylvania Department of Health, The Gardens at West Shore
    Inspection Results (Survey: March 8, 2019) (Survey: January 23, 2019)
    (Survey: October 29, 2018) (Survey: March 16, 2018) (Survey: July 27,
    2017) (http://sais.health.pa.gov/commonpoc/Content/PublicWeb/ltc-
    survey.asp?Facid=280202&PAGE=1&NAME=GARDENS+AT+WEST+SHORE%2C+THE&Sur
    veyType=H&COUNTY=CUMBERLAND).
        \3\ ``New Name, Same Nightmare: Golden Living's Homes Changed
    Hands, but the Care Never Got Better,'' PennLive (http://
    stillfailingthefrail.pennlive.com/3/); ``Failing the Frail,'' PennLive
    (August 2, 2016) (https://www.pennlive.com/news/page/
    failing_the_frail_part_1.html).

    Many documented cases of abuse and neglect occur in facilities
    affiliated with the federal Special Focus Facility (SFF) program.\4\
    The SFF program is designed to increase oversight of facilities that
    persistently underperform in required inspections conducted by state
    survey agencies.\5\ As stipulated by federal law, the SFF program
    targets those facilities that ``substantially fail'' to meet the
    required care standards and resident protections afforded by the
    Medicare and Medicaid programs.\6\
    ---------------------------------------------------------------------------
        \4\ As reflected in the contents of this report.
        \5\ Centers for Medicare and Medicaid Services, Center for Clinical
    Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2017 Special Focus
    Facility (SFF) Program Update'' (S&C: 17-20-NH) (March 2, 2017)
    (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf).
        \6\ The Social Security Act of 1935, Pub. L. 74-271, sec. 1819
    (f)(8); The Social Security Act of 1935, Pub. L. 74-271, sec. 1919
    (f)(8).

    Participants of and candidates for the SFF program represent only a
    small fraction of facilities. Of the more than 15,700 nursing homes
    nationwide, less than 0.6% (a maximum of 88 facilities) are selected
    for the program. The names of these facilities are made public.\7\ An
    additional 2.5% of facilities (approximately 400 facilities) qualify
    for the program because they are identified as having a ``persistent
    record of poor care'' but are not selected for participation as a
    result of limited resources at the Centers for Medicare and Medicaid
    Services (CMS).\8\ Despite being indistinguishable from participants in
    terms of their qualifications for enhanced oversight, candidates are
    not publicly disclosed. As a result, individuals and families making
    decisions about nursing home care for themselves or for a loved one are
    unlikely to be aware of these candidates.
    ---------------------------------------------------------------------------
        \7\ Centers for Medicare and Medicaid Services, Center for Clinical
    Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2014 Post Sequester
    Adjustment for Special Focus Facility (SFF) Nursing Homes'' (S&C: 14-
    20-NH) (April 18, 2014) (https://www.cms.gov/Medicare/Provider-
    Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/
    Survey-and-Cert-Letter-14-20.pdf).
        \8\ Centers for Medicare and Medicaid Services, Center for Clinical
    Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2017 Special Focus
    Facility (SFF) Program Update'' (S&C: 17-20-NH) (March 2, 2017)
    (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf);
    Centers for Medicare and Medicaid Services, briefing with Senate
    Committee on Aging minority office and Senator Toomey's staff (March
    27, 2019).
    ---------------------------------------------------------------------------

                         SPECIAL FOCUS FACILITY PROGRAM

    PARTICIPANTS: Includes a maximum of 88 nursing homes nationwide. These
    facilities are subject to more frequent surveying and progressive
    enforcement actions. The names of these facilities are made public.

    CANDIDATES: Includes approximately 400 nursing homes nationwide. These
    facilities are subject to no additional surveying or other oversight.
    The names of these facilities are not made public.

    On March 4, 2019, U.S. Senators Bob Casey (D-PA) and Pat Toomey (R-PA)
    wrote to CMS.\9\ In that letter, the Senators asked CMS to provide the
    list of approximately 400 SFF candidates and requested information
    about the program's operations, scope and overall effectiveness. On May
    3, 2019, CMS provided a written response to the Senators' inquiry and,
    on May 14, 2019, the agency transmitted the list of SFF candidates for
    April of 2019 to the Senators.\10\
    ---------------------------------------------------------------------------
        \9\ Letter from Senator Casey and Senator Toomey to Administrator
    Seema Verma, Centers for Medicare and Medicaid Services (March 4, 2019)
    (https://www.aging.senate.gov/imo/media/doc/
    2019.3.4%20Aging%20Casey%20Toomey%20Letter%20to%20CMS%20Administrator%20
    re.%
    20Special%20Focus%20Facilities%20PA%20Final.pdf).
        \10\ Letter from Administrator Seema Verma, Centers for Medicare
    and Medicaid Services, to Senator Casey and Senator Toomey (May 3,
    2019) (https://www.aging.senate.gov/download/cms-response-to-ranking-
    member-casey); Centers for Medicare and Medicaid Services, List of
    Special Focus Facilities (SFF) and Candidates for the SFF Program (May
    14, 2019) (copy on file with Senate Committee on Aging minority
    office).

    Senators Casey and Toomey believe that the list of SFF candidates is
    information that must be publicly available to individuals and families
    seeking nursing care for their loved ones. For that reason, the
    Senators are releasing the April 2019 list of SFF candidates and are
    continuing to work with CMS to make future lists public. As one
    caregiver who recently testified before Congress indicated, ``I think
    the more information a consumer gets certainly helps them make an
    educated decision. . . . It's an extremely difficult decision to make,
    putting your loved one into a nursing facility. It's heartbreaking, so
    any information that we can get to help us make a more informed
    decision, I would be all for.''\11\
    ---------------------------------------------------------------------------
        \11\ Senate Committee on Finance, hearing entitled ``Not Forgotten:
    Protecting Americans From Abuse and Neglect in Nursing Homes,'' 116th
    Congress (March 6, 2019) (S. Hrg. 116-282).

    Through the release of the SFF candidate list and this report, which
    details preliminary findings from surveys and public information about
    these candidate facilities, the Senators aim to provide Americans and
    their families with the transparency and information they deserve when
    ---------------------------------------------------------------------------
    choosing a home in which to entrust the care of a loved one.

    SPECIAL FOCUS FACILITIES: Oversight of Nursing Homes That Persistently
    Fall Short

    In 1987, on the heels of a groundbreaking Institute of Medicine report
    on substandard care provided in America's nursing homes, Congress
    overhauled federal nursing home oversight, enacting reforms to enhance
    care quality and ensure fair treatment among seniors and people with
    disabilities living in nursing homes.\12\ The Nursing Home Reform Act
    established nursing facility requirements of participation under
    Medicare and Medicaid and created the federal-state partnership
    responsible for a range of oversight activities to this day.\13\ A 2018
    Kaiser Family Foundation report explains, ``[t]he law specifically
    required nursing facilities to provide sufficient nursing, medical and
    psychosocial services to attain and maintain the highest possible
    mental and physical functional status of residents.''\14\ The law also
    established a comprehensive framework of oversight procedures,
    including regular surveying and inspections as well as enforcement
    actions.
    ---------------------------------------------------------------------------
        \12\ Institute of Medicine; Committee on Nursing Home Regulation,
    ``Improving the Quality of Care in Nursing Homes'' (1986) (http://
    www.nationalacademies.org/hmd/Reports/1986/Improving-the-Quality-of-
    Care-in-Nursing-Homes.aspx); Omnibus Budget Reconciliation Act of 1987,
    Pub. L. 100-203.
        \13\ The Social Security Act of 1935, Pub. L. 74-271, sec. 1819;
    The Social Security Act of 1935, Pub. L. 74-271, sec. 1919.
        \14\ Henry J. Kaiser Family Foundation, ``Nursing Facilities,
    Staffing, Residents and Facility Deficiencies, 2009 Through 2016''
    (April 3, 2018) (https://www.kff.org/medicaid/report/nursing-
    facilities-staffing-residents-and-facility-deficiencies-2009-through-
    2016/).

    Among the reforms enacted was the formation of the Special Focus
    Facility (SFF) program. As noted above, through this program, Congress
    directed CMS to more regularly inspect nursing homes that
    ``substantially fail.''\15\ The law specifically requires SFF
    participants to be surveyed no less than once every 6 months--more
    frequently than their counterparts, which must be surveyed at least
    once every 15 months and on average every 12 months statewide.\16\
    ---------------------------------------------------------------------------
        \15\ The Social Security Act of 1935, Pub. L. 74-271, sec.
    1819(f)(8); The Social Security Act of 1935, Pub. L. 74-271, sec. 1919
    (f)(8).
        \16\ Id.

    This surveying provides the backbone for the SFF program. Other
    components, including the facility selection process and the overall
    size of the program, are spelled out in CMS guidance.\17\ SFF
    participants and candidates are identified based on the findings of a
    nursing facility's three most recent standard surveys. Community input,
    the results of other state investigations (such as complaint surveys)
    and other metrics, like staffing data, are not taken into account when
    determining eligibility for the SFF program.\18\ No additional
    resources or education are provided to either SFF participants or
    candidates.
    ---------------------------------------------------------------------------
        \17\ Centers for Medicare and Medicaid Services, Center for
    Clinical Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2017 Special Focus
    Facility (SFF) Program Update'' (S&C: 17-20-NH) (March 2, 2017)
    (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf).
        \18\ Letter from Administrator Seema Verma, Centers for Medicare
    and Medicaid Services, to Senator Casey and Senator Toomey (May 3,
    2019); Centers for Medicare and Medicaid Services, briefing with Senate
    Committee on Aging minority office and Senator Toomey's staff (March
    27, 2019).

    As noted above, CMS also determines the overall size of the SFF
    program. According to CMS guidance, there are 88 SFF participants and
    435 candidates.\19\ The number of participants and candidates varies by
    state, but is roughly determined by the number of nursing facilities in
    that state.\20\ In 2013, citing budget and staffing constraints, CMS
    reduced the program from 152 participants to 62 participants. A year
    later, the program grew modestly, to 85 participants, and its size has
    remained relatively constant since.\21\
    ---------------------------------------------------------------------------
        \19\ Centers for Medicare and Medicaid Services, Center for
    Clinical Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2014 Post Sequester
    Adjustment for Special Focus Facility (SFF) Nursing Homes'' (S&C: 14-
    20-NH) (April 18, 2014) (https://www.cms.gov/Medicare/Provider-
    Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/
    Survey-and-Cert-Letter-14-20.pdf).
        \20\ Centers for Medicare and Medicaid Services, briefing with
    Senate Committee on Aging minority office and Senator Toomey's staff
    (March 27, 2019).
        \21\ Government Accountability Office, ``Nursing Home Quality:
    Continued Improvements Needed in CMS's Data and Oversight'' (GAO-18-
    694T) (September 6, 2018).

    Since 2005, more than 900 facilities have been placed on the SFF
    candidate list.\22\ New facilities roll onto the SFF program from the
    list of candidates only when space allows (i.e., once another facility
    ``graduates'' from the program or is terminated from participation in
    Medicare and Medicaid). CMS provides each state with the list of
    candidates and relies on the state to select a new participant from
    that list to fill newly-vacated slots in the SFF program.\23\
    ---------------------------------------------------------------------------
        \22\ ``Poor Patient Care at Many Nursing Homes Despite Stricter
    Oversight,'' The New York Times (July 5, 2017) (https://
    www.nytimes.com/2017/07/05/health/failing-nursing-homes-
    oversight.html).
        \23\ Centers for Medicare and Medicaid Services, Center for
    Clinical Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2017 Special Focus
    Facility (SFF) Program Update'' (S&C: 17-20-NH) (March 2, 2017)
    (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf).

    ---------------------------------------------------------------------------
    NURSING HOME COMPARE: Transparency in Nursing Home Quality

    In addition to the oversight and enforcement policies described above,
    Congress has also made it a priority to ensure older adults, people
    with disabilities and their families have ready access to useful
    information on nursing home quality.\24\ CMS is required to maintain
    ``Nursing Home Compare,'' an online reference designed to help
    individuals compare and contrast nursing homes in their community.
    ---------------------------------------------------------------------------
        \24\ The Patient Protection and Affordable Care Act, Pub. L. 111-
    148, sec. 6103.

    The tool's required elements include data on a facility's staffing,
    information on state surveys as well as specific content on surveys
    conducted in response to complaints. This information must be provided
    ``in a manner that is prominent, updated on a timely basis, easily
    accessible, readily understandable . . . and searchable.''\25\ It is
    most clearly displayed to the public in the form of star ratings,
    ranging from the lowest score of one star to the highest score of five
    stars. A facility's overall rating is determined on the basis of three
    elements: surveying and inspections, staffing data and quality
    scores.\26\
    ---------------------------------------------------------------------------
        \25\ The Social Security Act of 1935, Pub. L. 74-271, sec. 1819(i);
    The Social Security Act of 1935, Pub. L. 74-271, sec. 1919(i).
        \26\ Centers for Medicare and Medicaid Services, ``Design for
    Nursing Home Compare Five-Star Quality Rating System: Technical Users'
    Guide'' (April 2019) (https://www.cms.gov/Medicare/Provider-Enrollment-
    and-Certification/CertificationandComplianc/Downloads/usersguide.pdf).

    Recently, CMS opted to suppress star ratings for participants in the
    Special Focus Facility (SFF) program, namely to ``reduce confusion and
    help consumers understand the current status of each facility's
    quality.''\27\ Nursing homes that are participants in the SFF program
    are designated online with a small yellow triangle that resembles a
    ``caution'' traffic sign. An individual visiting Nursing Home Compare
    can hover a cursor over this triangle for a short description of the
    SFF program and information explaining why the nursing home has no
    stars displayed. No similar measures are taken on Nursing Home Compare
    to designate SFF candidates.\28\
    ---------------------------------------------------------------------------
        \27\ Centers for Medicare and Medicaid Services, Center for
    Clinical Standards and Quality/Quality, Safety and Oversight Group,
    ``April 2019 Improvement to Nursing Home Compare and the Five Star
    Rating System'' (QSO-19-08-NH) (March 5, 2019) (https://www.cms.gov/
    Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/QSO19-08-NH.pdf).
        \28\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare (https://www.medicare.gov/NursingHomeCompare/search.html);
    Centers for Medicare and Medicaid Services, briefing with Senate
    Committee on Aging minority office and Senator Toomey's staff (March
    27, 2019).

    FINDINGS: A Cursory Analysis of Special Focus Facility Participants and
    ---------------------------------------------------------------------------
    Candidates

    As described below, the Senators' inquiry into the Special Focus
    Facility (SFF) program, including both its participants and the April
    2019 candidates, unveiled several immediate findings.

          A nursing home's participation in the SFF program is not readily
    transparent or easily understood among would-be residents and their
    families.

    Aside from recent actions by CMS to update Nursing Home Compare so that
    the website more clearly displays nursing homes that are SFF
    participants, it lacks detailed information or context on the SFF
    program. There is no information on Nursing Home Compare explaining the
    reason for a facility's participation in the program, the length of
    time it has been in the program or whether it has improved. Further,
    CMS does not include information on facilities that routinely cycle in
    and out of the SFF program.\29\
    ---------------------------------------------------------------------------
        \29\ It is worth noting that this lack of information extends to
    the SFF list, which similarly does not indicate whether a facility was
    an SFF participant before. For example, one Pennsylvania facility that
    ``recently graduated'' in January 2019, was re-added under a different
    name to the SFF program in February and listed as having only been a
    part of the program for 1 month despite the fact that the facility was
    previously in the SFF program for 12 months.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Additionally, the Senators' review of Nursing Home Compare suggests
    that the online tool is not consistently updated to reflect changes in
    the SFF program. For example, in March 2019, the small icon used to
    indicate that a facility is a SFF participant was not on the webpage of
    five of the 17 newly-added SFF participants.\30\
    ---------------------------------------------------------------------------
        \30\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare (https://www.medicare.gov/NursingHomeCompare/search.html).

          Candidates for the SFF program are not disclosed to the public
    ---------------------------------------------------------------------------
    and these facilities do not receive any additional oversight.

    The only parties with knowledge that a facility is an SFF candidate are
    CMS, the state in which a candidate is based and the facility. While
    CMS requires every SFF participant to notify residents and the
    community once it has been selected, the same rules do not apply to SFF
    candidates.\31\ As such, information on SFF candidates is absent on the
    Nursing Home Compare website. Star ratings continue to be displayed on
    the Nursing Home Compare webpages for SFF candidates and there is no
    designating icon to indicate a nursing home is a SFF candidate.
    ---------------------------------------------------------------------------
        \31\ Centers for Medicare and Medicaid Services, Center for
    Clinical Standards and Quality/
    Survey and Certification Group, ``Fiscal Year (FY) 2017 Special Focus
    Facility (SFF) Program Update'' (S&C: 17-20-NH) (March 2, 2017)
    (https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf);
    Centers for Medicare and Medicaid Services, briefing with Senate
    Committee on Aging minority office and Senator Toomey's staff (March
    27, 2019).

    Several candidate facilities possess star ratings that may be
    misleading. Based upon a review of Nursing Home Compare conducted after
    the Senators' receipt of the April 2019 candidate list, 27% of
    candidate facilities had a two stars out of five overall.\32\ The
    quality and staffing ratings (subcategories of the overall ratings) for
    these facilities may prove more misleading. Approximately 48% of SFF
    candidates had a quality rating of three stars or higher.\33\
    Similarly, 49% of SFF candidates possessed a staffing rating of three
    stars or greater.\34\ Nine SFF candidates boasted perfect staffing and
    quality scores.\35\
    ---------------------------------------------------------------------------
        \32\ Centers for Medicare and Medicaid Services, ``List of Special
    Focus Facilities (SFF) and Candidates for the SFF Program.. (May 14,
    2019) (copy on file with Senate Committee on Aging minority office).
        \33\ Id.
        \34\ Id.
        \35\ Id.

    Finally, SFF candidates are not subject to additional oversight. SFF
    candidates are not surveyed more frequently (aside from surveys
    following a complaint, which are required) nor are they subject to more
    rigorous enforcement actions, additional disclosure or reporting
    requirements.\36\ Moreover, CMS does not have a way to add a candidate
    facility to the SFF program if a particularly egregious incident
    occurs, including any event substantiated by a state investigation or
    complaint survey.\37\
    ---------------------------------------------------------------------------
        \36\ Centers for Medicare and Medicaid Services, briefing with
    Senate Committee on Aging minority office and Senator Toomey's staff
    (March 27, 2019).
        \37\ Id.
    ---------------------------------------------------------------------------

    CONCLUSION:

    As evidenced by this report, oversight of America's poorest quality
    nursing homes falls short of what taxpayers should expect. Senators
    Casey and Toomey will continue to advocate for increased transparency
    into consistently underperforming facilities and a robust Special Focus
    Facility (SFF) program that has the tools it needs to oversee these
    nursing homes.

                                  APPENDIX A:

    Examples of neglect and abuse among SFF participants

          In Georgia, a resident was able to climb out her window and
    escape. This same resident was found on train tracks with a train
    approaching.\38\
    ---------------------------------------------------------------------------
        \38\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from December 19, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=115564&SURVEYDATE=12/19/2018&INSPTYPE=STD).

          In Illinois, a facility failed to provide adequate medical
    treatment or respond to the concerns of its residents such that one
    resident who was ill was forced to call 911 himself. When medical
    personnel came, a nurse tried to prevent his departure from the
    facility. When the resident finally made it to the hospital, he passed
    away. According to physicians at the hospital, this resident may have
    survived had he received treatment sooner.\39\
    ---------------------------------------------------------------------------
        \39\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from October 30, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=145160&SURVEYDATE=10/30/2018&INSPTYPE=CMPL).

          In Kansas, a facility failed to give a resident their prescribed
    medication for 12 days after the person was admitted. According to the
    surveyor, ``[t]his deficient practice represented a significant
    medication error for the resident who was subsequently re-hospitalized
    with a blood clot and uncontrolled mental agitation, which required law
    enforcement intervention.''\40\
    ---------------------------------------------------------------------------
        \40\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from March 5, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=175180&SURVEYDATE=03/05/2018&INSPTYPE=CMPL).

          In Michigan, a resident who had his catheter removed bled
    through the night and when he was finally taken to the hospital the
    next morning, he passed away. An interview with his roommate at the
    facility revealed that the resident was bleeding and moaning through
    the night. At this same facility, another resident who repeatedly
    complained of pain over a month-long period was ignored. The resident
    was subsequently hospitalized for several weeks due to an
    infection.\41\
    ---------------------------------------------------------------------------
        \41\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from July 15, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=235331&SURVEYDATE=07/25/2018&INSPTYPE=CMPL).

          In Ohio, a facility failed to assess the residents' nutritional
    status such that surveyors identified 14 residents who had lost weight
    in the last 30 days. One resident's weight loss was so severe that the
    person lost 33lbs in 31 days, became lethargic and was hospitalized for
    malnutrition.\42\
    ---------------------------------------------------------------------------
        \42\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from December 13, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=365206&SURVEYDATE=12/13/2018&INSPTYPE=CMPL).

          In Delaware, a facility failed to promptly investigate
    allegations of sexual assault against a member of staff, which resulted
    in the victim not being referred to the hospital for examination until
    2 days after the incident. Additionally, the facility allowed the
    alleged perpetrator of the abuse to continue working during the
    investigation, with access to the victim.\43\ As of May 29, 2019, this
    facility had staffing and quality ratings of five stars.\44\
    ---------------------------------------------------------------------------
        \43\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from December 6, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=085001&SURVEYDATE=12/06/2018&INSPTYPE=STD).https://
    www.medicare
    .gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=085001&SURVEYDATE=12/06/20
    18&INSPTYPE=STD).
        \44\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: Kentmere Rehabilitation and Healthcare
    Center of Wilmington, DE (https://www.
    medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=085001&state=DE&lat=0&lng
    =0&name=KENTMERE%2520REHABILITATION%2520AND%2520HEALTHCARE%2520
    CENTER&Distn=0.0).

          In Florida, staff failed to clean and disinfect glucometers
    between blood tests of several residents, putting them at risk of
    infection.\45\ As of May 29, 2019, this facility had five star staffing
    and quality ratings.\46\
    ---------------------------------------------------------------------------
        \45\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from April 27, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReportDetail
    .aspx?ID=105310&SURVEYDATE=04/27/2018&INSPTYPE=STD).
        \46\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: Avante at Ormond Beach, INC. of Ormond
    Beach, FL (https://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=105310&Distn=0.0&state=FL&name=AVAN
    TE%20AT%20ORMOND%20BEACH%2C%20INC&lat=0&lng=0).

          In Hawaii, a facility failed to correct an insect infestation
    such that there were cockroaches and ants near residents, on
    countertops and crawling on medical charts.\47\ As of May 29, 2019,
    this facility had an overall rating of two stars, with a quality rating
    of five stars.\48\
    ---------------------------------------------------------------------------
        \47\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from September 14, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=125026&SURVEYDATE=09/14/2018&INSPTYPE=STD).
        \48\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: Kuakini Geriatric Care, INC. of
    Honolulu, HI (https://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=125026&state=HI&lat=0&lng=0&name=KU
    AKINI%2520GERIATRIC%2520CARE%252C%2520INC&Distn=0.0).

          In Kentucky, several residents were placed in immediate jeopardy
    when the facility failed to provide prescribed medication and treatment
    and then failed to inform the patients' physician when the treatment
    was missed. One resident who suffered from a burn wound and was
    receiving treatment that included a skin graft did not have the
    dressing changed or showers administered as ordered. Upon inspection,
    state surveyors found the individual ``lying in bed with a large amount
    of green drainage on dressing and a pool of green drainage on the bed
    sheets. The resident stated he/she was not sure the last time the
    dressing had been changed.''\49\ As of May 29, 2019, this facility had
    an overall rating of two stars with a staffing rating of four
    stars.\50\
    ---------------------------------------------------------------------------
        \49\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from April 20, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReportDetail
    .aspx?ID=185272&SURVEYDATE=04/20/2018&INSPTYPE=STD).
        \50\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: River Haven Nursing and Rehabilitation
    Center of Paducah, KY (https://www.
    medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=185272&state=KY&lat=0&lng
    =0&name=RIVER%2520HAVEN%2520NURSING%2520AND%2520REHABILITATION%2520
    CENTER&Distn=0.0).

          In Massachusetts, the availability of illicit substances at one
    facility was so prevalent that residents had ``concerns about
    maintaining their sobriety at the facility'' and ``residents reported
    that it was easier to obtain illicit substances inside the facility
    than out on the street.''\51\ As of May 29, 2019, this facility had an
    overall rating of one star with a staffing rating of three stars.\52\
    ---------------------------------------------------------------------------
        \51\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from September 5, 2018 (https://
    www.medicare.gov/nursinghomecompare/InspectionReport
    Detail.aspx?ID=225199&SURVEYDATE=09/05/2018&INSPTYPE=STD).
        \52\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: Worcester Rehabilitation and Health Care
    Center of Worcester, MA (https://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=225199&state=MA&lat=
    0&lng=0&name=WORCESTER%2520REHABILITATION%2520%2526%2520HEALTH%2520
    CARE%2520CENTER&Distn=0.0).

          In Pennsylvania, a facility failed to ensure that the physician
    in charge was notified about changes in residents' conditions, which
    caused a delay in treatment for a resident who subsequently had to be
    hospitalized, required surgery and developed an embolism.\53\ As of May
    29, 2019, the facility had an overall rating of one star, but a
    staffing rating of three stars.\54\
    ---------------------------------------------------------------------------
        \53\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from June 7, 2018 (https://www.medicare.gov/
    nursinghomecompare/InspectionReportDetail.
    aspx?ID=396056&SURVEYDATE=06/07/2018&INSPTYPE=STD).
        \54\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: William Penn Care Center of Jeannette,
    PA (https://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=396056&state=PA&lat=0&lng=0&name=
    WILLIAM%2520PENN%2520CARE%2520CENTER&Distn=0.0).

          In Texas, a facility did not prevent the septic system from
    backing up, causing a foul-smelling black substance to come through the
    drains seeping into the kitchen floor in close proximity to food
    preparation areas. The facility continued to serve food to the
    residents from the kitchen.\55\ As of May 29, 2019, this facility had a
    quality rating of two stars.\56\
    ---------------------------------------------------------------------------
        \55\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Inspection Report from February 1, 2019 (https://
    www.medicare.gov/nursinghomecompare/InspectionReportDetail.
    aspx?ID=675553&SURVEYDATE=02/01/2019&INSPTYPE=CMPL).
        \56\ Centers for Medicare and Medicaid Services, Nursing Home
    Compare, Nursing Home Profile: Heritage Healthcare Residence (https://
    www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=675553&state=TX&lat=0&lng=0&name=HERITAGE%2520

    HEALTHCARE%2520RESIDENCE&Distn=0.0).
    ---------------------------------------------------------------------------

                                  APPENDIX B:

                              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 underperform.
    ---------------------------------------------------------------------------
        \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
    one percent (0.6%) participate in the SFF program and less than three
    percent (2.8%) 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 2010;
    ---------------------------------------------------------------------------
        \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 SFF
    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
    Gillian_Mueller@casey.senate.gov and Theodore Merkel of Senator
    Toomey's staff at Theodore_Merkel@toomey.senate.gov. 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

                                  APPENDIX C:

    DEPARTMENT OF HEALTH AND HUMAN SERVICES
    Centers for Medicare and Medicaid Services
    _______________________________________________________________________

                                  May 3, 2019

                                                          Administrator
                                                   Washington, DC 20201

    The Honorable Robert P. Casey, Jr.
    U.S. Senate
    Washington, DC 20510

    Dear Senator Casey:

    Thank you for your letter about the Special Focus Facility (SFF)
    program. The Centers for Medicare and Medicaid Services (CMS) takes
    very seriously our responsibility to hold nursing facilities serving
    Medicare and Medicaid residents accountable for furnishing safe,
    quality care for our beneficiaries. Earlier this month, I emphasized
    CMS's commitment to nursing home safety by announcing our five-part
    plan to ensure the care provided in America's nursing homes is of the
    highest possible quality.\1\ That plan focuses 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--all without unnecessary paperwork that keeps
    providers from focusing on residents.
    ---------------------------------------------------------------------------
        \1\ https://www.cms.gov/blog/ensuring-safety-and-quality-americas-
    nursing-homes.

    The methodology for identifying facilities for the SFF program is based
    on the same methodology used in the health inspection domain of the
    Five-Star Quality Rating System.\2\ The results of each facility's
    surveys for three cycles of inspection are converted into points based
    on the number of deficiencies cited and the scope and severity level of
    those citations. The more deficiencies that are cited, and the more
    cited at higher levels of scope and severity, the more points are
    assigned. The facilities with the most points in a stale then become
    candidates for the SFF program. CMS informs nursing homes of their
    status as an SFF candidate in their individual monthly Five-Star
    Quality Rating System preview report. Stakeholders can also see which
    facilities could be candidates by accessing the data.medicare.gov
    website and downloading the ``Provider Info'' file:\3\ By sorting the
    column named, ``Total Weighted Health Survey Score,'' in descending
    order, the facilities with the highest survey scores, which could be
    SFF candidates appear at the top of the list.
    ---------------------------------------------------------------------------
        \2\ More information about Nursing Home Compare is available at:
    https://www.cms.gov/medicare/provider-enrollment-and-certification/
    certificationandcompliance/downloads/userguide.pdf.
        \3\ https://data.medicare.gov/Nursing-Home-Compare/Provider-Info/
    4pq5-n9py.

    The total number of SFF slots and total number of SFF candidates
    nationally are based on the availability of federal resources. Under
    the SFF program's requirements, states must survey these poor
    performing facilities at least once every 6 months, instead of once
    every 9-15 months (for non-SFFs). In 2010, there were 167 SFF slots and
    835 candidates for the SFF program. In 2014, federal budget reductions,
    as part of sequestration, led to a reduction in the number of slots
    nationally to 88, and the candidates were reduced to 440. The number of
    slots and facilities on the candidate list has remained unchanged since
    ---------------------------------------------------------------------------
    2014, with sequestration still in place.

    The number of nursing homes on the candidate list is based on five
    candidates for each SFF slot. CMS sends a list of candidate facilities
    to CMS regional offices and state agencies each month. State agencies
    then recommend a facility to be an SFF from the candidate list. We rely
    on the state agency to make the selection since they know their nursing
    homes and local markets best. The CMS regional office gives final
    approval based on the state's recommendations. More information on the
    SFF program and a list of the number of SFF slots and candidates by
    State is included in the Survey and Certification Memo 17-20-NH.\4\
    ---------------------------------------------------------------------------
        \4\ https://www.cms.gov/Medicare/Provider-Enrollment-and-
    Certification/SurveyCertification
    GenInfo/Downloads/Survey-and-Cert-Letter-17-20.pdf.

    The SFF candidate list is updated each month based on the most recent
    findings from surveys conducted in a state. A state only selects a
    facility from the candidate list if there is an open SFF slot in their
    state. SFF slots are opened when a facility either graduates from the
    SFF program, or is terminated from participating in the Medicare and
    Medicaid programs. Facilities typically remain as a candidate for the
    ---------------------------------------------------------------------------
    SFF program for approximately 18 months.

    SFFs are expected to graduate from the program within 12-18 months. To
    graduate from the program, the facility needs have two standard surveys
    without serious deficiencies identified. At least 6 months apart. If
    facilities are unable to graduate, they are subject to increased
    enforcement actions or termination. There are infrequent cases where we
    have prolonged a facility's status as an SFF (e.g., for greater than 18
    months) because of concerns about access to care if the facility were
    terminated. However, if a facility fails to improve, they will be
    terminated from participating in Medicare and Medicaid.

    While the SFF candidate list is not released publicly, we are
    evaluating the authority to release this list, and will update you on
    our progress. We note that facilities that are candidates for the SFF
    program will typically have a very low star rating. So, consumers and
    other stakeholders are alerted to the quality of care issues in these
    facilities by viewing their star rating and survey results on the
    Nursing Home Compare website. We also note that stakeholders can
    understand which facilities are likely SFF candidates by accessing the
    data.medicare.gov website as are described above.

    Regardless of participation in the SFF program, any facility that
    performs poorly on surveys and continues to jeopardize residents'
    health and safety will be subject to CMS enforcement remedies, such as
    civil money penalties, denial of payment for new admissions, or
    termination.

    In addition to survey oversight, CMS has made great strides to improve
    the accuracy of data on Nursing Home Compare, including moving to new,
    more reliable sources for obtaining staffing and resident census data,
    as well as including more claims-based quality measures. For example,
    in March 2019, we announced significant changes to Nursing Home Compare
    and the Five Star Quality rating system in this regard. This includes a
    change to not display star ratings for SFFs in order to better
    highlight and emphasize the seriousness of being a SFF.

    Information on all these changes can be found in CMS memorandum QSO 19-
    08-NH.\5\ These transparency and oversight initiatives are part of
    CMS's broader five-part plan to strengthen resident safety and health
    outcomes while providing consumers and their caregivers important
    information about care quality so they can make informed decisions. I
    appreciate your leadership on this important matter and I look forward
    to working with you to continue to improve the quality of nursing home
    care. I will also share a copy of this response with the co-signer of
    your letter.
    ---------------------------------------------------------------------------
        \5\ https://www.cms.gov/Medicare/Provider-Enrollment-and-
    Certification/SurveyCertification
    GenInfo/Downloads/QSO19-08-NH.pdf.

    ---------------------------------------------------------------------------
                Sincerely,

                Seema Verma

                                  APPENDIX D:

    DEPARTMENT OF HEALTH AND HUMAN SERVICES
    Centers for Medicare and Medicaid Services
    200 Independence Avenue, SW
    Washington, DC 20201

    OFFICE OF LEGISLATION
    _______________________________________________________________________

                                  May 14, 2019

    The Honorable Robert P. Casey, Jr.
    Ranking Member
    Special Committee on Aging
    U.S. Senate
    Washington, DC 20510

    BY E-MAIL

    Dear Ranking Member Casey:

    As a further response to the March 4 letter to the Centers for Medicare
    and Medicaid Services (CMS) from you and Senator Toomey, please find
    attached the most recent list of Special Focus Facilities (SFF) and
    candidates for the SFF program. If you have any further questions,
    please contact the CMS Office of Legislation.

                Sincerely,

    Alec Aramanda
    Director
    Office of Legislation

    Enclosure

                                As of April 2019
    ------------------------------------------------------------------------
       Federal
       Provider            Provider Name           State Name      Special
        Number                                                  Focus Status
    ------------------------------------------------------------------------
    015032         DIVERSICARE OF FOLEY           Alabama       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    015467         TRUSSVILLE HEALTH AND          Alabama       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    015060         TERRACE OAKS CARE AND          Alabama       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    015183         NORTH MOBILE NURSING AND       Alabama       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    015144         AHAVA HEALTHCARE OF ALAEASTER  Alabama       SFF
    ------------------------------------------------------------------------
    035242         CHINLE NURSING HOME            Arizona       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    035216         CARING HOUSE                   Arizona       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    035072         PHOENIX MOUNTAIN POST ACUTE    Arizona       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    035263         ARCHIE HENDRICKS SENIOR        Arizona       SFF
                    SKILLED NURSING FACILITY                     Candidate
    ------------------------------------------------------------------------
    035085         VILLA CAMPANA REHABILITATION   Arizona       SFF
                    HOSPITAL LLC
    ------------------------------------------------------------------------
    045203         COMMUNITY COMPASSION CENTER    Arkansas      SFF
                    OF BATESMLLE                                 Candidate
    ------------------------------------------------------------------------
    045166         CRESTPARK WYNNE, LLC           Arkansas      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    045267         LEGACY HEALTH AND              Arkansas      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    045311         DAVIS EAST                     Arkansas      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    045451         COMMUNITY COMPASSION CENTER    Arkansas      SFF
                    OF YELLVILLE                                 Candidate
    ------------------------------------------------------------------------
    045144         DIAMOND COVE, LLC              Arkansas      SFF
    ------------------------------------------------------------------------
    055476         FIRCREST CONVALESCENT          California    SFF
                    HOSPITAL                                     Candidate
    ------------------------------------------------------------------------
    555139         BEVERLY WEST HEALTHCARE        California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555566         CORONA POST ACUTE              California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    055293         SANTA ANITA CONVALESCENT       California    SFF
                    HOSPITAL                                     Candidate
    ------------------------------------------------------------------------
    555773         SKY HARBOR CARE CENTER         California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555061         GOOD SHEPHERD HEALTH CARE      California    SFF
                    CENTER OF SANTA MONICA                       Candidate
    ------------------------------------------------------------------------
    555780         DEL RIO GARDENS CARE CENTER    California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056122         MILLBRAE SKILLED CARE          California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555057         LAS FLORES CONVALESCENT        California    SFF
                    HOSPITAL                                     Candidate
    ------------------------------------------------------------------------
    056346         YUBA SKILLED NURSING CENTER    California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555350         TERRACINA POST ACUTE           California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    055364         LONG BEACH HEALTHCARE CENTER   Calilomia     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056321         OLYMPIA CONVALESCENT HOSPITAL  California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555330         RIVERSIDE POSTACUTE CARE       California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056361         FORTUNA REHABILITATION AND     California    SFF
                    WELLNESS CENTER, LP                          Candidate
    ------------------------------------------------------------------------
    056039         WELLSPRINGS POST ACUTE CENTER  California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056078         LAKEVIEW TERRACE               California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555308         LAKE FOREST NURSING CENTER     California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555099         LAKEWOOD HEALTHCARE CENTER     California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555375         WINDSOR GARDENS CONVALESCENT   California    SFF
                    CENTER OF LONG BEACH                         Candidate
    ------------------------------------------------------------------------
    555565         WINDSOR PALMS CARE CENTER OF   California    SFF
                    ARTESIA                                      Candidate
    ------------------------------------------------------------------------
    056311         HOLLYWOOD PRESBYTERIAN         California    SFF
                    MEDICAL CENTER D/P SNF                       Candidate
    ------------------------------------------------------------------------
    055899         ROYAL PALMS POST ACUTE         California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555128         DOWNEY COMMUNITY HEALTH        California    SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    055307         LANCASTER HEALTH CARE CENTER   California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    055612         SHADOWBROOK POST ACUTE         California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056261         MERRITT MANOR CONVALESCENT     California    SFF
                    HOSPITAL                                     Candidate
    ------------------------------------------------------------------------
    056066         WOODLAND CARE CENTER           California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    056113         ALEXANDRIA CARE CENTER         California    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    555151         WILLOWS CENTER                 California    SFF
    ------------------------------------------------------------------------
    555336         KINGSTON HEALTHCARE CENTER,    California    SFF
                    LLC
    ------------------------------------------------------------------------
    555884         RIVERSIDE HEIGHTS HEALTHCARE   California    SFF
                    CENTER, LLC
    ------------------------------------------------------------------------
    555814         SAN FERNANDO POSTACUTE         California    SFF
                    HOSPITAL
    ------------------------------------------------------------------------
    056086         LA MARIPOSA CARE AND           California    SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    065290         MONACO PARKWAY HEALTH AND      California    SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    065193         ALPINE LIVING CENTER           Colorado      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    065168         ASPEN LIVING CENTER            Colorado      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    065208         PEARL STREET HEALTH ANO        Colorado      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    065248         BETHANY NURSING AND REHAB      Colorado      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    075348         ADVANCED CENTER FOR NURSING    Colorado      SFF
                    AND REHABILITATION
    ------------------------------------------------------------------------
    075211         APPLE REHAB ROCKY HILL         Connecticut   SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    075429         MEADOW RIDGE                   Connecticut   SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    075397         REGALCARE AT NEW HAVEN         Connecticut   SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    075200         REGALCARE AT SOUTHPORT         Conneclicut   SFF
    ------------------------------------------------------------------------
    085004         BRANDYWNE NURSING AND          Delaware      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    085001         KENTMERE REHABILITATION AND    Delaware      SFF
                    HEALTHCARE CENTER                            Candidate
    ------------------------------------------------------------------------
    085006         REGAL HEIGHTS HEALTHCARE AND   Delaware      SFF
                    REHAB CENTER                                 Candidate
    ------------------------------------------------------------------------
    085053         THE MOORINGSAT LEWES           Delaware      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    085015         SEAFORD CENTER                 Delaware      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    085032         WESTMINSTER VILLAGE HEALTH     Delaware      SFF
    ------------------------------------------------------------------------
    106027         AVANTE AT ORLANDO INC.         Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105158         TALLAHASSEE MEMORIAL HOSPITAL  Florida       SFF
                    EXTENDED CARE                                Candidate
    ------------------------------------------------------------------------
    105250         HUNTINGTON PLACE               Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105149         NORTH REHABILITATION CENTER    Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105543         ST, ANDREWS BAY SKILLED        Florida       SFF
                    NURSING AND REHABILITATION                   Candidate
    ------------------------------------------------------------------------
    105038         OCEAN VIEW NURSING AND         Florida       SFF
                    REHABILITATION CENTER, LLC                   Candidate
    ------------------------------------------------------------------------
    105302         OAK HAVEN REHAB AND NURSING    Florida       SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    105140         BRISTOL AT TAMPA REHAB AND     Florida       SFF
                    NURSING CENTER LLC                           Candidate
    ------------------------------------------------------------------------
    105310         AVANTE AT ORMOND BEACH, INC.   Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    106098         HAWTHORNE HEALTH AND REHAB OF  Florida       SFF
                    SARASOTA                                     Candidate
    ------------------------------------------------------------------------
    105884         EXCEL CARE CENTER              Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105592         PALM GARDEN OF VERO BEACH      Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105693         CONSULATE HEALTH CARE OF LAKE  Florida       SFF
                    PARKER                                       Candidate
    ------------------------------------------------------------------------
    106015         BRIGHTON GARDENS OF TAMPA      Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105257         FORT PIERCE HEALTH CARE        Florida       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    105861         CONSULATE HEALTH CARE OF       Florida       SFF
                    MELBOURNE
    ------------------------------------------------------------------------
    105416         BENEVA LAKES HEALTHCARE AND    Florida       SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    115482         EAST LAKE ARBOR                Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115411         PLEASANT VIEW NURSING CENTER   Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115674         WESTMINSTER COMMONS            Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115361         BRENTWOOO HEALTH AND           Georgia       SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    115468          PRUITTHEALTH--BLUE RIDGE      Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115504         NORTHEAST ATLANTA HEALTH AND   Georgia       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    115354         LAGRANGE HEALTH AND REHAB      Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115291         WINDERMERE HEALTH AND          Georgia       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    115635         CLINCH HEALTHCARE CENTER       Georgia       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    115564         PINEHILL NURSING CENTER        Georgia       SFF
    ------------------------------------------------------------------------
    125057         KULANA MALAMA                  Hawaii        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    125031         KOHALA HOSPITAL                Hawaii        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    125026         KUAKINI GERIATRIC CARE, INC.   Hawaii        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    125029         SAMUEL MAHELONA MEMORIAL       Hawaii        SFF
                    HOSPITAL                                     Candidate
    ------------------------------------------------------------------------
    125015         WAHIAWA GENERAL HOSPITAL       Hawaii        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    125065         LEGACY HILO REHABILITATION     Hawaii        SFF
                    AND NURSING CENTER
    ------------------------------------------------------------------------
    135014         CALDWELL CARE OF CASCADIA      Idaho         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    135048         CLEARWATER OF CASCADIA         Idaho         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    135042         LACROSSE HEALTH AND            Idaho         SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    135092         GOOD SAMARITAN SOCIETY--IDAHO  Idaho         SFF
                    FALLS VILLAGE                                Candidate
    ------------------------------------------------------------------------
    135094         WELLSPRING HEALTH AND          Idaho         SFF
                    REHABILITATION OF CASCADIA
    ------------------------------------------------------------------------
    146112         GREENTREE OF BRADLEY REHAB     Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145439         CHAMPAIGN URBANA NRSG AND      Illinois      SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    145981         SWANSEA REHAB HEALTH CARE       Illinois     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145333         WEST SUBURBAN NURSING AND      Illinois      SFF
                    REHAB CENTER                                 Candidate
    ------------------------------------------------------------------------
    145965         GENERATIONS AT MCKINLEY COURT  Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145926         GARDENVIEW MANOR               Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    146003         GENERATIONS AT MCKINLEY PLACE  Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145364         CHAMPAIGN COUNTY NURSING HOME  Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    146010         ACCOLADE HEALTHCARE OF         Illinois      SFF
                    PONTIAC                                      Candidate
    ------------------------------------------------------------------------
    145453         ALDEN TERRACE OF MCHENRY       Illinois      SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    145712         WILLOW CREST NURSING PAVILION  Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145825         SOUTH ELGIN REHAB AND HCC      Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145555         EDWARDSVILLE NSG AND REHAB     Illinois      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    145289         HELIA HEALTHCARE OF            Illinois      SFF
                    BELLEVILLE                                   Candidate
    ------------------------------------------------------------------------
    145924         HELIA HEALTHCARE OF CHAMPAIGN  Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145669         ELEVATE CARE WAUKEGAN          Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145424         LANDMARK OF RICHTON PARK       Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145135         BURGIN MANOR                   Illinois      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    145371         APERION CARE BLOOMINGTON       Illinois      SFF
    ------------------------------------------------------------------------
    145160         APERION CARE CAPITOL           Illinois      SFF
    ------------------------------------------------------------------------
    146002         APERION CARE CAIRO             Illinois      SFF
    ------------------------------------------------------------------------
    145200         FRANKLIN GROVE LIVING AND      Illinois      SFF
                    REHAB
    ------------------------------------------------------------------------
    155404         ESSEX NURSING AND              Indiana       SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    155243         SIGNATURE HEALTHCARE OF        Indiana       SFF
                    LAFAYETTE                                    Candidate
    ------------------------------------------------------------------------
    155208         HANOVER NURSING CENTER         Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155277         APERION CARE VALPARAISO        Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155845         SIMMONS LOVING CARE HEALTH     Indiana       SFF
                    FACILITY                                     Candidate
    ------------------------------------------------------------------------
    155379         LIFE CARE CENTER OF ROCHESTER  Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155670         SIGNATURE HEALTHCARE OF        Indiana       SFF
                    NEWBURGH                                     Candidate
    ------------------------------------------------------------------------
    155359         MAJESTIC CARE OF FORT WAYNE    Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155357         RAWLINS HOUSE HEALTH AND       Indiana       SFF
                    LIVING COMMUNITY                             Candidate
    ------------------------------------------------------------------------
    155702         APERION CARE PERU              Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155491         MAJESTIC CARE OF CONNERSVILLE  Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155763         NORTH RIDGE VILLAGE NURSING    Indiana       SFF
                    AND REHABILITATION CENTER                    Candidate
    ------------------------------------------------------------------------
    155685         GOLDEN LIVING CENTER--ELKHART  Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155580         APERION CARE TOLLESTON PARK    Indiana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    155810         VERNON HEALTH AND              Indiana       SFF
                    REHABILITATION
    ------------------------------------------------------------------------
    155156         APERION CARE ARBORS MICHIGAN   Indiana       SFF
                    CITY
    ------------------------------------------------------------------------
    155721         LAWRENCE MANOR HEALTHCARE      Indiana       SFF
                    CENTER
    ------------------------------------------------------------------------
    165497         QHC WNTERSET NORTH, LLC        Iowa          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    165350         FOUNTAIN WEST HEALTH CENTER    Iowa          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    165174         CASA DE PAZ HEALTH CARE         Iowa         SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    165265         QHC FORT DODGE VILLA, LLC      Iowa          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    165453         PEARL VALLEY REHABILITATION    Iowa          SFF
                    AND HEALTHCARE CENTER OF                     Candidate
                    WASHINGTON
    ------------------------------------------------------------------------
    165198         IOWA CITY REHAB AND HEALTH     Iowa          SFF
                    CARE                                         Candidate
    ------------------------------------------------------------------------
    165197         CEDAR FALLS HEALTH CARE        Iowa          SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    165578         PREMIER ESTATES OF MUSCATINE   Iowa          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    165586         TIMELY MISSION NURSING HOME    Iowa          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    165161         TOUCHSTONE HEALTHCARE          Iowa          SFF
                    COMMUNITY
    ------------------------------------------------------------------------
    165530         GLEN HAVEN HOME                Iowa          SFF
    ------------------------------------------------------------------------
    175475         ENTERPRISE ESTATES NURSING     Kansas        SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    175291         GREAT BEND HEALTH AND REHAB    Kansas        SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    175452         WOODLAWN CARE AND REHAB, LLC,  Kansas        SFF
                    DBA ORCHARD GARDENS HEALTH                   Candidate
                    AND REHAB
    ------------------------------------------------------------------------
    175176         INDIAN CREEK HEALTHCARE        Kansas        SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    175384         FORT SCOTT MANOR               Kansas        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    175213         PINNACLE RIDGE NURSING AND     Kansas        SFF
                    REHAB CENTER                                 Candidate
    ------------------------------------------------------------------------
    175471         WESTY COMMUNITY CARE HOME      Kansas        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    175465         VIA CHRISTI VILLAGE PITTSBURG  Kansas        SFF
                    INC.                                         Candidate
    ------------------------------------------------------------------------
    175481         MOUNT HOPE NURSING CENTER      Kansas        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    175180         SERENITY CARE AND REHAB        Kansas        SFF
    ------------------------------------------------------------------------
    175175         GARDEN VALLEY RETIREMENT       Kansas        SFF
                    VILLAGE
    ------------------------------------------------------------------------
    185272         RIVER HAVEN NURSING AND        Kentucky      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    185445         WOODCREST NURSING AND          Kentucky      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    185414         MOUNTAIN MANOR OF PAINTSVILLE  Kentucky      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    185333         KLONDIKE CENTER                Kentucky      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    185305         SPRINGHURST HEALTH AND REHAB   Kentucky      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    185087         TWIN RIVERS NURSING AND        Kentucky      SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    195610         ST. HELENA PARISH NURSING      Louisiana     SFF
                    HOME                                         Candidate
    ------------------------------------------------------------------------
    195500         TIOGA COMMUNITY CARE CENTER    Louisiana     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    195413         LAKE CHARLES CARE CENTER       Louisiana     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    195305         SOUTH LAFOURCHE NURSING AND    Louisiana     SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    195523         BELLE MAISON NURSING AND       Louisiana     SFF
                    REHABILITATION LLC
    ------------------------------------------------------------------------
    205072         MARSHWOOD CENTER               Maine         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    205062         BREWER CENTER FOR HEALTH AND   Maine         SFF
                    REHABILITATION, LLC                          Candidate
    ------------------------------------------------------------------------
    205159         SEDGEWOOD COMMONS              Maine         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    205091         OAK GROVE CENTER               Maine         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    205031         ORONO COMMONS                  Maine         SFF
    ------------------------------------------------------------------------
    215082         AUTUMN LAKE HEALTHCARE AT      Maryland      SFF
                    PIKESVILLE                                   Candidate
    ------------------------------------------------------------------------
    215084         PATAPSCO VALLEY CENTER         Maryland      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    215085         CATON MANOR                    Maryland      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    215025         CADIA HEALTHCARE--WHEATON      Maryland      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    215052         CADIA HEALTHCARE--SPRINGBROOK  Maryland      SFF
    ------------------------------------------------------------------------
    225218         OXFORD REHABILITATION AND      Massachusett  SFF
                    HEALTH CARE CENTER, THE        s             Candidate
    ------------------------------------------------------------------------
    225199         WORCESTER REHABILITATION AND   Massachusett  SFF
                    HEALTH CARE CENTER             s             Candidate
    ------------------------------------------------------------------------
    225453         CRAWFORD SKILLED NURSING AND   Massachusett  SFF
                    REHABILITATION CENTER          s             Candidate
    ------------------------------------------------------------------------
    225267         GARDEN PLACE HEALTHCARE        Massachusett  SFF
                                                   s             Candidate
    ------------------------------------------------------------------------
    225323         CARE ONE AT PEABODY            Massachusett  SFF
                                                   s             Candidate
    ------------------------------------------------------------------------
    225063         MARLBOROUGH HILLS              Massachusett  SFF
                    REHABILITATION AND HEALTH      s             Candidate
                    CARE CEMTER
    ------------------------------------------------------------------------
    225298         NORTHWOOD REHABILITATION AND   Massachusett  SFF
                    HEALTHCARE CENTER              s             Candidate
    ------------------------------------------------------------------------
    225390         PARSONS HILL REHABILITATION    Massachusett  SFF
                    AND HEALTH CARE CENTER         s             Candidate
    ------------------------------------------------------------------------
    225040         JEWSH NURSING HOME OF WESTERN  Massachusett  SFF
                    MASS                           s             Candidate
    ------------------------------------------------------------------------
    225467         WORCESTER HEALTH CENTER        Massachusett  SFF
                                                   s
    ------------------------------------------------------------------------
    225189         SWEET BROOK OF WILLIAMSTOWN    Massachusett  SFF
                    REHABILITATION AND NURSING     s
                    CENTER
    ------------------------------------------------------------------------
    235357         METRON OF BELDING              Michigan      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    235461         CLARKSTON SPECIALTY            Michigan      SFF
                    HEALTHCARE CENTER                            Candidate
    ------------------------------------------------------------------------
    235302         LAURELS OF COLDWATER, THE      Michigan      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    235147         SCHOOLCRAFT MEDICAL CARE       Michigan      SFF
                    FACILITY                                     Candidate
    ------------------------------------------------------------------------
    235263         MEDILODGE OF STERLING HEIGHTS  Michigan      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    235296         MEDILODGE OF SOUTHFIELD        Michigan      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    235250         SAMARITAS SENIOR LIVING        Michigan      SFF
                    SAGINAW                                      Candidate
    ------------------------------------------------------------------------
    235284         MEDILODGE OF MIDLAND           Michigan      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    235187         CAMBRIDGE EAST HEALTHCARE      Michigan      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    235330         MEDILODGE OF LIVINGSTON        Michigan      SFF
    ------------------------------------------------------------------------
    245544         VICTORY HEALTH AND             Minnesota     SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    245052         MOORHEAD REHABILITATION AND    Minnesota     SFF
                    HEALTHCARE CENTER                            Candidate
    ------------------------------------------------------------------------
    245186         BROOKVIEW A VILLA CENTER       Minnesota     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    245148         THE ESTATES AT ST. LOUIS PARK  Minnesota     SFF
                    LLC                                          Candidate
    ------------------------------------------------------------------------
    24E507         SOUTHSIDE CARE CENTER          Minnesota     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    245295         THE EMERALDS AT ST, PAUL LLC   Minnesota     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    245397         HAVENWOOD CARE CENTER          Minnesota     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    245183         NORTH RIDGE HEALTH AND REHAB   Minnesota     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    245323         WALKER REHABILITATION AND      Minnesota     SFF
                    HEALTHCARE CENTER                            Candidate
    ------------------------------------------------------------------------
    245184         ROCHESTER EAST HEALTH          Minnesota     SFF
                    SERVICES
    ------------------------------------------------------------------------
    245223         BAY VIEW NURSING AND           Minnesota     SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    255163         WOODLAND VILLAGE NURSING       Mississippi   SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    255109         DIVERSICARE OF SOUTHAVEN       Mississippi   SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    255252         MS CARE CENTER OF GREENVILLE   Mississippi   SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    255206         AURORA HEALTH AND              Mississippi   SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    25A422         WALTER B CROOK NURSING         Mississippi   SFF
                    FACILITY                                     Candidate
    ------------------------------------------------------------------------
    255263         MERIDIAN COMMUNITY LIVING      Mississippi   SFF
                    CENTER
    ------------------------------------------------------------------------
    265830         KANSAS CITY CENTER FOR         Missouri      SFF
                    REHABILITATION AND                           Candidate
                    HEALTHCARE
    ------------------------------------------------------------------------
    265807         CRESTVIEW HOME                 Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265578         NORMANDY NURSING CENTER        Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265697         GARDEN VALLEY HEALTHCARE       Missouri      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    265345         LIFE CARE CENTER OF BRIDGETON  Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265585         HILLSIDE MANOR HEALTHCARE AND  Missouri      SFF
                    REHAB CENTER                                 Candidate
    ------------------------------------------------------------------------
    265319         PARKLANE CARE AND              Missouri      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    265607         CRYSTAL CREEK HEALTH AND       Missouri      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    265366         MAPLE WOOD HEALTHCARE CENTER   Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265425         EDGEWOOD MANOR CENTER FOR      Missouri      SFF
                    REHAB AND HEALTHCARE                         Gandidate
    ------------------------------------------------------------------------
    265529         CHRISTIAN CARE HOME            Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265160         LEWIS AND CLARK GARDENS        Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265476         REDWOOD OF RAYMORE             Missouri      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    265402         RANCHO MANOR HEALTHCARE AND    Missouri      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    265510         HIDDEN LAKE CARE CENTER        Missouri      SFF
    ------------------------------------------------------------------------
    265733         ST. JOHNS PLACE                Missouri      SFF
    ------------------------------------------------------------------------
    265703         GREEN PARK SENIOR LIVING       Missouri      SFF
                    COMMUNITY
    ------------------------------------------------------------------------
    27A052         MONTANA MENTAL HEALTH NURSING  Montana       SFF
                    HOME                                         Candidate
    ------------------------------------------------------------------------
    275044         BIG SKY CARE CENTER            Montana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    275153         AWE KUALAWAACHE CARE CENTER    Montana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    275025         HERITAGE PLACE                 Montana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    275134         DEER LODGE                     Montana       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    275122         CREST NURSING HOME             Montana       SFF
    ------------------------------------------------------------------------
    285137         LIFE CARE CENTER OF OMAHA      Nebraska      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    285113         SIDNEY CARE AND                 Nebraska     SFF
                    REHABILITATION CENTER, LLC                   Candidate
    ------------------------------------------------------------------------
    285238         KEYSTONE RIDGE POST ACUTE      Nebraska      SFF
                    NURSING AND REHAB                            Candidate
    ------------------------------------------------------------------------
    285294         VALLEY VIEW SENIOR VILLAGE     Nebraska      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    285095         SCOTTSBLUFF CARE AND           Nebraska      SFF
                    REHABILITATION CENTER, LLC                   Candidate
    ------------------------------------------------------------------------
    285103         PREMIER ESTATES OF FREMONT,    Nebraska      SFF
                    LLC
    ------------------------------------------------------------------------
    295100         SIERRA RIDGE HEALTH AND        Nevada        SFF
                    WELLNESS SUITES                              Candidate
    ------------------------------------------------------------------------
    295079         MOUNTAIN VIEW HEALTH AND       Nevada        SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    295029         WHITE PINE CARE CENTER         Nevada        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    295101         DESERT HILLS POST-ACUTE AND    Nevada        SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    295083         THE HEIGHTS OF SUMMERLIN, LLC  Nevada        SFF
    ------------------------------------------------------------------------
    305005         GREENBRIAR HEALTHCARE          New           SFF
                                                   Hampshire     Candidate
    ------------------------------------------------------------------------
    305060         BEDFORD HILLS CENTER           New           SFF
                                                   Hampshire     Candidate
    ------------------------------------------------------------------------
    305055         OCEANSIDE SKILLED NURSING AND  New           SFF
                    REHABILITATION                 Hampshire     Candidate
    ------------------------------------------------------------------------
    305058         SALEMHAVEN                     New           SFF
                                                   Hampshire     Candidate
    ------------------------------------------------------------------------
    305018         DOVER CENTER FOR HEALTH AND    New           SFF
                    REHABILITATION                 Hampshire
    ------------------------------------------------------------------------
    315229         WANAQUE CENTER FOR NURSING     New Jersey    SFF
                    AND REHABILITATION, THE                      Candidate
    ------------------------------------------------------------------------
    315243         MILLVILLE CENTER               New Jersey    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    315054         OUR LADYS CENTER FOR           New Jersey    SFF
                    REHABILITATION AND HC                        Candidate
    ------------------------------------------------------------------------
    315464         CARE ONE AT EVESHAM            New Jersey    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    315235         RIVERSIDE NURSING AND          New Jersey    SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    315149         STERLING MANOR                 New Jersey    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    315216         WATERVIEWCENTER                New Jersey    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    315038         SUMMIT RIDGE CENTER            New Jersey    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    315509         ROOSEVELT CARE CENTER AT OLD   New Jersey    SFF
                    BRIDGE                                       Candidate
    ------------------------------------------------------------------------
    315147         NEWGROVE MANOR                 New Jersey    SFF
    ------------------------------------------------------------------------
    315225         RIVERFRONT REHABILITATION AND  New Jersey    SFF
                    HEALTHCARE CENTER
    ------------------------------------------------------------------------
    325116         MESCALERO CARE CENTER          New Mexico    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    325127         THE SUITES RIO VISTA           New Mexico    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    325080         LANDSUN HOMES, INC.            New Mexico    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    325059         ESPANOLA VALLEY NURSING AND    New Mexico    SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    325066         BLOOMFIELD NURSING AND         New Mexico    SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    325044         MISSION ARCH CENTER            New Mexico    SFF
    ------------------------------------------------------------------------
    335249         CAYUGA RIDGE EXTENDED CARE     New York      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    335437         ELLICOTT CENTER FOR            New York      SFF
                    REHABILITATION AND NURSING                   Candidate
    ------------------------------------------------------------------------
    335439         NEW ROC NURSING AND            New York      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    335735         BETHLEHEM COMMONS CARE CENTER  New York      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    335640         BUFFALO COMMUNITY HEALTHCARE   New York      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    335844         THE KNOLLS                     New York      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    335593         EMERALD SOUTH NURSING AND      New York      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    335798         TOWNHOUSE CENTER FOR           New York      SFF
                    REHABILITATION AND NURSING                   Candidate
    ------------------------------------------------------------------------
    335518         SARATOGA CENTER FOR REHAB AND  New York      SFF
                    SKILLED NURSING CARE                         Candidate
    ------------------------------------------------------------------------
    335377         DIAMOND HILL NURSING AND       New York      SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    335548         ONONDAGA CENTER FOR            New York      SFF
                    REHABILITATION AND NURSING                   Candidate
    ------------------------------------------------------------------------
    335338         BISHOP REHABILITATION AND      New York      SFF
                    NURSING CENTER                               Candidate
    ------------------------------------------------------------------------
    335663         SAFIRE REHABILITATION OF       New York      SFF
                    SOUTHTOWN, LLC                               Candidate
    ------------------------------------------------------------------------
    335412         COOPERSTOWN CENTER FOR         New York      SFF
                    REHABILITATION AND NURSING                   Candidate
    ------------------------------------------------------------------------
    335357         THE PINES HEALTHCARE AND       New York      SFF
                    REHAB CENTERS OLEAN CAMPUS                   Candidate
    ------------------------------------------------------------------------
    335471         UTICA REHABILITATION AND       New York      SFF
                    NURSING CENTER
    ------------------------------------------------------------------------
    335840         MEDFORD MULTICARE CENTER FOR   New York      SFF
                    LIVING
    ------------------------------------------------------------------------
    345004         PERSON MEMORIAL HOSPITAL       North         SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    345475         TSALI CARE CENTER              North         SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    345115         ACCORDIUS HEALTH AT SALISBURY   North        SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    345155         RANDOLPH HEALTH AND            North         SFF
                    REHABILITATION CENTER          Carolina      Candidate
    ------------------------------------------------------------------------
    345213         UNIVERSAL HEALTH CARE          North         SFF
                    LILLINGTON                     Carolina      Candidate
    ------------------------------------------------------------------------
    345370         PINEHURST HEALTHCARE AND       North         SFF
                    REHAB                          Carolina      Candidate
    ------------------------------------------------------------------------
    345144         PINE RIDGE HEALTH AND          North         SFF
                    REHABILITATION CENTER          Carolina      Candidate
    ------------------------------------------------------------------------
    345534         SANFORD HEALTH AND             North         SFF
                    REHABILITATION CO              Carolina      Candidate
    ------------------------------------------------------------------------
    345263         MACON VALLEY NURSING AND       North         SFF
                    REHABILITATION CENTER          Carolina
    ------------------------------------------------------------------------
    345293         RICHMOND PINES HEALTHCARE AND  North         SFF
                    REHABILITATION CENTER          Carolina
    ------------------------------------------------------------------------
    355042         WESTERN HORIZONS CARE CENTER   North Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    355080         DUNSEITH COM NURSING HOME      North Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    355122         RICHARDTON HEALTH CENTER INC.  North Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    355031         MINOT HEALTH AND REHAB, LLC    North Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    355053         KNIFE RIVER CARE CENTER        North Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    355074         TRINITY HOMES                  North Dakota  SFF
    ------------------------------------------------------------------------
    365559         ROLLING HILLS REHAB AND CARE   Ohio          SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    366313         SCIOTO POINTE                  Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    366003         CRYSTAL CARE CENTER OF         Ohio          SFF
                    FRANKLIN FURNACE                             Candidate
    ------------------------------------------------------------------------
    365435         LOGAN CARE AND REHABILITATION  Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    366400         BEAVERCREEK HEALTH AND REHAB   Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365725         LAURELS OF HILLIARD THE        Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365874         HUDSON ELMS NURSING HOME       Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365272         WHETSTONE GARDENS AND CARE     Ohio          SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    365998         HOLZER SENIOR CARE CENTER      Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365342         CARRIAGE INN OF CADIZ INC.     Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365925         PREMIER ESTATES OF             Ohio          SFF
                    CINCINNATI--RIVERSIDE                        Candidate
    ------------------------------------------------------------------------
    366202         CRYSTAL CARE OF COAL GROVE     Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    366300         CANTON CHRISTIAN HOME          Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365421         COLUMBUS COLONY ELDERLY CARE   Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    366101         ELIZA BRYANT CENTER            Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365696         CONTINUING HEALTHCARE AT       Ohio          SFF
                    FOREST HILL                                  Gandidate
    ------------------------------------------------------------------------
    366278         STOW GLEN HEALTH CARE CENTER   Ohio          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    365425         NEWARK CARE AND                Ohio          SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    366207         ISABELLE RIDGWAY POST ACUTE    Ohio          SFF
                    CARE CAMPUS LLC
    ------------------------------------------------------------------------
    365296         FAIRLAWN REHABAND NURSING      Ohio          SFF
                    CENTER
    ------------------------------------------------------------------------
    365792         MARIETTA CENTER                Ohio          SFF
    ------------------------------------------------------------------------
    365206         UPTOIAN WESTERVILLE            Ohio          SFF
                    HEALTHCARE
    ------------------------------------------------------------------------
    365643         PORTSMOUTH HEALTH AND REHAB    Ohio          SFF
    ------------------------------------------------------------------------
    375533         GEARY COMMUNITY NURSING HOME   Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375275         WARR ACRES NURSING CENTER      Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375339         EDWARDS REDEEMER HEALTH AND    Oklahoma      SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    375331         HILLCREST NURSING CENTER       Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375465         COLONIAL MANOR NURSING HOME,   Oklahoma      SFF
                    INC.                                         Candidate
    ------------------------------------------------------------------------
    375341         COUNTRYSIDE ESTATES            Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375400         WINDSOR HILLS NURSING CENTER   Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375386         QUAIL RIDGE LIVING CENTER,     Oklahoma      SFF
                    INC.                                         Candidate
    ------------------------------------------------------------------------
    375466         DRUMRIGHT NURSING HOME         Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375206         LINDSAY NURSING AND REHAB      Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375513         THE GOLDEN RULE HOME           Oklahoma      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    375168         AMBASSAOOR MANOR NURSING       Oklahoma      SFF
                    CENTER
    ------------------------------------------------------------------------
    385182         CRESWELL HEALTH AND            Oregon        SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    385264         SECORA REHABILITATION OF       Oregon        SFF
                    CASCADIA                                     Candidate
    ------------------------------------------------------------------------
    385277         CREEKSIDE REHABILITATION AND   Oregon        SFF
                    NURSING                                      Candidate
    ------------------------------------------------------------------------
    38E157         ROSE CITY NURSING HOME         Oregon        SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    385225         PRESTIGE POST-ACUTE AND REHAB  Oregon        SFF
                    CENTER--MCMINNVILLE
    ------------------------------------------------------------------------
    396129         WILLOW TERRACE                 Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395892         GROVE AT LATROBE, THE          Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395423         CORNER VIEW NURSING AND        Pennsylvania  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    396099         CONNER-WLLIAMS NURSING HOME    Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395964         SHIPPENSBURG HEALTH CARE       Pennsylvania  SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    395330         CHELTENHAM NURSING AND REHAB   Pennsylvania  SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    395015          BRIGHTON REHABILITATION AND   Pennsylvania  SFF
                    WELLNESS CENTER                              Candidate
    ------------------------------------------------------------------------
    395881         MOUNTAIN VIEW CARE AND         Pennsylvania  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    395830         MEADOW VIEW NURSING CENTER     Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395334         CHESTNUT HILL LODGE HEALTH     Pennsylvania  SFF
                    AND REHAB CENTER                             Candidate
    ------------------------------------------------------------------------
    395142         GARDENS AT BLUE RIDGE, THE     Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395074         SPRING CREEK REHABILITATION    Pennsylvania  SFF
                    AND NURSING CENTER                           Candidate
    ------------------------------------------------------------------------
    395288         GARDENS AT STROUD, THE         Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395467         CATHEDRAL VILLAGE              Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395077         GARDEN SPRING NURSING AND      Pennsylvania  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    396056         WILLIAM PENN CARE CENTER       Pennsylvania  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    395223         GARDENS AT WEST SHORE, THE     Pennsylvania  SFF
    ------------------------------------------------------------------------
    395500         TWIN LAKES REHABILITATION AND  Pennsylvania  SFF
                    HEALTHCARE CENTER
    ------------------------------------------------------------------------
    395382         GROVE AT NORTH HUNTINGDON,     Pennsylvania  SFF
                    THE
    ------------------------------------------------------------------------
    395613         FALLING SPRING NURSING AND     Pennsylvania  SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    415113         TOCKWOTTON ON THE WATERFRONT   Rhode Island  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    415049         HEBERT NURSING HOME            Rhode Island  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    415050         SAINT ELIZABETH MANOR EAST     Rhode Island  SFF
                    BAY                                          Candidate
    ------------------------------------------------------------------------
    415052         CHARLESGATE NURSING CENTER     Rhode Island  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    415027         OAK HILL HEALTH AND            Rhode Island  SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    425119         COMMANDER NURSING CENTER       South         SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    425310         BLUE RIDGE OF SUMTER           South         SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    425147         LIFE CARE CENTER OF HILTON     South         SFF
                    HEAD                           Carolina      Candidate
    ------------------------------------------------------------------------
    425391         COMPASS POST ACUTE             South         SFF
                    REHABILITATION                 Carolina      Candidate
    ------------------------------------------------------------------------
    425400         PRUITTHEALTH-BLYTHEWOOD        South         SFF
                                                   Carolina      Candidate
    ------------------------------------------------------------------------
    425082         RIVERSIDE HEALTH AND REHAB     South         SFF
                                                   Carolina
    ------------------------------------------------------------------------
    435031         COVINGTON CARE AND             South Dakota  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    435115         PALISADE HEALTHCARE CENTER     South Dakota  SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    435064         BLACK HILLS CARE AND           South Dakota  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    435051         MEADOWBROOK CARE AND           South Dakota  SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    435032         REGIONAL HEALTH CARE CENTER    South Dakota  SFF
    ------------------------------------------------------------------------
    445017         ASBURY PLACE AT MARYVILLE      Tennessee     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    445339         BAILEY PARK CLC                Tennessee     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    445267         GREENHILLS HEALTH AND          Tennessee     SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    445516         CREEKSIDE CENTER FOR           Tennessee     SFF
                    REHABILITATION AND HEALING                   Candidate
    ------------------------------------------------------------------------
    445114         WESTMORELAND HEALTH AND        Tennessee     SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    445283         RAINBOW REHAB AND HEALTHCARE   Tennessee     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    445446         DYERSBURG NURSING AND          Tennessee     SFF
                    REHABILITATION, INC.                         Candidate
    ------------------------------------------------------------------------
    445483         CORNERSTONE VILLAGE            Tennessee     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    445236         LIFE CARE CENTER OF COLUMBIA   Tennessee     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    445174         BROOKHAVEN MANOR               Tennessee     SFF
    ------------------------------------------------------------------------
    445354         LAUDERDALE COMMUNITY LIVING    Tennessee     SFF
                    CENTER
    ------------------------------------------------------------------------
    675553         HERITAGE HEALTHCARE RESIDENCE  Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455575         RETAMA MANOR NURSING CENTER    Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455974         OAK CREST NURSING CENTER       Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675365         PASADENA CARE CENTER           Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    676383         INSPIRE NEW BOSTON             Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675052         LAPORTE HEALTHCARE CENTER      Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455533         SENIOR CARE OF WINDCREST       Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675079         FOCUSED CARE AT ALLENBROOK     Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675536         HILL COUNTRY REHAB AND         Texas         SFF
                    NURSING CENTER                               Candidate
    ------------------------------------------------------------------------
    675396         RETAMA MANOR/LAREDO SOUTH      Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675284         MISSION MANOR HEALTHCARE       Texas         SFF
                    RESIDENCE                                    Candidate
    ------------------------------------------------------------------------
    676307         OAK VILLAGE HEALTHCARE LTC     Texas         SFF
                    PARTNERS. INC.                               Candidate
    ------------------------------------------------------------------------
    455517         GARDENDALE REHABILITATION AND  Texas         SFF
                    NURSING CENTER                               Candidate
    ------------------------------------------------------------------------
    455359         CORPUS NURSING AND             Texas         SFF
                    REHABILITATION LP                            Candidate
    ------------------------------------------------------------------------
    676354         SILVERADO HERMANN PARK         Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455725         OAKMONT HEALTHCARE AND         Texas         SFF
                    REHABILITATION CENTER OF                     Candidate
                    HUMBLE
    ------------------------------------------------------------------------
    455528         RETAMA MANOR NURSING CENTER/   Texas         SFF
                    LAREDO--WEST                                 Candidate
    ------------------------------------------------------------------------
    455951         REGAL HEALTHCARE RESIDENCE     Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455020         COLONIAL MANOR CARE CENTER     Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455557         THE PALMS NURSING AND          Texas         SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    675597         FREE STATE CRESTWOOD           Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    455477         LAKE JACKSON HEALTHCARE        Texas         SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    675231         JACINTO NURSING AND            Texas         SFF
                    REHABILITATION CENTER, LLC                   Candidate
    ------------------------------------------------------------------------
    676325         TRISUN CARE CENTER--LAKESIDE   Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    676227         COPPERAS HOLLOW NURSING AND    Texas         SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    676051         BRIARCLIFF SKILLED NURSING     Texas         SFF
                    FACILITY                                     Candidate
    ------------------------------------------------------------------------
    455618         EDEN HOME INC.                 Texas         SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    675078         GALLERIA RESIDENCE AND         Texas         SFF
                    REHABILITATION CENTER                        Candidate
    ------------------------------------------------------------------------
    676251         LEGEND OAKS HEALTHCARE AND     Texas         SFF
                    REHABILITATION--NORTH
    ------------------------------------------------------------------------
    675612         THE WESTBURY PLACE             Texas         SFF
    ------------------------------------------------------------------------
    675906         BENBROOK NURSING AND           Texas         SFF
                    REHABILITATION CENTER
    ------------------------------------------------------------------------
    675715         PECAN VALLEY HEALTHCARE        Texas         SFF
                    RESIDENCE
    ------------------------------------------------------------------------
    675670         TRISUN CARE CENTER--WESTWOOD   Texas         SFF
    ------------------------------------------------------------------------
    46A064         PINE CREEK REHABILITATION AND  Utah          SFF
                    NURSING                                      Candidate
    ------------------------------------------------------------------------
    465075         ROCKY MOUNTAIN CARE--HUNTER    Utah          SFF
                    HOLLOW                                       Candidate
    ------------------------------------------------------------------------
    465108         COPPER RIDGE HEALTH CARE       Utah          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    465086         MOUNTAIN VIEW HEALTH SERVICES  Utah          SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    46A071         LOMOND PEAK NURSING AND        Utah          SFF
                    REHABILITATION, LLC
    ------------------------------------------------------------------------
    475052         GILL ODD FELLOWS HOME          Vermont       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    475019         ST. JOHNSBURY HEALTH AND       Vermont       SFF
                    REHAB                                        Candidate
    ------------------------------------------------------------------------
    475014         BURLINGTON HEALTH AND REHAB    Vermont       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    475026         NEWPORT HEALTH CARE CENTER     Vermont       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    475040         GREEN MOUNTAIN NURSING AND     Vermont       SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    475044         PINES REHAB AND HEALTH CENTER  Vermont       SFF
    ------------------------------------------------------------------------
    495362         ASHLAND NURSING AND            Virginia      SFF
                    REHABILITATION                               Candidate
    ------------------------------------------------------------------------
    495252         BATTLEFIELD PARK HEALTHCARE    Virginia      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    495246         WOODMONT CENTER                Virginia      SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    495336         AUGUSTA NURSING AND REHAB      Virginia      SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    495327         ENVOY OF WESTOVER HILLS        Virginia      SFF
    ------------------------------------------------------------------------
    505516         WASHINGTON SOLDIERS HOME       Washington    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    505527         PRESTIGE POST-ACUTE AND REHAB  Washington     SFF
                    CENTER--EDMONDS                              Candidate
    ------------------------------------------------------------------------
    505202         TALBOT CENTER FOR REHAB AND    Washington    SFF
                    HEALTHCARE                                   Candidate
    ------------------------------------------------------------------------
    505214         THE OAKS AT FOREST BAY         Washington    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    505114         GARDENS ON UNIVERSITY, THE     Washington    SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    505511         PARAMOUNT REHABILITATION AND   Washington    SFF
                    NURSING
    ------------------------------------------------------------------------
    515102         PARKERSBURG CENTER             West          SFF
                                                   Virginia      Candidate
    ------------------------------------------------------------------------
    515035         RIVERSIDE HEALTH AND           West          SFF
                    REHABILITATION CENTER          Virginia      Candidate
    ------------------------------------------------------------------------
    515066         DUNBAR CENTER                  West          SFF
                                                   Virginia      Candidate
    ------------------------------------------------------------------------
    515060         HERITAGE CENTER                West          SFF
                                                   Virginia      Candidate
    ------------------------------------------------------------------------
    515049         MORGANTOWN HEALTH AND          West          SFF
                    REHABILITATION CENTER          Virginia      Candidate
    ------------------------------------------------------------------------
    515140         TRINITY HEALTH CARE OF LOGAN   West          SFF
                                                   Virginia
    ------------------------------------------------------------------------
    525616         CROSSROADS CARE CENTER OF      Wisconsin     SFF
                    MAYVILLE                                     Candidate
    ------------------------------------------------------------------------
    525424         BROOKFIELD REHAB AND           Wisconsin     SFF
                    SPECIALTY CARE CENTER                        Candidate
    ------------------------------------------------------------------------
    525069         MAPLEWOOD CENTER               Wisconsin     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    525504         AUTUMN LAKE HEALTHCARE AT      Wisconsin     SFF
                    GREENFIELD                                   Candidate
    ------------------------------------------------------------------------
    525407         ATRIUM POST ACUTE CARE OF      Wisconsin     SFF
                    APPLETON                                     Candidate
    ------------------------------------------------------------------------
    525242         KENSINGTON CARE AND REHAB      Wisconsin     SFF
                    CENTER                                       Candidate
    ------------------------------------------------------------------------
    525462         MAPLEWOOD OF SAUK PRAIRIE      Wisconsin     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    525271         ALDEN ESTATES OF COUNTRYSIDE,  Wisconsin     SFF
                    INC.                                         Candidate
    ------------------------------------------------------------------------
    525578         CEDARBURG HEALTH SERVICES      Wisconsin     SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    525427         BAY AT MAPLE RIDGE HEALTH AND  Wisconsin     SFF
                    REHABILITATION, THE
    ------------------------------------------------------------------------
    525072         KARMENTA CENTER                Wisconsin     SFF
    ------------------------------------------------------------------------
    535042         SHEPHERD OF THE VALLEY         Wyoming       SFF
                    REHABILITATION AND WELLNESS                  Candidate
    ------------------------------------------------------------------------
    535034         WESTWARD HEIGHTS CARE CENTER   Wyoming       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    535026         SHERIDAN MANOR                 Wyoming       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    535021         WYOMING RETIREMENT CENTER      Wyoming       SFF
                                                                 Candidate
    ------------------------------------------------------------------------
    535051         THERMOPOLIS REHABILITATION     Wyoming       SFF
                    AND WELLNESS                                 Candidate
    ------------------------------------------------------------------------
    535025         CHEYENNE HEALTH CARE CENTER    Wyoming       SFF
    ------------------------------------------------------------------------

                                     ______

         Prepared Statement of John E. Dicken, Director, Health Care,
                        Government Accountability Office

                  Nursing Homes: Improved Oversight Needed to
                      Better Protect Residents From Abuse

        Chairman Grassley, Ranking Member Wyden, and members of the
    committee, I am pleased to be here today to discuss our recent report
    on the abuse of nursing home residents and the Centers for Medicare and
    Medicaid Services' (CMS) oversight.\1\ Nationwide, about 1.4 million
    elderly or disabled individuals receive care in more than 15,500
    nursing homes. These nursing home residents often have physical or
    cognitive limitations that can leave them particularly vulnerable to
    abuse. Abuse of nursing home residents can occur in many forms--
    including physical, mental, verbal, and sexual--and can be committed by
    staff, residents, or others in the nursing home. Any incident of abuse
    is a serious occurrence and can result in potentially devastating
    consequences for residents, including lasting mental anguish, serious
    injury, or death. News stories in recent years have noted disturbing
    examples of nursing home residents who have been sexually assaulted and
    physically abused. However, little is known about the full scope of
    nursing home abuse, as incidents of abuse may be underreported.
    ---------------------------------------------------------------------------
        \1\ GAO, Nursing Homes: Improved Oversight Needed to Better Protect
    Residents From Abuse. GAO-19-433 (Washington, DC: June 13, 2019).

        Federal law mandates that nursing homes receiving Medicare or
    Medicaid payments ensure that residents are free from abuse. To help
    ensure this, CMS, an agency within the Department of Health and Human
    Services (HHS), defines the quality standards that nursing homes must
    meet in order to participate in the Medicare and Medicaid programs.\2\
    To monitor compliance with these standards, CMS enters into agreements
    with agencies in each State government--known as State survey
    agencies--and oversees the work the State survey agencies do. This work
    includes conducting required, comprehensive, on-site standard surveys
    of every nursing home approximately once each year and investigating
    both complaints from the public and incidents self-reported by the
    nursing home (referred to as facility-
    reported incidents) regarding resident care or safety.\3\ If a surveyor
    determines that a nursing home violated a Federal standard during a
    survey or investigation, then the home receives a deficiency citation,
    also known as a deficiency. In addition to State survey agencies, there
    are other State and local agencies that may be involved in
    investigating abuse in nursing homes, including Adult Protective
    Services, local law enforcement, and Medicaid Fraud Control Units
    (MFCU) in each State, which are tasked with investigating and
    prosecuting a variety of health care-related crimes.
    ---------------------------------------------------------------------------
        \2\ CMS defines abuse in its guidance, the State Operations Manual
    (dated November 22, 2017), as ``the willful infliction of injury,
    unreasonable confinement, intimidation, or punishment with resulting
    physical harm, pain, or mental anguish. Abuse also includes the
    deprivation by an individual, including a caretaker, of goods or
    services that are necessary to attain or maintain physical, mental, and
    psychosocial well-being.'' This testimony addresses physical abuse,
    mental, and verbal abuse--which we refer to as ``mental/verbal
    abuse''--and sexual abuse but does not address other forms of abuse,
    such as financial abuse or neglect.
        \3\ By law, every nursing home receiving Medicare or Medicaid
    payment must undergo a standard survey at least once every 15 months,
    with a Statewide average interval for surveys not to exceed 12 months.
    42 U.S.C. Sec. Sec. 1395i-3(g)(1)(A), (g)(2)(A)(iii), 1396r(g)(1)(A),
    (g)(2)(A)(iii).
        State survey agencies are also required to investigate complaints
    and facility-reported incidents filed with State survey agencies. 42
    U.S.C. Sec. Sec. 1395i-3(g)(1)(C), 1396r(g)(1)(C).

        We have previously reported on problems in nursing home quality,
    including challenges protecting residents from abuse and weaknesses in
    CMS's oversight. For example, in multiple reports dating back to 1998,
    we have identified weaknesses in Federal and State activities designed
    to correct quality problems in nursing homes. Specifically, in a 2002
    report, we found that CMS needed to do more to protect nursing home
    residents from abuse, and we made five recommendations to help CMS
    facilitate the reporting, investigation, and prevention of abuse in
    nursing homes.\4\ More recently, in April 2019 we reported that CMS had
    failed to address gaps in Federal oversight of nursing home abuse
    investigations in Oregon--an issue that we uncovered during the course
    of our broader work on nursing home resident abuse.\5\ Further, reports
    by the HHS Office of the Inspector General (OIG) have also reviewed
    incidents of resident abuse and raised concerns about CMS's
    procedures.\6\
    ---------------------------------------------------------------------------
        \4\ One of these recommendations was implemented--that CMS clarify
    the definition of abuse and otherwise ensure that States apply that
    definition consistently and appropriately. While CMS generally agreed
    with the other four recommendations, they were closed as not
    implemented. See GAO, Nursing Homes: More Can Be Done to Protect
    Residents From Abuse, GAO-02-312 (Washington, DC: March 1, 2002).
        \5\ GAO, Management Report: CMS Needs to Address Gaps in Federal
    Oversight of Nursing Home Abuse Investigations That Persisted in Oregon
    for at Least 15 Years, GAO-19-313R (Washington, DC: April 15, 2019).
        \6\ For example, see Joanne M. Chiedi, Office of Inspector General,
    HHS, Incidents of Potential Abuse and Neglect at Skilled Nursing
    Facilities Were Not Always Reported and Investigated, A-01-16-00509
    (Washington, DC, June 7, 2019).

        My testimony today highlights key findings and recommendations from
    ---------------------------------------------------------------------------
    our June 2019 report, which examined:

            1.  the trends and types of abuse occurring in nursing homes in
            recent years,

            2.  the risk factors for abuse and challenges facing
            stakeholder agencies involved in investigating abuse in nursing
            homes, and

            3.  CMS's oversight intended to ensure that nursing home
            residents are free from abuse.

        To conduct the work for our report, we reviewed Federal laws and
    CMS guidance, analyzed CMS data, and interviewed stakeholders from
    selected States. First, we reviewed Federal laws and CMS guidance to
    determine the Federal standards and associated deficiency codes related
    to resident abuse. Second, we analyzed data provided by CMS to identify
    the number and severity of abuse deficiencies cited by surveyors in all
    50 States and Washington, DC, between 2013 and 2017.\7\ Because abuse
    and perpetrator type are not readily identifiable in CMS's data, we
    identified this information by reviewing a randomly selected
    representative sample of 400 CMS abuse deficiency narratives written by
    State surveyors from 2016 through 2017 that describe the substantiated
    abuse. Finally, we interviewed CMS officials and officials from a non-
    generalizable sample of survey agencies from five States--Delaware,
    Georgia, Ohio, Oregon, and Virginia. We also interviewed other
    stakeholders in these States, including officials from each State's
    long-term care ombudsmen, law enforcement, MFCUs, and, when
    appropriate, Adult Protective Services. We also visited nursing homes
    and spoke to administrators and clinical staff in each of these States.
    We assessed CMS's oversight activities in the context of the Federal
    standards for internal control.\8\ Further details on our scope and
    methodology are included in our report. The work on which this
    statement is based was performed in accordance with generally accepted
    government auditing standards.
    ---------------------------------------------------------------------------
        \7\ CMS restructured its deficiency code system beginning on
    November 28, 2017. Due to these coding changes, we did not analyze CMS
    data cited by surveyors after the implementation of that change.
        \8\ GAO, Standards for Internal Control in the Federal Government,
    GAO-14-704G (Washington, DC: September 10, 2014). Internal control is a
    process effected by an entity's oversight body, management, and other
    personnel that provides reasonable assurance that the objectives of an
    entity will be achieved.
    ---------------------------------------------------------------------------
    improved cms oversight is needed to better protect residents from abuse
        In our report, we found that, while abuse deficiencies cited in
    nursing homes were relatively rare from 2013 through 2017, they became
    more frequent during that time, with the largest increase in severe
    cases. Specifically, abuse deficiencies comprised less than 1 percent
    of the total deficiencies in each of the years we examined, which is
    likely conservative. Abuse in nursing homes is often underreported by
    residents, family, staff, and the State survey agency, according to CMS
    officials and stakeholders we interviewed. However, abuse deficiencies
    more than doubled--from 430 in 2013 to 875 in 2017--over the 5-year
    period.\9\ (See appendix I.) In addition, abuse deficiencies cited in
    2017 were more likely to be categorized at the highest levels of
    severity--deficiencies causing actual harm to residents or putting
    residents in immediate jeopardy--than they were in 2013. In light of
    the increased number and severity of abuse deficiencies, it is
    imperative that CMS have strong nursing home oversight in place to
    protect residents from abuse; however, we found oversight gaps that may
    limit the agency's ability to do so. Specifically, we found that CMS:
    (1) cannot readily access data on the type of abuse or type of
    perpetrator, (2) has not provided guidance on what information nursing
    homes should include in
    facility-reported incidents, and (3) has numerous gaps in its referral
    process that can result in delayed and missed referrals to law
    enforcement.
    ---------------------------------------------------------------------------
        \9\ The trend for abuse deficiencies is in contrast to the trend
    across all types of deficiencies, which decreased about 1 percent
    between 2013 and 2017. Specifically, all deficiency types increased at
    a much slower rate than abuse deficiencies each year through 2016 and
    then decreased slightly through the period examined in 2017.
    ---------------------------------------------------------------------------
      information on abuse and perpetrator types is not readily available
        We found that CMS's data do not allow for the type of abuse or
    perpetrator to be readily identified by the agency. Specifically, CMS
    does not require the State survey agencies to record abuse and
    perpetrator type and, when this information is recorded, it cannot be
    easily analyzed by CMS. Therefore, we reviewed a representative sample
    of 400 CMS narrative descriptions--written by State surveyors--
    associated with abuse deficiencies cited in 2016 and 2017 to identify
    the most common types of abuse and perpetrators. From this review, we
    found that physical abuse (46 percent) and mental/verbal abuse (44
    percent) occurred most often in nursing homes, followed by sexual abuse
    (18 percent).\10\ Furthermore, staff, which includes those working in
    any part of the nursing home, were more often the perpetrators (58
    percent) of abuse in deficiency narratives, followed by resident
    perpetrators (30 percent) and other types of perpetrators (2
    percent).\11\ (See appendix II for examples from our abuse deficiency
    narrative review.)
    ---------------------------------------------------------------------------
        \10\ Percentages may not add to 100 either because some narratives
    had multiple types of abuse, were missing or incomplete, or were not
    consistent with CMS's definition of abuse. Upper and lower confidence
    levels were: physical abuse (41 to 51 percent), mental/verbal abuse (40
    to 49 percent), and sexual abuse (14 to 22 percent).
        \11\ Upper and lower confidence levels were: staff-on-resident
    abuse (54 to 63 percent), resident-on-resident abuse (26 to 35
    percent), and abuse by others (1 to 3 percent). Other types of
    perpetrators can include family members of residents or other visitors.

        CMS officials told us they have not conducted a systematic review
    to gather information on abuse and perpetrator type. Further, based on
    professional experience, literature, and ad hoc analyses of deficiency
    narrative descriptions, CMS officials told us they believe the majority
    of abuse is committed by nursing home residents and that physical and
    sexual abuse were the most common types.\12\ This understanding does
    not align with our findings on the most common types of abuse and
    perpetrators. Without the systematic collection and monitoring of
    specific abuse and perpetrator data, CMS lacks key information and,
    therefore, cannot take actions--such as tailoring prevention and
    investigation activities--to address the most prevalent types of abuse
    or perpetrators.\13\ To address this, we recommended that CMS require
    State survey agencies to report abuse and perpetrator type in CMS's
    databases for deficiency, complaint, and facility-reported incident
    data and that CMS systematically assess trends in these data. HHS
    concurred with our recommendation.
    ---------------------------------------------------------------------------
        \12\ CMS officials noted that some incidents resulting from
    resident altercations--particularly those that do not show a willful
    intent to harm--may not have been cited as an abuse deficiency by some
    State survey agencies and may have been cited as other deficiencies not
    specified as abuse. This may have contributed to the difference between
    CMS's understanding of the prevalence of resident-to-resident abuse and
    what their abuse deficiency data show.
        \13\ The lack of a systematic review is also inconsistent with
    Federal internal control standards directing management to use quality
    information to achieve program objectives (GAO-14-704G).
    ---------------------------------------------------------------------------
                facility-reported incidents lack key information
        Despite Federal law requiring nursing homes to self-report
    allegations of abuse and covered individuals to report reasonable
    suspicions of crimes against residents, CMS has not provided guidance
    to nursing homes on what information they should include in facility-
    reported incidents, contributing to a lack of information for State
    survey agencies and delays in their investigations.\14\ Specifically,
    officials from each of the five State survey agencies told us that the
    documentation they receive from nursing homes for facility-reported
    incidents can lack key information that affects their ability to triage
    incidents and determine whether an investigation should occur and, if
    so, how soon. For example, officials from two State survey agencies we
    interviewed said they sometimes have to conduct significant follow-up
    with the nursing homes to obtain the information they need to
    prioritize the incident for investigation--follow-up that delays and
    potentially negatively affects investigations.\15\ Incomplete incident
    reports from nursing homes are particularly problematic given that
    nearly half of abuse deficiencies cited between 2013 and 2017 were
    identified through facility-reported incidents, which is dramatically
    different than the approximately 5 percent of all types of deficiencies
    that were identified in this manner. Therefore, facility-reported
    incidents play a unique and significant role in identifying abuse
    deficiencies in nursing homes, making it critical that incident reports
    provided by nursing homes include the information necessary for State
    survey agencies to prioritize and investigate. To address this issue,
    we recommended that CMS develop and disseminate guidance--including a
    standardized form--to all State survey agencies on the information
    nursing homes and covered individuals should include on facility-
    reported incidents. HHS concurred with our recommendation.
    ---------------------------------------------------------------------------
        \14\ 42 CFR Sec. 483.12(c)(1); 42 U.S.C. Sec. 1320b-25(b). These
    covered individuals include nursing home owners, operators, and
    employees, among others.
        \15\ The lack of guidance from CMS on the information that State
    survey agencies should collect on facility-reported incidents is
    inconsistent with Federal internal control standards directing
    management to use quality information to achieve program objectives
    (GAO-14-704G).
    ---------------------------------------------------------------------------
               gaps exist in cms process for state survey agency
                     referrals to law enforcement and mfcus
        We found gaps in CMS's process for referring incidents of abuse to
    law enforcement and, if appropriate, to MFCUs. These gaps may limit
    CMS's ability to ensure that nursing homes meet Federal requirements
    for residents to be free from abuse. Specifically, we identified issues
    related to (1) referring abuse to law enforcement in a timely manner,
    (2) tracking abuse referrals, (3) defining what it means to
    substantiate an allegation of abuse--that is, the determination by the
    State survey agency that evidence supports the abuse allegation, and
    (4) sharing information with law enforcement. We made recommendations
    to CMS to address each of these four gaps in the referral process, and
    HHS concurred with each recommendation.

        For instance, because CMS requires a State survey agency to make
    referrals to law enforcement only after abuse is substantiated--a
    process that can often take weeks or months--law enforcement
    investigations can be significantly delayed. Officials from one law
    enforcement agency and two MFCUs we interviewed told us the delay in
    receiving referrals limits their ability to collect evidence and
    prosecute cases--for example, bedding associated with potential sexual
    abuse may have been washed, and a victim's wounds may have healed.\16\
    As such, we recommended that CMS require State survey agencies to
    immediately refer to law enforcement any reasonable suspicion of a
    crime against a resident. HHS concurred with our recommendation.
    ---------------------------------------------------------------------------
        \16\ Such delays are inconsistent with standards for internal
    control, which state that management should communicate quality
    information externally so that external parties can help the entity
    achieve its objectives (GAO-14-704G).

        In conclusion, while nursing home abuse is relatively rare, our
    review shows that abuse deficiencies cited in nursing homes are
    becoming more frequent, with the largest increase in severe cases. It
    is imperative that CMS have more complete and readily available
    information on abuse to improve its oversight of nursing homes. It is
    also essential that CMS require State survey agencies to immediately
    report incidents to law enforcement if they have a reasonable suspicion
    that a crime against a resident has occurred in order to ensure a
    prompt investigation of these incidents. As illustrated by this
    hearing, continued focus from Congress, CMS, GAO, OIG, State survey
    agencies, and others are important steps towards ensuring that nursing
    ---------------------------------------------------------------------------
    home residents are protected from abuse.

        Chairman Grassley, Ranking Member Wyden, and members of the
    committee, this concludes my statement. I would be pleased to respond
    to any questions that you may have at this time.
                     gao contact and staff acknowledgments
        For further information about this statement, please contact John
    E. Dicken at (202) 512-7114 or dickenj@gao.gov. Contact points for our
    Offices of Congressional Relations and Public Affairs may be found on
    the last page of this testimony. In addition to the contact named
    above, key contributors to this statement were Karin Wallestad
    (Assistant Director), Sarah-Lynn McGrath (Analyst-in-Charge), Luke
    Baron, Julianne Flowers, Laurie Pachter, Kathryn Richter, and Jennifer
    Whitworth.

      Appendix I: Severity of Cited Abuse Deficiencies, 2013 through 2017

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Appendix II: Examples From a Representative Sample of Nursing Home
                     Abuse Deficiency Narratives, 2016-2017

      Table 1: Examples From a Representative Sample of Nursing Home Abuse
                        Deficiency Narratives, 2016-2017
    ------------------------------------------------------------------------
      Type(s) of       Type(s) of                                 Scope and
         abuse        perpetrator         Narrative details        severity
    ------------------------------------------------------------------------
    Physical abuse  Staff            A nurse aide grabbed a      Isolated
                                      resident by both wrists,    scope,
                                      causing the resident to     immediate
                                      fall to the floor and       jeopardy
                                      resulting in bruising to
                                      the resident's left wrist
                                      and left hip.
    ------------------------------------------------------------------------
    Physical and    Resident         Resident 1, who had severe  Isolated
     sexual abuse                     cognitive impairment,       scope,
                                      kicked another Resident     actual
                                      2, who also had             harm
                                      significant cognitive
                                      impairment, in the face.
                                      Separately, Resident 3
                                      shoved Resident 4 against
                                      a door, causing Resident
                                      4 to fall. After being
                                      helped up by staff,
                                      Resident 4 was hit by
                                      Resident 3. The same
                                      resident (Resident 3)
                                      later slapped a different
                                      resident--Resident 5 in
                                      the head. Also in the
                                      narrative, Resident 6
                                      fondled the breast of
                                      Resident 7, who appeared
                                      confused by the action.
    ------------------------------------------------------------------------
    Sexual and      Resident and     A cognitively impaired      Widespread,
     mental/verbal   staff            resident (Resident 1)       immediate
     abuse                            with a history of           jeopardy
                                      inappropriate sexual
                                      behavior grabbed Resident
                                      2 in a sexually
                                      inappropriate manner.
                                      Resident 1 then grabbed
                                      the ``private area'' of
                                      Resident 3. Separately, a
                                      nursing home dietary
                                      staff member was verbally
                                      abusive to a resident
                                      (Resident 4), yelling and
                                      antagonizing the
                                      resident.
    ------------------------------------------------------------------------
    Sexual abuse    Staff            A nurse aide found a        Isolated
                                      medical technician          scope,
                                      sexually assaulting a       immediate
                                      resident in the             jeopardy
                                      resident's room. The
                                      resident was non-verbal,
                                      with severe dementia, and
                                      was totally dependent on
                                      staff for mobility. The
                                      medical technician
                                      ``begged'' the nursing
                                      assistant not to tell
                                      anyone about witnessing
                                      the assault, and the
                                      medical technician later
                                      told a supervisor they
                                      had ``had this problem
                                      for a while.''
    ------------------------------------------------------------------------
    Mental/verbal   Other            Resident 1 had an argument  Isolated
     abuse                            with Resident 2. Resident   scope, no
                                      2's family member arrived   actual
                                      and threatened to kick      harm with
                                      Resident 1 out of her       a
                                      wheelchair if she did not   potential
                                      stay away from Resident     for more
                                      2. Resident 1 was deeply    than
                                      concerned and felt          minimal
                                      frightened every time       harm
                                      Resident 2's family
                                      member visited and she
                                      said that she had a
                                      nightmare about the
                                      family member.
    ------------------------------------------------------------------------
    Mental/verbal   Staff            A nurse assistant told a    Isolated
     abuse                            resident to ``shut up and   scope,
                                      (expletive) off'' when      actual
                                      the resident requested to   harm
                                      have their soiled brief
                                      changed, and the facility
                                      staff member put the
                                      resident's call light on
                                      the floor under the
                                      resident's bed so that
                                      the resident would not
                                      turn on the call light
                                      when they needed care.
                                      The State survey agency
                                      investigated this
                                      complaint, which had not
                                      been reported to the
                                      facility administrator.
    ------------------------------------------------------------------------
    Source: GAO summary of Centers for Medicare and Medicaid Services' (CMS)
      data (GAO-19-671T).
    Notes: We reviewed a representative sample of abuse deficiency
      narratives from CMS to determine the most common abuse type and
      perpetrator type.

                                     ______

              Questions Submitted for the Record to John E. Dicken
                   Questions Submitted by Hon. Chuck Grassley
        Question. Your recent report, Nursing Homes: Improved Oversight
    Needed to Better Protect Residents From Abuse, attributes 58 percent of
    nursing home abuse cases to staff members at the facility. Are the
    perpetrators mostly certified nursing assistants, who have daily
    contact with nursing home residents, or are other personnel involved in
    these cases?

        Answer. The June 2019 GAO report did not include an in-depth
    analysis identifying the staff type involved in abuse. The report
    included examples of abuse from Centers for Medicare and Medicaid
    Services' (CMS) narrative descriptions written by State surveyors that
    document abuse incidents by type of abuse and perpetrator. Perpetrators
    described in the CMS narratives were categorized by GAO as residents,
    nursing home staff, which included staff working in any part of the
    nursing home (such as nursing aides and medical technicians), or
    others. However, not all narratives GAO reviewed included information
    on the specific type of staff member involved.

        Question. If nursing home personnel account for 58 percent of all
    abuse cases, does this point to a need for more comprehensive
    background checks of nursing home employees? Are such background checks
    more important for certified nursing assistants than for other
    personnel at nursing homes?

        Answer. The June 2019 GAO report did not include analysis of staff
    perpetrators to determine the extent to which those staff who abused
    residents received background checks prior to employment, or whether
    the staff who abused residents had a history of abuse or other risk
    factors that would have been detected by a background check. GAO did
    not analyze whether background checks were more important for certain
    types of staff.

        The report did note that, in three of the five States in GAO's
    review, stakeholders GAO interviewed said that inadequate staff
    screening can be a risk factor for abuse. In addition, because staff
    screening through background checks and the nurse aide registry is not
    coordinated across the country, there are gaps that could enable
    individuals who committed crimes in one State to obtain employment at a
    nursing home in another State, a concern that GAO has previously
    reported.\1\
    ---------------------------------------------------------------------------
        \1\ GAO, Nursing Homes: More Can Be Done to Protect Residents From
    Abuse, GAO-02-312 (Washington, DC: March 1, 2002).

        Question. Does insufficient training of nursing home personnel help
    explain why all abuse or neglect is not self-reported by nursing homes?
    What other factors might deter self-reporting of abuse and neglect? To
    what extent do you agree with the recommendations made by Megan Tinker
    of the Office of Inspector General in her Senate testimony of July 23,
    ---------------------------------------------------------------------------
    2019?

        Answer. In June 2019, GAO reported that, according to stakeholders
    interviewed, insufficient or inadequately trained staff may not notice
    warning signs of abuse, which could result in abuse not being reported.
    Stakeholders also told GAO that nursing home staff may be afraid to
    report abuse because they think reporting abuse will result in them
    losing their jobs or facing retaliation from co-workers. In addition,
    abuse may be underreported because residents themselves fear
    retaliation from staff, or because residents who are cognitively
    impaired may have difficulty recalling an incident of abuse and
    therefore may not be able to describe what happened. The Office of the
    Inspector General (OIG) for the Department of Health and Human Services
    (HHS) also identified issues with the reporting of potential abuse and
    neglect in nursing homes and recommended CMS take action, potentially
    through providing training or by clarifying guidance, to ensure that
    incidents of potential abuse or neglect in nursing homes are identified
    and reported.

        Question. Is GAO satisfied with the progress that CMS has made in
    improving its Nursing Home Compare website and the five-star rating
    system for nursing homes? What, if any, open recommendations has GAO
    made in that area that CMS has not committed to implement, and why?
    What more should CMS or Congress do in this area?

        Answer. GAO has reported on the CMS Nursing Home Compare website
    and its Five-Star Rating System in a number of reports.\2\ Most
    recently GAO issued reports in 2015 and 2016 that focused on issues
    such as the nursing home quality data that help inform the website and
    rating system and areas for improvement in the website and rating
    system, respectively.\3\
    ---------------------------------------------------------------------------
        \2\ GAO, Nursing Homes: CMS Needs Milestones and Timelines to
    Ensure Goals for the Five-Star Quality Rating System Are Met, GAO-12-
    390 (Washington, DC: March 23, 2019).
        \3\ GAO, Nursing Home Quality: CMS Should Continue to Improve Data
    and Oversight, GAO-16-33 (Washington, DC: October 30, 2015). GAO,
    Nursing Homes: Consumers Could Benefit From Improvements to the Nursing
    Home Compare Website and Five-Star Quality Rating System, GAO-17-61
    (Washington, DC: November 18, 2016).

        Two of the three recommendations from GAO's 2015 report on nursing
    home quality remain open, including that CMS should implement a clear
    plan for ongoing auditing of self-reported data and establish a process
    ---------------------------------------------------------------------------
    for monitoring oversight modifications to better assess their effects.

        One of the four recommendations from GAO's 2016 report on the
    website and rating system has not been acted on by CMS. To help improve
    the Five-Star System's ability to enable consumers to understand
    nursing home quality and make distinctions between high- and low-
    performing homes, GAO recommended CMS add information to the Five-Star
    System that allows consumers to compare nursing homes nationally. HHS
    did not concur with this recommendation, and, as of July 2019, CMS
    officials indicated no actions have been taken to implement this
    recommendation. GAO maintains that adding national comparison
    information is important. In addition, GAO's 2016 report found a number
    of other factors that may inhibit the ability of consumers to use the
    Five-Star System ratings as intended. For instance, because the Five-
    Star System does not include consumer satisfaction information--a key
    quality performance measure--the rating system is missing important
    information that could help consumers distinguish between high- and
    low- performing nursing homes.

        Additionally, in an April 2019 report, GAO reported that prior to
    an Oregon policy change in 2018, CMS's Nursing Home Compare website did
    not have complete information on Oregon nursing homes, particularly
    related to issues of abuse.\4\ GAO recommended, among other things,
    that CMS clearly communicate to consumers the lack of data on abuse in
    Oregon nursing homes contained in the CMS Nursing Home Compare website.
    HHS concurred with the recommendation. GAO will continue to follow up
    with CMS and track their progress on this recommendation.
    ---------------------------------------------------------------------------
        \4\ GAO, Management Report: CMS Needs to Address Gaps in Federal
    Oversight of Nursing Home Abuse Investigations That Persisted in Oregon
    for at Least 15 Years, GAO-19-313R (Washington, DC: April 15, 2019).

        Question. By law, nursing home personnel must immediately report
    certain suspected crimes to law enforcement and State agencies. But, as
    you testified, there's no equivalent requirement that State agencies
    investigate or otherwise pursue these complaints. You noted that CMS
    also does not conduct oversight to ensure that State survey agencies
    are correctly referring abuse cases to law enforcement. Should Congress
    legislate a solution, and if so, what legislative language would you
    ---------------------------------------------------------------------------
    recommend to ensure GAO's recommendation is implemented adequately?

        Answer. GAO recommended in its June 2019 report that CMS change its
    policy to require State survey agencies to immediately refer complaints
    and surveys to law enforcement (and, when applicable, to Medicaid Fraud
    Control Units, or MFCUs) if they have a reasonable suspicion that a
    crime against a resident has occurred when the complaint is received
    and conduct oversight of these referrals. This requirement would be in
    line with current Federal law, which requires covered individuals to
    immediately report reasonable suspicions of a crime against a resident
    that results in serious bodily injury to law enforcement and the State
    survey agency.\5\ CMS concurred with these recommendations.
    ---------------------------------------------------------------------------
        \5\ 42 U.S.C. Sec. 1320b-25(b). These covered individuals include
    nursing home owners, operators, and employees, among others.

        In a podcast released in late July, CMS addressed the issue of
    State surveyors reporting abuse and indicated that CMS is ``working to
    clarify expectations about when abuse must be reported to the State and
    law enforcement. What this means is setting very clear and assertive
    timelines for agencies to review any allegations of abuse and neglect.
    And State survey--state surveyors actually, if a nursing home has not
    reported a clear incident of abuse or neglect, the surveyor must report
    ---------------------------------------------------------------------------
    that to law enforcement.''

        GAO will continue to follow up with CMS and track their progress on
    GAO's recommendation, which at this point has not been acted on by CMS.
    CMS has not indicated that it requires additional statutory authority
    to address this recommendation, though GAO defers to Congress on the
    extent to which this change could be made through congressional action.

        Question. You indicated that there's some confusion about what is
    needed to substantiate an allegation of abuse. Which, if any, terms
    cited in statute or regulations lack sufficient clarity, and to what
    extent should CMS or Congress update regulatory or statutory
    definitions to promote greater clarity?

        Answer. In its June 2019 report, GAO identified confusion among
    some State survey agencies about CMS's definition of what it means to
    substantiate an allegation of abuse. Two of the five State survey
    agencies in GAO's review told us they believed they could not
    substantiate an allegation unless they could also cite a Federal
    deficiency. This is inconsistent with CMS's guidance, which says that
    State survey agencies can substantiate that an allegation occurred
    without citing a Federal deficiency. GAO recommended that CMS develop
    guidance for State survey agencies clarifying that allegations verified
    by evidence should be substantiated and reported to law enforcement and
    State registries in cases where citing a Federal deficiency may not be
    appropriate, and CMS concurred with that recommendation.

        Question. What specific legislative language do you suggest
    Congress adopt to ensure that CMS adopts GAO's open recommendations in
    the area of nursing home oversight?

        Answer. GAO appreciates the chairman's interest in encouraging CMS
    to adopt GAO's recommendations that have not yet been acted upon. GAO
    will also continue to follow up on the status of open recommendations.

                                     ______

                     Questions Submitted by Hon. John Thune
        Question. In GAO's report, it lists four entities, in addition to
    State survey agencies, that may be involved with investigating abuse in
    nursing homes. Do these agencies communicate with one another and the
    State surveyor to share information that could be of value in
    preventing abuse?

        Answer. In its June 2019 report, GAO found challenges in this area.
    Specifically, stakeholders in some of the States in GAO's review said
    that having multiple agencies involved in investigations can create
    challenges, including coordinating investigations and notifying one
    another about investigation outcomes.\6\ One stakeholder said they
    sometimes begin an investigation without realizing another
    investigatory agency has already started its own investigation.
    Further, stakeholders in some of the five States in GAO's review said
    that CMS does not allow State survey agencies to share important
    investigatory information with law enforcement without a written
    request.\7\ For example, officials from one State survey agency said
    that they cannot share the name of the resident abuse or the time when
    the incident occurred, information that is key to a law enforcement
    investigation.
    ---------------------------------------------------------------------------
        \6\ In addition to State survey agencies, which contract with CMS
    to ensure nursing home residents are free from abuse, other State-based
    agencies are charged with protecting nursing home residents from abuse.
    These agencies' roles, missions, and standards of evidence for
    determining whether or not abuse occurred can vary by State.
        \7\ HHS regulations implementing the Privacy Act provide that
    disclosure of information to another governmental entity is permitted
    ``for a civil or criminal law enforcement activity if the activity is
    authorized by law, and if the head of such [governmental entity] has
    submitted a written request to the Department [of Health and Human
    Services] specifying the record desired and the law enforcement
    activity for which the record is sought'' (45 CFR Sec. 5b.9(b)(7))
    (2018).

        GAO's review of CMS's guidance on State survey agency referrals to
    law enforcement found that the guidance does not specify what
    information can be shared with local law enforcement, either in
    response to local law enforcement's request for information or when the
    State survey agency refers substantiated findings of abuse to law
    enforcement.\8\ As noted above, both State survey and law enforcement
    agencies expressed confusion and frustration about what information can
    be shared and said delays have occurred that can impede law enforcement
    investigations. GAO recommended that CMS provide guidance on what
    information should be contained in the referral of abuse allegations to
    law enforcement. HHS concurred with GAO's recommendation and said it
    would develop a list of standardized elements that should be included
    when reporting an abuse allegation to law enforcement.
    ---------------------------------------------------------------------------
        \8\ State survey agencies are required to report substantiated
    findings of abuse to local law enforcement and MFCUs, if appropriate.
    State Operations Manual, Complaint Procedures, Sec. 5330, Revision 155,
    June 10, 2016, CMS.

        Question. What are the most significant factors contributing to
    ---------------------------------------------------------------------------
    underreporting of abuse? How can that be addressed?

        Answer. GAO noted in its June 2019 report that abuse in nursing
    homes is often underreported by residents, family, and staff according
    to stakeholders GAO interviewed. Specifically, stakeholder groups in
    each of the five States GAO reviewed identified underreporting of abuse
    as a key challenge because investigators are unable to investigate if
    they do not know that abuse occurred. Both residents and their families
    may fail to report abuse because they may feel uncomfortable or fear
    retaliation from nursing home staff. A fear of retaliation can also
    extend to nursing home staff, who may be afraid to report abuse because
    they fear that they will lose their jobs or face retaliation from co-
    workers. In addition, abuse may be underreported because residents who
    are cognitively impaired may have difficulty recalling an incident of
    abuse and therefore may not be able to describe what happened. Further,
    if nursing homes have insufficient or inadequately trained staff, or if
    residents do not have family that visit frequently, warning signs of
    abuse may go unnoticed and, therefore, not reported. Addressing the
    issues identified, such as having sufficient and well-trained staff,
    could help to address some of the underreporting.

        Question. Has GAO looked at nursing home closures and the factors
    that contribute to closure?

        Answer. It has been several years since GAO examined the factors
    that contribute to nursing home closures. In a 2007 report on Federal
    nursing home enforcement, GAO found that nursing homes can close for
    several reasons, including as a result of lost income due to
    involuntary termination from participation in Medicare and Medicaid,
    which is one of several enforcement actions available to CMS when
    nursing homes are cited with deficiencies.\9\ GAO found that two of the
    63 nursing homes in GAO's review involuntarily closed because they were
    terminated by CMS from participating in Medicare and Medicaid. GAO
    reported that nursing homes were terminated by CMS infrequently because
    of CMS's concerns about access to other sources of nursing home care
    and the impact of moving residents to new homes. GAO also found that
    nine of the 63 nursing homes in GAO's review closed voluntarily,
    meaning they chose to close. CMS classified in its data the reasons a
    nursing home may voluntarily close as ``merger/closure,''
    ``dissatisfaction with reimbursement,'' ``risk of involuntary
    termination,'' or ``other reasons for withdrawal.'' GAO found that
    these reasons for voluntary closure, as recorded by CMS, were general
    and did not always reflect that homes may have had histories of harming
    residents that put them at risk of involuntary termination. For
    example, some homes may voluntarily close to avoid involuntary
    termination from CMS due to quality problems cited by State surveyors.
    ---------------------------------------------------------------------------
        \9\ GAO, Nursing Homes: Efforts to Strengthen Federal Enforcement
    Have Not Deterred Some Homes From Repeatedly Harming Residents, GAO-07-
    241 (Washington, DC, March 26, 2007).

                                     ______

                  Questions Submitted by Hon. Robert Menendez
        Question. During the hearing, I asked about the possibility of
    creating a unified reporting system that requires immediate reporting
    by the nursing homes into a platform that would simultaneously send
    those cases to CMS, law enforcement, and State agencies. Further, I
    asked about potential barriers to unifying a reporting system, not only
    for abuse cases but to better track and weed out staff who have
    histories of abusive behavior. At the hearing you stated that you had
    not examined the type of common reporting system that I mentioned.

        Now that you've had more time to consider the proposal, can you
    outline potential barriers to unifying a reporting system?

        Answer. While GAO made recommendations in the June 2019 report that
    CMS require State survey agencies to make more immediate referrals to
    law enforcement and conduct oversight of these referrals, GAO did not
    evaluate the tools that CMS could use to do so. In its comments, HHS
    concurred with GAO's recommendations and noted that it would consider
    how to implement mechanisms for tracking these law enforcement
    referrals.

        Question. Would such a system reduce delays and better flag
    potential abuse cases?

        Answer. As noted above, GAO has not examined the advantages and
    disadvantages of this type of system in its body of work.

        Question. During the hearing, two reasons were presented to explain
    why more States who participated in the National Background Check
    Program (NBCP) did not successfully implement the required range of
    background checks: States' inability to pass necessary legislation and
    the need for increased funding to ensure appropriate infrastructure is
    in place at the State level.

        Has OIG or GAO identified key barriers to States passing necessary
    legislation?

        Answer. GAO has not conducted work specific to the National
    Background Check Program and has not identified key barriers to States
    passing necessary legislation. However, GAO's June 2019 report noted
    the importance of more background screening of staff. Specifically,
    stakeholders GAO interviewed in three of the five States said that
    inadequate staff screening can be a risk factor for abuse. Because
    staff screening through background checks and the nurse aide registry
    is not coordinated across the country, there are gaps that could enable
    individuals who committed crimes in one State to obtain employment at a
    nursing home in another State, a concern that GAO previously
    reported.\10\
    ---------------------------------------------------------------------------
        \10\ GAO, Nursing Homes: More Can Be Done to Protect Residents From
    Abuse, GAO-02-312 (Washington, DC: March 1, 2002).

        CMS requires nursing homes to establish policies that prevent the
    hiring of individuals who have been convicted of abusing nursing home
    residents, but does not require that they conduct background checks--
    either statewide or nationally. States, however, may require that
    background checks be conducted. CMS also requires nursing homes to
    check the State nurse aide registry before hiring a prospective nurse
    aide to ensure there is not a finding of abuse. However, nurse aide
    registries only reflect an aide's history in a particular State. And
    although there are multi-State registry verification requirements,
    including that nursing homes seek information from every State registry
    in States where they believe the aide has worked, GAO has raised
    ---------------------------------------------------------------------------
    concerns about State nurse aide registries.

        Question. Is there action Congress can take to incentivize States
    to pass legislation that would enable the program to be implemented?

        Answer. As noted above, GAO has not conducted work specific to the
    National Background Check Program.

        Question. On average, how much funding would a State need in order
    to ensure that the appropriate infrastructure was in place?

        Answer. As noted above, GAO has not conducted work specific to the
    National Background Check Program.

                                     ______

                 Questions Submitted by Hon. Sheldon Whitehouse
        Question. Today's GAO report finds that abuse deficiencies cited in
    nursing homes have more than doubled since 2013, and that CMS has many
    gaps in its oversight of these facilities. These are disturbing
    findings, and I am pleased to see GAO made recommendations for how CMS
    can improve its oversight.

        When can we expect to see CMS implementation of these
    recommendations?

        Answer. GAO's June 2019 report made six recommendations and HHS
    concurred with each recommendation. According to CMS officials, they
    anticipate taking actions on these recommendations by the end of 2019.
    In addition, GAO made three recommendations in an April 2019 report on
    gaps in Federal oversight of nursing home abuse investigations in
    Oregon. HHS also concurred with each recommendation, and CMS officials
    said they anticipate taking actions on these recommendations by late
    2019 or early 2020.

        Question. Does GAO have any additional recommendations for improved
    oversight that would require congressional action?

        Answer. In addition to the recommendations described above, GAO has
    recommendations for improving nursing home oversight from past reports
    that CMS has not yet implemented. Specifically, in a 2016 report on the
    Five-Star System, GAO recommended that CMS add information to the Five-
    Star System that allows homes to be compared nationally, but HHS did
    not concur with this recommendation and it remains open.\11\ Two
    recommendations from GAO's 2015 report on nursing home quality that HHS
    concurred with also remain open, including that CMS should implement a
    clear plan for ongoing auditing of self-reported data and establish a
    process for monitoring oversight modifications to better assess their
    effects.\12\ GAO's 2011 report examining oversight of complaint
    investigations has six recommendations that HHS concurred with that
    also remain open, including that CMS improve the reliability of its
    complaints database and clarify guidance for its State performance
    standards.\13\
    ---------------------------------------------------------------------------
        \11\ GAO, Nursing Homes: Consumers Could Benefit From Improvements
    to the Nursing Home Compare Website and Five-Star Quality Rating
    System, GAO-17-61 (Washington, DC: November 18, 2016).
        \12\ GAO, Nursing Home Quality: CMS Should Continue to Improve Data
    and Oversight, GAO-16-33 (Washington, DC: October 30, 2015).
        \13\ GAO, Nursing Homes: More Reliable Data and Consistent Guidance
    Would Improve CMS Oversight of State Complaint Investigations, GAO-11-
    280 (Washington, DC: April 7, 2011).

        GAO defers to Congress on whether these recommendations require
    ---------------------------------------------------------------------------
    congressional action.

                                     ______

                  Prepared Statement of Hon. Chuck Grassley,
                            a U.S. Senator From Iowa
        Today we'll focus on an issue that has affected many families in
    Iowa and throughout the country: elder justice. Congress has a key role
    to play in ensuring the protection of our Nation's seniors, as about
    one in 10 Americans age 60 or older will fall victim to elder abuse
    each year.

        Many older Americans reside in assisted care facilities, nursing
    homes, or other kinds of group living arrangements. It's critical that
    these care facilities and staff not only follow the law, but provide
    the type of care they would want their own family members to receive.

        The Government Accountability Office just released a new report on
    this subject today, while the Inspector General at the Department of
    Health and Human Services issued a related report on this topic last
    month. According to the Inspector General, one-third of nursing home
    residents may experience harm while under the care of these facilities.
    In more than half of these cases, the harm was preventable. We look
    forward to hearing both agencies' recommendations for Congress at
    today's hearing.

        In the 115th Congress, I introduced the Elder Abuse Prevention and
    Prosecution Act, which was enacted unanimously. It enhances enforcement
    against perpetrators of crimes targeting older Americans. Specifically,
    it increases training for Federal investigators and prosecutors and
    designates at least one prosecutor in each Federal judicial district be
    tasked with handling cases of elder abuse. The law also increases
    penalties for perpetrators of abuse and ensures that the Federal Trade
    Commission's Bureau of Consumer Protection and the Department of
    Justice (DOJ) have an elder justice coordinator.

        It's now important that we consider the need to reauthorize the
    Elder Justice Act. Years ago, I joined my colleagues, led by former
    Chairman Hatch, in developing an early version of the Elder Justice
    Act, which was adopted in 2010. It is time for this committee to update
    and extend the key programs authorized under this important law, which
    authorized the Elder Justice Coordinating Council and resources to
    support forensic centers to investigate elder abuse, among other
    initiatives. I am working closely with the members of the Elder Justice
    Coalition, whose leader is testifying today, on legislation to
    accomplish that goal. This new legislation will call for training of
    long-term care ombudsmen, resources for elder abuse forensic centers,
    among other provisions.

        The Des Moines Register last year published reports suggesting a
    troubling lack of compassionate care for elder residents in some of the
    nursing homes in my State. Reports also surfaced in 2017 of nursing
    home workers in at least 18 different facilities taking humiliating,
    unauthorized photos of elderly residents and posting them on social
    media websites.

        In March, this committee convened an oversight hearing at which we
    heard from the daughters of two elderly women who resided in federally
    funded nursing homes. One testified that her mother, an Iowan, died due
    to neglect, in a facility that held the highest possible rating, five
    stars, on a Federal Government website. The family discovered that the
    nursing home was the subject of multiple complaint investigations in
    recent years. Yet after each complaint, government inspectors reported
    that the facility had come back ``into substantial compliance with
    program requirements.'' Another witness testified about her mother's
    rape in a nursing home. Many nursing homes offer excellent care, but
    these and similar cases around the country point to the need for
    greater oversight.

        Families facing the decision to put a loved one in a care facility
    or nursing home deserve to have reliable tools to help make the best
    choice possible. They shouldn't have to worry that their loved one will
    be abused at the hands of a caregiver. I look forward to hearing from
    all of our witnesses on what more Congress can do to help ensure that
    government-provided information on nursing homes and care facilities is
    accurate and reliable, and that oversight efforts will continue to
    increase quality standards and keep them high.

                                     ______

           Prepared Statement of Hon. Mark Parkinson, President and
           Chief Executive Officer, American Health Care Association
        Chairman Grassley, Ranking Member Wyden, and distinguished members
    of the Senate Finance Committee (committee), thank you for holding this
    important hearing. My name is Mark Parkinson, and I am proud to be the
    President and CEO of the American Health Care Association (AHCA), a
    position that I have held since 2011. On behalf of AHCA and its
    members, I would like to thank the committee for the opportunity to
    participate in this morning's hearing, ``Promoting Elder Justice: A
    Call for Reform.'' I would also like to formally thank the thousands of
    men and women who every day provide excellent, high quality care to
    nursing home residents across this great Nation.

        As a former nursing home owner, former governor of the great State
    of Kansas, and now as President and CEO of AHCA, I have and continue to
    commit my career to improving care for the elderly. I would like to
    begin my testimony by stating clearly and unequivocally that abuse and
    neglect have no place in the nursing home setting and no place in any
    health care setting.

        AHCA is the Nation's largest association of long term and post-
    acute care providers, representing nearly 10,000 of the 15,000 plus
    nursing homes in the country who routinely provide high-quality care to
    nearly 4 million individuals each year. We represent nearly half of all
    not-for-profit facilities, two-thirds of proprietary skilled nursing
    facilities (nursing homes), and half of all government facilities.

        Our mission is improving lives by delivering solutions for quality
    care. While there are troubling stories and reports like those that
    have been testified to today, it is imperative that we remember there
    are also countless accounts of nursing home staff providing high
    quality resident care for days, weeks, and even years.
                  the quality initiative and improvements made
        In early 2012, AHCA launched a multi-year national effort to
    further improve the quality of care in America's skilled nursing care
    centers through our Quality Initiative (Initiative). The profession's
    ongoing efforts have improved the lives of the individuals AHCA members
    serve while also reducing health care costs. In 2018, we rolled out the
    next phase of the Initiative to include measurable 3-year targets in
    key areas such as hospitalizations and antipsychotic usage. The effort
    aligns with Federal mandates for quality performance and outcomes and
    continues to challenge providers to achieve quantitative results in
    four areas by March 2021. Progress is measured by the Centers for
    Medicare and Medicaid Services (CMS) reporting measures endorsed by the
    National Quality Forum. We have targeted improvements in lowering
    hospitalizations, increasing customer satisfaction, improved functional
    outcomes and continued decreases in the use of antipsychotics. AHCA
    provides tools and support to help providers make improvements in these
    areas.

        I take great pride in quality improvements we have made in nursing
    homes across the country. In the last 7 years, both the quality of care
    and caregiving methods used in our nursing homes have improved
    dramatically. Together, we must build off this success to address some
    of the complex challenges faced by the nursing home community.

        It bears repeating from the March 2019 hearing that over the past 7
    years, nursing homes have demonstrated improvement in 18 of the 24
    quality outcomes measured and publicly reported by CMS. Let me
    elaborate.

              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.
            AHCA used the all-payor measure to calculate the number of
            residents returning to the hospital after a nursing home stay
            has declined 11.6 percent since 2011.

              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 one in four residents received an
            antipsychotic.

              Staff are spending more time than ever before with
            residents. Prior to the Five-Star updates earlier this year, it
            was remarkable to see that 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. In fact, 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.

        This is good news as we continue to train 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.

        Senators, we need your help. The nursing home community neither
    fears accountability nor oversight. It does fear that those
    opportunities for improvement in nursing home care across the country
    are stymied by factors outside of its control.
                                 proposals made
        Today, I do not intend to defend the incidents of poor care that
    have occurred; they should not happen. Rather, consistent with our
    mission, I offer some solutions to prevent such incidents from
    happening in the future.

        I would like to report that subsequent to the March 2019 hearing on
    nursing homes, AHCA prepared and submitted a detailed letter to the
    committee outlining solutions that will improve the quality of care in
    America's nursing homes. AHCA set forth for the committee some
    actionable items that can be implemented right now.

        Subsequent to that letter, AHCA staff met with committee staff
    members to discuss potential legislation to reform and improve the
    operation of nursing homes. In response to that meeting, AHCA provided
    committee staff with detailed information intended to complement the
    committee's interests in reducing abuse and neglect in, among other
    venues, nursing homes.

        In other words, Senators, we are at the table, we are active, we
    are engaged, and most importantly, we are prepared to support reforms
    that will continue to improve the lives of America's elderly.

        Our May 7, 2019 letter to the committee details AHCA's
    recommendations to improve quality care in America's nursing homes.

        First, AHCA specifically noted that it is imperative for follow-up
    surveys conducted by CMS, which investigates abuse allegations and
    conducts inspections to confirm the existence or non-existence of abuse
    allegations, to be completed more quickly. This is good common sense.
    Indeed, if there is abuse, CMS should want to capture it quickly rather
    than allow a situation to fester. The nursing home community agrees.

        Next, it is AHCA's position that one of the root 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, and as AHCA testified earlier, there is a national
    workforce shortage, which is even worse in the rural areas. We need
    your help; we cannot solve this problem alone. We are thinking
    creatively about solutions, such as a loan forgiveness program. At the
    same time, and as reported by the Medicare Payment Advisory Commission
    in 2018, 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.

        We are also in desperate need of a stronger process to prevent
    people who are at risk of inflicting abuse or neglect from working in
    nursing homes. We have asked repeatedly for facilities to have access
    to the National Practitioner Data Bank so that we can better vet
    individuals before hiring them. No one--not you, not I, not anyone--
    wants sexual predators or those with tendencies to injure the frail to
    be employed by any nursing facility.

        AHCA also continues to strongly support 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 towards enhancing transparency regarding
    the operation of a nursing home.

        Now, I would like to briefly address the June 2019 Office of
    Inspector's General Report (OIG). The OIG prepared a series of reports
    addressing the identification, reporting, and investigation of
    incidents of potential abuse. First, in its report entitled Incidents
    of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not
    Always Reported and Investigated (Report) the OIG determined that among
    Medicare beneficiaries sent to the emergency room (ER) from the nursing
    home ``one in five high-risk hospital ER Medicare claims for treatment
    provided in calendar year 2016 were the result of abuse or neglect,
    injury of unknown source, of beneficiaries residing in a SNF.'' The OIG
    report then went on to say that nursing homes failed to report many of
    these and that survey agencies themselves also frequently failed to
    report findings of abuse to local law enforcement. Of the 51 ER claims
    reviewed, the State agency was not aware of 43. This by reference means
    that neither the nursing home nor the hospital ER or physicians
    reported these cases. Lastly, the OIG found that CMS itself ``does not
    require all incidents of potential abuse or neglect and related
    referrals made to law enforcement and other agencies to be recorded and
    tracked in'' the appropriate tracking system the agency maintains.

        The OIG also looked at all ER visits with suspected abuse and
    neglect. It found that of the 34,664 claims associated with incidents
    of potential abuse or neglect, 7.4 percent were allegedly perpetrated
    by a health care worker, 9.6 percent were related to incidents that
    occurred in a medical facility, and 27 percent were related to
    incidents not reported to law enforcement. In most of the cases (64 of
    94), the abuse occurred in the Medicare beneficiary's home, while 16
    cases occurred in other peoples' homes or public settings. Furthermore,
    12 occurred in a medical facility; and of those, only seven occurred in
    a nursing home.

        One of the most important aspects of this report is the fact that
    the OIG highlighted a matter of critical importance to the nursing home
    community and one that has been a topic of discussion for quite some
    time. Specifically, the report on page 12 noted that the nursing homes,
    interviewed in response to why some incidents were not reported, stated
    that ``CMS guidance was not clear and therefore, the SNFs interpreted
    it inconsistently.'' They did not try to hide these cases; instead,
    they did not believe the cases met the CMS definition so they did not
    need to report them. It was not due to lack of awareness that education
    will correct but confusion as to the CMS definition and reporting
    requirements. Interestingly, the OIG report goes on to State that even
    the survey agency officials across States have different
    interpretations of the term ``suspicious.'' Ultimately, the OIG
    concludes that, ``The lack of clear guidance from CMS results in
    incidents going unreported by the SNFs.''

        We can take this lack of clarity one step further. The definition
    of abuse as outlined in the Elder Justice Act (Act) differs from that
    in nursing home regulations. The Act also mandated timely reporting by
    nursing homes of suspected abuse but not in other settings; this causes
    confusion. The Elder Justice Act needs to require that CMS and other
    agencies use the same definition of abuse and neglect, separate them in
    enforcement and tracking, and standardize the reporting guidelines
    (including time to report) for all health-care settings to be
    consistent.

        Members of the committee, I implore you again, on behalf of AHCA,
    that CMS be directed to clarify once and for all the definition of
    abuse and neglect and ensure that those same definitions and reporting
    standards are consistent across all health-care settings. Otherwise, we
    cannot effectively tackle this problem.

        Because AHCA was not privy to the contents of the report issued by
    the U.S. Government Accountability Office (GAO) prior to preparation of
    this statement I will, with the committee's permission, augment my
    written testimony later to ensure that there is a complete record.
                                   conclusion
        AHCA remains committed in its efforts to strive for complete
    elimination of all instances of abuse and neglect. We will continue
    working with this committee and others to achieve that goal. But again,
    we need your help to implement changes that will help prevent and
    perhaps even one day eliminate incidents of abuse and neglect.

        Members of the committee: our passion, our commitment, and our goal
    are to challenge ourselves to improve and enhance quality for all
    residents in both the short and long term.

        The entire nursing home profession stands ready to continue working
    with Congress, members of this committee, CMS, and other health care
    providers to enhance its mission to improve lives by delivering
    solutions for quality care. Thank you for the opportunity to testify
    today, and I look forward to answering your questions.

                                     ______

           Questions Submitted for the Record to Hon. Mark Parkinson
                   Questions Submitted by Hon. Chuck Grassley
        Question. Can you tell the committee whether you train your
    members, through AHCA's Quality Initiative, about how to recognize and
    report suspected crimes, like sexual abuse or exploitation, of nursing
    home residents?

        Answer. AHCA has devoted significant resources to training our
    members about abuse and neglect reporting requirements. Shortly after
    the Elder Justice Act passed, AHCA developed a website \1\ that
    provided members with template policy and procedures as well as forms
    for reporting to the State Survey Agency and local law enforcement
    agencies along with letters. We promoted this to our membership and
    offered training webinars. We shared the documents with CMS prior to
    disseminating them to ensure we included the correct information. We
    took a similar approach when CMS issued the guidance on limiting the
    use of social media postings of pictures and other recordings without
    resident consent.\2\
    ---------------------------------------------------------------------------
        \1\ See AHCA website on Elder Justice Act, https://
    www.ahcancal.org/facility_operations/affordablecareact/Pages/Elder-
    Justice-Act.aspx.
        \2\ See AHCA guidance on use of social media and use of pictures
    and recordings, https://www.ahcancal.org/facility_operations/
    legal_resources/Documents/2016%20Social%20Media%20
    Guidance.pdf.

        In 2016, we worked with each of our State affiliates \3\ to conduct
    full day intensive workshops about the new CMS regulations, including
    the new definitions on abuse and neglect and the reporting
    requirements. We provided additional resources and tools, as well as a
    summary of these trainings, via our on-line learning management system
    ahcancalED.
    ---------------------------------------------------------------------------
        \3\ AHCA has a State affiliate in every State except Montana, where
    SNFs can join AHCA through their members in adjoining States. AHCA
    currently represents approximately 10,000 of the 15,000 SNFs in the
    country including nearly half of not-for-profit and government-owned
    facilities and about two-thirds of for-profit facilities, the majority
    of which are small family-owned buildings.

        Finally, we provide educational sessions at our annual and spring
    conferences on the topic of abuse and neglect, and many of our State
    affiliates have conducted similar training at their State conferences
    ---------------------------------------------------------------------------
    as well.

        The challenge, though, is due to the confusion we hear from our
    members around the definition of abuse and neglect, and how CMS
    operationalizes the definition. Our members are acutely aware of the
    written reporting requirements and time frames.

        However, CMS's lack of clear guidance and lack of consistency in
    applying the definitions make providers unclear on what to report.
    Providers receive conflicting guidance from surveyors in different
    States and regions, and the citations issued vary for nearly identical
    situations. In addition, CMS does not define abuse or neglect in
    regulations for most all other Medicare providers, including hospitals
    and home health. Many of the physicians, nurses and other health
    professionals who provide care in nursing homes also work in other
    settings and they often express surprise or confusion that certain
    incidents in nursing homes need to be reported or result in citations
    for abuse or neglect, when in other settings they are never cited nor
    reported. The OIG reported similar confusion in their June 2019 report
    entitled Incidents of Potential Abuse and Neglect at Skilled Nursing
    Facilities Were Not Always Reported and Investigated.\4\ This is also
    confusing for State survey agencies as they must keep track of multiple
    definitions and reporting requirements for all settings. Thus, for any
    training to be effective, all healthcare providers and health
    professionals must be held to the same definition and reporting
    requirements.
    ---------------------------------------------------------------------------
        \4\ In this study, the OIG found that many cases of abuse and
    neglect were not reported by the facility. However, since many of the
    cases were not in the State files nor in local law enforcement files,
    this indicates that ER personnel and hospital workers also did not
    report these cases. In addition, the State survey personnel often
    failed to report as well.

        Question. Do we know how many of your members have reported
    suspected crimes at skilled nursing facilities to State survey agencies
    in the last year? Do you think State licensing agencies do an adequate
    job of following up on these reports, and if not, what more might we do
    ---------------------------------------------------------------------------
    to ensure that reports are investigated promptly?

        Answer. Current Medicare and Medicaid regulations require
    facilities to self-
    report potential allegations of abuse or neglect to the State Survey
    Agency. CMS labels these as self-reported incidents as complaints and
    aggregates them along with consumer complaints and other anonymous
    complaints. As a result, most ``complaints'' represent self-reported
    incidents. Last year there were approximately 200,000 complaints
    submitted to State Survey Agencies.\5\ Approximately one in five of
    these complaints are classified by CMS and the State Survey Agency as
    either abuse or neglect. Of the 41,098 abuse or neglect complaints
    reported in this time frame, most (80 percent) were not substantiated.
    Of the 8,457 complaints that were substantiated and resulted in some
    type of citation, only about one-third were cited for abuse or neglect
    (2,563). Of those, the majority (75 percent) were not related to any
    harm. In other words, of the 200,000 complaints submitted to CMS and
    the State last year, only 629 (or 0.3 percent) resulted in a citation
    for abuse or neglect that was associated with some form or harm. While
    any number is too high, this demonstrates that the reporting guidance
    from CMS is confusing and results in over-reporting.
    ---------------------------------------------------------------------------
        \5\ Data from CMS CASPER data files from 2018 quarter 1 through
    2019 quarter 1.

        The data is not much better when one restricts those complaints
    reported to CMS that are prioritized by CMS and the State Survey Agency
    as potentially representing an Immediate Jeopardy (IJ) situation.\6\
    Upon intake, about 10 percent of abuse or neglect complaints were
    prioritized as a possible immediate jeopardy. Most of these complaints
    (80 percent) were unsubstantiated upon further investigation and only
    246 (6 percent) were cited for abuse or neglect at a scope and severity
    of IJ. In other words, the prioritization approach CMS uses results the
    survey agency conducting 100 inspections they label as high priority to
    identify only 6 as being substantiated last year.
    ---------------------------------------------------------------------------
        \6\ An Immediate Jeopardy (IJ) is defined as a situation in which
    there is an immediate likelihood of serious harm. It is the most
    serious type of potential deficiency.

        Many of these self-reported incidents are not investigated until
    the State Survey Agency visits the facility for their annual inspection
    (which occur per statute every nine to 15 months). Those classified as
    representing potential immediate jeopardy are to be investigated by the
    State agency onsite within two business days of notification. This
    often does not happen. The OIG and GAO examined the actual time it
    takes to investigate complaints and self-reported incidents, as
    compared to CMS policies and procedures. While over two-thirds of all
    complaints and self-reported incidents are not found to represent non-
    compliance with regulations (e.g., do not result in a citation), the
    timeliness of these investigations, which CMS requires to be done
    within two to 10 days of reviving the report for serious incidents,
    varies considerably. The OIG found that almost one-quarter of States
    did not meet CMS's performance threshold for timely on-site
    investigations of high priority complaints in 5 years.\7\
    ---------------------------------------------------------------------------
        \7\ ``A Few States Fell Short in Timely Investigation of the Most
    Serious Nursing Home Complaints: 2011-2015.'' HHS OIG Data Brief,
    September 2017, OEI-01-16-00330, https://oig.hhs.gov/oei/reports/oei-
    01-16-00330.pdf.

        Further complicating the timeliness of investigating complaints is
    the variation in what needs to be reported in each State. CMS guidance
    species the minimum reporting requirements that SNFs must meet in all
    States, but also gives each State the authority to add additional
    requirements. Some States have expanded the list of reportable
    incidents considerably, which has increased their workload and ability
    to perform timely follow-up visits. A GAO report found variation in how
    States collect, investigate and report complaints, making comparability
    difficult. This also may explain the increase in complaints over
    time.\8\ See Figure 1 below illustrating that while the number of
    complaints have increased over time, the number that are substantiated
    has not increased. Another reason for the delay in follow-up visits is
    the enormous number of reports that are not substantiated. The large
    number is due to both the overly broad definitions used and
    operationalized by CMS, as well as the variation in citations and
    enforcement. As a result, providers often over-report to ensure they
    are meeting the requirements. The increasing penalties associated with
    failing to report has further increased the number of reports. More
    reporting requirements or penalties will only further swamp State
    agency and local law enforcement resources. Better and more consistent
    application of the definition is needed.
    ---------------------------------------------------------------------------
        \8\ ``Nursing Home Quality: Continued Improvements Needed in CMS's
    Data and Oversight.'' Testimony before the Subcommittee on Oversight
    and Investigations, Committee on Energy and Commerce, House of
    Representatives. Statement of John E. Dicken, Director, Health Care.
    GAO-18-694Tb, Thursday, September 6, 2018, https://www.gao.gov/assets/
    700/694324.
    pdf.

        Using CMS data, we examined the time to conduct follow-up
    inspections to verify the deficiency was corrected. Once a facility
    receives a citation, the survey agency requires a plan of correction to
    be submitted within 10 days and for citations related to actual harm or
    likelihood of causing further serious harm, they require a revisit by
    the State agency. The time for revisits has averaged 40-50 days and is
    longer for citations with actual harm (citations rated as G or higher)
    compared to those not associated with any harm (citations rates as F or
    lower). Figure 2 shows the average time for revisits based off CMS data
    posed on their website. As the severity of the deficiency increases,
    ---------------------------------------------------------------------------
    the time to revise to assure correction also increases.

        CMS needs to clarify the complaint and self-reporting program and
    standardize the reporting criteria in all States. If States want to
    investigate additional complaints under State licensing authority, that
    should not be co-mingled with the CMS Federal system as it adds
    confusion, increase workload to the State and makes the data between
    States not comparable.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Question. What percentage of your members run background checks of
    potential employees? Of what do these checks consist? (For example, how
    many of your members use in-State fingerprint checks, where data from
    only one State is used? What percentage rely on nationwide fingerprint
    checks, or nationwide name checks?) Are there members who don't do
    checks at all, and do you believe they should be required to perform
    some sort of checks as a condition of participation in Medicare or
    Medicaid? Do you have legislative recommendations for Congress in this
    area?

        Answer. All nursing homes run some type of background check as its
    required in order to comply with the CMS regulations. CMS regulations
    require that nursing homes not employ or otherwise engage individuals
    who: (1) have been found guilty of abuse, neglect, exploitation,
    misappropriation of property, or mistreatment by a court of law; (2)
    have had a finding entered into the State nurse aide registry
    concerning abuse, neglect, exploitation, mistreatment of residents or
    misappropriation of their property; or (3) 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.

        It is unclear how many conduct national fingerprint checks or
    nationwide checks. While the Federal regulations do not explicitly
    require fingerprint-based background checks, according to CMS guidance,
    facilities must be thorough in their investigations of the histories of
    prospective staff. A thorough investigation requires a variety of
    checks. State licensure laws typically specify various checks in
    addition to a fingerprint-based checks, such as State criminal history,
    sex offender and other abuse registries, and nurse aide registries.
    Many of our members go beyond the CMS requirements by conducting
    monthly checks of the national OIG List of Excluded Individuals and
    Entities, checking State police records from surrounding States,
    repeating the background check for existing employees at specified time
    intervals (e.g., 2 years), and conducting drug screening. As of Fiscal
    Year 2018, 27 States, Puerto Rico and the District of Columbia had
    applied to participate in the National Background Check Program that
    was enacted by the Patient Protection and Affordable Care Act. In
    exchange for funding, these States are supposed to require nursing
    homes to conduct four types of background checks: (1) search of State-
    based abuse and neglect registries and databases (e.g., nurse aide
    registries) in the States where they previously lived; (2) check of
    State criminal history records; (3) fingerprint-based check of FBI
    criminal history records; and (4) search of the records of any
    proceedings in the State that may contain disqualifying information.

        The most recent Office of Inspector General (OIG) report indicates
    that participating States have achieved varying levels of
    implementation (OEI-07-10-00160). To date the National Background Check
    Program has not resulted in a comprehensive new data source for
    providers to conduct more effective background checks.

        Moreover, much of the abuse in nursing homes happens from staff
    without a State or Federal criminal record, but they may have other
    types of records that could be red flags of potential problems.
    Alternatively, the staff may not disclose States where they have a
    record. It is also not feasible for nursing homes to individually query
    all 50 State nurse aide registries, licensing boards, and State civil
    judgment data bases. That represents more than 150 unique searches that
    would need to be conducted prior to each staff hire, with an
    application fee often required for each database.

        Therefore, AHCA has recommended that providers be granted access to
    the National Practitioner Data Bank (NPDB) maintained by HRSA. The NPDB
    contains information from all 50 States in a single database. It also
    contains additional information from hospitals and other providers who
    have terminated a health professional on staff for abuse. Information
    is submitted by (among other required reporters): all State licensure
    and certification boards; hospitals that have terminated a provider for
    abuse; State and Federal law enforcement agencies on health care-
    related civil judgments; State and Federal law enforcement agencies on
    health care-related criminal convictions; and OIG exclusions.

        Access to the NPDB would be a significant step toward helping long-
    term care providers more effectively and efficiently screen potential
    employees for histories of disciplinary problems from all 50 State
    licensing boards and any prior terminations for abuse.

        We believe a fingerprint-based approach to background checks is
    costlier and less efficient than using the NPDB, which is why we
    recommend allowing nursing homes easier access to this resource.

        First, giving access to the NPDB is a better solution because the
    relevant information can be more efficiently and effectively obtained
    through the NPDB. One check of the NPDB would yield nearly all the
    information that would be found through an FBI fingerprint background
    check, as well as substantially more information related to other State
    criminal activities and any licensure actions in any State and
    exclusions from the OIG list. HRSA reports that the NPDB includes
    Federal and State health care-related civil judgments and criminal
    convictions, as well State licensing board adverse findings. In
    contrast, the FBI search may not include civil judgments or information
    from State licensing boards and registries, only Federal or State
    criminal convictions.

        Second, fingerprint checks are expensive, which creates a barrier
    to hiring staff, when they can get jobs in other health-care settings
    without needing a fingerprint check. The fee for searching the NPDB is
    $2 per query. In contrast requesting an FBI background check is at
    least $18. State fingerprint checks and other databases often have a
    fee as well. Although some providers cover the cost of fingerprint
    checks, not all do so, and they must shift the cost to the prospective
    employee who may not be able to afford the search.

        Third, fingerprinting through the FBI can take substantial time
    both for the prospective hire to travel to an approved location to
    obtain fingerprints during limited business hours and for the results
    of the query to return. Nursing homes report waiting weeks for results
    from the FBI, which is a hardship during this severe workforce
    shortage. Often employees accept positions at other providers such as
    hospitals that don't require FBI fingerprint checks. A 2015 Government
    Accountability Office report details challenges with FBI criminal
    history record checks for individuals working with vulnerable
    populations, including delays and gaps in the information provided
    (GAO-15-162).

        Question. You testified that we need to do a better job of defining
    the term ``abuse.'' Should we amend the statutory definition of
    ``abuse'' or related terms used to identify abuse, neglect, or
    exploitation in skilled nursing facilities? What specific definitions
    might CMS adopt to reduce ambiguity in these terms, and how do we
    ensure that nursing home personnel as well as State and Federal nursing
    home inspectors are adequately trained to readily spot the signs of
    abuse or neglect?

        Answer. The statutory definition of abuse and neglect are defined
    in the Elder Justice Act. The definitions don't necessarily need to be
    redefined; however, CMS has defined them differently in their
    regulations, and haven't defined abuse and neglect at all in most other
    setting's regulations. Table 1 shows the variation in definition,
    reporting requirements and enforcement penalties across the different
    Medicare providers. Guidance is needed to standardize the definition,
    reporting requirements and penalties across settings. Without
    consistency, there is confusion. For example, the OIG found in their
    recent report \9\ that many cases of abuse or neglect were not reported
    to the State Survey Agency or local law enforcement. The report focuses
    on the failure of the nursing home to report, but implicit in their
    finding was the failure of the physicians, emergency room staff and
    hospital to also report cases. This clearly demonstrates confusion on
    reporting and why different requirements result in cases of potential
    abuse involving the elderly not being appropriately investigated.
    ---------------------------------------------------------------------------
        \9\ Incidents of Potential Abuse and Neglect at Skilled Nursing
    Facilities Were Not Always Reported and Investigated, https://
    oig.hhs.gov/oas/reports/region1/11600509.pdf.

        With respect to neglect, the definition is currently written so
    that operationalizing it can result in overly broad application. The
    definition is ``the failure of a caregiver or fiduciary to provide the
    goods or services that are necessary to maintain the health or safety
    of an elder.''\10\ As such, one-time episodes of not providing care
    (e.g., forgetting to administer a medication on time, failing to
    reposition a resident, not washing one's hands) would constitute
    neglect. While all the above examples are problems that should be
    corrected, and often represent poor quality, how CMS and State agencies
    apply the definition of neglect to them varies. Some survey agencies
    and CMS regional offices will interpret the neglect definition as any
    one instance of not delivering care, while others do not. Not only does
    this contribute to confusion on reporting, it exacerbates the workforce
    shortage in nursing homes. Many nurses will not risk being accused of
    neglect, which triggers them being suspended pending an investigation
    and being reported to their licensure board (all of which must be
    disclosed on any future job applications), when the same incidences are
    not treated as neglect in other settings such as the hospital or home
    health. We would recommend that guidance be provided to CMS that the
    definition of neglect should also include some component of time and
    frequency with respect to the failure to provide services. Regardless,
    the definition needs to be operationalized and enforced the same in all
    settings.
    ---------------------------------------------------------------------------
        \10\ https://www.ssa.gov/OP_Home/ssact/title20/2011.htm.

    Table 1. Regulations and Interpretive Guidelines (IG) Containing Definitions of PAbuse and Neglect and Requiring
                                                    Reporting to CMS
    ----------------------------------------------------------------------------------------------------------------
                   Regs  contain
                     resident/                              Regs  require                              IGs  require
                   patient right     Regs         Regs        reporting         IGs     IGs  define     reporting
       Setting      to be free      define       define     allegations of    define      neglect     allegations of
                  from abuse and     abuse      neglect       abuse and        abuse                    abuse and
                      neglect                                  neglect                                 neglect\11\
    ----------------------------------------------------------------------------------------------------------------
    Skilled       YES             YES         YES          YES              YES         YES          YES
     Nursing
     Facilities
     (SNF)
    ----------------------------------------------------------------------------------------------------------------
    \11\ Interpr
     etive
     guidance on
     reporting
     various
     across
     setting.
     For
     hospitals,
     as well as
     LTCHs,
     IRFs, and
     transplant
     centers
     that must
     meet the
     hospital
     conditions
     of
     participati
     on, the
     obligation
     to report
     is only
     addressed
     in survey
     guidelines
     that direct
     surveyors
     to assess
     whether
     appropriate
     agencies
     are
     notified in
     accordance
     with State
     and Federal
     laws
     regarding
     incidents
     of
     substantiat
     ed abuse
     and
     neglect.
    Hospitals \1  YES             NO          NO           NO               YES         YES          YES
     2\
    ----------------------------------------------------------------------------------------------------------------
    \12\ Swing
     beds in
     hospitals
     must meet
     the
     requirement
     s for
     freedom
     from abuse,
     neglect,
     and
     exploitatio
     n as
     outlined in
     Sec.  483.1
     2 (the SNF
     requirement
     s of
     participati
     on).
    Psychiatric   NO              NO          NO           NO               NO          NO           NO
     Hospitals
    ----------------------------------------------------------------------------------------------------------------
    Long-Term     YES             NO          NO           NO               YES         YES          YES
     Care
     Hospitals
     (LTCH)
    ----------------------------------------------------------------------------------------------------------------
    Critical      NO              NO          NO           NO               NO          NO           NO
     Access
     Hospitals
     (CAH) \13\
    ----------------------------------------------------------------------------------------------------------------
    \13\ Swing
     beds in
     CAHs must
     meet the
     requirement
     s for
     freedom
     from abuse,
     neglect,
     and
     exploitatio
     n as
     outlined in
     Sec.  483.1
     2 (the SNF
     requirement
     s of
     participati
     on).
    Home Health   YES             NO          NO           YES \14\         YES         YES          YES
     Agencies
     (HHA)
    ----------------------------------------------------------------------------------------------------------------
    \14\ HHA
     staff who
     ``in the
     normal
     course of
     providing
     services''
     identify,
     notice, or
     recognize
     incidences
     or
     circumstanc
     es of
     mistreatmen
     t, neglect,
     verbal,
     mental,
     sexual, and/
     or physical
     abuse,
     including
     injuries of
     unknown
     source, or
     misappropri
     ation of
     patient
     property,
     must report
     these
     findings
     immediately
     to the HHA
     and other
     appropriate
     authorities
     in
     accordance
     with State
     law.
    In-Patient    YES             NO          NO           NO               YES         YES          YES
     Rehabilitat
     ion
     PFacilities
     (IRF)
    ----------------------------------------------------------------------------------------------------------------
    Transplant    YES             NO          NO           NO               YES         YES          YES
     Centers
    ----------------------------------------------------------------------------------------------------------------

        Question. Should there be more consistency in how State inspections
    are conducted in each State, so that we can get a better picture of how
    any given nursing home compares to others across the country? If so,
    what could Congress or CMS do to promote such consistency?

        Answer. While all State Survey Agencies utilize the same inspection
    protocols and base citations on the same regulations and sub-regulatory
    guidance,\15\ there are enormous variations in the number, severity and
    enforcement actions between States and CMS regional offices. CMS
    publishes the number of citations, the scope and severity of citations
    and enforcement actions by State and CMS region on their QCOR website.
    This data shows large variations in citations and enforcement actions
    across the 10 CMS regional offices which are unrelated to the quality
    in the region. We have summarized that variation by CMS region in Table
    2 below. For example, the average number of citations varies more than
    4-fold from a low of 3.6 in Region II to 14.5 in Region X. In Region
    IV, for example, the average number of citations per facility is less
    than the national average (5.2 vs 8.0 per facility); but the total CMPs
    fines are 2.3 times larger than the rest of the Nation ($23M vs $10M
    nationally). Yet, Region IV's quality is nearly identical to the other
    nine regions (50 percent of facilities in Region IV achieved an overall
    rating of four or five stars compared to the national average of 49
    percent; and rehospitalization rates are only slightly higher on
    average than the national average (22.6 percent vs 21.6 percent)).
    ---------------------------------------------------------------------------
        \15\ Sub-regulatory guidance operationalizing the nursing home
    Requirements of Participation regulations are spelled out in the State
    Operating Manual--in appendix PP--at https://www.cms.gov/Regulations-
    and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guide
    lines_ltcf.pdf.

        The scope and severity of citations also vary across regions as
    shown in Table 3. The proportion of citations classified as Immediate
    Jeopardy vary nine-fold, ranging from 0.6 percent to 4.6 percent, yet
    there is nowhere near that level of variation in staffing levels or
    other quality outcomes. CMS needs to monitor the reliability and
    consistency of citations across regions and States, by examining how
    similar incidents are cited. The purpose of the survey process is to
    assure that residents are receiving the care they need to achieve the
    best possible outcomes. The effectiveness of the survey process should
    not be measured by the number or severity of citations handed out but
    should be judged on the outcomes related to resident quality of life
    ---------------------------------------------------------------------------
    and quality of care.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Question. I understand that an adequate workforce is the most
    pressing issue for many skilled nursing facilities. Can you elaborate
    on this challenge for your members and suggest solutions, other than
    just more taxpayer funding, to help meet these workforce shortages,
    especially in rural areas?

        Answer. The lack of an adequate workforce is a pressing concern for
    skilled nursing centers and assisted living communities across the
    country. A study by the Department of Health and Human Services (HHS)
    and the Department of Labor (DOL) estimates that the U.S. will need
    between 5.7 million and 6.5 million nurses, nurse aides, home health,
    and personal care workers to care for the 27 million Americans who will
    require long term care in 2050. AHCA hears daily from its members on
    the challenges of finding staff to fill their open positions, both
    nursing and support services. The issue of the workforce shortage is
    multi-faceted, but some of the key issues compounding the problem
    include:

            CNA revocation: A key enforcement action used by State Survey
    Agencies is to revoke CNA training programs. However, if there's no
    access to training at a skilled nursing facility, potential employees
    will go elsewhere to get training. This will likely impact rural SNFs
    more frequently as there are less employers in the area and a more
    pronounced access to qualified staff.

            Recruitment/retention: Long-term care organizations compete
    against other professions that can pay higher wages as they can readily
    increase prices to absorb the wage increase since they are not as
    dependent on State Medicaid rates, which have been shown to pay less
    than cost. In addition, the skilled nursing facility regulatory burden,
    detailed below, has a negative impact on recruitment efforts.

            Nursing shortage: The nursing shortage is well-documented in
    this country. The shortage is compounded by the fact that many nurses
    do not want to work in our field due to the regulatory burden described
    below.

            Regulatory burden: Many health-care workers will not work in
    long-term care because the reporting requirements and enforcement
    actions CMS places on nursing centers put staff at greater risk for
    loss of their professional licenses or subject them to individual
    suspensions or fines for occurrences that would be defined in another
    setting as an accident or error, but are defined as abuse or neglect in
    nursing center regulations and guidance. This exacerbates the workforce
    shortages in nursing centers.

            Background checks: See the response above regarding the
    challenges of conducting adequate background checks.

        There is not just one solution to this workforce shortage. AHCA has
    invested in the development tools, resources and training programs to
    help members effectively recruit new staff and retain existing staff.
    AHCA has also identified and supported several programs and initiatives
    to get more workers in the long-term care field, including:

            The Health Profession Opportunity Grants (HPOG). This program
    currently funds demonstration projects in 22 States to help Temporary
    Assistance for Needy Families (TANF) recipients and other low-income
    individuals acquire skills, gain employment, and advance up the career
    ladder in health professions.

            Increasing opportunities for employers to utilize workers from
    other countries including increasing H2-B visas and paths to
    citizenship for ``dreamers,'' many of which are working in the health-
    care field.

            Additional slots in nursing schools addressing this with
    programs like Geriatrics Academic Career Awards (GACA) through HRSA.
    This is a complement to the Geriatrics Workforce Enhancement Program
    (GWEP). Both programs are included in the title VII reauthorization
    bill, the EMPOWER for Health Act of 2019 (H.R. 2781) and the geriatrics
    title VIII reauthorization bill, the Geriatrics Workforce Improvement
    Act (S. 299).

            Ensuring Federal loan forgiveness programs are maintained and
    expanded, when possible to cover long term care providers. For example,
    the Loan Forgiveness Nursing Where It's Needed (Nursing WIN) Act
    expands the authority of the Secretary of Health and Human Services to
    permit nurses to practice in health-care facilities with critical
    shortages of nurses through programs for loan repayment and
    scholarships for nurses. HRSA defines critical shortages facilities as:
    ``a health-care site located in a Health Professional Shortage Area
    (HPSA) that provides primary medical care or mental health care to
    underserved populations. Health Professional Shortage Areas are
    designated by the Health Resources and Services Administration and are
    used to identify areas, population groups, or facilities within the
    United States that are experiencing a shortage of health
    professionals.'' This definition could be too narrow to include a
    number of long-term care providers.

            Pushing for regulatory relief through the Patients Over
    Paperwork initiative. Staff can use their time more efficiently and
    effectively if they can spend more time at the bedside, rather than on
    paperwork.

        There is not one solution to this pressing issue, but through
    creative and wide-ranging solutions, AHCA hopes to ease the burden of
    this workforce shortage from our members and to help ensure that
    residents have the adequate staff needed to achieve their best possible
    outcomes.

        Question. What changes, if any, should we make to improve the
    Nursing Home Compare website or the government's Five-Star Rating
    System for nursing homes?

        Answer. The Nursing Home Compare (NHC) website and Five-Star Rating
    System, while not perfect, do provide consumers with information to
    help locate nursing homes in their community as well as information to
    help make decisions. The NHC website provides information on survey
    inspections along with copies of the citation reports and summary of
    the citation's descriptions. For example, consumers can currently click
    on the citation reports to see if a facility has any citations for
    abuse and neglect and what type of citation they received (see Figure 3
    screen shot of NHC website with abuse and neglect citations). Staffing
    levels along with star ratings of those levels and comparisons to the
    national average are posted. Clinical outcomes that are calculated by
    CMS from either Medicare Claims or the electronic medical record are
    also reported for outcomes related to those in the facility for short
    term rehabilitation after a hospital stay as well as outcomes for
    residents who are living in the facility--defined as those in the
    facility for more than 100 days.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        There are two key areas missing from Five-Star that AHCA would
    strongly advocate be included. The first is information directly from
    the consumer, such as customer satisfaction ratings. Customer
    satisfaction is measured and reported by CMS for all other settings
    except for nursing homes. This is a glaring gap. We would strongly
    recommend that CMS add customer satisfaction to the NHC website. The
    second is staffing, turnover and retention metrics, which AHCA has
    included in our Quality Initiative. Turnover and retention are
    important indicators of quality for any facility, and consumers should
    be able to access this information when making decisions about where to
    place their loved ones.

        Question. What changes, if any, do you recommend that Congress make
    to the Elder Justice Act? Please identify any concerns with activities
    authorized under that statute, such as training for the long-term care
    ombudsman program, funding for Adult Protective Services activities, or
    the Elder Justice Advisory Council.

        Answer. Congress can improve the protection of vulnerable seniors
    by eliminating discrepancies across Medicare provider settings in how
    abuse and neglect are defined, the provider reporting requirements, and
    the penalties. The definitions of abuse and neglect should be the same
    in all Medicare settings; abuse is abuse whether it occurs in the home,
    a hospital, or a nursing center. However, the current definitions of
    abuse and neglect vary across health care settings and for many
    provider settings, are not defined in regulation by CMS. For example,
    neither acute care hospitals nor critical access hospitals have a
    definition of abuse or neglect in regulations (other than for swing
    beds for SNF care, for which regulations mirror those for SNFs). Home
    health agencies only have a definition of abuse in interpretative
    guidance but do not have definitions of abuse or neglect in regulation.
    When abuse or neglect is defined in sub-regulatory interpretative
    guidance for these various settings, the definitions also vary.

        Further, abuse and neglect should not be classified and counted in
    the same way, particularly given how CMS currently defines neglect for
    SNFs. The June 2019 OIG report found that only 1-2 percent of the
    neglect of nursing home residents sent to the emergency room was
    classified as abuse, while 98 percent was classified as due to neglect.
    By citing abuse and neglect within the same F-tag for SNFs, the
    difference between what is abuse and what is neglect for purposes of
    enforcement and public reporting is obscured. Abuse is commonly the
    result of individual bad actor, while neglect (poor care) is more often
    the result of systematic issues at the nursing center. The enforcement
    and action taken needs to be tailored more appropriately to the
    situation to ensure improvement and prevention.

        The requirements for reporting allegations of abuse and neglect to
    CMS (via the State Survey Agency) and to local law enforcement also
    vary, as do enforcement procedures for instances of abuse or neglect.
    Although instances or types of abuse or neglect may vary across
    settings due to differences is patient characteristics, care needs, or
    other variables, the fundamental definitions, reporting requirements,
    and seriousness of enforcement should be consistent regardless of
    setting. For example, a finding that a staff person intentionally
    struck a patient or resident should be defined as an instance of
    physical abuse regardless of the setting in which it occurred.

        The variation in defining, reporting and enforcing violations of
    abuse and neglect creates confusion for providers and health-care
    professionals such as registered nurses and certified nursing
    assistants, as well as for law enforcement, consumers, and the public
    as they make decisions about their own health care and that of their
    loved ones. It also makes it more difficult for nursing centers to
    recruit and retain the most qualified health-care workers. Many health-
    care workers will not work in long-term care because the reporting
    requirements and enforcement actions CMS places on nursing centers put
    staff at greater risk for loss of their professional licenses or
    subject them to individual suspensions or fines for occurrences that
    would be defined in another setting as an accident or error, but are
    defined as abuse or neglect in nursing center regulations and guidance.
    This exacerbates the workforce shortages in nursing centers, which
    increases the risk of poor quality of care and closures we heard about
    in the prior SFC hearing and as reported in The New York Times on March
    4, 2019.\16\
    ---------------------------------------------------------------------------
        \16\ https://www.nytimes.com/2019/03/04/us/rural-nursing-homes-
    closure.html.

                                     ______

                     Questions Submitted by Hon. John Thune
        Question. GAO's report identified nursing home staffing
    characteristics that could increase risk for abuse in facilities, such
    as insufficient staff and inadequate training on abuse. In many rural
    areas, limited staff and resources are significant challenges. What
    strategies have your members identified to help overcome these
    challenges? Are there Federal policies that prevent implementation of
    these strategies?

        Answer. The workforce shortage has hit rural providers even harder
    than others. The issue of the workforce shortage is multi-faceted, but
    some of the key issues compounding the problem include:

            CNA revocation: A key enforcement action used by State Survey
    Agencies is to revoke CNA training programs. However, if there's no
    access to training at a skilled nursing facility, potential employees
    will go elsewhere to get training. This will likely impact rural SNFs
    more frequently as there are less employers in the area and a more
    pronounced access to qualified staff.

            Recruitment/retention: Long-term care organizations compete
    against other professions that can pay higher wages as they can readily
    increase prices to absorb the wage increase since they are not as
    dependent on State Medicaid rates, which have been shown to pay less
    than cost. In addition, the skilled nursing facility regulatory burden,
    detailed below, has a negative impact on recruitment efforts.

            Nursing shortage: The nursing shortage is well-documented in
    this country. The shortage is compounded by the fact that many nurses
    do not want to work in our field due to the regulatory burden described
    below.

            Regulatory burden: Many health-care workers will not work in
    long-term care because the reporting requirements and enforcement
    actions CMS places on nursing centers put staff at greater risk for
    loss of their professional licenses or subject them to individual
    suspensions or fines for occurrences that would be defined in another
    setting as an accident or error, but are defined as abuse or neglect in
    nursing center regulations and guidance. This exacerbates the workforce
    shortages in nursing centers.

            Background checks: See the response above regarding the
    challenges of conducting adequate background checks.

        There is not one solution to this workforce shortage. AHCA has
    invested in the development tools, resources and training programs to
    help members effectively recruit new staff and retain existing staff.
    AHCA has also identified and supported several programs and initiatives
    to get more workers in the long-term care field, including:

            The Health Profession Opportunity Grants (HPOG). This program
    currently funds demonstration projects in 22 States to help TANF
    (Temporary Assistance for Needy Families) recipients and other low-
    income individuals acquire skills, gain employment, and advance up the
    career ladder in health professions.

            Increasing opportunities for employers to utilize workers from
    other countries including increasing H2-B visas and paths to
    citizenship for ``dreamers,'' many of which are working in the health-
    care field.

            Additional slots in nursing schools--addressing this with
    programs like Geriatrics Academic Career Awards (GACA) through HRSA.
    This is a complement to the Geriatrics Workforce Enhancement Program
    (GWEP). Both programs are included in the title VII reauthorization
    bill, the EMPOWER for Health Act of 2019 (H.R. 2781) and the geriatrics
    title VIII reauthorization bill, the Geriatrics Workforce Improvement
    Act (S. 299).

            Ensuring Federal loan forgiveness programs are maintained and
    expanded, when possible to cover long term care providers. For example,
    the Loan Forgiveness Nursing Where It's Needed (Nursing WIN) Act
    expands the authority of the Secretary of Health and Human Services to
    permit nurses to practice in health care facilities with critical
    shortages of nurses through programs for loan repayment and
    scholarships for nurses. HRSA defines critical shortages facilities as:
    ``a health-care site located in a Health Professional Shortage Area
    (HPSA) that provides primary medical care or mental health care to
    underserved populations. Health Professional Shortage Areas are
    designated by the Health Resources and Services Administration and are
    used to identify areas, population groups, or facilities within the
    United States that are experiencing a shortage of health
    professionals.'' This definition could be too narrow to include a
    number of long-term care providers.

            Pushing for regulatory relief through the patients over
    paperwork initiative. Staff can use their time more efficiently and
    effectively if they can spend more time at the bedside, rather than on
    paperwork.

        There is not one solution to this pressing issue, but through
    creative and wide-ranging solutions, AHCA hopes to ease the burden of
    this workforce shortage from our members and to help ensure that
    residents have the adequate staff needed to achieve their best possible
    outcomes.

        Question. As part of its Patients Over Paperwork initiative, CMS
    has proposed policies that aim to reduce administrative burdens on
    nursing homes. It appears that the hope would be for facilities to be
    able to dedicate more resources to resident care. If finalized, how
    would facilities ensure that quality is not sacrificed, especially when
    GAO tells us we need better data?

        Answer. On June 16th, CMS issued a proposed rule with changes to
    the Requirements of Participation for nursing centers and skilled
    nursing centers. These changes are designed to eliminate unnecessary
    and duplicative paperwork and allow caregivers to devote more time and
    resources to resident care. The proposed modifications were focused
    almost exclusively on changes to administrative and paperwork sections
    of the new requirements. These changes target only the most burdensome
    requirements that only hinder a facilities ability to deliver of high-
    quality care. For example, CMS is proposing to reduce burdensome
    paperwork requirements.

            Example: Facilities would only be required to send copies of
    resident discharge notices to the State LTC Ombudsman when the facility
    has initiated the transfer or discharge. Currently, facilities must do
    this even when a resident has elected to transfer to another facility
    or is ready to be discharged back home or to the community.

            Example: CMS has proposed to reduce the time frame that
    facilities are required to retain posted daily staffing data from 18
    months to 15 months (or as required by State law).

        In many instances, CMS has not removed requirements but simply
    clarified where one requirement may be used to meet a requirement in a
    different area. Rather than eliminating requirements, they are simply
    clarifying where similar requirements do not need to be duplicated.

            Example: Under the administration section, CMS clarifies that
    facility assessment data can be used to inform policies and procedures
    for other LTC requirements.

        The changes proposed uphold the numerous provisions and core
    principles of the regulations to ensure all residents receive quality
    care. CMS has retained all resident rights, including the right to be
    free from abuse and neglect, and has upheld key standards for resident
    care including resident assessment, person-centered care planning,
    infection control and antibiotic stewardship, quality of life, and
    quality of care requirements. The important new provisions in the
    original rule, of which AHCA supported, remain, including: abuse and
    neglect; safe drug prescribing; infection control; antibiotic
    stewardship; better care planning; and expanding program integrity/
    corporate compliance programs.

        These changes should ultimately improve the quality of care
    provided by facilities, as it will allow more time to be spent on
    patient care and less on burdensome and unnecessary requirements.

                                     ______

                     Questions Submitted by Hon. Tim Scott
        Question. This is a deeply important topic, particularly as our
    population continues to age. According to Census projections, in 11
    years, one in every five Americans will be retirement-age. And by 2035,
    for the first time in U.S. history, older Americans will outnumber
    those under age 18. Given these seismic changes, as well as the fact
    that roughly 70 percent of older Americans will need long-term care at
    some point, the core mission and work of our Nation's nursing homes
    have never been more essential. It seems clear that the vast majority
    of facilities are doing everything in their power to meet the needs of
    our seniors, as well as the other vulnerable populations that they
    serve. We have nearly 190 nursing homes in South Carolina, and having
    visited many of them--and engaged with the residents and patients, as
    well as the folks who work tirelessly, day-in and day-out, to provide
    the care that they deserve--I can attest to the great work that is so
    often done on the ground. Even after the recent changes to the CMS star
    rating system, close to half of our facilities have four or five stars
    overall, and a sizable majority have at least three.

        That said, placing loved ones or friends in a home can be an
    incredibly difficult decision, and when you hear stories of abuse and
    neglect, however rare, they make those choices even harder.

        I think it's imperative that we seek out strategies for identifying
    and addressing these issues where they occur, without imposing top-down
    mandates or administrative burdens that ultimately divert attention
    away from patient and resident care. I was pleased, along those lines,
    to see CMS's proposal from earlier this month, which would streamline
    and better target the Requirements of Participation for nursing
    facilities, to the tune of $616 million a year in cost savings for
    facilities. Those savings will free up resources for innovations and
    reforms that will make a meaningful impact in our seniors' lives.
    Governor Parkinson, I see the potential reauthorization of the Elder
    Justice Act as a welcome opportunity to discuss targeted avenues for
    reform.

        As we think through ways to enhance the Elder Justice Act, putting
    aside the issue of funding levels, are there particular areas where the
    legislation is working well, or where it could use some improvements or
    clarifications?

        Answer. Congress can improve the protection of vulnerable seniors
    by eliminating the discrepancy across Medicare provider settings in how
    abuse and neglect are defined, the provider reporting requirements, and
    the penalties. The definitions of abuse and neglect should be the same
    in all Medicare settings; abuse is abuse whether it occurs in the home,
    a hospital, or a nursing center. However, the current definitions of
    abuse and neglect vary across health care settings and for many
    provider settings, are not defined in regulation by CMS. For example,
    neither acute care hospitals nor critical access hospitals have a
    definition of abuse or neglect in regulations (other than for swing
    beds for SNF care, for which regulations mirror those for SNFs). Home
    health agencies only have a definition of abuse in interpretative
    guidance but do not have definitions of abuse or neglect in regulation.
    When abuse or neglect is defined in sub-regulatory interpretative
    guidance for these various settings, the definitions also vary.

        Question. When looking specifically at the allowable uses for the
    grants and other funding streams authorized by the legislation, are
    there new flexibilities or points of clarification that would be
    helpful in efforts to support our seniors?

        Answer. Ensuring access to grants or other funding streams that can
    support recruitment, retention and training initiatives in long term
    care and defining the long term care facility to ensure it encompasses
    the entire sector would be helpful. This should include the promotion
    of opportunities to providers to easily access funding streams designed
    for providers and the use of Civil and Monetary Penalty money to
    support innovative programs.

        Question. In addressing the issue of workforce recruitment,
    training, retention, and quality enhancement, for instance, how could
    we work within the Elder Justice Act framework to promote efforts along
    these lines?

        Answer. AHCA has four suggestions that would help promote efforts
    along these lines: promotion of programs to providers and ease in
    accessing or applying to funding streams; providing support or
    documents outlining how to apply for grants; allowing for a quick
    turnaround for review of applications and receipt of funding; and
    alleviating any overly burdensome paperwork that is a barrier to
    accessing grants.

        Question. I have spoken at length with Administrator Verma about
    CMS's recent efforts and initiatives with regards to nursing homes, and
    I am grateful for her commitment to prioritizing this area,
    particularly in light of the regulatory relief provided in the agency's
    most recent proposed rule.

        When surveying the administrative activity of the past few years
    with regards to nursing homes, which proposals, final rules, and other
    initiatives do you see as most helpful in terms of addressing the needs
    of our seniors, combating cases of abuse and neglect, and ensuring that
    facilities have the tools, capacity, and flexibilities needed to
    support our seniors and other vulnerable populations?

        Answer. There are a few areas where CMS's administrative efforts in
    the last several years have taken strides to ensure facilities have the
    tools, capacity, and flexibilities needed to support our seniors and
    other vulnerable populations residing in nursing centers. CMS's efforts
    to improve transparency and put patients over paperwork by removing
    excessively burdensome paperwork requirements and enabling providers to
    spend more time on resident care have benefits for both providers and
    nursing center residents. The changes CMS has included in its proposed
    rule revising the Requirements of Participation are an important step
    in achieving this goal. Other examples of helpful initiatives include:

            CMS has made electronic surveyor training materials available
    to providers via an online website accessible to providers and the
    public. This helps to create a framework for shared knowledge and
    understanding of CMS regulations and guidance and promotes openness and
    transparency.

            CMS has also made data on survey citations and remedies
    available to providers and the public through its QCOR website and has
    indicated a willingness to make additional survey and certification
    data available. Such efforts promote transparency and provide a
    foundation for CMS and stakeholders to identify and address shared
    concerns.

            CMS has also made efforts to develop new training materials
    for providers to support compliance and meet the needs of the changing
    nursing center population through trainings such as Hand in Hand: A
    Training Series for Nursing Homes. Certified nurse aides working in
    nursing centers must receive training on caring for residents with
    dementia and on abuse prevention. The CMS Hand in Hand training was
    designed to provide nursing homes with a training program on person-
    centered care for persons with dementia and abuse prevention taught by
    subject matter experts and those with experience providing this type of
    care. What made this training useful was its emphasis on practical
    application and real-world examples. Providers and residents benefit
    from such practical resources supported and disseminated by CMS.

        Question. Along those same lines, where is there room for
    improvement in terms of administrative efforts over the same period?

        Answer. In line with the helpful initiatives highlighted above,
    there are further opportunities for CMS to improve transparency and
    support the delivery of high-quality care. For example: CMS should
    continue to promote and expand opportunities for sharing training
    materials and shared training opportunities with surveyors and
    providers to understand regulations and guidance and support sustained
    compliance. A foundation of shared knowledge of the regulatory
    requirements and CMS expectations and guidance is critical for ensuring
    a fair, consistent, and effective survey process.

            CMS should remove duplicate quality measures. There are 56
    quality measures currently in use in skilled nursing and long-term care
    centers. In addition to the significant volume of quality measures
    which is overwhelming, there are multiple measures being used for the
    same care areas. Two examples of this are rehospitalization and
    discharge to community, which each have duplicative measures in use.
    Quality measurement should be laser focused on what is most meaningful
    to patients or residents and most informative to providers on improving
    quality of care. At a minimum, duplicate measures should be removed
    from use.

            CMS should create more opportunities for providers and key
    stakeholders to address common goals of promoting high quality care and
    resident outcomes, such as through quarterly meetings to discuss
    effective approaches and best practices to issues such as the opioid
    crisis and how to care for residents with behavioral health and
    substance abuse issues.

            Congress should create additional flexibility for CMS to
    engage in pilot projects to test effective approaches and best
    practices to emerging challenges such as the growing nursing center
    population with behavioral health and substance abuse issues. CMS
    should also engage in pilot projects to test new approaches to
    improving the transparency and consistency of the survey process.

            Congress should mandate that CMS standardize definitions of
    abuse and neglect across Medicare-funded settings. Definitions of abuse
    and neglect should be the same in all settings; abuse is abuse whether
    it occurs in the home, a hospital, or a nursing center. Variation
    causes confusion as well as complexity in the process that results in
    unnecessary administrative burden and can adversely affect appropriate
    abuse and neglect reporting. According to the CDC (taken from the CDC
    website dated May 28, 2019): ``A consistent definition is needed to
    monitor the incidence of elder abuse and examine trends over time.
    Consistency helps to determine the magnitude of elder abuse and enables
    comparisons of the problem across locations. This ultimately informs
    prevention and intervention efforts.''

            CMS should also clarify the differences between abuse and
    neglect by separating abuse and neglect in tracking and enforcement
    actions and, for purposes of tracking and enforcement, delineating when
    abuse occurs between residents, from staff to resident, from family
    member or other parties, or other forms to help the public better
    understand what is happening and help guide more targeted interventions
    to prevent abuse. Lumping abuse and neglect together causes confusion
    as the response and actions may differ with abuse related to criminal
    investigation versus neglect related to system and quality of care
    issues. The approach and response would be more efficient if tracked
    and reported separately. Similarly, the type of abuse (e.g., resident
    to resident, physical, etc.) should also be tracked and reported
    separately to help make more efficient use of resources and response
    options.

            CMS should also change Payroll-Based Journal (PBJ) policy to
    be consistent with Department of Labor rules. Current PBJ policy
    requires mandatory exclusion of 30 minutes from every 8-hour shift
    worked for meals or break time, regardless of whether a staff member
    actually took a meal break or not. This mandatory exclusion does not
    allow for times when staff work through their meal break or provide
    care for more than eight hours without a meal break. Staffing hours are
    inaccurately and underreported due to the PBJ policy mandatory
    exclusion. This forced exclusion by PBJ policy imposes unnecessary
    administrative burden because it requires nursing centers to perform
    timekeeping for PBJ purposes separate from timekeeping for payroll
    purposes for Department of Labor and actual payroll to staff. PBJ
    policy should be updated to eliminate the mandatory exclusion of 30
    minutes from every 8-hour shift and allow for consistency with
    Department of Labor rules.

        Question. Setting aside the issue of authorization levels, are
    there legislative opportunities, whether in the Elder Justice Act or
    elsewhere, to build upon what's working and to provide fixes to areas
    for growth?

        Answer. Yes, there are several opportunities to build on effective
    strategies and provide new opportunities for growth. Examples include:

            In regard to the Elder Justice Act, we must ensure access to
    grants or other funding streams that can support recruitment, retention
    and training initiatives in long-term care. Defining long-term care
    facility to ensure it encompasses the entire sector. Any initiatives
    that can ease burden of accessing and applying for grant monies
    including quick turnaround for review of grants and awarding of the
    funding.

            Currently the Elder Justice Act, has requirements for abuse
    and neglect reporting and penalties that only apply to nursing homes.
    Also, CMS has only defined abuse and neglect and reporting requirements
    in nursing home regulations; not any other settings. The OIG report
    found that many cases of abuse and neglect presenting to the emergency
    room occur in other settings and that many are not reported to the
    State agency, local law enforcement or other agencies responsible for
    investigating abuse or neglect. The reporting requirements and
    penalties should be the same in all settings. Having different
    definitions, different reporting requirement and different penalties
    creates confusion resulting in cases not being reported. It also has
    the unintended effect of discouraging staff from working in nursing
    homes, just when we need more staff; because they can work in other
    settings without worry of reporting requirements or penalties. We
    support having the Elder Justice Act definitions, reporting
    requirements and penalties apply to all Medicare providers and
    professionals.

            Supporting programs such as the Health Profession Opportunity
    Grants (HPOG) and ensuring they include long-term care. This HPOG
    program currently funds demonstration projects in 22 States to help
    Temporary Assistance for Needy Families (TANF) recipients and other
    low-income individuals acquire skills, gain employment, and advance up
    the career ladder in health professions.

            Increasing opportunities for employers to utilize workers from
    other countries including increasing H2-B visas and paths to
    citizenship for ``Dreamers,'' many of which are working in the health
    care field.

            Supporting additional slots in nursing schools through
    programs like Geriatrics Academic Career Awards (GACA) through HRSA.
    This is a complement to the Geriatrics Workforce Enhancement Program
    (GWEP). Both programs are included in the title VII reauthorization
    bill, the EMPOWER for Health Act of 2019 (H.R. 2781) and the geriatrics
    title VIII reauthorization bill, the Geriatrics Workforce Improvement
    Act (S. 299).

            Ensuring Federal loan forgiveness programs are maintained and
    expanded, when possible to cover long term care providers. For example,
    the Loan Forgiveness Nursing Where It's Needed (NursingWIN) Act expands
    the authority of the Secretary of Health and Human Services to permit
    nurses to practice in health-care facilities with critical shortages of
    nurses through programs for loan repayment and scholarships for nurses.
    HRSA defines critical shortages facilities as: ``a health-care site
    located in a Health Professional Shortage Area (HPSA) that provides
    primary medical care or mental health care to underserved populations.
    Health Professional Shortage Areas are designated by the Health
    Resources and Services Administration and are used to identify areas,
    population groups, or facilities within the United States that are
    experiencing a shortage of health professionals.'' This definition
    could be too narrow to include a number of long-term care providers.

        Question. What steps could be taken to standardize the definition
    of abuse and neglect across all settings, and what resources could be
    provided to help Skilled Nursing Facility staff better investigate
    allegations of abuse or neglect?

        Answer. As mentioned above, Congress should eliminate discrepancy
    across Medicare provider settings in the definition of abuse and
    neglect, in the provider reporting requirement and in enforcement
    penalties.

        Abuse and neglect should be classified and counted in the same way
    in all settings to avoid confusion on reporting. Also, CMS needs to
    define abuse and neglect as defined in the elder just act, which they
    currently define differently in the nursing home regulations. In
    addition, the definition of neglect in the elder justice act needs to
    also take into consideration the frequency and extent of the failure to
    deliver services. CMS has operationalized this to mean any one instance
    regardless of it causing any harm. So any medication error, no matter
    how infrequent or insignificant, is a failure to deliver services and
    meets the definition of neglect. This results in large number of
    reports to the State and local law enforcement overwhelming the ability
    to investigate the serious cases of neglect resulting in harm.

        Also, abuse and neglect need to be recorded, citated and reported
    separately. The June 2019 OIG report found that only one to two percent
    of the neglect of nursing home residents sent to the emergency room was
    classified as abuse, while 98 percent was classified as due to neglect.
    By citing abuse and neglect within the same F-tag for SNFs, the
    difference between what is abuse and what is neglect for purposes of
    enforcement and public reporting is obscured.

        The requirements for reporting allegations of abuse and neglect to
    CMS (via the State agency) and to local law enforcement also currently
    vary and must be standardized, as do enforcement procedures for
    instances of abuse or neglect.

        Question. Of the recommendations offered by the OIG and by GAO,
    which do you see as the most fruitful to pursue? What steps should we
    take to best operationalize the recommendations that would be most
    helpful to implement (insofar as they require or would benefit from
    legislative action)?

        Answer. AHCA supports the recommendations made in the June 2019 OIG
    report entitled, Incidents of Potential Abuse and Neglect at Skilled
    Nursing Facilities Were Not Always Reported and Investigated and in the
    July 2019 GAO report entitled, Improved Oversight Needed to Better
    Protect Residents From Abuse. These recommendations are as follows:

        OIG Report--Incidents of Potential Abuse and Neglect at Skilled
    Nursing Facilities Were Not Always Reported and Investigated: (1) work
    with the Survey Agencies to improve training for staff of SNFs on how
    to identify and report incidents of potential abuse or neglect of
    Medicare beneficiaries; (2) clarify guidance on how to clearly define
    and provide examples of incidents of potential abuse or neglect; (3)
    requiring the Survey Agencies to record and track all incidents of
    potential abuse or neglect in SNFs [need to separate abuse from
    neglect] and referrals made to local law enforcement and other
    agencies; and (4) monitoring the Survey Agencies' reporting of findings
    of substantiated abuse to local law enforcement.

        GAO Report--Improved Oversight Needed to Better Protect Residents
    From Abuse: (1) require that abuse and perpetrator type be submitted by
    State survey agencies in CMS's databases for deficiency, complaint, and
    facility-reported incident data, and that CMS systematically assess
    trends in these data; (2) develop and disseminate guidance--including a
    standardized form--to all State survey agencies on the information
    nursing homes and covered individuals should include on facility-
    reported incidents; (3) require State survey agencies to immediately
    refer complaints and surveys to law enforcement (and, when applicable,
    to MFCUs) if they have a reasonable suspicion that a crime against a
    resident has occurred when the complaint is received; (4) conduct
    oversight of State survey agencies to ensure referrals of complaints,
    surveys, and substantiated incidents with reasonable suspicion of a
    crime are referred to law enforcement (and, when applicable, to MFCUs)
    in a timely fashion; (5) develop guidance for State survey agencies
    clarifying that allegations verified by evidence should be
    substantiated and reported to law enforcement and State registries in
    cases where citing a Federal deficiency may not be appropriate; and (6)
    provide guidance on what information should be contained in the
    referral of abuse allegations to law enforcement.

        AHCA agrees that the recommendations made across the two reports
    would help to improve reporting, investigation and future prevention of
    instances and abuse and neglect. However, these recommendations will
    only be impactful if the following issues are addressed:

            Eliminate discrepancies across provider settings in how abuse
    and neglect are defined, specifically for nursing homes.

            Separating the reporting and citation of abuse and neglect to
    ensure appropriate enforcement and improvement actions.

        The OIG and GAO reports indicate significant issues with the
    identification and reporting of abuse and neglect across settings. They
    concluded that there is real confusion among providers and regulators
    alike on the reporting guidelines due to different, unclear definitions
    and reporting guidance. OIG interviews confirmed that not only did SNFs
    fail to report due to confusion but due to the fact that the State
    Survey Agency or law enforcement were unaware of the cases, the
    hospital ER and physicians also failed to report these cases. There is
    a lack of consistent guidance on what constitutes abuse and neglect.
    There is also is confusion about what to report and who is responsible
    for making reports to appropriate law enforcement or oversight
    agencies. As a result, there is inconsistent reporting and follow-up
    action, which can only worsen an already serious issue.

        In addition, abuse and neglect is reported together, confusing two
    distinct and separate issues. Neglect is much more commonly cited,
    while abuse is much rarer. The impact of this is potentially
    ineffective improvement and enforcement actions. Abuse is most often
    the result of an individual personnel issue, while neglect is often
    evidence of a system-wide clinical issue. Enforcement actions by CMS
    and required improvement actions by the center should address these
    distinctly. If these changes are not made, these ten recommendations
    are likely to be ineffective.

        OIG Report--CMS Could Use Medicare Data To Identify Instances of
    Potential Abuse or Neglect: (1) compile a complete list of diagnosis
    codes that indicate potential physical or sexual abuse and neglect; (2)
    use the complete list of diagnosis codes to conduct periodic data
    extracts of all Medicare claims containing at least one of the codes
    indicating either potential abuse or neglect of adult and child
    Medicare beneficiaries; (3) inform States that the extracted Medicare
    claims data are available to help States ensure compliance with their
    mandatory reporting laws; and (4) assess the sufficiency of existing
    Federal requirements, such as conditions of participation and section
    1150B of the Social Security Act, to report suspected abuse and neglect
    of Medicare beneficiaries, regardless of where services are provided,
    and strengthen those requirements or seek additional authorities as
    appropriate.

        AHCA does not believe the first three recommendations made in the
    June 2019 OIG report entitled, CMS Could Use Medicare Data To Identify
    Instances of Potential Abuse or Neglect is an effective strategy to
    prevent and investigate abuse. The four recommendations in this report
    focus on additional data collection through claims data. There is a
    significant delay in accessing claims data, which would render the
    identification of these instances abuse and neglect largely meaningless
    for timely investigation and intervention, while at the same time
    creating additional burden for providers. Also, collecting and
    reviewing the hospital and nursing home medical record is only way to
    determine if the claims data is related to abuse or neglect. This is a
    labor-intensive activity that also takes more time. All of which takes
    surveyors away from inspecting nursing homes in a timelier manner and
    adds burden to providers to comping medical records for review. We
    believe the other recommendations and focusing on more timely visits
    and follow-up visits by the surveyors, along with better guidance on
    reporting potential abuse and neglect, will be a more effective use of
    resources. However, AHCA does support the fourth recommendation, as it
    relates to assessing the sufficiency and strengthening the requirements
    across all Medicare beneficiaries, regardless of services provided.
    AHCA believes it is imperative to standardize the requirements around
    abuse and neglect across all provider settings.

        Question. Insofar as any of the recommendations proposed by the GAO
    or OIG could be better tailored, targeted, or otherwise enhanced to
    meet their desired goals without unduly increasing the administrative
    burden on facilities and/or diverting attention from patient and
    resident care, what steps should we and/or CMS take to ensure that we
    make the changes needed?

        Answer. The recommendations made by the GAO and OIG will not be
    meaningful unless there is standardization in the definition of abuse
    and neglect across provider settings, and the separation of abuse and
    neglect as it relates to enforcement actions, as stated above. In
    addition, the recommendations for additional tracking of data will not
    be effective due to the delay in processing these claims. This will
    only result in an increased paperwork burden and divert resources from
    residents.

        Regarding the recommendations around standardized forms and
    additional reporting guidance, it will be important to limit the amount
    of information required to what is only most important. The amount of
    information conveyed should not detract from the facilities ability to
    assure the safety and well-being of the resident. The health care
    provider should focus on the safety and well-being of the resident,
    rather than collecting paperwork or information that the State or local
    law enforcement should be responsible for collecting.

                                     ______

                     Questions Submitted by Hon. Ron Wyden
                           section 1150b enforcement
        Question. One key provision of the Elder Justice Act established
    new elder abuse reporting requirements for nursing homes (section 1150B
    of the Social Security Act). The law required immediate reporting of
    any reasonable suspicion of a crime committed against a nursing home
    resident. Enforcement measures included civil monetary penalties of up
    to $300,000. HHS has never given CMS the authority to enforce this
    provision. Do you agree that CMS ought to be enforcing this Elder
    Justice Act 1150B requirement on reporting abuse?

        Answer. While we support the intent of the Elder Justice Act to
    report abuse and neglect to the appropriate authorities, the reporting
    time frames and the confusion about what needs to be reported needs to
    be addressed. We support the intent to hold facilities accountable for
    reporting in a timely manner. We also support holding individual
    health-care workers and nonhealth-care workers accountable to reporting
    to their appropriate supervisor and manager in a facility, but do not
    support holding them accountable with large monetary penalties up to
    $300,000 as specified in the Elder Justice Act for the reasons spelled
    out below.

        The examples used in the hearings and media and OIG/GAO reports all
    support rapid reporting of abuse and neglect. However, those examples
    do not represent the guidance provided by CMS on what must be reported
    or enforced through citations. The confusion on definitions and
    descriptions provided by CMS, as well as actual citations issued,
    reinforce reporting any instance of potential harm to authorities. As a
    result, in 2018 nursing homes reported over 200,000 cases to State
    agencies, of which only 20 percent were substantiated as representing
    any non-compliance with CMS regulations. Of the 20 percent that did
    result in a citation of non-compliance, most were NOT for abuse or
    neglect. Only 0.3 percent were cited for abuse or neglect and the
    majority of those were for instances not related to harm.

        The GAO and OIG both found that local law enforcement and State
    Survey Agencies did not feel they got enough information to decide on
    how soon they needed to conduct their investigation. This is largely
    due to the 2-hour reporting requirement and the poor guidance on what
    cases need to be reported. Immediately or within the 2-hour window,
    facilities are also required to do the following (all of which we
    strongly support):

            Notify the physician and family member immediately upon
    discovering potential abuse.

            Take actions to ensure the safety and well-being of the
    resident, which would include conducting assessment of the resident
    and/or performing treatments as well as potentially arranging
    transportation to the emergency room.

            Remove the health care workers or employees who may be
    involved in the incident.

        Thus, calling the State Survey Agency or local law enforcement
    within 2 hours with detailed information is often impossible and may
    even jeopardize the safety and well-being of the resident.

        In addition, we have had numerous members receive complaints from
    the local law enforcement that they do not want many of the cases being
    called to them. Examples of the types of calls that local law
    enforcement does not want to receive could include:

            A bruise on a resident on a blood thinner may represent a
    potential allegation of abuse, but most of the time does not.

            A resident hit by another resident represents abuse per CMS
    guidelines and must be reported to local law enforcement.

            A person with dementia who does not remember where they are or
    where they place items, commonly will state that their personal belongs
    have been stolen by a person entering their room. That person often is
    an aide that, due to the resident's dementia, the resident doesn't
    remember and assumes is a stranger.

        Currently, all of these examples must be reported to the
    authorities within two hours. Collecting the information to determine
    the circumstances around these examples can take more than 2 hours. As
    a result, to avoid being threatened with individual monetary penalties,
    the facility reports what information they have. The 2-hour reporting
    requirement applies to any time of day, including the middle of the
    night. CMS needs to provide better and clearer guidance on what
    incidents needs to be reported, otherwise the number of reported
    incidents will continue to increase.

        Adding a monetary penalty to individuals not reporting within 2
    hours will have two significant unintended effects and will not help
    prevent abuse or neglect from occurring. First, to avoid any chance of
    receiving a personal $300,000 financial penalty, individuals will
    report any incident or circumstance to assure they are not at any risk
    of such a penalty. Without explicitly clear guidance from CMS, this
    will result in a massive increase in reporting that will overwhelm the
    State Survey Agencies and local law enforcement. Also, every time a
    staff person reports to work and learns of the potential abuse or
    neglect, they will be required to notify the appropriate authorities,
    which will result in multiple reports for the same incident, often with
    very incomplete information. Second, as long as the definitions are
    different from hospitals and home health, and the penalty only applies
    to nursing homes, potential employees, including health-care workers
    such as nurses that are already in short supply, will seek employment
    elsewhere. Currently, CMS requires any fall with an injury of any
    nature (pain or bruising from a fall) to be reported consistent with
    the Elder Justice Act. However, a fall in the hospital with pain or
    bruising does not need to be reported. A majority of the incidents that
    must be reported in the nursing home setting do not need to be reported
    in hospitals or home health settings. In addition, any monetary penalty
    would require notification to their State professional licensure board
    and would also need to be noted on any future job applications to any
    healthcare setting. As such, healthcare workers, are not going to want
    to work in nursing homes.

        Lastly, we are not aware of evidence that supports individual
    penalties as a method to prevent abuse or neglect. In fact, the
    Institute of Medicine (IOM) and other independent organizations examine
    patient safety do not recommend using penalties for failing to report
    or involved in medical errors or incidents as they have been shown to
    not prevent them and in fact may make the matter worse. Therefore, we
    do not support this approach as currently written in 1150B of the Elder
    Justice Act. The healthcare workers should be held accountable for
    reporting to their supervisor any suspicions, but not individually.
    Also, the language in 1150B of the Elder Justice Act should apply to
    all settings, not just nursing homes, to avoid creating a powerful
    disincentive for health-care workers to work in nursing homes.

        In regard to the Elder Justice Act, we must ensure access to grants
    or other funding streams that can support recruitment, retention, and
    training initiatives in long-term care. In this context, long-term care
    should encompass all settings and providers, rather than being limited
    to long-term care facilities. We recommend support for any initiatives
    that can ease burden of accessing and applying for grant monies
    including quick turnaround for review of grants and awarding of the
    funding.
                 scope of the special focus facilities program
        Question. CMS recently released the list of 435 nursing homes that
    are candidates for the Special Focus Facilities Program (SFF). As you
    know, once on the SFF list, these nursing homes are subject to
    additional inspections and oversight. However, the number of homes
    placed in this program is arbitrarily limited by CMS to a maximum of 88
    facilities (one-half of 1 percent of all nursing homes). The number of
    candidates is itself also arbitrarily limited by CMS. It is likely that
    there are additional nursing homes that have substandard performance on
    par with the SFF candidates, but which do not themselves become
    candidates because of the CMS restriction on the number of candidate
    slots. How many nursing homes in this country do you believe would
    actually qualify for the ``poorly performing'' criteria outlined in the
    SFF program and need additional attention to ensure residents are being
    cared for properly? Should the SFF program be expanded to encompass all
    poorly performing nursing homes? If not, what measures would you
    recommend to address the deficiencies in their performance?

        Answer. The current SFF list is based on a facility ranking within
    their State on their survey score. The State agency reviews a list of
    the worst-ranked facilities in their State to select the 2-3 to be on
    the SFF list. Using the survey score as the sole data to identify
    ``poorly performing'' is not effective. Looking at the SFF candidate
    list that Senators Casey and Toomey released demonstrates this problem
    as the survey score, which is based on points assigned to each survey
    citations received over the past 3 to 4 years, varies tremendously
    between States. The variation in the number of citations is over four-
    fold between the nine CMS regions from a low of 3.6 in Region II to
    14.5 in Region X per CMS's QCore website. The survey scores to get on
    the SFF list in each State varied from a low of 34 in NH to a high of
    445 in KY (see Table 4 for the minimum survey scores for being added to
    the SFF candidate facilities in each State rank ordered from lowest to
    highest).

        In some States and regions, a single incident of poor quality will
    result in multiple citations while in others, it may only result in a
    single citation. For example, a fall with a fracture may be cited as a
    deficient practice related to non-compliance with regulations to
    prevent accidents, and the same type of incident in another State
    results in not only a citation for accidents but citations related to
    care planning, quality assurance, administrator leadership, and
    neglect. This will result in a much worse survey score for the facility
    with multiple citations. Yet the facility with a single citation may
    have low staffing and a very high rate of falls with injury based on
    the CMS outcome measures, while the facility with multiple citations
    may have high staffing levels and very low rate of falls with injury on
    the CMS outcome measures. When you examine the SFF candidate list of
    facilities, you can find some with high staffing levels and good
    outcome measures, others with average staffing and average outcomes and
    yet others with poor staffing and outcomes. If the purpose of the SFF
    is to identify poor performing facilities, we would recommend using
    additional data beyond just the survey inspections to more accurately
    identify facilities that may fall on the SFF.

                    Table 4. State Rank Ordered by Minimum Survey Score to Get on SFF Candidate List
    ----------------------------------------------------------------------------------------------------------------
                                                                                 # SFF Candidate
                    STATE                       # SNFs         # SFF in State     Facilities in     Min Survey Score
                                                                                      State         to SFF Candidate
    ----------------------------------------------------------------------------------------------------------------
    NH                                                  73                  1                  4                 34
    ----------------------------------------------------------------------------------------------------------------
    NJ                                                 360                  2                  9                 41
    ----------------------------------------------------------------------------------------------------------------
    FL                                                 689                  2                 14                 56
    ----------------------------------------------------------------------------------------------------------------
    NY                                                 613                  2                 15                 68
    ----------------------------------------------------------------------------------------------------------------
    ND                                                  79                  1                  5                 70
    ----------------------------------------------------------------------------------------------------------------
    RI                                                  83                  1                  4                 76
    ----------------------------------------------------------------------------------------------------------------
    ME                                                  98                  1                  4                 77
    ----------------------------------------------------------------------------------------------------------------
    VT                                                  36                  1                  5                 81
    ----------------------------------------------------------------------------------------------------------------
    WY                                                  35                  1                  5                 86
    ----------------------------------------------------------------------------------------------------------------
    AZ                                                 145                  1                  4                 92
    ----------------------------------------------------------------------------------------------------------------
    NV                                                  61                  1                  4                112
    ----------------------------------------------------------------------------------------------------------------
    PA                                                 687                  4                 16                131
    ----------------------------------------------------------------------------------------------------------------
    OH                                                 963                  5                 18                140
    ----------------------------------------------------------------------------------------------------------------
    CT                                                 223                  1                  3                141
    ----------------------------------------------------------------------------------------------------------------
    IN                                                 546                  3                 14                144
    ----------------------------------------------------------------------------------------------------------------
    LA                                                 276                  1                  4                151
    ----------------------------------------------------------------------------------------------------------------
    HI                                                  44                  1                  5                152
    ----------------------------------------------------------------------------------------------------------------
    MS                                                 198                  1                  5                155
    ----------------------------------------------------------------------------------------------------------------
    IA                                                 431                  2                  9                159
    ----------------------------------------------------------------------------------------------------------------
    DE                                                  44                  1                  5                161
    ----------------------------------------------------------------------------------------------------------------
    AL                                                 227                  1                  4                166
    ----------------------------------------------------------------------------------------------------------------
    MO                                                 514                  3                 11                169
    ----------------------------------------------------------------------------------------------------------------
    OK                                                 295                  2                 10                176
    ----------------------------------------------------------------------------------------------------------------
    MD                                                 225                  1                  4                181
    ----------------------------------------------------------------------------------------------------------------
    MN                                                 373                  2                  9                193
    ----------------------------------------------------------------------------------------------------------------
    GA                                                 357                  1                  8                195
    ----------------------------------------------------------------------------------------------------------------
    MT                                                  71                  1                  5                195
    ----------------------------------------------------------------------------------------------------------------
    NC                                                 424                  2                  7                196
    ----------------------------------------------------------------------------------------------------------------
    UT                                                 100                  1                  3                200
    ----------------------------------------------------------------------------------------------------------------
    SD                                                 103                  1                  4                202
    ----------------------------------------------------------------------------------------------------------------
    IL                                                 724                  4                 14                204
    ----------------------------------------------------------------------------------------------------------------
    CO                                                 226                  1                  4                217
    ----------------------------------------------------------------------------------------------------------------
    SC                                                 184                  1                  5                218
    ----------------------------------------------------------------------------------------------------------------
    WI                                                 371                  2                  8                238
    ----------------------------------------------------------------------------------------------------------------
    VA                                                 281                  1                  4                240
    ----------------------------------------------------------------------------------------------------------------
    MI                                                 440                  1                  9                243
    ----------------------------------------------------------------------------------------------------------------
    CA                                                1176                  6                 27                248
    ----------------------------------------------------------------------------------------------------------------
    NE                                                 209                  1                  5                255
    ----------------------------------------------------------------------------------------------------------------
    TN                                                 311                  2                  6                273
    ----------------------------------------------------------------------------------------------------------------
    MA                                                 392                  2                  9                274
    ----------------------------------------------------------------------------------------------------------------
    KS                                                 326                  2                  9                284
    ----------------------------------------------------------------------------------------------------------------
    ID                                                  80                  1                  4                286
    ----------------------------------------------------------------------------------------------------------------
    AR                                                 224                  1                  5                290
    ----------------------------------------------------------------------------------------------------------------
    WV                                                 119                  1                  5                312
    ----------------------------------------------------------------------------------------------------------------
    NM                                                  73                  1                  5                332
    ----------------------------------------------------------------------------------------------------------------
    TX                                               1,209                  5                 26                350
    ----------------------------------------------------------------------------------------------------------------
    OR                                                 134                  1                  4                366
    ----------------------------------------------------------------------------------------------------------------
    WA                                                 210                  1                  5                407
    ----------------------------------------------------------------------------------------------------------------
    KY                                                 282                  1                  5                445
    ----------------------------------------------------------------------------------------------------------------

        Also, if the purpose of designating SFFs are to get the poor
    performing facilities to improve, the current program is not effective.
    A SFF designation only results in greater number of inspections and
    more penalties. This assumes that greater scrutiny, more citations and
    more penalties to a facility that over the past 3 years has already
    received a higher number of citations, fines and other penalties, will
    change outcomes. The SFF list is the same size for all States, which is
    fundamentally skewed. The staffing and quality vary between States and
    the number of facilities in States also vary. Using a fixed proportion
    or number of facilities in each State will result in some good
    facilities on the SFF list in some States and poor performing
    facilities in other States that may warrant a SFF designation being
    left off.

        One of the strongest predictors of staffing levels and quality
    relates to Medicaid reimbursement levels in the State. Any efforts to
    address poor performing facilities needs to examine Medicaid
    reimbursement policies and the size of a facilities Medicaid census, as
    Dr. Grabowski testified during the March 2019 Senate Finance Committee
    hearing on abuse and neglect.
         transparency and treatment of poorly performing nursing homes
                            in nursing home compare
        Question. The 88 facilities that are ``in'' the SFF program have
    their ``star'' ratings removed from Nursing Home Compare as a warning
    to consumers. Although CMS has now adopted a policy of disclosing the
    list of candidates, nursing homes that are classified as candidates for
    the program, i.e., they are equally bad but not enrolled, are allowed
    to retain their ``star'' ratings. Consequently, consumers using Nursing
    Home Compare are not clearly warned about them. Would you agree that
    SFF candidates should treated in the same way on Nursing Home Compare
    as the 88 facilities in the program or in some other way be disclosed
    on the site? If not, how should they be disclosed?

        Answer. AHCA disagrees with removing the star rating. The star
    rating combines three very distinct quality information, each of which
    provides valuable information to the consumers. Removing the star
    rating and information from the website decreases transparency and
    restricts information available to consumers. While information on the
    number and types of abuse and neglect citations is currently available
    on Nursing Home Compare, with only one or two clicks from the
    facilities report page. As shown with Figures 4-6 below (screen shots
    from NHC using an Iowa facility), if a website user clicks on ``view
    all health inspection details,'' a report listing the number of
    different citations including abuse and neglect appear. As a website
    user scrolls down the page, the names of each deficiency along with the
    scope and severity are also provided, as shown in Figures 4-6 below. A
    website user can also view a copy of the actual report that lists all
    the findings. The SFF list is also based only on the survey inspection
    findings. As described in the previous answer, the survey findings vary
    tremendously between States and even within regions within large
    States. For example, in some States the minimum score to be on the SFF
    candidate list ranges from 34 to 455 (see Table 4 above). This is an
    enormous difference. Also, in some States, facilities on the SFF have a
    very reasonable survey score, while in other States, facilities with
    numerous deficiencies are not on the list at all. Also, there are
    facilities with excellent survey inspections (4- or 5-star ratings on
    the survey component only) but who have very low staffing levels and
    very poor quality outcomes. The SFF list should be based on information
    across all three components. Suppressing information for those on the
    SFF list only restricts information that consumers can access to
    decide. We do support having a special designation warning consumer of
    struggling facilities, but it should be based on reliable information
    and information that covers different domains of quality.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            access and reimbursement
        Question. Medicaid is the primary payer of long-term care in the
    United States helping to cover the cost of care for two out of three
    individuals in nursing homes. Due to State fiscal pressures,
    reimbursement rates under State Medicaid programs for nursing facility
    care can oftentimes be insufficient, not consistently covering the cost
    of high-quality care for high needs residents. Instead of looking for
    ways to strengthen the program to ensure the millions of seniors who
    rely on Medicaid for nursing and home-based services have access to the
    care they need and that the providers they depend on can deliver the
    high-quality care they deserve, Republicans and the Trump
    administration would rather slash over a trillion dollars from the
    program through block grants and caps. In addition to fighting back
    against these efforts, I have written a number of times to this
    administration and the previous administration about the need for
    appropriate oversight and enforcement of Medicaid's equal access
    standards and the need to ensure sufficient provider payment rates.
    However, we have time and time again seen this administration undermine
    access to essential care, most recently through a proposal to repeal
    the 2016 Medicaid Access rule, which among other things, would have
    required States to review the impact on access to care before slashing
    provider payment rates and payments to nursing facilities. What impact
    would legislative and administrative proposals like these have on
    providers and their ability to provide high-quality care to the rapidly
    growing population of older Americans that will need long-term care?

        Answer. It is important to ensure that Medicaid payment rates are
    sufficient to allow for providing high quality of care, particularly
    since Medicaid is the primary payer of long-term services and supports.
    As compared to other payers, Medicaid is an underpayer, reimbursing
    providers approximately at $0.89 per dollar used in providing care.
    These combined effects make it very difficult for providers to invest
    in infrastructure and systems necessary to provide high quality care.
    In many cases, the inadequate reimbursement rate can reduce access to
    long term care, because it is the business model is unsustainable. As a
    result, we witness many closures of nursing homes, with the majority of
    those concentrated in rural locations, where patients have few, if any,
    other alternatives to obtaining long term care. When these closures
    occur, they lead to interruptions in care and displacements of all
    patients, thus negatively impacting all, regardless of payer source.

        Academics have examined the link of Medicaid reimbursement to
    quality and many studies conducted in the past two decades (see Table 5
    ``Medicaid Payment Policies'') have found that increasing Medicaid
    payment rates increased quality of care, or decreased incidence of
    negative outcomes such as pressure ulcers, hospitalizations, ADL
    decline, and mortality.

        Further, many peer-reviewed studies in the past 20 years have
    looked at the relationship between Medicaid census in nursing homes and
    the quality of care (see table below, section ``Medicaid Census'').
    Three studies (that looked at hospitalizations) found that increased
    Medicaid census or number of Medicaid reimbursed days were associated
    with increased likelihood of hospitalization, and one article (that
    looked at risk-adjusted ulcers) found that the positive relationship
    between Medicaid payment rates and quality was stronger in nursing
    homes with a high proportion of Medicaid residents. As the U.S. older
    population is expected to double by 2040 potentially increasing the
    population of Medicaid beneficiaries needing long term care services,
    providers will find it increasingly difficult to provide high quality
    of care, if they can even remain open. Thus, this highlights the need
    for Medicaid to provide sufficient reimbursement rates.

     Table 5: Academic Published Studies on Medicaid Relationship to Quality
    ------------------------------------------------------------------------
                                                     Results
                         Medicaid   ----------------------------------------
       Publication       Feature         Better         Worse
                                        Outcomes      Outcomes     No Effect
    ------------------------------------------------------------------------
    Medicaid
     PPayment
     PPolicies
    ------------------------------------------------------------------------
    Bowblis et al.,   Anticipated                                 Moderate-
     2017              and Actual                                  Severe
                       Changes in                                  Pain, ADL
                       Medicaid                                    Decline,
                       Reimbursemen                                Bowel/
                       t Rates                                     Bladder
                                                                   Incontine
                                                                   nce, UTI,
                                                                   Pressure
                                                                   Ulcers,
                                                                   Falls
                                                                   with
                                                                   Major
                                                                   Injury
    ------------------------------------------------------------------------
    Foster et al.,    Pass-Through   Decreases                    ADL
     2015              Subsidies      Incidence of                 Decline,
                                      Pressure                     Persisten
                                      Ulcer                        t Pain
                                      Worsening by                 Rates
                                      0.9%
    ------------------------------------------------------------------------
    Grabowski, 2001   $1 Increase    0.9969 to
                       in             0.9983 Lower
                       Reimbursemen   Likelihood
                       t              of Pressure
                                      Ulcers
    ------------------------------------------------------------------------
    Grabowski, 2002   Case-Mix                                    Pressure
                       Reimbursemen                                Ulcers
                       t
    ------------------------------------------------------------------------
    Grabowski, 2004   $1 Increase    0.015
                       in             Percentage
                       Reimbursemen   Point
                       t              Decrease in
                                      Pressure
                                      Ulcers
    ------------------------------------------------------------------------
    Grabowski et      10% Increase   1% Decrease
     al., 2004a        in             in Pressure
                       Reimbursemen   Ulcers
                       t
    ------------------------------------------------------------------------
    Grabowski et      Reimbursement  Facilities in  Facilities
     al., 2004b        Rates          highest        in highest
                                      payment        payment
                                      quartile had   quartile
                                      significantl   had
                                      y lower        significant
                                      rates of       ly higher
                                      pressure       rates of
                                      ulcers than    pain than
                                      those in the   those in
                                      lower          the lower
                                      quartile       quartile
                                      (14.8% to      (13.4% to
                                      16.1%)         11.1%)
    ------------------------------------------------------------------------
    Gruneir et al.,   $10 Increase   0.95 Lower
     2007              in             Odds of
                       Reimbursemen   Hospitalizat
                       t              ion
    ------------------------------------------------------------------------
    Intrator et al.,  $10 Increase   9% Reduction
     2004              in             in Risk of
                       Reimbursemen   Hospitalizat
                       t              ion and 12%
                                      Decrease in
                                      Mortality
    ------------------------------------------------------------------------
    Intrator et al.,  $10 Increase   5% Lower Odds
     2007              in             of
                       Reimbursemen   Hospitalizat
                       t              ion
    ------------------------------------------------------------------------
    Mor et al., 2011  $10 Increase   Increased
                       in             Likelihood
                       Reimbursemen   of Meeting
                       t              Nursing Home
                                      Quality
                                      Thresholds
                                      by 2% for
                                      Pressure
                                      Ulcers, 5%
                                      for Pain
                                      Control, and
                                      9% for ADL
                                      Decline
    ------------------------------------------------------------------------
    Werner et al.,    Pay-for-       Decreased                    Falls,
     2013              Performance    Moderate-                    Weight
                                      Severe Pain                  Loss
                                      by 0.5% and
                                      Pressure
                                      Ulcers by
                                      0.3%
    ------------------------------------------------------------------------
    Medicaid  Census
    ------------------------------------------------------------------------
    Cai et al., 2011  Medicaid                      Increased
                       Census                        Hospitaliza
                                                     tions in
                                                     For-Profit
                                                     Facilities
    ------------------------------------------------------------------------
    Carter, 2003      Medicaid                      Increased
                       Census                        Hospitaliza
                                                     tions
    ------------------------------------------------------------------------
    Carter et al.,    Medicaid                      10% Higher
     2003              Census                        Odds of
                                                     Hospitaliza
                                                     tion
    ------------------------------------------------------------------------
    Grabowski et      Medicaid                      Relationship
     al., 2004a        Census                        Between
                                                     Pressure
                                                     Ulcers and
                                                     Payment
                                                     Especially
                                                     Strong in
                                                     High-
                                                     Medicaid
                                                     Nursing
                                                     Homes
    ------------------------------------------------------------------------
    Kang-Yi et al.,   Medicaid                                    Psychosoci
     2011              Census                                      al Well-
                                                                   Being
                                                                   Outcomes
    ------------------------------------------------------------------------
    Shippee et al.,   Medicaid                      Increased     Environmen
     2015              Census                        Odds of       t, Food,
                                                     Lower         Negative
                                                     Quality of    Mood,
                                                     Life Scores   Positive
                                                     for           Mood
                                                     Personal
                                                     Attention
                                                     (0.76),
                                                     Engagement
                                                     (1.07), and
                                                     Summary
                                                     Score
                                                     (2.38)
    ------------------------------------------------------------------------

                                     ______

                 Questions Submitted by Hon. Sheldon Whitehouse
        Question. Entering a nursing home can be a traumatic time for the
    patient and his or her family. Often buried deep in the patient
    admittance contracts are clauses that force patients into secret legal
    proceedings if the nursing home negligently or even intentionally
    injures or abuses the patient. Not only does this rob the patient of
    his or her constitutional right to a day in court, but it also keeps
    knowledge of the abuse secret from other potential victims.

        A 2015 Federal Government study found that less than 7 percent of
    people who'd signed arbitration agreements as part of credit card
    contracts understood that it meant they gave up their right to sue the
    company in the future.

        Do you think that nursing home patients, who are already enduring a
    stressful and emotional situation, are in a position to fully
    understand what they are signing away?

        Answer. Arbitration enables parties to settle disputes fairly and
    with lower cost, and with results that are very similar to outcomes in
    court. Moreover, courts ensure that arbitration procedures are fair to
    all sides, and routinely invalidate arbitration agreements that fail to
    meet that requirement. This time-tested approach is beneficial to all
    parties. AHCA believes arbitration agreements are an essential legal
    remedy beneficial to both residents and SNFs. Court actions often take
    years before they go to trial and reach final resolution. Arbitration
    disputes on average settle a bit faster and result in similar awards. A
    2018 study by Aon found that a greater percentage of arbitration claims
    produced payments over $25,000 than claims in court (60.6 percent vs.
    55.2 percent).

        Issues that require legal or dispute resolution are rare. Of the
    3.4 million people treated in SNFs each year, significantly less than
    one percent have issues that are serious enough to require formal
    dispute resolution. The vast majority of these cases reach a settlement
    before going to court or entering arbitration.

        SNFs are not the only health-care providers that use arbitration.
    For example, arbitration is used as a dispute resolution system by the
    Kaiser health system, and 94 percent of the parties and lawyers who
    participated in 2017 said the arbitration system was better or the same
    as the judicial process.

        Question. If a nursing home is abusing or neglecting patients,
    funneling any lawsuits into secretive private legal proceedings allows
    the nursing home to conceal a pattern of abuse. Correct?

        Don't other current and prospective patients have a right to know
    if a nursing home is mistreating its patients?

        Answer. Skilled nursing facilities are subject to unannounced
    rigorous and frequent government inspection. recertification
    inspections at least every 15 months. Additional complaint surveys are
    conducted as needed. SNFs are required to report suspected abuse and
    neglect to CMS, which in turn is charged with prioritizing
    investigations.

        Survey results are made public. Facilities must post survey
    findings. Additionally, CMS's Nursing Home Compare website posts survey
    reports and plans of correction. These survey findings are part of a
    facility's star rating.

        In addition, arbitration agreements do not prevent parties from
    discussing their claims or an arbitrator's decision with government
    regulators or law enforcement agencies, or from discussing their claims
    or the arbitrator's decision in public. Provisions in arbitration
    agreements that purport to impose such restrictions are invalidated by
    courts.

                                     ______

           Prepared Statement of Lori Smetanka, Executive Director,
               National Consumer Voice for Quality Long-Term Care
        Chairman Grassley, Ranking Member Wyden, and distinguished members
    of the committee, thank you for holding this important hearing. My name
    is Lori Smetanka, and I am the executive director of the National
    Consumer Voice for Quality Long-Term Care, a national advocacy
    organization representing individuals living in long-term care
    facilities and their families. I am testifying today on behalf of my
    own organization, the membership of which includes State and local
    advocacy organizations, ombudsmen, residents of nursing homes and their
    families; and also on behalf of partner advocacy organizations, the
    Long Term Care Community Coalition, and California Advocates for
    Nursing Home Reform.

        Under Federal law, every nursing home must provide residents with
    services that help attain and maintain their highest practicable
    physical, mental, and psychosocial well-being. However, with great
    dismay, reports continue to indicate that too many nursing homes fail
    to meet minimum standards of care that they voluntarily agreed to
    follow as a requirement of participating in the Medicare and Medicaid
    programs. Reports, such as the ones identified by the Office of the
    Inspector General and the Government Accountability Office in the first
    panel show us that all nursing home residents need greater protections
    to ensure their quality of care and quality of life.

        Sadly, the failure to protect and expand residents' rights and
    protections means that the stories of Patricia Blank and Maya Fischer,
    who were the victims of abuse and neglect, are not unique. My
    colleagues and I communicate daily with residents, family members,
    citizen advocates, and long-term care ombudsmen who see and experience
    the failures of the systems designed to protect residents.

        We need greater accountability for the billions of public dollars
    that annually go to nursing facilities and which are intended to
    provide care and services for some of our country's most vulnerable
    individuals.

        We can do better, and today I offer recommendations in the
    following areas.
               require standards for a sufficient, well-trained,
                           well-supervised workforce
        A primary factor for ensuring that residents receive good care, and
    that will go a long way in the prevention of abuse and neglect, is to
    ensure that nursing homes have adequate numbers of competent staff.
    Studies have established the relationship between staffing levels and
    quality of care. When there is not enough well-trained and well-
    supervised staff, residents suffer. 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.\1\
    ---------------------------------------------------------------------------
        \1\ 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.

        Federal law requires nursing facilities to have a registered nurse
    on duty 8 consecutive hours every day, licensed nurses 24 hours a day,
    and sufficient nursing staff.\2\ ``Sufficient staff,'' however, is
    vague and ambiguous. Without a specific definition of ``sufficient,''
    in terms of actual numbers of staff, the facility itself decides what
    is sufficient, without having to demonstrate any reason for that
    determination. Studies \3\, \4\ show that 4.1 hours per
    resident day of care is the minimum staffing ratio necessary to prevent
    common quality problems. Yet most facilities do not meet that standard.
    ---------------------------------------------------------------------------
        \2\ 42 U.S.C. 1395i-3; 42 U.S.C. 1396r.
        \3\ Abt Associates for CMS, ``Appropriateness of Minimum Nurse
    Staffing Ratios in Nursing Homes,'' December 2001.
        \4\ Edelman, T., ``Nurse Staffing Deficiencies in Nursing
    Facilities: Rarely Cited, Seldom Sanctioned,'' CMA Report, January 10,
    2019.

        The payroll-based staffing data which CMS collects, show that
    staffing levels are lower than previously self-reported by nursing
    facilities,\5\ and an analysis of this data recently reported in Health
    Affairs, shows that ``the majority of days, nursing home staffing
    levels are below what the CMS expects.''\6\ The findings further
    indicated that nursing homes fail to properly staff registered nurses,
    as well as fail to maintain staffing levels on evenings and weekends.
    Additionally, the data showed what residents and families have been
    telling us for years, that staffing levels increased only in
    anticipation of the annual surveys.\7\
    ---------------------------------------------------------------------------
        \5\ Jordan Rau, `` `Like a Ghost Town': Erratic Nursing Home
    Staffing Revealed Through New Records,'' Kaiser Health News, July 13,
    2018.
        \6\ Fangli Geng, David G. Stevenson, and David C. Grabowski,
    ``Daily Nursing Home Staffing Levels Highly Variable, Often Below CMS
    Expectations,'' Health Affairs 38, N. 7 (2019): 195-1100.
        \7\ Id.

        The 2016 Final Rule on Requirements of Participation for Long-Term
    Care Facilities, included provisions that took positive steps toward
    improving staffing. The 2016 Final Rule (1) required staff to have
    ``appropriate competencies and skill sets'' to care for the residents
    living in the facility; (2) required training around issues such as
    abuse prevention and dementia care; and (3) required an annual Facility
    Assessment which mandated nursing homes to assess necessary staffing
    needs for their facility by taking into consideration the number,
    acuity, and diagnoses of its resident population.\8\ Here, for the
    first time, would be a way to require providers to think about what
    would be ``sufficient'' and to have documentation and reasons that
    regulators could use to hold facilities accountable. Last week,
    however, in its effort to ``reduce the burden on providers,''\9\ CMS
    issued a proposed rule to reduce the frequency of the facility
    assessment to every 2 years.\10\ Reducing the frequency of this
    assessment is dangerous.
    ---------------------------------------------------------------------------
        \8\ 42 CFR Sec. 483.70(e).
        \9\ 84 Fed. Reg., 34737 (July 18, 2019). The 32-page document in
    the Federal Register uses the word ``burden'' or ``burdensome'' 102
    times, describing burdens on facilities.
        \10\ 84 Fed. Reg. 34737, 34745 (July 18, 2019).

        We recommend that Congress establish and enforce minimum
    requirements for sufficient numbers of direct care nursing staff,
    ---------------------------------------------------------------------------
    including that a registered nurse be on-site 24 hours per day.

        We are aware of the arguments providers present as reasons for not
    hiring more staff. They have been making these arguments for decades--
    that the pool of workers is shrinking, and they do not have the funds
    to hire. However, there are other reasons that we have not made more
    progress in improving staffing levels and nursing home quality. While
    trying to control costs, Medicare does not conduct financial audits and
    has no limit on administrative costs and profits. Consequently, the
    Medicare Payment Advisory Commission (MedPAC) reports that Medicare
    margins have exceeded 10 percent for 18 consecutive years.\11\ Under
    current Federal and State payment systems, nursing homes are able to
    make choices on how to allocate their resources with few regulatory
    restrictions. In 2010, for example, California nursing homes spent only
    36 percent of total revenues (including Medicare and Medicaid) on
    staffing and over 20 percent on administration and profits.\12\
    Ultimately, without more information about where the public's
    reimbursement dollars are going, we should not let providers off the
    hook.
    ---------------------------------------------------------------------------
        \11\ Medicare Payment Advisory Commission, Report to the Congress:
    Medicare Payment Policy, p. 193 (March 2019), http://medpac.gov/docs/
    default-source/reports/mar19_medpac_entire
    report_sec_rev.pdf?sfvrsn=0.
        \12\ Harrington, Charlene, John F. Schnelle, Margaret McGregor, and
    Sandra F. Simmons, ``The Need for Higher Minimum Staffing Standards in
    U.S. Nursing Homes,'' Health Services Insights, 2016; 9:13-19.
    ---------------------------------------------------------------------------
    establish standards and oversight for facility ownership and operation,

                and expand accountability to the corporate level
        There have been significant changes in the ownership and management
    of nursing homes, with an increasing number of nursing facilities part
    of a multi-facility or corporate structure, and an increase in private
    equity ownership. Division of ownership and management is occurring
    among numerous affiliated entities that derive profits, but who are not
    responsible for the quality of care. Further, many of the decisions
    that affect care, including operational budgets and staffing levels,
    are made at the corporate level, yet CMS oversight is limited to
    individual facilities.

        Currently no meaningful Federal criteria exist for determining who
    is eligible to receive Medicare and Medicaid certification, with CMS
    largely relying on State licensure processes. In many States, there is
    no evaluation of an entity's financial or management capacity to
    successfully operate these facilities and provide quality care.

        The collapse of Skyline Healthcare in spring 2018 whereby the
    company became financially insolvent and essentially abandoned nursing
    homes it owned or managed across eight States, left States to step in
    and assume facility operations through receivership in order to make
    sure the residents received food and care. Thousands of residents and
    facility staff have been affected, suffering through poor living and
    working conditions, facing loss of home and jobs as many of the
    facilities are closing, some in communities where alternative options
    are limited or nonexistent. We are hearing of residents being moved
    hundreds of miles from their families and friends, some even to
    different States.

        We recommend that (1) CMS be given explicit statutory authority to
    hold corporations accountable when patterns of poor care are identified
    across their facilities; (2) Congress hold hearings on these changing
    patterns of ownership and management and the implications for effective
    Federal oversight; (3) Minimum criteria be established as a condition
    of Medicare and Medicaid certification for assuming ownership or
    management of a nursing home, including criteria for denying or
    revoking certification; and (4) Federal law explicitly require that
    owners/operators that fail to comply with nursing home closure
    requirements be excluded from participation in Medicare and Medicaid
    for a specified period of years.

        We further recommend that Congress (1) improve financial
    accountability through auditing of Medicare cost reports; (2) require
    transparency through detailed financial reporting of related-party
    companies and owners; and (3) enact a medical loss ratio that limits
    administrative costs and profits.
           implement, enforce, and prevent the rollback of standards
        Nearly 3 decades after passage of the Nursing Home Reform Act and
    implementation of corresponding regulations, there continues to be
    inadequate and uneven oversight and enforcement of standards.
    Maintaining a strong oversight and enforcement system is a key factor
    in preventing and addressing abuse and neglect in nursing facilities.

        State Survey and Certification Agencies, responsible for conducting
    annual surveys, complaint investigations, and monitoring compliance,
    are under-staffed and under-funded. The lack of resources appears to
    hamper their ability do more timely complaint investigations and hire
    enough staff to carry out the necessary oversight and follow up.

        Examples of inadequate nursing home oversight include low complaint
    substantiation rates \13\, \14\ and findings of harm in less
    than 5 percent of deficiency citations.\15\ Enforcement has been
    further weakened by policy changes that CMS has implemented. One of the
    most significant examples is making per instance CMPs the recommended
    remedy rather than per day fines in all but a few limited
    circumstances. The result is generally lower penalties imposed for
    noncompliance. This change is counterproductive. The threat of fines,
    high enough to be more than the ``cost of doing business,'' is a
    critical deterrent to abuse and substandard care, particularly when
    they are large enough to impact a facility's actions. Yet policy
    revisions are already having an effect: the average fine is now $28,405
    compared to $41,260 in 2016.\16\
    ---------------------------------------------------------------------------
        \13\ One-third of immediate jeopardy and high priority complaints
    are substantiated by State survey agencies. Office of Inspector
    General, ``A Few States Fell Short in Timely Investigation of the Most
    Serious Nursing Home Complaints: 2011-2015,'' HHS OIG Data Brief,
    September 2017, OEI-01-16-00330.
        \14\ GAO, Federal Monitoring Surveys Demonstrate Continued
    Understatement of Serious Care Problems and CMS Oversight Weaknesses,
    GAO-08-517 (May 9, 2008); GAO, Addressing the Factors Underlying
    Understatement of Serious Care Problems Requires Sustained CMS and
    State Commitment, GAO-10-70 (November 24, 2009); GAO, Some Improvements
    Seen in Understatement of Serious Deficiencies, but Implications for
    the Longer-Term Trend Are Unclear, GAO-10-434R (April 10, 2010).
        \15\ CMS, Nursing Home Data Compendium 2015 Edition, Figure 2.2.e.
    Percentage Distribution of Scope and Severity of Health Deficiencies:
    United States, 2014, p. 48 https://www.cms.gov/Medicare/Provider-
    Enrollment-and-Certification/CertificationandComplianc/Downloads/nur
    singhomedatacompendium_508-2015.pdf.
        \16\ Jordan Rau, ``Trump Administration Cuts the Size of Fines for
    Health Violations in Nursing Homes,'' Kaiser Health News, March 15,
    2019.

        Further, the recent report on Special Focus Facilities released by
    committee members, Senators Casey and Toomey,\17\ has drawn important
    attention to those nursing facilities with persistent care problems.
    Release of the list of candidates for the Special Focus Facility
    program is important for consumers seeking information about long-term
    care facilities, and CMS has agreed to release the candidate list
    moving forward.\18\ The list needs to be posted in a location, such as
    Nursing Home Compare, that is regularly visited by and easily
    accessible to consumers, and candidates should be designated with an
    icon on Nursing Home Compare. The Special Focus Facility program,
    however, has failed to live up to expectations that with intense
    monitoring and enforcement, the poorest performers would achieve and
    remain in compliance. Many facilities never ``graduate'' from the
    program, or they quickly fall back into non-compliance when they leave
    the program.\19\
    ---------------------------------------------------------------------------
        \17\ U.S. Senator Bob Casey, U.S. Senator Pat Toomey, ``Families'
    and Residents' Right to Know: Uncovering Poor Care in America's Nursing
    Homes,'' June 2019.
        \18\ https://www.cms.gov/newsroom/press-releases/cms-statement-
    quality-care-americas-nursing-home-facilities.
        \19\ ``Special Report--`Graduates' From the Special Focus Facility
    Program Provide Poor Care'' (CMA Alert, June 20, 2019), https://
    www.medicareadvocacy.org/graduates-from-the-special-focus-facility-
    program-provided-poor-care/.

        Preventing persistent care problems and yo-yo compliance is a
    primary goal of the Federal enforcement system. Increased efforts to
    implement the enforcement system are necessary, particularly related to
    accurately citing deficiencies and imposing appropriate penalties for
    ---------------------------------------------------------------------------
    noncompliance.

        Strong, resident focused regulatory standards are critical to
    addressing and preventing poor care. The issuance last week by CMS of
    final rules allowing pre-dispute arbitration and proposing rollbacks to
    the revised nursing home rules published in 2016 are steps in the wrong
    direction. These new rules provide less protections for residents and
    less accountability for nursing facilities by, among other things,
    weakening standards relating to infection prevention, use of
    antipsychotic medications, and responding to resident and family
    grievances.\20\
    ---------------------------------------------------------------------------
        \20\ 84 Fed. Reg. 34787-34768 (July 18, 2019).

        We recommend that Congress take immediate action to improve the
    Federal oversight and enforcement system, including (1) appropriating
    and allocating additional funding for the Survey and Certification
    system; (2) incorporating into statute important provisions from the
    2016 nursing facility regulation, such as a requirement for an annual
    facility assessment; a ban on pre-dispute arbitration; time frames for
    reporting abuse or neglect to the State survey agency; and grievance
    protections; (3) expanding and strengthening the Special Focus Facility
    program by specifying graduation rules for SFFs, requiring CMS to
    identify SFF candidates each month on Nursing Home Compare, and
    requiring that CMS impose only per day, not per instance, CMPs for
    ---------------------------------------------------------------------------
    SFFs.

        We additionally recommend that Congress enact legislation, similar
    to the bipartisan Improving Dementia Care Treatment in Older Adults Act
    proposed by Senator Grassley in 2012 in response to the OIG's findings
    of widespread off-label use of antipsychotic drugs in nursing homes; if
    enacted, the bill would have required residents and their designated
    agents to be informed of the possible risks and side effects of
    antipsychotics, as well as alternative treatments. Today, most
    residents and families are still unaware of the serious medical and
    social side effects and risk of death from psychotropic drugs, which
    have FDA Black Box warnings against use to treat elderly persons with
    dementia and were named in a Senate report more than 40 years ago as
    chemical restraints. Legislation should require facilities to secure
    informed consent that includes an explanation of the use of the drug;
    medical reason for which it is prescribed; non-pharmacologic
    alternatives; side effects and risks; whether the drug is prescribed
    for off-label purposes; proposed duration, dose and frequency, and
    potential interactions with other drugs.
                      increase transparency of information
        Choosing a long-term care facility is a decision that residents and
    families often make quickly and in a time of stress, such as when a
    family member is hospitalized but unable to go directly home. The
    rushed nature of the decision makes it especially important for the
    information on the Federal website Nursing Home Compare to be reliable,
    accessible, as comprehensive as possible, and easily understandable.
    Families can return to Nursing Home Compare after their relative's
    admission to help them in monitoring and overseeing care. CMS has made
    gradual, important improvements in the information presented on Nursing
    Home Compare and used to determine a facility's star rating. An
    important example is the addition of staffing information from
    auditable data in the Payroll-Based Journal. Additional steps can be
    taken to improve the reliability and usefulness of Nursing Home Compare
    and the Five Star Rating System.

        We recommend that Congress direct CMS to: (1) Enhance the data used
    to determine the staffing star rating by including elements such as
    turnover of staff, and usage of agency staff; (2) eliminate the
    inclusion of self-reported Quality Measures in the star rating
    calculations; (3) Add an icon designating facilities with deficiencies
    for abuse deficiencies; and (4) Add an icon showing facilities that
    have a generator in case of natural disaster or emergency.
                  strengthen and fund elder justice provisions
        Reauthorization and full implementation of the Elder Justice Act is
    an important and impactful step that Congress can take to address the
    abuse of elders in this country. Numerous GAO and OIG reports,
    including those highlighted today at this hearing, show the need for
    continued Federal and State action to strengthen elder abuse reporting,
    prevention, and response. The failure of appropriate reporting of abuse
    or suspicions of abuse is unacceptable. Failures to report prolong the
    victimization and suffering of those being abused and put at
    significant risk other residents who are in contact with the abuser.

        We recommend that Congress take the following actions: (1) add
    State surveyors to the list of covered individuals who are required to
    report suspicion of abuse or neglect to law enforcement; (2) direct CMS
    to fully enforce the Affordable Care Act's requirement for individuals
    to report possible criminal acts to law enforcement; (3) impose civil
    money penalties against the nursing home or other licensed entity for
    failure to report abuse or suspicions of a crime; and (4) increase
    funding for the Long-Term Care Ombudsman Program to enhance the
    program's capacity to assist in abuse prevention and advocate for
    residents who have been victimized.

        Additionally, better screening of individuals seeking to work in a
    long-term care facility through a Federal background check system is
    necessary to screen out those individuals with criminal records that
    pose a danger to residents' person or property. The National Background
    Check Program (NBCP), which was established as a voluntary program to
    help States implement and improve employee background check systems,
    and has, to date, screened out nearly 80,000 individuals \21\ with a
    history of patient abuse or a violent criminal background has the
    framework that can be built upon if States were required to implement
    its provisions.
    ---------------------------------------------------------------------------
        \21\ OIG, ``National Background Check Program for Long-Term Care
    Providers: Assessment of State Programs Concluded Between 2013 and
    2016,'' OIE-07-16-00160, April 22, 2019.

        We recommend that Congress amend the National Background Check
    Program and direct CMS to provide funding to the remaining States that
    have not drawn down funds and implemented the system. All States, those
    newly receiving funding and those that have received funding but did
    not fully implement the program's requirements, must be held
    accountable for fulfilling the requirements in the Act. In addition, by
    2022, Congress should require background checks to be done by all SNFs/
    NFs certified by Medicare and Medicaid as a Requirement of
    Participation.
                                   conclusion
        As previously mentioned, just last week, CMS took steps to further
    weaken the oversight system and residents' rights with the publication
    of new final rules allowing pre-dispute arbitration \22\ and proposing
    \23\ rollbacks to the revised nursing home rules published in 2016.\24\
    ---------------------------------------------------------------------------
        \22\ 84 Fed. Reg. 34718 (July 18, 2019).
        \23\ 84 Fed. Reg. 34737 (July 18, 2019).
        \24\ 81 Fed. Reg. 68688 (October 4, 2016).

        The 2016 revised Federal nursing home regulations, developed over a
    4-year process of listening to consumers, nursing home providers,
    health-care experts, and the public through formal notice and
    comment,\25\ included important new protections for vulnerable
    individuals and requirements to reduce the likelihood of resident harm,
    such as robust requirements for staff training and prevention;
    reporting and responding to abuse, neglect and exploitation; banning
    forced arbitration; protections for the use of antipsychotic and
    psychotropic drugs; and requiring an emphasis on person-centered care
    planning and provision of care.
    ---------------------------------------------------------------------------
        \25\ Federal Register, Vol. 81, No. 192, October 4, 2016, 42 CFR
    Parts 405, 431, 447, 482, 483, 485, 488, and 489.

        In a time of increased attention on resident abuse and neglect,
    CMS's decision to rollback resident rights and protections in favor of
    reducing burdens is tone-deaf. These new final and proposed rules
    published last week are steps in the wrong direction. The needs of
    nursing home residents are significant. 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 2017 CNN
    investigative report that exposed widespread sexual assault in nursing
    homes across the country, including the rape of Maya Fischer's
    mother.\26\ In addition, poor care, abuse, and neglect continue to be a
    problem nationwide as documented by studies and reports.\27\
    ---------------------------------------------------------------------------
        \26\ Blake Ellis and Melanie Hicken, ``Sick, Dying and Raped in
    America's Nursing Homes,'' CNN Reports, February 22, 2017.
        \27\ 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.

    ---------------------------------------------------------------------------
        We can do better. Thank you for holding this important hearing.

                                     ______

              Questions Submitted for the Record to Lori Smetanka
                   Questions Submitted by Hon. Chuck Grassley
        Question. What more should Federal or State agencies do to ensure
    that complaints of suspected abuse at nursing home are properly
    reported to law enforcement or Adult Protective Services agencies for
    investigation? Do you support the recommendations of the Office of
    Inspector General (OIG) and the Government Accountability Office (GAO)
    in this area?

        Answer. The recommendations made by the Office of Inspector General
    and the Government Accountability Office in their recent reports
    (specifically GAO-19-671-T, June 2019; and OIG A-01-16_00509, June
    2019) to CMS that it require the reporting of abuse and neglect, or
    potential abuse and neglect to law enforcement; issue clarifying
    guidance around abuse reporting; record and track incidents of
    potential abuse or neglect, including emergency room claims data; and
    monitor State Survey Agencies reporting of findings and suspicions of
    abuse to law enforcement, are long overdue and are supported by the
    National Consumer Voice for Quality Long-Term Care.

        The findings of both studies highlighted the critical need for
    immediate action in order to protect residents of nursing facilities.
    Residents of long-term care facilities are, in many instances,
    dependent upon others for care and services, and many are living with
    cognitive impairment. They, and their families, rely on nursing
    facility staff, as well as government agencies charged with conducting
    oversight, to fulfill their statutory responsibilities--including
    enabling residents to achieve their ``highest practicable mental,
    physical and psychosocial well-being.''

        Unfortunately, there have been numerous reports, studies, and
    articles over the years highlighting concerns about abuse in nursing
    facilities. In fact, in 2017 the HHS OIG was so concerned about
    incidents that may indicate potential abuse, which were being analyzed
    for the study released at this hearing, that it issued an ``Early
    Alert'' to CMS to notify the agency of possible widespread abuse, and
    to recommend immediate follow-up action. Consumer Voice supports the
    OIG recommendations to CMS to take action to ensure that incidents of
    potential abuse or neglect of nursing facility residents be identified
    and reported appropriately and in a timely fashion.

        Also troubling, the OIG has found that CMS is failing to enforce
    the provisions of section 1150B of the Social Security Act, requiring
    facilities to report suspicions of a crime to law enforcement, stating
    that it is waiting for authority to enforce from HHS. These
    requirements became effective in 2011. Regulations requiring the
    reporting were not issued until 2016. Eight years after the effective
    date, CMS is still arguing that it requires new authority in order to
    enforce these provisions.

        Failure to report abuse prolongs the victimization and suffering of
    those being abused and puts at risk other residents who are in contact
    with a possible abuser. Additionally, failure to report leads to
    significant delays or failures in investigations, reducing the odds of
    prosecution of the perpetrators, as appropriate.

        Based on the OIG's findings, our recommendations are to:

            Direct CMS to implement the recommendations of the OIG and GAO
    related to tracking incidents of potential abuse and neglect, and
    reporting abuse and neglect, or potential abuse and neglect to law
    enforcement. Reporting requirements of surveyors to law enforcement
    should include prompt referrals to State Medicaid Fraud Control Units
    if there is evidence of falsification of records or significant
    concerns regarding neglect or abuse of residents in the facility, as
    described in the testimony of Keesha Mitchell, Ohio Office of the
    Attorney General, at the March 2019 Senate Committee on Finance
    hearing.

            Direct CMS to fully enforce the ACA's requirement for
    individuals to report possible criminal acts to law enforcement.

            Require the imposition of per day civil money penalties
    against the nursing home or other licensed entity for failure to report
    abuse or suspicions of a crime or for continuing to employ a worker
    against whom there is a reasonable suspicion of abuse.

            Define corporate entities as ``covered individuals'' under the
    Elder Justice Act.

            Require nursing homes to post a notice in a prominent place in
    the facility that employees are required to report to the State survey
    agency and law enforcement and are subject to fines for failure to do
    so.

        Question. According to media reports, about 400 nursing homes in
    rural areas have closed or merged in the last decade. To what extent
    should we be concerned about this trend of rural nursing home closures?
    What options might we pursue in areas of the country in which nursing
    homes are at higher risk of closure?

        Answer. The closing of nursing homes is almost always a concern as
    it displaces residents from their homes. A study on closures that the
    Consumer Voice released in 2016 found that the closure of a nursing
    home often resulted in residents being moved great distances from their
    families, friends, and communities; that the process was often chaotic;
    and that residents are at high risk of experiencing transfer trauma. In
    rural areas, the problems are often exacerbated because there are fewer
    alternate locations for residents, and also because of the impact on
    workers and communities.

        States and the Federal Government need to proactively explore
    strategies for addressing the nursing home closures across the country
    that seem to be increasing. The nursing home industry has blamed the
    closures on low Medicaid rates. The reality, however, is not as clear-
    cut. Numerous reports highlight lack of managerial competence,
    mismanagement of funds, failure of States to adequately screen
    prospective owners for financial capacity or compliance history, and
    inadequate monitoring of facilities, particularly those showing signs
    of trouble or instability.

        Recommendations include:

            Requiring States and CMS to aggressively enforce Federal
    requirements around nursing home closure and impose immediate penalties
    against
    owners/administrators who do not comply, including excluding an owner/
    operator from Medicare and Medicaid when the closing of a facility
    fails to comply with the Federal nursing home closure requirements.

            Establish minimum Federal criteria as a condition of Medicare
    and Medicaid certification for assuming ownership or management of
    nursing homes, including requiring States to audit such owners or
    managers for short and long-term financial capacity, managerial
    competence and compliance history.

            Requiring auditing of how nursing homes are spending the
    Federal dollars they receive.

            Strengthen closure requirements by requiring States to develop
    coordinated State teams focused on closure and relocation; requiring
    that the State Ombudsman have an opportunity to review and comment on
    the facility's closure plan prior to its approval by the State; and
    making available resources, such as civil money penalty funds, to
    support residents during the closure process.

            Require that owners/operators explore options such as sale of
    the facility or change in management prior to approving a closure.

            For facilities facing closure due to termination from Medicare
    or Medicaid, require CMS and State Survey Agencies to appoint a
    temporary manager, whenever possible, to take the necessary steps to
    bring a facility back into compliance without forcing residents to
    leave.

        Question. What changes, if any, should we make to improve the
    Nursing Home Compare website or the government's Five-Star Rating
    System for nursing homes?

        Answer. Consumers and potential consumers rely on the information
    presented on Nursing Home Compare and the Five-Star Rating System for
    making decisions (when possible) about nursing home placement and
    quality. It is important that the information made available be
    accurate, clear, and truthful. Currently, the ratings system relies on
    rankings from facility surveys, staffing data, and quality measures.
    Until recently, the staffing data was self-reported by the nursing
    homes. The Nursing Home Transparency Act required that CMS collect and
    use staffing data based on facility payroll records. Studies and data
    comparisons showed that prior to reporting the payroll-based data,
    nursing facilities over-reported the numbers of staff available to
    provide care for residents.

        Currently, most of the quality measures data is also self-reported
    by the nursing facility. It is not uncommon for the quality measures
    scores to be higher than that reflected from the surveys and staffing
    data. And the method of calculation for the overall star ranking for a
    nursing facility frequently results in a higher overall ranking, due to
    the higher quality measure scores.

        Recommended changes to the Nursing Home Compare website and the
    Five-Star Rating System include:

            Basing the calculations for star ratings using only auditable
    data, such as the survey reports and payroll-based staffing data. The
    quality measures should continue to be posted to Nursing Home Compare,
    but not included in the star rating calculations.

            Clearly identifying ownership information, including the
    corporations that own and/or operate the facilities.

            Identify facilities that are on the CMS Special Focus Facility
    list, as well as those that are Candidates for the Special Focus
    Facility list (candidates meet the same conditions as those selected
    for the list). Importantly, survey and certification funding must be
    substantially increased to expand the program. Consumer Voice strongly
    opposes allowing facilities that are currently rated as high performers
    (five stars) to be inspected less frequently. This is a highly
    dangerous precedent that would serve to begin to severely undermine the
    fundamental, long-established protocols of annual inspections for all
    nursing homes. To cite an analogy, it would be dangerous and
    unthinkable to decide to stop or delay inspecting planes that have good
    performance records.

            Indicate facilities that have been cited for abuse, neglect,
    or failure to report abuse or neglect.

        Question. In addition to the recommendations in your testimony,
    what changes, if any, do you recommend that Congress make to the Elder
    Justice Act? Please identify any concerns with activities authorized
    under that statute, such as the long-term care ombudsman program, Adult
    Protective Services, or the Elder Justice Advisory Council.

        Answer. The Elder Justice Act is important legislation that
    emphasizes resources and actions to prevent and respond to abuse and
    neglect of seniors. We urge Congress to reauthorize the statute and
    appropriate the funding necessary to implement the provisions,
    including that allocated for the Long-Term Care Ombudsman Program and
    Adult Protective Services.

        Further recommendations include:

            Direct CMS to fully enforce the ACA's requirement (section
    1150B of Act) for individuals to report possible criminal acts to law
    enforcement.

            Require the imposition of per day civil money penalties
    against the nursing home or other licensed entity for failure to report
    abuse or suspicions of a crime or for continuing to employ a worker
    against whom there is a reasonable suspicion of abuse.

            Define corporate entities as ``covered individuals'' under the
    Elder Justice Act.

            Require nursing homes to post a notice in a prominent place in
    the facility that employees are required to report to the State survey
    agency and law enforcement and are subject to fines for failure to do
    so.

        Question. What options exist for nursing homes that struggle to
    recruit, hire, and retain qualified personnel to serve as certified
    nursing assistants?

        Answer. It is in the interest of nursing facilities to comply with
    HHS findings that the threshold for not causing harm to residents is a
    minimum of 4.1 hours of direct nursing care per resident day (CMS, Abt
    Associates, ``Appropriateness of Minimum Nurse Staffing Ratios in
    Nursing Homes,'' Report to Congress, 2001). It is also in the best
    interests of the overall health-care system that care in nursing homes
    be the best it can be. As well as the high human cost to poor care,
    inadequate staffing levels can result in the need for expensive--and
    avoidable--treatment and services, including preventable admissions and
    readmissions from nursing facilities to hospitals.

        We recognize that many facilities struggle to recruit, hire, and
    retain qualified staff. It is incumbent upon nursing facilities to
    evaluate the experiences of their staff and incorporate practices for
    improving the working conditions in nursing facilities and offering
    advancement opportunities, including: paying living wages to staff,
    offering career ladders, establishing mentoring programs for new staff,
    providing flexible working schedules, strengthening training, ensuring
    effective supervision of staff, and recognizing and rewarding staff in
    meaningful ways.

        The nursing home industry has indicated it requires an additional
    $6 billion in funding in order to appropriately staff nursing
    facilities to meet the needs of residents (response of Mark Parkinson,
    AHCA, to Senator Cortez Masto, Senate Committee on Finance hearing,
    July 23, 2019). Prior to allocating additional funds for the industry,
    it is important that CMS be charged with analyzing how the money
    provided by taxpayers is spent--and there are several authorities
    included in the ACA that provide key tools for CMS to undertake this
    work--specifically section 6101, section 6104, and section 6106. Nearly
    three-quarters of payments for nursing facility care come directly from
    the Federal Government and from State governments. In 2017, Medicare
    spending in skilled nursing facilities was estimated at $28 billion;
    while Medicaid spending was estimated at $58 billion. We need
    assurances that money is spent wisely.

        In 2007, when Congress conducted hearings on institutional changes
    to improve nursing home quality, prior to passage of the Nursing Home
    Transparency and Elder Justice Acts, it focused on the revelations
    about private equity groups and their diversion of funding from
    resident care to profits. The concerns about private equity and other
    corporations are greater than ever as they divest themselves of real
    estate and operations to companies with poor quality of care records
    and weak or unknown financial management ability.

        Our recommendations are that:

            Congress should improve financial accountability of nursing
    homes by requiring audits of Medicare cost reports (section 6104 of the
    ACA), and transparency through detailed financial reporting that
    includes disclosure of finances regarding related-party companies and
    owners.

            Congress should enact a requirement for CMS to develop a
    medical-loss ratio for nursing homes that ensure that the bulk of
    taxpayer dollars are spent on resident care, not on administrative
    costs and profits.

            Congress should instruct CMS that annual reimbursement updates
    prioritize the need for SNFs to achieve staffing of 4.1 hours of direct
    care per resident per day (or higher), and any additional funds
    appropriated must be earmarked for staffing. Additionally, there must
    be adequate monitoring and enforcement to ensure the funds are properly
    spent.

        Question. Should the Centers for Medicare and Medicaid Services
    upgrade its training curriculum for Federal or State regulators or
    others, and if so, in which areas? Should CMS or other agencies, such
    as the Administration for Community Living, develop additional training
    materials for nursing home personnel, and are there particular topics
    (e.g., serving patients with dementia) which should be covered?

        Answer. Adequate and comprehensive training for Federal and State
    regulators is critical for thorough and consistent implementation and
    enforcement of Federal requirements and standards. Additional training
    for regulators would be beneficial in such areas as detecting and
    reporting abuse and neglect, identifying harm, assigning scope and
    severity, and investigative practices.

        There are already numerous resources and training programs for
    nursing home providers and personnel that have been developed by both
    government and private entities. To the extent that facilities need
    additional training, government agencies/programs that do not have
    regulatory jurisdiction over nursing homes (e.g., Quality Improvement
    Organizations) and non-governmental entities (e.g., private
    consultants, trade associations) can meet that need. With its limited
    time and funding, the work of the Quality, Safety and Oversight Group,
    and the Nursing Home Division, should be focused on enforcement of
    nursing home standards since they are entities with primary
    responsibility for regulatory oversight.

                                     ______

                   Question Submitted by Hon. James Lankford
        Question. Do you believe that facilities that report tax and
    detailed spending information have fewer instances of abuse? Oklahoma
    has seen nursing homes with complex ownership models and out-of-State
    owners. Have you noticed any correlation between ownership status and
    quality of care?

        Answer. In 2007, when Congress conducted hearings on institutional
    changes to improve nursing home quality, prior to passage of the
    Nursing Home Transparency and Elder Justice Acts, it focused on the
    revelations about private equity groups and their diversion of funding
    from resident care to profits. The concerns about private equity and
    other corporations are greater than ever as they divest themselves of
    real estate and operations to companies with poor quality-of-care
    records and weak or unknown financial management ability.

        Between 2003-2008, four of the 10 largest for-profit nursing home
    chains were purchased by private equity firms. Instead of improved
    financial stability, however, some of those chains have collapsed. The
    Washington Post reported that ``under the ownership of the Carlyle
    Group, one of the richest private-equity firms in the world, the
    ManorCare nursing-home chain struggled financially until it filed for
    bankruptcy in March 2018. During the 5 years preceding the bankruptcy,
    the second-largest nursing home chain in the U.S. exposed its roughly
    25,000 residents to increasing health risks''--including drug
    overdoses, pressure ulcers, and broken bones.

        Currently, division of ownership and management is occurring among
    numerous affiliated entities that derive profits, but who are not
    responsible for the quality of care. Further, many of the decisions
    that affect care, including operational budgets and staffing levels,
    are made at the corporate level--yet CMS oversight has been limited to
    individual facilities. Change is needed and will require a
    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.

        We recommend that Congress establish a Federal ``early warning
    system'' to identify patterns of poor care and financial distress in
    nursing homes that can result in resident harm, bankruptcy and closure.
    Such a system would include monitoring data on owners and ``additional
    disclosable parties'' on an ongoing basis that is available in the
    Provider Enrollment, Chain, and Ownership System (PECOS) (or a
    subsequent replacement system) and comparing it with information about
    staffing that is available in the payroll-based journal database;
    information from State oversight of SNFs and NFs on their compliance
    with Federal safety and quality standards from the survey inspections,
    quality data derived from resident assessments, and complaint
    investigations submitted by residents. On a quarterly basis, findings
    would be referred to CMS, HHS OIG, and DOJ for action such as audits,
    increased oversight and coordinated enforcement; released to Congress;
    shared with State survey agencies, Medicaid Fraud Control Units, and
    State LTC Ombudsman Programs; and disclosed publicly.

                                     ______

                 Questions Submitted by Hon. Sheldon Whitehouse
        Question. A 2015 Federal Government study found that less than 7
    percent of people who'd signed arbitration agreements as part of credit
    card contracts understood that it meant they gave up their right to sue
    the company in the future.

        Do you think that nursing home patients, who are already enduring a
    stressful and emotional situation, are in a position to fully
    understand what they are signing away?

        Answer. Most residents and families are not aware of the
    arbitration provisions buried in admission agreements, nor do they
    fully understand the implications of signing such an agreement. Pre-
    dispute arbitration agreements are harmful and unfair to consumers.
    They prevent the consumer from making a truly informed decision about
    whether arbitration is the best course of action for their dispute or
    whether they should go to court. Asking a resident or representative to
    sign such an agreement takes advantage of the individual when they are
    at their most vulnerable. Most do not understand that they are signing
    their rights away.

        Additionally, in the context of long-term care, these agreements
    treat potential neglect and abuse causing severe injuries, and even
    death, as comparable to a payment dispute or other negotiable issue.

        The final arbitration rule published by CMS on July 18, 2019
    ignores the disparity in bargaining power between the residents and the
    facilities. It is more a playbook for nursing homes to be able to claim
    they have disclosed arbitration protocols, and that they have
    ``allowed'' incoming residents and family members to sign a document
    saying they have been informed about the arbitration procedures,
    understand them and agree. This serves only the interest of nursing
    homes to claim, if challenged in court, that they followed the
    regulation's procedures and have the written signature of families who
    apparently agree that arbitration is fine and they ``voluntarily''
    agree they will not pursue legal redress in court, should harm later
    occur. This is no choice at all, frankly, but portends only to strip
    millions of Americans of fundamental due process rights. Residents must
    be afforded a real choice about whether they would like to go to court,
    or enter into arbitration, after abuse, neglect, or other harm has
    occurred and a dispute arises.

        Question. If a nursing home is abusing or neglecting patients,
    funneling any lawsuits into secretive private legal proceedings allows
    the nursing home to conceal a pattern of abuse. Correct? Don't other
    current and prospective patients have a right to know if a nursing home
    is mistreating its patients?

        Answer. The secretive nature of arbitration proceedings allows
    nursing facilities to hide instances of poor care and abuse. There is
    no incentive for the facility to change its patterns and practices or
    improve conditions. Despite the findings of the GAO that citations for
    abuse deficiencies increased in the last few years, multiple studies
    have found that many States cite fewer serious deficiencies than
    actually occur and do not impose appropriate or effective remedies.
    Pre-dispute arbitration agreements deny long-term care consumers the
    option of holding facilities accountable for poor treatment, poor care
    and abuse through an open legal process. The well-being of all
    residents suffers as a result. Fewer consequences an allow substandard
    care to continue.

        Because arbitration proceedings are confidential, potential
    residents and others are less likely to know about a facility's care
    problems. This deprives consumers of information they need when
    selecting a nursing facility. It also shields poor performing
    facilities from the negative impact on their reputation, public opinion
    and public pressure that could serve as a deterrent to substandard
    care.

                                     ______

        Prepared Statement of Megan H. Tinker, Senior Advisor for Legal
      Affairs, Office of Counsel to the Inspector General, Department of
                           Health and Human Services
        Good morning, Chairman Grassley, Ranking Member Wyden, and other
    distinguished members of the committee. Thank you for the opportunity
    to appear before you today to discuss the important topic of quality of
    care and safety of our Nation's Medicare and Medicaid beneficiaries.

        Office of Inspector General (OIG) work has revealed widespread
    problems in providing safe, high-quality care to Medicare and Medicaid
    beneficiaries in many settings and ongoing failures to identify,
    report, and correct incidents of abuse and neglect when they occur.
    This morning, I will discuss our recent work focusing on abuse and
    neglect of Medicare beneficiaries, State Survey Agency response to
    nursing home deficiencies and complaints, and enforcement actions to
    address misconduct and grossly substandard care.

        The three key take-a-ways from my testimony are:

            b  First, CMS, States, and providers should use data to ensure
            potential abuse and neglect is being identified.

            b  Second, CMS, States, and providers must ensure potential
            abuse and neglect is reported to enable oversight and
            prevention.

            b  Third, States must ensure deficiencies are corrected.
                                   background
        Approximately 1.4 million Medicare beneficiaries received care in
    skilled nursing facilities (SNFs) in 2016. Federal expenditures on
    nursing home care exceed $70 billion annually, including in 2017 $43
    billion for Medicaid long-term care and $28 billion for Medicare post-
    acute and other skilled care. Most facilities providing these types of
    care are certified to serve as both nursing homes and SNFs. SNFs
    provide skilled nursing care and rehabilitation services for residents
    who require such care because of injury, disability, or illness,
    typically following a hospital stay.

        Ensuring that nursing homes meet Federal requirements for quality
    and safety is a shared Federal and State responsibility. State Survey
    Agencies (Survey Agencies) must conduct ``surveys'' (inspections) of
    nursing homes at least every 15 months to certify their compliance with
    these requirements. The Centers for Medicare and Medicaid Services
    (CMS) provides guidance regarding the survey process in its State
    Operations Manual (SOM) and Interpretive Guidelines. When Survey
    Agencies identify deficiencies during their surveys, nursing homes must
    submit correction plans, and Survey Agencies must verify that the
    facility corrected its deficiencies.

        In addition, Survey Agencies must review all nursing home complaint
    allegations. A complaint survey can be conducted to investigate an
    allegation of noncompliance with Federal participation requirements,
    such as a nursing home providing improper care or treatment to a
    beneficiary. Where the Survey Agency finds evidence of abuse or neglect
    it must make a referral to local law enforcement, the Medicaid Fraud
    Control Unit (MFCU) if appropriate, and the applicable licensure
    authority. CMS may also take enforcement actions to address nursing
    home deficiencies, including imposing civil monetary penalties or
    terminating the nursing home from Medicare and Medicaid.
                               abuse and neglect
        Beneficiary safety and quality of care is a top priority for OIG,
    and we believe these goals can be better achieved through the effective
    harnessing of available data. The problems highlighted today are
    mirrored in other areas OIG has examined. For example, OIG's work on
    critical incident reporting at group homes showed that group home
    providers failed to report many critical incidents to the appropriate
    State agencies.\1\ These critical incidents included death, physical/
    sexual assault, serious injuries, and missing persons. In addition, we
    released two reports earlier this month focused on hospice care.\2\ OIG
    found that from 2012 through 2016, the majority of U.S. hospices that
    participated in Medicare had one or more deficiencies in the quality of
    care they provided to their patients. These deficiencies--much like the
    deficiencies highlighted elsewhere in my testimony--have a human cost
    on vulnerable beneficiaries and are subject to CMS oversight and
    enforcement action.
    ---------------------------------------------------------------------------
        \1\ OIG, Connecticut Did Not Comply With Federal and State
    Requirements for Critical Incidents Involving Developmentally Disabled
    Medicaid Beneficiaries (A-01-14-00002), May 2016; OIG, Massachusetts
    Did Not Comply With Federal and State Requirements for Critical
    Incidents Involving Developmentally Disabled Medicaid Beneficiaries (A-
    01-14-00008), July 2016; OIG, Maine Did Not Comply With Federal and
    State Requirements for Critical Incidents Involving Medicaid
    Beneficiaries With Developmental Disabilities (A-01-16-00001), August
    2017; Alaska Did Not Fully Comply With Federal and State Requirements
    for Reporting and Monitoring Critical Incidents Involving Medicaid
    Beneficiaries With Developmental Disabilities (A-09-17-020016), June
    2019.
        \2\ OIG, Hospice Deficiencies Pose Risks to Medicare Beneficiaries
    (OEI-02-17-00020), July 2019; Safeguards Must Be Strengthened To
    Protect Medicare Hospice Beneficiaries From Harm (OEI-02-17-00021),
    July 2019.

        As we reported in an August 2017 Early Alert,\3\ OIG reviewed
    hospital emergency room records from 2015 and 2016 for SNF residents
    whose injuries may have been the result of potential abuse or neglect
    in the SNF. We found 134 incidents of potential abuse or neglect across
    33 States. For 28 percent of these incidents, we could not determine
    whether nursing home or hospital staff contacted local law enforcement
    despite State mandatory reporting laws requiring medical staff to do
    so. This Early Alert informed CMS that it had inadequate procedures to
    ensure that incidents of potential abuse and neglect at SNFs are
    properly identified and reported.
    ---------------------------------------------------------------------------
        \3\ OIG, Early Alert: The Centers for Medicare and Medicaid
    Services Has Inadequate Procedures to Ensure That Incidents of
    Potential Abuse or Neglect at SNFs Are Identified and Reported in
    Accordance With Applicable Requirements (A-01-17-00504), August 2017.
    ---------------------------------------------------------------------------
    Abuse and Neglect Involving SNFs and Emergency Room Visits
        In a June 2019 report,\4\ we assessed the prevalence and reporting
    of incidents of potential abuse or neglect of Medicare beneficiaries
    residing in SNFs who had a hospital emergency room Medicare claim in
    calendar year (CY) 2016. We determined that one in five of these high-
    risk claims were the result of potential abuse or neglect.
    ---------------------------------------------------------------------------
        \4\ OIG, Incidents of Potential Abuse and Neglect at Skilled
    Nursing Facilities Were Not Always Reported and Investigated (A-01-16-
    00509), June 2019.

            Example: A 72-year-old Medicare beneficiary with a history of
            throat cancer, recent throat surgery, and a nasogastric tube in
            place was transported to an emergency room (ER) and was
            diagnosed with aspiration pneumonia. The beneficiary's wife
            stated that her husband's nasogastric tube had not been
            suctioned well, and he was not given all of his scheduled tube
            feeds. In addition, records indicated that the beneficiary was
            given a meal tray with liquids despite a strict ``nothing by
            mouth'' order, putting the patient at risk for aspiration. The
            combination of the injuries suffered and the allegations made
            by the beneficiary's family gave reasonable cause to suspect
    ---------------------------------------------------------------------------
            potential neglect of this beneficiary.

        A SNF must ensure that all incidents involving alleged abuse and
    neglect are reported immediately to the administrator of the facility
    and to the Survey Agency. We determined that SNFs failed to report an
    estimated 6,608 instances of potential abuse or neglect (as identified
    in high-risk hospital ER Medicare claims) to the Survey Agencies in
    2016.

        Because of this failure to report, Survey Agencies could not
    review, prioritize, or conduct immediate onsite investigations, if
    necessary, to determine whether abuse, neglect, or other violations had
    occurred. Lastly, we determined that CMS does not require all incidents
    of potential abuse or neglect and related referrals made to law
    enforcement to be recorded and tracked in their complaint and incident
    tracking system.
    Using Medicare Claim Data to Identify Potential Abuse and Neglect
        In a June 2019 report,\5\ we demonstrated that Medicare claims can
    be used to identify incidents of potential abuse or neglect, regardless
    of where the beneficiary resides. Further, our work showed that many of
    these incidents were not reported to law enforcement as required.
    Medicare claims data identified more than 30,000 incidents of potential
    abuse or neglect. In our review, we identified Medicare claims in all
    States that contained diagnosis codes indicating the treatment of
    injuries potentially caused by abuse or neglect of Medicare
    beneficiaries from January 1, 2015, through June 30, 2017.
    ---------------------------------------------------------------------------
        \5\ OIG, CMS Could Use Medicare Data to Identify Instances of
    Potential Abuse or Neglect (A-01-17-00513), issued May 2019.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        All of the diagnosis codes were assigned by the health professional
    who treated the Medicare beneficiaries. Most of the actual incidents
    that caused harm occurred in settings other than medical facilities.
    Only 10 percent were associated with incidents where the injuries
    occurred in a medical facility, like a nursing home. Health-care
    workers were the likely perpetrators of incidents of potential abuse or
    ---------------------------------------------------------------------------
    neglect in about 7 percent of the claims.

        Approximately 90 percent of the medical records identified by this
    analysis contained evidence of potential abuse or neglect. This
    evidence included, but was not limited to, witness statements and
    photographs. We estimated that 30,754 claims were supported by medical
    records that contained evidence of potential abuse or neglect.

        Providers frequently failed to alert law enforcement to incidents
    of potential abuse or neglect. Approximately 27 percent of claims were
    not reported to law enforcement by mandatory reporters even though all
    States require certain individuals to report suspected abuse, neglect,
    or exploitation of vulnerable adults.

        Section 1150B of the Act and the Federal Conditions of
    Participation (CoPs) contained in CFR title 42 for long-term-care
    facilities, such as nursing homes and SNFs, include reporting
    requirements for incidents of suspected abuse or neglect. For these
    facilities, covered individuals are required to report any reasonable
    suspicion of a crime, such as certain instances of abuse, neglect, or
    exploitation. The CoPs for hospitals require that hospitals follow
    State laws for mandatory reporting. Group homes and assisted-living
    facilities are covered by State regulations regarding the reporting of
    potential abuse or neglect, and their employees are generally covered
    by State laws for mandatory reporting.
        a guide for using diagnosis codes in health insurance claims to
                   help identify unreported abuse or neglect
        We believe that data forms the bedrock of oversight and ensures
    transparency and accountability. Data is an important means of ensuring
    the identification, reporting, and correction of incidents of abuse and
    neglect. Today we are releasing ``A Resource Guide for Using Diagnosis
    Codes in Health Insurance Claims To Help Identify Unreported Abuse or
    Neglect,'' (guide) which explains our approach to using claims data to
    identify incidents of potential abuse or neglect of vulnerable
    populations. The guide synthesizes the methodologies that OIG developed
    in our extensive work on identifying unreported critical incidents,
    particularly those involving potential abuse or neglect.

        The guide includes a flow chart showing key decision points in the
    process and the detailed lessons that OIG has learned using this
    approach. We encourage CMS, States, providers, and other public and
    private-sector entities to use this guide to develop a process tailored
    to their specific circumstances and apply it to any vulnerable
    population they deem appropriate. The sources of data could include
    Medicaid Management Information System claims data, private payor
    insurance claims data, or similar data sets. Analyzing the data can
    help identify individual incidents of unreported abuse or neglect, and
    patterns and trends of abuse or neglect involving specific providers,
    beneficiaries, or patients who may require immediate intervention to
    protect their health, safety and rights. The guide also provides
    technical information, such as examples of medical diagnosis codes, to
    assist CMS, States, providers, and others with analyzing claims data to
    help combat abuse and neglect.
                  correction of deficiencies at nursing homes
        State Survey Agencies perform surveys to determine whether nursing
    homes \6\ meet the Federal Conditions of Participation. From 2015 to
    2018, OIG completed audits of nine States and issued a consolidated
    report to CMS regarding whether the Survey Agency took appropriate
    steps to verify that nursing facilities had corrected identified
    deficiencies.\7\ We found that seven States failed to verify or
    maintain sufficient evidence that they had verified nursing homes'
    correction of deficiencies as required by Federal rules. Specifically,
    for 47 percent of the sampled deficiencies (326 of the 700), these
    Survey Agencies did not obtain or maintain evidence of nursing homes'
    correction of deficiencies. If Survey Agencies certify that nursing
    homes are in substantial compliance without properly verifying the
    correction of deficiencies and maintaining sufficient documentation to
    support the verification of deficiency correction, the health and
    safety of nursing home residents may be at risk.
    ---------------------------------------------------------------------------
        \6\ Nursing homes can have both Medicare and Medicaid beneficiaries
    residing in them.
        \7\ OIG, CMS Guidance to State Survey Agencies on Verifying
    Correction of Deficiencies Needs To Be Improved To Help Ensure the
    Health and Safety of Nursing Home Residents (A-09-18-02000), February
    2019.

        In addition, OIG recently issued a data brief \8\ that analyzed
    nursing home deficiencies identified by State Survey Agencies across
    the Nation. Overall, we found that the number of deficiencies slightly
    increased from CYs 2013 through 2016, then slightly decreased in CY
    2017. Also, the overall average number of deficiencies identified by
    standard and complaint surveys slightly increased from CYs 2013 through
    2017, which would suggest that Survey Agencies identified more
    deficiencies per survey in CY 2017 than they did in CY 2013. However,
    approximately 31 percent of nursing homes had a repeat deficiency,
    i.e., a deficiency type that was cited at least five times in separate
    surveys. Further, at least half of these nursing homes experienced an
    incident of a more serious deficiency, including incidents of
    substandard quality of care, actual harm, and immediate jeopardy to
    residents. The results of our data analysis raise questions as to
    whether the quality of care and services provided to nursing home
    residents improved during our review period.
    ---------------------------------------------------------------------------
        \8\ OIG, Trends in Deficiencies at Nursing Homes Show That
    Improvements Are Needed To Ensure the Health and Safety of Residents
    (A-09-18-02010), April 2019.
    ---------------------------------------------------------------------------
      oig investigations and enforcement: misconduct and substandard care
        OIG investigates potential criminal and civil violations and
    pursues administrative actions to hold accountable those who victimize
    residents of nursing homes. Allegations involving patient harm remain a
    top OIG enforcement priority. For example, following Hurricanes Irma
    and Maria, the OIG and other Federal and State agencies undertook an
    investigation to review potential quality of care issues involving
    Medicare and Medicaid patients residing at long term care facilities.
    During the initial phase of this initiative, OIG along with other
    Federal and State authorities, visited more than 800 homes throughout
    Puerto Rico.

            Example: The investigation revealed that the owner of one of
            the facilities physically and verbally abused an 85-year-old
            female Medicaid beneficiary residing at her long-term-care
            facility. The owner verbally insulted the resident and punched
            her and hit her with a broomstick. The owner also negligently
            caused other patients residing at the facility to develop
            malnutrition and scabies. For patient safety, all residents
            were removed and transferred to other long-term-care
            facilities. The owner pleaded guilty to all five charges
            against her and was sentenced to 8 years of imprisonment to be
            served in home detention.

        In other instances, facility-wide or chain-wide grossly substandard
    care has resulted in harm to patients. Such cases may result in False
    Claims Act resolutions or administrative actions, such as exclusion
    from participation in Federal healthcare programs. Patient neglect is a
    recurring issue in False Claims Act cases. Allegations in these cases
    have included avoidable pressure ulcers; overmedication, which may lead
    to falls and fractures; failure to follow physicians' orders; and
    failure to provide a habitable living environment, with concerns
    including mold and roof leaks. In resolving False Claims Act cases, OIG
    may enter into ``quality of care'' corporate integrity agreements
    (CIAs) with nursing homes or chains that require actions to improve
    quality of care and safety. OIG is currently monitoring quality of care
    CIAs covering more than 200 nursing homes. OIG also collaborates
    closely with the 52 State Medicaid Fraud Control Units (MFCUs) that
    often have primary responsibility for enforcement of cases of abuse and
    neglect in health facilities, including nursing homes, as well as
    assisted living facilities.
                     additional corrective action is needed
        To help ensure the health and safety of Medicare and Medicaid
    beneficiaries, the reports that I have referenced in this testimony, as
    well as numerous other OIG reports related to quality of care and
    nursing homes, have recommended that CMS take specific actions to
    improve this area of the program. A complete listing of significant
    unimplemented OIG recommendations as well as CMS's response to those
    recommendations can be found in our Solutions to Reduce Fraud, Waste,
    and Abuse in HHS Programs: Top Recommendations. The following is a list
    of some of our recommendations related to my testimony today:

            b  CMS should compile a list of diagnosis codes that indicate
            potential abuse or neglect, conduct periodic data extracts, and
            inform States that the data are available to help the States
            ensure compliance with their mandatory reporting laws.

            b  CMS should take action (e.g., provide training, clarify
            guidance) to ensure that incidents of potential abuse or
            neglect of Medicare beneficiaries residing in SNFs are
            identified and reported.

            b  CMS should assess the sufficiency of existing Federal
            requirements to report suspected abuse and neglect of Medicare
            beneficiaries, regardless of where services are provided, and
            strengthen those requirements or seek additional legislative
            authorities if appropriate.

            b  CMS should improve its guidance to State Agencies on
            verifying nursing homes' correction of deficiencies and
            maintaining documentation to support verification.
                                   conclusion
        CMS and law enforcement cannot adequately protect victims of abuse
    and neglect from harm if they do not first know the harm is occurring.
    Failing to leverage the data available represents a lost opportunity
    for CMS and public and patient safety organizations to identify and
    pursue legal, administrative, and other appropriate remedies to ensure
    the safety, health, and rights of Medicare and Medicaid beneficiaries.

        HHS, CMS, and OIG are committed to the health and safety of
    beneficiaries. Despite this shared commitment, the data and findings
    that we are presenting today are extremely troubling and should cause
    all of us to redouble our efforts to protect the most vulnerable of our
    beneficiaries from these disturbing incidents. We need to use all the
    tools at our disposal to effectively address the issues of abuse and
    neglect highlighted in my testimony. We believe that Medicare and
    Medicaid data is a critical tool and that CMS can do a better job of
    analyzing and sharing that data so that States can promote better
    health and safety outcomes and manage their programs more effectively.
    We created the guide that we are releasing today to support CMS,
    States, providers, and others in their efforts to curtail this ongoing
    problem of abuse and neglect of our most vulnerable beneficiaries.

        Thank you for your ongoing leadership in this area and for
    affording OIG the opportunity to appear before you today.

                                     ______

             Questions Submitted for the Record to Megan H. Tinker
                   Questions Submitted by Hon. Chuck Grassley
        Question. Your testimony indicates that the Centers for Medicare
    and Medicaid Services (CMS) does not use every tool at its disposal to
    ensure that suspected abuse and neglect at skilled nursing facilities
    (SNFs) is properly identified, reported, and investigated. What
    specific legislative language might Congress adopt to ensure that CMS
    harnesses Medicaid and Medicare claims data or emergency room data to
    support its nursing home oversight, as the OIG has recommended?

        Answer. Our report recommended that CMS compile a complete list of
    diagnosis codes that indicate potential physical or sexual abuse and
    neglect and use that complete list to conduct periodic data extracts of
    all Medicare claims containing at least one of those codes. CMS should
    then inform States that the extracted Medicare claims data are
    available to help States ensure compliance with their mandatory
    reporting laws. CMS did not concur with this recommendation. We note
    that CMS currently has the legal authority to analyze and share data
    with States. We do not have a specific legislative recommendation on
    this point but are available to provide technical assistance upon
    request.

        Question. When reviewing hospital emergency room records for SNF
    residents whose injuries may have resulted from abuse or neglect, the
    OIG could not determine in 28 percent of such cases whether nursing
    home or hospital staff contacted law enforcement, as required by law.
    Does this point to the need for legislative or regulatory changes, and
    if so, what changes might Congress or CMS adopt to promote federally
    certified health-care providers' compliance with State mandatory
    reporting laws?

        Answer. Currently, federally certified health-care providers
    (excluding hospice providers) are required by Federal regulations to
    comply with State mandatory reporting laws, and our audits have
    repeatedly demonstrated that these providers frequently do not appear
    to comply with these laws. However, these mandatory reporting laws
    generally only require providers to report when they have a reasonable
    belief/assumption that abuse or neglect has occurred. Broader reporting
    requirements could prompt providers to report potential abuse more
    comprehensively. We have asked providers why they did not report
    specific incidents of abuse or neglect during the course of our audits,
    and the universal response has been that the providers did not have a
    reasonable belief/assumption that abuse or neglect occurred. Incidents
    of potential abuse or neglect will continue to be underreported unless
    there is a reporting requirement that includes a detailed list of
    diagnosis codes that must be reported to appropriate authorities.
    Therefore, at a minimum, we believe that providers should be required
    to report any injury that they treat and subsequently diagnose using
    one of the diagnosis codes specific to abuse or neglect.

        On the basis of the data we collected, we are concerned that abuse
    and neglect cases are not always being reported as required by law. In
    light of that finding, we recommended that CMS take steps to improve
    oversight and compliance with mandatory reporting laws. Specifically,
    we recommend that CMS take action to ensure that incidents of potential
    abuse or neglect of Medicare beneficiaries residing in skilled nursing
    facilities (SNFs) are identified and reported by working with the
    survey agencies to improve training for staff of SNFs on how to
    identify and report incidents of potential abuse or neglect of Medicare
    beneficiaries; clarifying guidance to define and provide examples of
    incidents of potential abuse or neglect; requiring the survey agencies
    to record and track all incidents of potential abuse or neglect in SNFs
    and referrals made to local law enforcement and other agencies; and
    monitoring the survey agencies' reporting of findings of substantiated
    abuse to local law enforcement. CMS concurred with our recommendations
    and provided details about the actions it has taken and plans to take
    to ensure incidents of potential abuse or neglect of Medicare
    beneficiaries in SNFs are identified and reported.

        Further, we recommend that CMS compile a complete list of diagnosis
    codes that indicate potential physical or sexual abuse and neglect and
    use that complete list to conduct periodic data extracts of all
    Medicare claims containing at least one of those codes. CMS could
    inform States that the extracted Medicare claims data are available to
    help States ensure compliance with their mandatory reporting laws. CMS
    did not concur with this recommendation.

        Question. The OIG's June 2019 report indicates that 5,200 nursing
    homes with repeat deficiencies (i.e., a deficiency type that was cited
    at least 5 times in separate surveys) had 12,700 repeat deficiencies in
    all. Serious deficiencies at these facilities mostly related to the
    Federal participation requirements for (1) ensuring that nursing homes
    are free of accident hazards, provide adequate supervision of
    residents, and provide adequate assistance devices for residents; and
    (2) providing care and services for the highest well-being of
    residents. What does this data reveal about CMS's oversight of nursing
    facilities? What options exist for CMS to promote greater corrective
    action at such facilities?

        Answer. The data shows that a large number of nursing homes had a
    large number of repeat deficiencies. CMS generally relies on State
    survey agencies to oversee the nursing homes. Under an agreement with
    CMS, State agencies perform surveys to determine whether nursing homes
    meet specified program requirements, known as Federal participation
    requirements. During a survey, a State agency identifies certain
    deficiencies, such as a nursing home's failure to provide necessary
    care and services. Nursing homes are required to submit a plan of
    correction to address deficiencies, and the plan should include which
    measures the nursing home will put into place or which systemic changes
    will be made to ensure that the deficient practice will not recur. Our
    previous report, CMS Guidance to State Survey Agencies on Verifying
    Correction of Deficiencies Needs To Be Improved To Help Ensure the
    Health and Safety of Nursing Home Residents (A-09-18-02000), found that
    seven of nine State agencies did not always verify nursing homes'
    correction of deficiencies as required. Our previous report, CMS
    Guidance to State Survey Agencies on Verifying Correction of
    Deficiencies Needs To Be Improved To Help Ensure the Health and Safety
    of Nursing Home Residents (A-09-18-02000), found that seven of nine
    State agencies did not always verify nursing homes' correction of
    deficiencies as required. In this report, we made several
    recommendations to CMS to help ensure that State agencies verify
    nursing homes' correction of deficiencies.

        Question. At my request, the OIG analyzed the use of psychotropic
    drugs at nursing homes nearly 2 decades ago. The OIG then reported that
    these drugs are generally being used appropriately, but where problems
    exist, they typically relate to inappropriate dosage, chronic use, a
    lack of documented benefit to the resident, and inappropriate duplicate
    drug therapy. The OIG also cited a concern about the lack of adequate
    documentation for residents' psychotropic drug use. To what extent, if
    at all, has the OIG carried out additional research in this area since
    then, and do we still have reason to be concerned about lack of
    documentation for SNF residents' psychotropic drug use? If so, do you
    have recommendations for Congress in this area?

        Answer. In November 2001, OIG released a report, per your request,
    that found psychotropic drug use in nursing homes was generally
    appropriate. A subsequent 2011 OIG report, also per your request,
    evaluated atypical antipsychotic drug claims, a sub-class of
    psychotropic drugs, in the Medicare population. The findings showed:

            83 percent of Medicare claims for atypical antipsychotics were
    associated with off-label conditions (i.e., prescribing a medication
    for other than FDA-
    approved uses);
            88 percent of claims for atypical antipsychotics were
    associated with a condition specified in the FDA black-box warning,
    indicating an increased risk of death for elderly patients with
    dementia;
            51 percent of claims for atypical antipsychotics were paid in
    error (e.g., a claim for a drug not used for a medically accepted
    condition), representing $116 million in Medicare spending; and
            22 percent of claims for these drugs were not administered in
    accordance with CMS standards for unnecessary drug use in nursing
    homes.

        In response to OIG's recommendations, CMS formed the National
    Partnership to Improve Dementia Care in Nursing Homes (National
    Partnership) in 2012 to reduce the use of unnecessary antipsychotic
    medications in nursing homes. CMS reported success in reducing the
    number of residents receiving these medications by 39 percent
    nationally.

        A 2014 CMS report acknowledged the need to continue to monitor
    psychotropic use. Concerns include drug substitution--for example,
    substituting anxiolytics or sedative/hypnotics for antipsychotics, as
    well as changes in the diagnoses nursing homes reported for nursing
    home residents (https://www.cms.gov/Medicare/Provider-Enrollment-and-
    Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-
    Letter-14-19.pdf; page 37). Researchers share CMS' concerns. In 2019,
    CMS identified approximately 1,500 facilities that had not reduced the
    use of antipsychotic medications for long-stay nursing home residents.
    Additionally, a 2018 Journal of the American Medical Association
    article identified an increase in the use of mood stabilizers and
    benzodiazepines with a decrease in all other psychotropic medications.
    The authors suggest the increase in the use of these drugs may be a
    substitution for antipsychotics.

        OIG plans to initiate a review of Medicare psychotropic drug use in
    nursing homes.

        Question. After comparing employee data with criminal history
    record information for a random sample of 260 Medicare-certified
    nursing facilities, the OIG in March 2011 reported that 92 percent of
    these facilities employed at least one individual with at least one
    criminal conviction, and nearly half employed five or more individuals
    with at least one conviction. More recently, the OIG issued a report on
    the National Background Check Program for Long-Term Care Facilities. To
    what extent has CMS adopted the OIG's recommendations for improving
    background checks of nursing home employees since 2011? Does the OIG
    have additional recommendations for Congress or CMS in this area?

        Answer. CMS has implemented all of OIG's recommendations from
    reports issued in 2011 and 2016. CMS concurred with the recommendation
    in our most recent report on the topic, issued in 2019.

        In 2011, OIG recommended that CMS (1) develop background check
    procedures that clearly define the employee classifications that are
    direct patient access employees, and (2) work with participating States
    to develop a list of State and local convictions that disqualify an
    individual from nursing facility employment under the Federal
    regulation. CMS implemented these recommendations in 2015 (https://
    oig.hhs.gov/oei/reports/oei-07-09-00110.pdf).

        In 2016, OIG recommended that CMS (1) continue working with
    participating States to fully implement their background check
    programs, (2) assist States to obtain legislative authority to conduct
    all required types of background checks on all required provider types,
    and (3) continue working with participating States to improve required
    reporting and effective oversight of the program. CMS developed a
    ``National Background Check Program Interim Progress Report'' to
    annually track State performance on OIG and CMS metrics; previously,
    CMS evaluated performance at the conclusion of each State's grant
    period, preventing the opportunity to address these issues during the
    grant period (https://oig.hhs.gov/oei/reports/oei-07-10-00420.pdf).

        In April 2019, OIG recommended that CMS take appropriate action to
    encourage participating States to obtain necessary authorities to fully
    implement program requirements (e.g., scheduling future grant payments
    based on implementation of requirements or issuing deficiency notices).
    CMS concurred with this recommendation but has not yet implemented it
    (https://oig.hhs.gov/oei/reports/oei-07-16-00160.pdf).

        In July 2019, OIG released a study specifically examining State
    implementation of fingerprint-based criminal background checks for
    high-risk providers. In this study, OIG recommended that CMS (1) ensure
    that all States fully implement
    fingerprint-based criminal background checks for high-risk Medicaid
    providers; (2) amend its guidance so that States cannot forgo
    conducting criminal background checks on high-risk providers in certain
    circumstances; and (3) compare high-risk Medicaid providers' self-
    reported ownership information to Medicare's provider ownership
    information to help States identify discrepancies. CMS concurred with
    the first recommendation. CMS did not concur with the second and third
    recommendations (https://oig.hhs.gov/oei/reports/oei-05-18-00070.pdf).

        Question. The OIG's 2019 report indicates that 10 categories of
    deficiencies account for 40 percent of all nursing home deficiencies.
    What conclusions can we draw from this data, and does it point to the
    need for CMS to adopt specific reforms? If so, what do you recommend?

        Answer. The top 10 categories of deficiencies provide information
    about the areas in need of the most improvement. The top 10 categories
    (which are listed in Figure 8 of the report cited in the question) are
    extensive and include maintaining areas free of accident hazards,
    adequate supervision of residents, and adequate assistance devices for
    residents; establishing infection control programs, preventing the
    spread of infection, and handling linens properly; providing care and
    services for the highest well-being; sanitary food procurement,
    storage, preparation, and service; developing comprehensive care plans;
    preserving drug regimens free from unnecessary drugs; sustaining proper
    drug records with labeling and storing of drugs and biologicals;
    upholding complete, accurate, and accessible resident records;
    retaining the dignity and respect of individuality; and investigating
    and reporting concerns involving allegations and individuals. Nursing
    homes, State survey agencies, and CMS can focus on taking action or
    implementing steps to help reduce the types of deficiencies from
    happening.

        Question. The OIG's 2019 report indicates that just 10 States
    account for half of the deficiencies identified in its report. It also
    notes that the OIG did not account for possible variations in how
    States do inspections and identify deficiencies. How can we draw
    meaningful, nationwide comparisons from this data if States vary in how
    they conduct inspections? Should CMS or Congress do anything to promote
    greater uniformity, e.g., through the issuance of guidance to State
    survey agencies?

        Answer. In February 2019, OIG issued the report CMS Guidance to
    State Survey Agencies on Verifying Correction of Deficiencies Needs To
    Be Improved to Help Ensure the Health and Safety of Nursing Home
    Residents (February 7, 2019). In our report, we recommended that CMS
    (1) revise guidance to State agencies to provide specific information
    on how State agencies should verify and document their verification of
    nursing homes' correction of less serious deficiencies before
    certifying nursing homes' substantial compliance with Federal
    participation requirements; (2) revise guidance to State agencies to
    clarify the type of supporting evidence of correction that should be
    provided by nursing homes with or in addition to correction plans; and
    (3) strengthen guidance to State agencies to clarify who must attest
    that a correction plan will be implemented by a nursing home. CMS
    concurred with our recommendations, but, to date, the recommendations
    have not yet been implemented. These recommendations or other actions
    taken by CMS or Congress could help promote greater uniformity in the
    survey process.

        Question. You testified that skilled nursing facilities didn't
    report over 6,000 instances of abuse or neglect to State inspectors in
    2016. To your knowledge, has there been any follow up investigations
    into those cases?

        Answer. The estimate of 6,608 instances of abuse or neglect not
    reported by SNFs to State inspectors in 2016 is the result of a
    statistical projection, and the status of those instances cannot be
    confirmed. OIG has not conducted a follow-up audit of our original
    results to determine the resolution of the 43 sample items involved in
    the projection that produced the 6,608. In the two abuse and neglect
    reports discussed at the July 23, 2019, hearing, we identified
    populations of potential abuse and neglect based on claims data. From
    the population in both reports we selected samples for more in-depth
    review. For the samples that were selected where there were indications
    of potential abuse and neglect, we referred these to State agencies and
    to law enforcement. We do not know the results of any follow-up
    activity by these entities or whether these instances were under
    investigation based on other referral sources.

                                     ______

                   Question Submitted by Hon. James Lankford
        Question. Have you found that there are fewer instances of abuse in
    home and community-based care than in institutionalized care such as
    nursing homes? How can HHS encourage families to access these services
    as an alternative or precursor to a nursing home?

        Answer. OIG has not determined a rate of abuse or neglect for home
    and community-based care and institutionalized care that could be used
    as a basis to compare the two settings. OIG believes continuing work to
    promote quality and ensure safety of beneficiaries in home and
    community-based settings will facilitate informed
    decision-making about care placement for beneficiaries and their
    families. On the basis of our data, we know that most cases of
    potential abuse and neglect occurred in settings other than medical
    facilities. Specifically, we determined that 12 of the 94 Medicare
    claims associated with incidents of potential abuse or neglect in our
    sample indicate that the abuse or neglect occurred at a medical
    facility. These medical facilities included nursing homes and SNFs
    (seven claims), group homes (three claims), long-term acute-care
    hospitals (one claim), and assisted living facilities (one claim). In
    addition, we determined that, of the 94 Medicare claims associated with
    incidents of potential abuse or neglect in our sample, 61 were
    associated with incidents that occurred at the Medicare beneficiaries'
    homes, and 16 occurred at other people's homes or public settings, such
    as parks and alleys. Unfortunately, from the data we can't make any
    conclusions about the prevalence of cases in home and
    community-based care vs. institutionalized care.

                                     ______

                     Questions Submitted by Hon. Todd Young
                                 data analytics
        Question. Ms. Tinker, in your testimony, you recommend that CMS,
    States and providers use data to ensure potential abuse and neglect is
    being identified.

        What sources of data are needed to help identify potential abuse or
    neglect?

        Answer. Based on our work, any robust source of claims data can be
    used to help identify potential abuse or neglect. To that end, in
    conjunction with the July 23, 2019, hearing, we released ``A Resource
    Guide for Using Diagnosis Codes in Health Insurance Claims To Help
    Identify Unreported Abuse or Neglect'' (guide) which explains our
    approach to using claims data to identify incidents of potential abuse
    or neglect of vulnerable populations. The guide synthesizes the
    methodologies that OIG developed in our extensive work on identifying
    unreported critical incidents, particularly those involving potential
    abuse or neglect. Any data sources containing information such as
    beneficiaries' names, Medicare identification numbers, Social Security
    numbers and diagnosis codes are needed to identify potential abuse or
    neglect. The Transformed Medicaid Statistical Information System (T-
    MSIS), National Claims History file (Medicare), the Automated Survey
    Processing Environment Complaints/Incidents Tracking System (ACTS), and
    the National Provider Data Bank (NPDB) are all sources of data that
    could be used to identify potential abuse or neglect.

        Question. Are there new sources of data that are needed?

        Answer. No. Existing sources can be used.

        Question. Should CMS consider using data tools, like health
    analytics, to more accurately help identify these incidences--while
    keep providers and States accountable?

        Answer. We believe that the guide presents a good roadmap for how
    to use claims data. We believe that CMS should use health analytics to
    more accurately help identify incidents of abuse or neglect.
    Specifically, we have developed an approach that uses the medical
    diagnosis codes included in Medicare and Medicaid claims data to target
    medical records for review. In many of our reports, we found our
    methodology to be an effective approach to help address unreported
    abuse and neglect. This approach can help identify (1) unreported
    instances of abuse or neglect, (2) beneficiaries or patients who may
    require immediate intervention to ensure their safety, (3) providers
    exhibiting patterns of abuse or neglect, and (4) instances in which
    providers did not comply with mandatory reporting requirements. Our
    guide outlining this approach can be found at https://www.oig.hhs.gov/
    compliance/compliance-resource-portal/abuse-neglect-guide/
    index.asp?utm_source=website&utm_medium=asp
    &utm_campaign=abuse-neglect-guide.

        Question. In your testimony, you also describe the difficulties in
    identifying potential abuse and neglect.

        But what can we do to prevent these incidences from occurring in
    the first place?

        Answer. We believe that greater compliance with mandatory reporting
    requirements and the use of data analysis are important tools to help
    reduce and prevent abuse and neglect. Using data to conduct better
    oversight of mandatory reporting laws can help promote compliance with
    these requirements. Data analysis can also help identify problematic
    facilities or providers, and/or beneficiaries that might be at risk,
    and thus help target oversight and enforcement efforts to prevent
    future harms.

        Question. Should we consider other data tools, like predictive
    analytics, to prevent abuse and neglect?

        Answer. We believe the first step should be to effectively use the
    data that we have in a manner consistent with the guide we released.
    Other data tools, such as predictive analytics or trend analysis, could
    be used to identify potential abuse and neglect. The results of such
    analysis could be used to develop recommendations to improve or correct
    weaknesses identified by that analysis. If the data are thus
    effectively used, other more innovative practices may become apparent.

        Question. With the issues you describe with data, would it even be
    possible at this point to consider data tools?

        Answer. Yes, our results show that data tools are an effective
    means to identify unreported incidents of abuse and neglect. To that
    end, we issued our resource guide to suggest that our partners make
    better use of data tools to further program compliance and reduce abuse
    and neglect. We believe that the data can be very effectively used in
    accordance with the guide.

                                     ______

                     Questions Submitted by Hon. Ron Wyden

                               background checks
        Question. One of the tools that is available to nursing homes to
    try to prevent abuse by staff is the use of background checks. In 2010,
    as part of the Affordable Care Act, Congress established the National
    Background Check Program (NBCP) for nursing homes. By law, the HHS
    Office of Inspector General (OIG) has been auditing this program and
    the results are enough to knock the wind out of you. According to one
    audit from this April, in eight of the 10 States that actually
    completed the program, nearly 80,000 employment applicants were found
    to be ineligible. In one State that fully implemented all the NBCP
    background checks--Alaska--8 percent of employment applicants were
    found to be ineligible based on these checks. A number of States in the
    program did not complete the program and some 20 States did not even
    bother to participate. How many States, regardless of their level of
    participation in the NBCP, have complete background check requirements
    for nursing employees, as defined by the ACA for the NBCP, and how many
    do not?

        Question. Twenty-nine States have elected to participate in the
    voluntary National Background Check Program (Program). To date, OIG has
    evaluated the 21 States that completed their respective Programs as of
    July 31, 2018. The Program requires background checks for prospective
    direct patient access employees for nine types of long-term-care
    facilities or providers. Included as direct patient access employees
    are nurses and other care providers. Included as direct patient access
    employees are nurses and other care providers. OIG identified 13
    requirements related to background checks and determinations of
    employee ineligibility to evaluate State progress. OIG has issued a
    series of reports on 'States' implementation of the Program once they
    have completed the program.

        Of the 21 States that completed Program participation:

            Eight States fully implemented the 13 selected requirements:
    Alaska, the District of Columbia, Florida, Georgia, Minnesota, New
    Mexico, Rhode Island, and West Virginia. (Note: Because Georgia did not
    fully implement the 13 selected requirements until after the end of the
    grant period, the State is not credited in the OIG report for meeting
    all 13 selected requirements.)
            Six States implemented most of the 13 requirements:
    Connecticut, Delaware, Oklahoma, Michigan, Utah, and Nevada. (Note:
    Although Delaware and Oklahoma did not complete background checks for
    all 9 facilities and provider types, the States did fully implement the
    13 selected requirements for nursing homes.)
            Seven States implemented only some of the 13 requirements:
    California, Illinois, Kentucky, Maine, Maryland, Missouri, and North
    Carolina.

        Eight participating States have not yet completed Program
    participation and have not yet been evaluated: Hawaii, Idaho, Kansas,
    Mississippi, Ohio, Oregon, Puerto Rico, and Wisconsin.
                          section 1150b implementation
        Question. The Elder Justice Act established new elder abuse
    reporting requirements for nursing homes (section 1150B of the Social
    Security Act). The law requires immediate reporting of any reasonable
    suspicion of a crime committed against a nursing home resident.
    Enforcement measures included civil monetary penalties of up to
    $300,000. In 2017, the HHS OIG issued an ``early warning'' report,
    which pointed out that the Centers for Medicare and Medicaid Services
    (CMS) had never been given authority to enforce section 1150B. HHS
    never addressed this recommendation. On July 22, 2019, the day before
    the hearing, the HHS OIG reiterated this recommendation in its Report
    ``Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs: OIG's
    Top Recommendations.'' OIG stated ``CMS should take immediate action to
    ensure that incidents of potential abuse or neglect of Medicare
    beneficiaries residing in SNFs are identified and reported. Among other
    things, CMS should continue to work with the HHS Office of the
    Secretary to receive the delegation of authority to impose the civil
    monetary penalties and exclusion provisions of section 1150B of the
    Social Security Act.'' Please explain why HHS OIG has repeatedly made
    this recommendation and provide any explanation HHS has given HHS OIG
    for failing to do so.

        Answer. As we discussed during the hearing, lack of reporting is a
    significant problem. We continue to urge HHS and CMS to use every tool
    available to protect beneficiaries. One way they can do that is to make
    better use of the tools they do have, such as data analysis, to prevent
    abuse and neglect in the first place. As to 1150B, our report, CMS
    Could Use Medicare Data to Identify Instances of Potential Abuse or
    Neglect (June 12, 2019), notes:

            In June 2017, CMS began working with the HHS Office of the
            Secretary to receive the delegation of authority to enforce the
            Act section 1150B. CMS officials stated that they have not
            taken action under section 1150B because they have not
            identified instances in which a covered individual failed to
            report a crime, such as an incident of potential abuse or
            neglect of a Medicare beneficiary. CMS officials also
            acknowledged that the CMS State Operations Manual (SOM) did not
            include references to section 1150B until March 8, 2017;
            however, they noted that CMS had issued the ``CMS State Survey
            Agency Directors' Letter'' (S&C-11-30-NH) on June 17, 2011.
            This letter details the requirements and sanctions contained in
            section 1150B and instructs the State Survey Agencies, which
            fulfill certain oversight functions, to process reports
            received under section 1150B in accordance with existing CMS
            and State policies and procedures. CMS officials stated that
            they have taken additional actions to protect residents in
            nursing homes by adding section 1150B requirements to training
            courses and issuing supporting interpretive guidance and
            training to surveyors. During this audit, CMS has continued to
            work with the HHS Office of the Secretary to receive this
            delegation and on drafting regulations regarding the
            enforcement of section 1150B.

        We would refer you to the Department for any updates to the
    foregoing.

                                     ______

                  Questions Submitted by Hon. Robert Menendez
        Question. During the hearing, two reasons were presented to explain
    why more States who participated in the National Background Check
    Program (NBCP) did not successfully implement the required range of
    background checks: States' inability to pass necessary legislation and
    the need for increased funding to ensure appropriate infrastructure is
    in place at the State level.

        Has OIG or GAO identified key barriers to States passing necessary
    legislation?

        Answer. In the absence of a Federal statute, States need to enact
    legislation to be able to implement Program requirements when they do
    not have the necessary legislative authority prior to Program
    participation. We found that numerous States lacked the legislative
    authority to conduct background checks on all required facilities and
    provider types.

        Because several States did not have the necessary legislative
    authority to fully implement background check programs, OIG recommended
    that CMS use incentives to encourage participating States to obtain
    necessary authorities to fully implement Program requirements. These
    incentives could include scheduling future grant payments based on
    implementation of requirements or issuing deficiency notices. CMS
    concurred with this recommendation and plans to implement it.

        Question. Is there action Congress can take to incentivize States
    to pass legislation that would enable the program to be implemented?

        Answer. In April 2019, OIG recommended that CMS take appropriate
    action to encourage participating States to obtain necessary
    authorities to fully implement Program requirements (e.g., scheduling
    future grant payments based on implementation of requirements or
    issuing deficiency notices). CMS concurred with this recommendation but
    has not yet implemented it.

        Question. On average, how much funding would a State need in order
    to ensure that the appropriate infrastructure was in place?

        Answer. Estimates are difficult to provide as States began grant
    participation with different levels of infrastructure and resources.
    Changes to State infrastructure ranged from developing new systems to
    refining existing ones. The Program requires States to match 1 dollar
    for every 3 dollars in Federal funding to a maximum Federal
    contribution of $3 million. For States that implemented all 13 selected
    Program requirements by the end of their grant period, the amount spent
    varied greatly. For example, New Mexico used approximately $473,000 in
    State funds and $1.4 million in Federal funds, and Minnesota used $28.6
    million in State funds and $3 million in Federal funds.

                                     ______

                 Questions Submitted by Hon. Sheldon Whitehouse
        Question. One of the recent HHS OIG reports found that CMS failed
    to identify thousands of cases of potential abuse or neglect that may
    have occurred at skilled nursing facilities. I was disappointed to
    learn that CMS disagreed with HHS OIG's recommendation to use claims
    data to identify potential abuse or neglect. I am a strong believer in
    using the data we have to make our health care system work better, and
    I would hope CMS would agree with that sentiment.

        What is your response to CMS's assertion that claims data is not
    timely enough to respond to potential issues of abuse or neglect in
    skilled nursing facilities?

        Answer. We believe that the data are timely and can be effectively
    used. In our response to CMS's comments on both of our final reports
    (A-01-17-00503 and A-0116-00509), we maintained that the data are
    timely enough to address acute problems of potential abuse and neglect,
    including injuries of unknown source. For example, in our final report
    on potential abuse or neglect at skilled nursing facilities (A-01-16-
    00509), we acknowledged that providers have up to 12 months from the
    date of service to submit claims for services rendered. However, we
    noted that, on average, hospitals submitted the claims that were
    included in our sampling frame to the Medicare Administrative
    Contractor (MAC) in less than 30 days after the dates of service. In
    fact, hospitals submitted more than 80 percent of all claims included
    in our sampling frame to the MAC in less than 30 days after the dates
    of service and more than 90 percent of all claims included in our
    sampling frame in less than 90 days after the dates of service.

        Question. Are there other data sources CMS could use to improve its
    response to abuse in neglect in skilled nursing facilities?

        Answer. We believe that the Transformed Medicaid Statistical
    Information System (T-MSIS), National Claims History file (Medicare),
    the Automated Survey Processing Environment Complaints/Incidents
    Tracking System (ACTS), and the National Provider Data Bank (NPDB) are
    all sources of data that could be used to identify potential abuse or
    neglect. CMS should use all the data at its disposal to address the
    issue of abuse and neglect.

        Question. Should Congress consider requiring CMS to leverage claims
    data to identify potential instances of abuse or neglect.

        Answer. We defer to Congress in making that policy determination.
    But would note that CMS has the legal authority to leverage claims data
    to identify incidents of abuse or neglect. OIG has developed an
    approach, which we think CMS and others could replicate, that uses the
    medical diagnosis codes included in Medicare and Medicaid claims data
    to target medical records for review. In many of our reports, we found
    our methodology to be an effective approach to help address unreported
    abuse and neglect. This approach can help identify (1) unreported
    instances of abuse or neglect, (2) beneficiaries or patients who may
    require immediate intervention to ensure their safety, (3) providers
    exhibiting patterns of abuse or neglect, and (4) instances in which
    providers did not comply with mandatory-reporting requirements. Our
    guide outlining this approach can be found at https://www.oig.hhs.gov/
    compliance/compliance-resource-portal/abuse-neglect-guide/
    index.asp?utm_source=website
    &utm_medium=asp&utm_campaign=abuse-neglect-guide.

                                     ______

                     Prepared Statement of Hon. Ron Wyden,
                           a U.S. Senator From Oregon
        The Finance Committee meets this morning to discuss what more can
    be done to protect seniors from abuse and neglect in nursing homes.
    Based on new reports from the Government Accountability Office and the
    Inspector General with purview over Medicare, there are two key issues
    for the committee to confront.

        First, instances of physical, sexual, mental, and emotional abuse
    in nursing homes appear to be on the rise. Second, the Federal nursing
    home rating system does not accurately reflect the prevalence of that
    abuse. So when it comes to those cases, there are good nursing homes
    and there are bad nursing homes, and the government is failing to help
    consumers determine which are which.

        So let me begin by outlining how the system is supposed to work.
    Everybody agrees that even one case of abuse in a nursing home is too
    many. Therefore, State agencies are in charge of conducting surveys of
    nursing homes and investigating reports of abuse. The Centers for
    Medicare and Medicaid Services is in charge of setting national
    standards and managing a nationwide rating system for nursing homes.
    State agencies and CMS are supposed to work in close communication with
    each other so that families can figure out which homes are safe. Today
    the committee will hear that the system is failing the elderly people
    it's supposed to protect.

        GAO studied instances of abuse in nursing homes over a 5-year
    period from 2013 to 2017. Over that time, the recorded number of
    instances more than doubled. In a separate study, the HHS Office of
    Inspector General also concluded that thousands of cases of abuse in
    nursing homes are going unreported.

        Then there's the issue of the broken rating system. The GAO study
    found abuse happened in homes of all ratings, top and bottom. A good
    rating did not indicate that a nursing home prevented abuse.

        That brings me to the situation with my home State of Oregon. It
    was revealed during the GAO investigation that the State of Oregon went
    at least 15 years without reporting information on cases of abuse or
    neglect to CMS. Fifteen years' worth of records of physical, verbal,
    mental and emotional abuse--information that Oregonians needed to know
    in order to keep their loved ones safe--unavailable on the nursing home
    rating system.

        Somebody in Oregon who wanted to find out if a particular nursing
    home had abusive staff would have better luck reading the local police
    blotter. Their State and Federal Government failed them.

        In May, I wrote to CMS urging them to take two important steps.
    First, I said the Centers for Medicare and Medicaid Services ought to
    put a warning on its website that the nursing home rating system does
    not reflect cases of abuse in Oregon. And second, I wrote that they
    need to go back, work with the Oregon Government to find all this
    missing information and fix the rating system so that it's useful and
    accurate. Anything short of that, in my view, puts elderly Oregonians
    in danger. CMS has not yet responded. I ask unanimous consent that my
    letter to CMS be included in the hearing record.

        I'll close on this. There's no question that there are good nursing
    homes across the land staffed by hard-working individuals who excel at
    their jobs. But not every home meets that standard.

        In the cases these new reports have studied, vulnerable seniors--
    people living in nursing homes specifically because they cannot care
    for themselves--were exposed to unforgivable treatment. Thousands of
    incidents of physical, verbal, mental, and sexual abuse. Health-care
    needs unmet. Squalid living conditions. This cannot go on. People in
    Oregon and across the country have a right to know which homes are safe
    and which homes are not.

        I believe there's an opportunity for Democrats and Republicans to
    work together to find solutions on this issue. I know Chairman Grassley
    is determined to work toward that end. I hope the committee is able to
    uncover some ideas today.

                                     ______

                              United States Senate

                              committee on finance

                           Washington, DC 20510-6200

                                  May 21, 2019

    The Honorable Seema Verma
    Centers for Medicare and Medicaid Services
    7500 Security Boulevard
    Baltimore, MD 21244

    Dear Administrator Verma:

        I am writing to express my concern regarding the recent Government
    Accountability Office (GAO) management report \1\ that found the State
    of Oregon was not reporting cases of abuse in nursing homes to the
    Centers for Medicare and Medicaid Services (CMS). As a result,
    instances of abuse were not included as a part of the Federal
    Government's Nursing Home Compare tool and, although the instances of
    abuse were investigated by the state, CMS was not able to conduct its
    own abuse investigations or take related enforcement actions at Oregon
    nursing homes.
    ---------------------------------------------------------------------------
        \1\ Management Report: CMS Needs to Address Gaps in Federal
    Oversight of Nursing Home Abuse Investigations That Persisted in Oregon
    for at Least 15 Years, GAO-19-313R; April 15, 2019.

        Seniors in nursing homes are among the most vulnerable to life-
    threatening consequences of abuse and neglect. As a co-director of the
    Oregon Gray Panthers and a member of the State Board of Examiners of
    Nursing Home Administrators, I saw the range of challenges facing older
    Oregonians, from those living in sordid conditions to those who
    ---------------------------------------------------------------------------
    struggled with activities of daily living.

        Selecting a nursing home for a family member is a hard decision
    under the best of circumstances, which is why I pushed to establish a
    federal rating system to compare nursing homes. I am outraged that
    Oregon had not been reporting cases of abuse in nursing homes to CMS
    and that these cases had not been included in Nursing Home Compare
    since its very inception. Put simply, this has left Oregon families in
    the dark when they needed transparent and comprehensive information
    most. Not only has this deprived families of key facts about the
    quality of these nursing homes, it has also prevented CMS from
    identifying problems and taking enforcement actions.

        For these reasons, I am calling on CMS to immediately make clear on
    the Nursing Home Compare website that Oregonians cannot rely on these
    ratings for nursing homes in our State. Although CMS committed in its
    agency comments to include a link on the Nursing Home Compare website
    to Oregon's Adult Protective Services in an effort to address this
    problem, no such link has been established to date. Furthermore,
    without clear disclosure of the missing abuse information and its
    potential impact on nursing home ratings, such a link, by itself, would
    not adequately inform site users of the flaws in the ratings.

        It is also imperative that Oregon and CMS review all cases of abuse
    that were reported or referred to Oregon Protective Services, but not
    reported to CMS to determine if any additional enforcement actions can
    or should be taken. In its comments to GAO on March 29, 2019, CMS
    stated that regional CMS officials have directed the Oregon Department
    of Human Services to develop a plan for identifying any cases that
    require additional investigation. CMS needs to ensure that any such
    plan require a review of all unreported cases to determine whether
    additional investigations or enforcement actions by CMS are warranted.
    I am also requesting that you provide me a copy of this plan.

        We appreciate your attention to this matter and your cooperation
    with this request. If you have any questions please contact David
    Berick with my Senate Committee on Finance staff at 202-224-4515.

                Sincerely,

    Ron Wyden
    Ranking Member

                                     ______

                                 Communications

                                  ----------

                            Center for Fiscal Equity

                            14448 Parkvale Road, #6

                           Rockville, Maryland 20853

                          fiscalequitycenter@yahoo.com

                          Statement of Michael Bindner

    Chairman Grassley and Ranking Member Wyden, thank you for the
    opportunity to present our comments on this vital issue. This testimony
    is largely a restatement of our comments from the March 6th hearing,
    ``Not Forgotten: Protecting Americans From Abuse and Neglect in Nursing
    Homes.'' We welcome any legislation on this topic, although we will
    take this opportunity to remind the committee of our proposals.

    Our asset value-added tax and income surtax, which 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 and/or 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, 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 Medicare Advocacy

                     1025 Connecticut Avenue, NW, Suite 709

                              Washington, DC 20036

                                 (202) 293-5760

                          https://medicareadvocacy.org

              Statement of Toby S. Edelman, Senior Policy Attorney

    I am a Senior Policy Attorney in the Washington, DC. office of the
    Center for Medicare Advocacy, a national not-for-profit legal
    organization that focuses on assuring access to Medicare and high
    quality health care. I have represented nursing home residents and
    their interests in Washington, DC since 1977--more than 42 years.

    The Inspector General's report last month documented the failure of
    nursing facilities across the country to report incidents of potential
    abuse or neglect of residents to their state survey agency in 2016.\1\
    Looking at a sample of high-risk emergency room claims submitted by
    hospitals to Medicare, the Inspector General estimated that 7,831 cases
    of potential abuse or neglect of residents had occurred. That's more
    than one claim for every two nursing facilities in the country. The
    Inspector General also found that facilities failed to report more than
    84% of these incidents to the state survey agencies, as required by
    federal law.\2\
    ---------------------------------------------------------------------------
        \1\ Office of Inspector General, Incidents of Potential Abuse and
    Neglect of Skilled Nursing Facilities Were Not Always Reported and
    Investigated, A-01-16-00509 (June 2019), https://oig.hhs.gov/oas/
    reports/region1/11600509.pdf.
        \2\ 42 CFR Sec. 483.12(c)(l). The facility must report abuse or
    incidents involving serious bodily injury immediately, but not less
    than 2 hours after the allegation is made, to the administrator and the
    state survey agency. The facility must report other incidents within 24
    hours, 42 CFR Sec. 483.12(c)(l). The facility must thoroughly
    investigate incidents, 42 CFR Sec. Sec. 483.12(b)(2), 483.12(c)(2), and
    report the results of the investigation, within 5 days, to the
    administrator and state survey agency officials, 42 CFR
    Sec. 483.12(c)(4).

    These statistics are appalling, but, unfortunately, they are not
    surprising to advocates for nursing home residents, who hear every day
    from residents and their families across the country about the many
    ways the promise and mandate of the 1987 Nursing Horne Reform Law are
    ---------------------------------------------------------------------------
    not being met.

    No single action will prevent the abuse and neglect of residents.
    Multiple approaches are necessary. I offer four approaches that I
    believe would help reduce abuse and neglect of residents and, more
    broadly, assure that all residents enjoy high quality of care and high
    quality of life.

    First, unless and until we ensure that all facilities have sufficient
    numbers of well-trained, well-supervised, and well-compensated nursing
    staff, abuse and neglect will not be prevented and nursing homes will
    not provide residents with good care. The key single predictor of good
    quality of care and quality of life for residents is nurse staffing--
    both the professional registered nurses and licensed practical nurses
    and the paraprofessional nursing staff, the certified nurse assistants
    who provide the majority of direct hands-on care, often for minimum
    wage salaries. Nursing facilities do not have sufficient nursing staff.

    The new payroll-based staffing information that the Centers for
    Medicare & Medicaid Services (CMS) now collects, as required by the
    Affordable Care Act, documents that nursing facilities nationwide have
    too few nursing staff to provide care to an ever-more frail and
    dependent population of residents. An analysis of these new data,
    published in a recent Health Affairs article, finds that ``75 percent
    of nursing homes were almost never in compliance with what CMS expected
    their RN staffing level to be, based on residents' acuity.''\3\ Since
    these CMS expectations are based on a report that is nearly 20 years
    old, a time when residents were less disabled and had fewer care needs
    than today's residents, it is indisputable that most facilities today
    do not have sufficient nursing staff to meet residents' needs.
    ---------------------------------------------------------------------------
        \3\ Fangli Geng, David G. Stevenson, and David C. Grabowski,
    ``Daily Nursing Home Staffing Levels Highly Variable, Often Below CMS
    Expectations,'' Health Affairs 38, N. 7 (2019): 195-1100.

    The new data also confirm what residents and families have known and
    told us for years--that facilities overstated their staffing levels
    under the prior system, have fewer staff on weekends, and boost their
    ---------------------------------------------------------------------------
    staffing in anticipation of surveys.

    Unless and until we ensure that all facilities have sufficient numbers
    of well-trained, well supervised, and well-compensated nursing staff,
    nursing homes will not provide residents with good care.

    Second, the survey and enforcement systems have failed to ensure that
    facilities meet federal standards of care and need to be significantly
    strengthened. Enforcement, now implemented on a facility-by-facility
    basis, should also evaluate facilities on a corporate-wide basis. The
    ongoing dismantling of meaningful enforcement needs to be reversed.

    Surveys by state survey agencies are unannounced, but predictable. Many
    surveys are conducted at the same time every year, even though federal
    law since 1987 has authorized surveys on a nine to 15-month cycle,\4\
    and more surprise in the timing of surveys is possible. Even more
    troubling, more than 95% of problems found by surveyors are called ``no
    harm''\5\--with the result that the facility usually faces no penalty.
    These no-harm deficiencies can include sexual assaults of residents,\6\
    broken bones,\7\ maggots in a resident's scrotum \8\--all of these
    problems have been called no harm. The Center recently issued a report
    about ``five star'' facilities with no harm deficiencies.\9\
    ---------------------------------------------------------------------------
        \4\ 42 U.S.C. Sec. Sec. 1395i-3(g)(2)(A)(iii)(I),
    1396r(g)(2)(A)(iii)(I), Medicare and Medicaid, respectively.
        \5\ CMS, Nursing Home Data Compendium 2015 Edition, Figure 2.2.e.
    Percentage Distribution of Scope and Severity of Health Deficiencies:
    United States, 2014, p. 48 (showing 0.9% of deficiencies as immediate
    jeopardy; 2.3% of deficiencies as actual harm), https://www.cms.gov/
    Medicare/Provider-Enrollment-and-Certification/
    CertificationandComplianc/Downloads/nur
    singhomedatacompendium_508-2015.pdf.
        \6\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=235705&
    SURVEYDATE=09/06/2018&INSPTYPE=STD (September 6, 2018 standard survey,
    Helen Newberry Joy Hospital LTCU, Michigan).
        \7\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=055750&
    SURVEYDATE=10/31/2017&INSPTYPE=CMPL (October 31, 2017 complaint survey,
    Amberwood Gardens, California).
        \8\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=145736&
    SURVEYDATE=10/31/2017&INSPTYPE=CMPL (October 31, 2017 complaint survey,
    Alden Town Manor Rehab and HCC, Illinois).
        \9\ ``Elder Justice, What `No Harm' Really Means for Residents,''
    Vol. 2, Issue 2, https://www.medicareadvocacy.org/wp-content/uploads/
    2019/06/Elder-Justice-Newsletter-Vol-2-No-2.pdf.

    Yet even for the relatively small number of problems that are
    classified as actual harm or immediate jeopardy, facilities face few
    ---------------------------------------------------------------------------
    penalties.

    Since 1987, federal law has required states and the federal government
    to have a range of sanctions to impose--including federal civil money
    penalties, denials of payment for new admissions, directed plans of
    correction, monitors, and termination--and to impose more serious
    penalties for more serious problems and for problems that are not
    corrected or that recur over time.\10\
    ---------------------------------------------------------------------------
        \10\ 42 U.S.C. Sec. Sec. 1395i-3(h), 1396r(h), Medicare and
    Medicaid, respectively.

    While enforcement has always been the least implemented part of the
    Reform Law, enforcement has now come to an almost complete halt. The
    Trump Administration has changed the enforcement system so dramatically
    \11\ that nursing facilities face few (if any) or limited consequences,
    no matter how serious the problems and how poor the care. In the
    clearest example of the retreat on meaningful enforcement, federal
    guidance now calls for per instance civil money penalties,\12\ rather
    than per day civil money penalties,\13\ as required by the Obama
    Administration.
    ---------------------------------------------------------------------------
        \11\ Jordan Rau, ``Trump Administration Eases Nursing Home Fines in
    Victory for Industry,'' The New York Times (December 24, 2017), https:/
    /www.nytimes.com/2017/12/24/business/trump-administration-nursing-home-
    penalties.html?searchResultPosition=1; Toby S. Edelman, ``Deregulating
    Nursing Homes,'' Bifocal (publication of the American Bar Association
    Commission on Law and Aging), Vol. 39, Issue 3 (December 4, 2018),
    https://www.americanbar.org/groups/law_aging/publications/bifocal/vo1--
    39/issue-3--february-2018-/DeregulatingNursing
    Homes/.
        \12\ CMS, ``Final Revised Policies Regarding the Immediate
    Imposition of Federal Remedies,'' QSO 18-18-NH (June 15, 2018), https:/
    /www.ems.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/QSO18-18-NH.pdf (making final CMS,
    ``Revised Policies regarding the Immediate Imposition of Federal
    Remedies--FOR Action,'' S&C: 18-01-NH (October 27, 2017), https://
    www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-01.pdf.
        \13\ CMS, ``Mandatory Immediate Imposition of Federal Remedies and
    Assessment Factors Used to Determine the Seriousness of Deficiencies
    for Nursing Homes,'' S&C: 16-31-NH (July 22, 2016, revised July 29,
    2016), https://www.cms.gov/Medicare/Provider-Enrollment-and-
    Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-
    Letter-16-31.pdf.

    The average per instance civil money penalty is now less than
    $9,000.\14\
    ---------------------------------------------------------------------------
        \14\ Jordan Rau, Kaiser Health News, ``Trump Administration Cuts
    the Size of Fines for Health Violations in Nursing Homes,'' National
    Public Radio (March 15, 2019), https://www.npr.org/sections/health-
    shots/2019/03/15/702645465/trump-administration-cuts-the-size-of-fines-
    for-health-violations-in-nursing-hom.

    A recent administrative appeal involved a nursing facility's failure to
    assess a resident who experienced a significant change in condition and
    was in respiratory distress. For more than four hours, staff failed to
    take the man's vital signs or to call his physician. The facility
    finally took his vital signs and, an hour later, sent him to the
    hospital, where he died. Sustaining the deficiencies, which reflected
    failure to follow nursing standards of practice and the facility's own
    policies, as well as the federal regulations (all of which were
    consistent with each other), Administrative Law Judge Steven T. Kessel
    described the $10,000 per instance civil money penalty, less than half
    the maximum amount, as ``trivial'' for the facility's ``egregious''
    noncompliance.\15\ Judge Kessel noted that per day penalties would have
    been ``many times what CMS determined to impose.''
    ---------------------------------------------------------------------------
        \15\ St. John of God Retirement and Care Center v. CMS, DAB CR5290
    (April 12, 2019), https://www.hhs.gov/about/agencies/dab/decisions/alj-
    decisions/2019/alj-cr5290/index.html.

    For many years, I have been looking at Special Focus Facilities--the
    small number of nursing facilities (now 88 nationwide) that states and
    CMS collectively decide are among the poorest performers--they have
    many very serious care problems and these problems persisted over a
    period of many years.\16\ The point of the SFF program is to conduct
    more intense evaluation of the care that these facilities provide to
    their residents--two standard surveys a year instead of one--and to
    impose more significant penalties against them. Special Focus
    Facilities are expected to correct their problems and to stay in
    compliance or be terminated from Medicare and Medicaid. I have looked
    at this program over the years because if the enforcement system is not
    working effectively against the poorest performing facilities in the
    country, it cannot possibly be working against more marginal
    facilities.
    ---------------------------------------------------------------------------
        \16\ CMS, ``Special Focus Facility (SFF) Initiative,'' https://
    www.cms.gov/Medicare/Provider-Enrollment-and-Certification/
    CertificationandComplianc/Downloads/SFFList.pdf.

    Earlier this year, I looked at the 37 Special Focus Facilities that CMS
    identified as having not improved, as of January 19, 2019.\17\ Twenty-
    eight of the 37 facilities were cited with actual harm or immediate
    jeopardy deficiencies in 2018, but only nine of the 28 had a CMP
    imposed against them. The CMP imposed against one Special Focus
    Facility exceeded $100,000, but the remaining eight CMPs ranged from
    $10,400 to $53,089 and averaged $19,616.50. In all instances, the CMPs
    imposed against the nine facilities were far lower than the CMPs that
    had been imposed against them before they were identified as Special
    Focus Facilities. For example, one Colorado facility had a CMP of
    $11,267 imposed in June 2018 for 11 deficiencies, including one
    immediate jeopardy deficiency, but CMPs totaling $191,732 in July 2017
    for 15 deficiencies, including one harm-level deficiency and one
    immediate jeopardy deficiency.\18\
    ---------------------------------------------------------------------------
        \17\ ``There's Nothing Special About How CMS Treats Special Focus
    Nursing Facilities'' (CMA Alert, February 14, 2019), https://
    www.medicareadvocacy.org/theres-nothing-special-about-how-cms-treats-
    special-focus-nursing-facilities/. The full report is at https://
    www.medicareadvocacy
    .org/report-theres-nothing-special-about-how-cms-treats-special-focus-
    nursing-facilities/.
        \18\ http://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=5&ID=065248&state
    =CO&lat=0&lng=0name=BETHANY%2520NURSING%2520&2526%2520REHAB%2520CEN
    TER&Distn=0.0 (listing CMPs). June 28, 2018 immediate jeopardy
    supervision deficiency, standard survey, at https://www.medicare.gov/
    nursinghomecompare/InspectionReportDetail.aspx?ID
    =065248&SURVEYDATE=06/28/2018&INSPTYPE=CMPL (pp. 28-36); July 18, 2017
    complaint survey, sexual harassment, at https://www.medicare.gov/
    nursinghomecompare/Inspection
    ReportDetail.aspx?ID=065248&SURVEYDATE=07/18/2017&INSPTYPE=CMPL) (pp.
    1-9).

    More recently, I looked at the ``graduates'' of the SFF program,
    identified on CMS's May 2019 list.\19\ Six of the 21 graduates were
    cited with harm and immediate jeopardy deficiencies in 2018.
    ---------------------------------------------------------------------------
        \19\ ``Special Report--`Graduates' from the Special Focus Facility
    Program Provide Poor Care'' (CMA Alert, June 20, 2019), https://
    www.medicareadvocacy.org/graduates-from-the-special-focus-
    facility.program-provided-poor-care/.

    One of the graduates was cited with three immediate jeopardy
    deficiencies, one at each of three complaint surveys and each of which
    resulted in a resident's death. Since fewer than 2-3% of problems are
    called immediate jeopardy (more than 95% of problems found by surveyors
    are called ``no harm''),\20\ this facility appeared to have serious
    problems in providing care to its residents.
    ---------------------------------------------------------------------------
        \20\ CMS, Nursing Home Data Compendium 2015 Edition, Figure 2.2.e.
    Percentage Distribution of Scope and Severity of Health Deficiencies:
    United States, 2014, p. 48 (showing 0.9% of deficiencies as immediate
    jeopardy; 2.3% of deficiencies as actual harm), https://www.cms.gov/
    Medicare/Provider-Enrollment-and-Certification/
    CertificationandComplianc/Downloads/nur
    singhomedatacompendium_508-2015.pdf.

    One immediate jeopardy deficiency was based on the facility's failure
    to monitor residents who were known to wander. One resident left the
    facility without the staffs knowledge on December 30, 2017 and ``was
    found dead outside an opened exterior kitchen door in sub-zero
    weather.''\21\ Another resident choked to death \22\ and a third
    resident died after falling twice from a broken mechanical lift sling
    and suffering a brain bleed.\23\ CMS did not impose a civil money
    penalty for any of these deficiencies, but imposed denial of payment
    for new admissions (of unknown duration), a different remedy, for the
    choking death.\24\
    ---------------------------------------------------------------------------
        \21\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=145924&
    SURVEYDATE=01/09/2018&INSPTYPE=CMPL, pp. 1-4 (January 9, 2018 complaint
    survey, Champaign Rehab Center, Illinois).
        \22\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=145924&
    SURVEYDATE=03/06/2018&INSPTYPE=CMPL, pp. 1-3 (March 6, 2018 complaint
    survey, Champaign Rehab Center, Illinois).
        \23\ https://www.medicare.gov/nursinghomecompare/
    InspectionReportDetail.aspx?ID=145924&
    SURVEYDATE=03/28/2018&INSPTYPE=CMPL, pp. 1-5 (March 28, 2018 complaint
    survey, Champaign Rehab Center, Illinois).
        \24\ https://www.medicare.gov/nursinghomecompare/
    profile.html#profTab=0&ID=145924&state
    =IL&lat=0&lng=0&name=CHAMPAIGN%2520REHAB%2520CENTER&Distn=0.0 (site
    visited July 19, 2019).

    The facility also had problems with nurse staffing. The federal website
    did not report staffing levels for the facility. The icon on Nursing
    Home Compare indicates that the facility may not have submitted
    auditable staffing data or may have reported ``a high number of days
    ---------------------------------------------------------------------------
    without a registered nurse.''

    The facility's record in 2018 does not meet the criteria CMS sets for
    graduation from the Special Focus Facility program--``These nursing
    homes not only improved, but they sustained significant improvement for
    about 12 months (through two standard inspections).''\25\
    ---------------------------------------------------------------------------
        \25\ CMS, Special Focus Facility (``SFF'') Program (updated June
    27, 2019), https://www.cms.gov/Medicare/Provider-Enrollment-and-
    Certification/CertificationandCompliance/Downloads/SFFList.pdf.

    The survey and enforcement systems need to be strengthened to cite
    deficiencies accurately and to impose appropriate sanctions so that
    ---------------------------------------------------------------------------
    facilities remain in compliance with federal standards of care.

    Third, Congress cannot rely solely on public information to improve
    nursing home quality. Information on the federal website Nursing Home
    Compare needs to be accurate, comprehensive, and transparent, but
    public information, while important and necessary, is not sufficient.
    We cannot expect a resident--for example, an 85-year old widow with
    dementia who cannot speak and has multiple physical and medical
    conditions and no family in the area--to use the information to choose
    a facility or monitor her own care or complain to an ombudsman or the
    state survey agency.

    A market-based approach to regulating nursing homes cannot be the sole
    approach to ensuring quality. The Nursing Home Reform Law describes the
    Secretary's ``duty and responsibility . . . to assure that the federal
    standards of care, and their enforcement, are adequate to protect
    residents' health, safety, welfare, and rights'' and to ``promote the
    effective and efficient use of public moneys.''\26\ Federal law
    mandates appropriate substantive standards, effectively enforced.
    ---------------------------------------------------------------------------
        \26\ 42 U.S.C. Sec. Sec. 1395i-3(f), 1396r(f)(l), Medicare and
    Medicaid, respectively.

    Finally, states must establish and enforce meaningful standards for who
    is eligible to operate a facility (i.e., receive a state license) and,
    independently, CMS must establish and enforce meaningful standards for
    who is eligible to receive Medicare and Medicaid reimbursement for care
    (i.e., receive federal certification). At present, ownership and
    management of nursing facilities, often divided among multiple
    companies,\27\ appear to shift with little public information and
    insufficient public oversight.
    ---------------------------------------------------------------------------
        \27\ Joseph E. Casson, Julia McMillen, ``Protecting Nursing Home
    Companies: Limiting Liability through Corporate Restructuring,''
    Journal of Health Law, Vol. 36, No. 4 (Fall 2003).

    The collapse of Skyline Healthcare last year was the most visible and
    vivid example of the problem of allowing companies without adequate
    financial and management resources to take over facilities. On July 19,
    2019, NBC Nightly News broadcast an investigative report on Skyline,
    its collapse, and the impact on residents and their families.\28\ This
    New Jersey company had a handful of facilities, but then, beginning in
    about 2016 or 2017, began to manage facilities across the country,
    primarily facilities that large chains, including Golden Living and
    Manor Care, decided not to operate any longer. In a period of little
    more than a year, Skyline Healthcare began operating between 100 and
    120 facilities in eight states across the country. Then, within a
    similarly short period, it stopped meeting payroll and paying
    vendors.\29\ States went to court to get authority to take over the
    facilities--the legal term is receivership--in order to make sure that
    residents received care, food, medicine, and supplies.
    ---------------------------------------------------------------------------
        \28\ ``NBC News Investigation: Nursing home chain collapses amid
    allegations of unpaid bills, poor care'' (July 19, 2019), https://
    www.nbcnews.com/nightly-news/video/nbc-news-investigation-mursing-home-
    chain-collapses-amid-allegations-of-unpaid-bills-poor-care-64181829714;
    Laura Strickler, Stephanie Gosk and Shelby Hanssen, ``A nursing home
    chain grows too fast and collapses, and elderly and disabled residents
    pay the price,'' NBC Nightly News (May 19, 2019), https://
    www..nbcnews.com/health/aging/nursing-home-chain-grows-too-fast-
    collapses-elderly-disabled-residents-n1025381.
        \29\ Harold Brubaker, ``Questions about Willow Terrace owner after
    nursing home collapse in Nebraska and Kansas,'' Philadelphia Inquirer
    (April 12, 2018), https://www.philly.com/philly/business/questions-
    about-skyline-healthcare-after-nursing-home-collapse-in-nebraska-and-
    kansas-20180412.html; Lindy Washburn, ``Thousands of nursing home
    patients nationwide affected by NJ company's financial trouble,''
    Northjersey.com (April 16, 2018), 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/; Nebraska Department of Health and Human Services,
    ``Nursing, Assisted Living Facilities Placed in Receivership to Protect
    Health and Safety of Residents'' (News Release, March 23, 2018), http//
    dhhs.ne.gov/News%20Release%20Archive/
    Nursing,%20Assisted%20Living%20Facilities%20Placed%20in%20
    Receivership%20to%20Protect%20Health%20and%20Safety%20of%20Residents.pdf
    #search=Nur
    sing%2C%20Assisted%20Living%20Facilities%20Placed%20in%20Receivership%20
    to%20Protect%
    20Health%20and%20Safety%20of%20Residents; Kansas Department for Aging
    and Disability Services, ``KDADS Seeks to Take Over Management of 15
    Kansas Nursing Homes'' (News Release, March 28, 2018), https://
    www.kdads.ks.gov/media-center/news-releases/2018/03/29/kdads-seeks-to-
    take-over-management-of-15-kansas-nursing-homes.

    While other companies had gone into bankruptcy before and other owners
    had abandoned facilities before, there had never been such a large
    collapse, affecting so many states, so many facilities, and so many
    residents and staff. Skyline's collapse brought attention to the
    problem of who owns and who manages facilities--and whether are they
    ---------------------------------------------------------------------------
    qualified and competent to do so.

    The Philadelphia Inquirer describes changes in the nursing home
    industry that led to this crisis for residents, families, communities,
    and states:

            The nursing home industry in recent years has been engulfed in
            wholesale changes in operators as Golden Living and other large
            companies, often under regulatory and financial pressure,
            abandon the business and lease bunches of facilities over to
            firms that emerge from nowhere.\30\
    ---------------------------------------------------------------------------
        \30\ Harold Brubaker, ``Questions about Willow Terrace owner after
    nursing home collapse in Nebraska and Kansas,'' Philadelphia Inquirer
    (April 12, 2018), http://www.philly.com/philly/business/questions-
    about-skyline-healthcare-after-nursing-home-collapse-in-nebraska-and-
    kansas-20180412.html.

    States and CMS cannot allow ``firms that emerge from nowhere'' to
    operate nursing facilities. Meaningful standards of ownership and
    management are critical and these standards must be effectively
    ---------------------------------------------------------------------------
    enforced.

    Not all facilities provide poor care, of course, but too many do.
    Preventing abuse and neglect of residents and improving quality of care
    and quality of life in nursing facilities for all residents require
    multiple efforts, simultaneously made--improving staffing,
    strengthening survey and enforcement processes, and making sure that
    individuals and companies that own and manage nursing facilities are
    prepared and competent to provide good care. Residents and their
    families and taxpayers deserve no less.

                                     ______

                     Statement Submitted by Kendra Cooper,
                      Elder Advocate/MA Silver Legislature

                                 P.O. Box 2496

                             Woburn, MA 01888-0996

                               Tel. 617-448-0185

                                Fax 781-944-6929

    Chairman Grassley, Ranking Member Wyden, and distinguished Members of
    the Committee, thank you for providing me this opportunity to present
    my concerns. For over 10 years, I have been a strong advocate for
    elders to age in place in their homes. Though this is the goal of many
    of our senior adults, too often elders lose their homes and properties,
    assets and civil rights in a governmental and judicial system fraught
    with gaps in protections from financial exploitation and abuse. Elders
    are caught in a healthcare system geared towards convenience and
    profitability of the facilities and pharmaceuticals over the needs of
    elders and their families. This abuse often involves collusion of
    multiple parties and entities and, when the elder's assets are depleted
    and the profitability no longer beneficial for the collective abusers,
    the now expendable elder dies. How does this happen? The following
    three cases illustrate common patterns of abuse: isolation,
    intimidation, coercion, misrepresentation and exploitation.

    Case 1: A legally blind cellist, in her 90s and still active in her
    community who exercised three times weekly at CURVES and lived
    independently in her Massachusetts home, was targeted by a sweetheart
    scammer/trusted church deacon who, in conjunction with a major
    international finance company, attorneys, realtors, engineers and
    medical staff, conspired to gain control of the elder, her assets and
    the property where she lived, developable acreage within a mile of the
    local train station. Though a MA Trust was in place and the woman's
    clear intent was to age in place, the trust terms were ignored by the
    MA courts; CDs and stocks were transferred without medallion signature
    to a finance company which falsely claimed the trustee had resigned or
    had been removed by the elder.

    In hindsight, Elder Protective Services and law enforcement lacked the
    training and interest to spot and address this financial exploitation,
    the foundation for which took years to implement around the elder,
    unknown to the family. These governmental agencies and the judiciary
    contributed to the abuse as well, through restraining orders (later
    vacated) and costly protracted court processes.

    When in 2011 the elder was diagnosed in MA with pneumonia, but led to
    believe it was simply a bad cold, she was driven by the sweetheart
    scammer, under the guise of a long weekend trip 400+ miles to northern
    Maine. She was immediately hospitalized within hours of her arrival
    and, though she recovered within weeks from the pneumonia, she was
    never allowed to return to Massachusetts.

    Instead, based upon assessment of a Maine speech pathologist, the elder
    was determined to have dementia and placed on antipsychotics and
    opioids. This speech pathologist later admitted he was unaware the
    elder was legally blind when he evaluated her for dementia. The Maine
    medical doctor who signed guardianship papers never examined the elder
    for dementia, relying on the speech pathologist's evaluation; both MA
    and ME guardianship requirements stipulate examination and evaluation
    by a medical doctor for incapacity.

    Even though both MA and ME had adopted the Adult Guardianship and
    Protective Proceedings Jurisdiction Act (AGPPJA), a Guardian ad Litem,
    Special Visitor and eventually a Guardian and Conservator were
    appointed by the Maine Probate Court.

    Isolation was achieved by creating distance from Massachusetts family,
    removing her cello and controlling the phone and mail. The elder's
    telephone by the bed was connected to a cell phone modem under the
    cabinet which was on the Guardian's cell phone plan, giving the
    Guardian a record of every call and its length, to and from the elder.
    Sometimes the modem would be unplugged, rendering the telephone on the
    night table useless.

    Initially, in Maine, the elder's assets funded an assisted living, a
    rehab and the nursing home. When the Guardian went on vacation, the
    legally blind elder was placed in a locked ward where her wrist was
    injured when she was shoved by another resident. Augusta authorities
    claimed that they could not release the results of their investigation
    of that incident to MA family because they had found no fault by the
    facility.

    When the elder's assets were depleted in October 2014 and the elder was
    no longer a lucrative private pay resident, within weeks of going on
    MaineCare, a family member who happened to get through to her on the
    phone that morning, noted her slurred voice and contacted the nurse's
    station. She nearly died of an overdose from multiple drugs (including
    fentanyl) administered at the nursing home but, records show, these
    drugs were approved and signed for by the Guardian.

    Though Maine Adult Protective Services and Division for the Blind were
    aware of the case, on orders of the Guardian, the elder received no
    services for her blindness the 5 years she lived in Maine, even though
    she had been receiving services in her MA home from Mass Eye and Ear
    Infirmary.

    In Maine, Probate judges are elected and serve part time. The attorney
    simultaneously represented the elder also represented the Guardian, the
    Conservator, the assisted living, the rehab and the nursing home. This
    same attorney, in writing, advised the eider's local oral surgeon not
    to communicate with MA family who were concerned that unnecessary
    antipsychotics were causing rapid deterioration of the elder's teeth.
    The Guardian refused to fund further dental care.

    Following the elder's near death overdose, a hearing was held but,
    instead of the Judge ordering improved oversight of the elder and
    coordinating her return to Massachusetts, he removed elder's MA
    family's access to her medical records. This Probate decision was
    appealed to the Maine Supreme Judicial Court (ME SJC), citing the
    improper award of Guardianship based upon insufficient evaluation of
    dementia and incapacity by a speech pathologist. Months later in
    October 2015, the ME SJC ruled the Appeal ``untimely'' and that there
    was no abuse of discretion by the court in removing access to the
    medical records.

    After the SJC decision, there was no financial benefit to keeping the
    elder alive, since anyone on MaineCare could now fill her nursing home
    bed. Doctor's Progress Notes obtained after the eider's death show
    that, around Christmas 2015, a favorite time of year when the elder
    cellist in her previous life would be performing, state that the elder
    was ``mean and nasty to staff'' and she wouldn't take medication for a
    UTI (which often results in delirium). The Guardian determined it was
    the ``end of the line,'' though the elder did not have a terminal
    disease. In January 2016, the eider's medications, including her heart
    and thyroid medicine, were removed and she was administered increasing
    levels of morphine subcutaneously (injected under her skin) with
    permission and at the direction of the Guardian and full knowledge of
    the facility doctor. The elder died at the facility March 2, 2016. An
    autopsy was not conducted, according to the Maine Medical Examiner's
    office, because her death was determined to be of ``natural causes''
    based upon her age and, allegedly, a reading of the records. The
    facility doctor signed the death certificate.

    Case 2: Massachusetts elder in her 60s, living independently in her
    Boston condominium, fell and went to rehab. Through medical records
    obtained after her death, her family learned that she was ready to
    return home with services but she instead was diagnosed with ``alcohol
    induced dementia'' (though family insists she did not drink alcohol)
    and given antipsychotics. She remained several years at the facility
    and even was included in studies and experiments without her family's
    knowledge or permission. Her assets eventually were depleted and a
    MassHealth lien was placed on her condo, unbeknownst to the elder and
    her family. Following her death, family discovered the lien and
    questioned the amount claimed in recovery by MassHealth. Though her
    property has been sold now, the case is still in litigation and raises
    serious questions about failure of MassHealth to follow Federal
    requirements regarding recovery and placing liens on homes of modest
    value.

    Case 3: An active but hard-of-hearing elder in her 90s, residing in
    independent living, swimming weekly and regularly exercising, who
    followed the stock market, used an iPad and is on Facebook, suffered a
    stroke which affected her left side but not her cognition. Shortly
    after she moved to rehab, in the night she was manhandled while using
    the bedpan and a single staff member moved her, injuring her hip. The
    elder was vocal regarding her needs, making excellent progress in PT
    for her stroke and informed the family of that night's events. Family
    requested the Care Plan and Progress Notes but found two days
    (including the day/night of incident) omitted from the record and the
    Care Plan had inaccuracies and omissions. Access to the Mobilex scan of
    the hip taken following the incident for a second opinion reading was
    also obstructed. Some family members were in fear that the facility
    staff would ``take it out'' on the elder if family asked questions and
    pushed for more complete records. Recently the rehab doctor prescribed
    Tramadol for the elder, raising some family concerns that the eider's
    mental status may deteriorate as a result. Family hired daytime
    caregivers to be their ``eyes and ears'' and relieve the rehab staff.

    Conclusion: Many parties benefit when an elder, private pay or not, is
    purposefully misdiagnosed, and chemically restrained with opioids and
    antipsychotics, including ``Black Box'' drugs, sometimes for facility
    convenience, easy care and to diminish the veracity of an elder's
    voice. Access to medical records is vital and yet facilities regularly
    obstruct elder and family access. Many people ``look the other way''
    including those entities funded by Medicare, while various professions
    and the pharmaceuticals benefit from the elder's plight. In 2015,
    Georgia passed a law which makes it a felony for groups of people to
    collude and racketeer to financially exploit an elder; that deterrent
    needs to be in effect at the Federal level and properly enforced. We
    need more oversight, better training, and improved staffing levels,
    especially in the night time. And we need to hold the owners of these
    facilities accountable. These changes need to be made at the Federal
    level and standardized nationwide. It is my hope that when you hear
    stories such as these, you see where the gaps in protections are, hold
    facilities accountable and correct the abuses.

                                     ______

                      Statement Submitted by Susan Easter
        I would like to present my views for inclusion in the July 23, 2019
    Committee on Finance hearing record on Nursing Homes Oversight. My name
    is Susan Easter. I am the power of attorney for my mother that lives in
    a nursing home in Oklahoma. It is both a skilled nursing facility and
    long-term care facility.

        Other things Medicare charges is for wound products. Medicare does
    not make the facility apply the date to each wound product charged to
    Medicare so it is often over charged with no accountability. The
    products given can be wrong for her skin type. Wound products are kept
    in bulk in a wound cart.

        My mother has things charged to Medicare from this nursing
    facility. It is not billed under the same company name to Medicare.

        The Administrator has forged my mother's name before on a Notice of
    Medicare NonCoverage skilled nursing stay at this nursing home. The
    Administrator never got in trouble for this from Medicare because the
    Administrator never documented she did this.

        My mother had a fall that was never investigated in 2016 where
    there was a hospital emergency room visit. After many months finally
    the Administrator told me it was CNA's/CMA's employees fault and the
    fall could have been prevented that caused 22 stitches to my mother's
    head. The CNA and CMA was never turned in to the Nurse Aid Registry for
    this very bad fall from this skilled/ltc nursing facility.

        Medicaid did not show this nursing facility ever participated in
    customer satisfaction surveys until this year.

        When Medicare allowed this nursing facility to rate themselves,
    they gave themselves five stars. I think that was in 2014 or 2015. The
    fall in 2014 was due to the owner having different heights on their
    flooring. It was never investigated or pointed out in nursing notes. My
    mother was a walk to dine and the CNA could have prevented the fall.

        In 2015, my mother had another fall caused by a CNA. The Nurse said
    she could not let me see the incident report but she clearly explained
    the cause of the fall was due to errors of the Certified Nurse Aide. If
    you look at the Nursing Progress Notes, the fall is never documented,
    and the Physical therapist and Occupational therapist in skilled
    nursing did not document it either both in the same facility.

        In 2017, my mother's charge nurse put her hearing aid in his pocket
    and it was never returned to the facility cart. The Administrator never
    did an investigation, and the Administrator never replaced the hearing
    aid. The Assistant Director of Nursing was the Charge Nurse on the day
    my mother got her hearing aid and should have placed it on the
    inventory list. It was also on the T.A.R. State Surveyors never asked
    the Nurse that lost the hearing aid if he documented it which it was
    never documented the Nurse lost it.

        It would be helpful if in each state the State Department of Health
    would do nursing facility inspections every 3 months instead of yearly
    and review every fall instead of one or two resident's fall records
    what could be done to prevent the falls? In the facility my mother
    lives in many equipment errors were known but not repaired by the
    Administrator. Falls happened but not properly investigated by the
    Administrator. Have what really happened in a fall documented in
    Nursing Progress documented by the Charge Nurse on the shift it
    happened. In the skilled and long term care nursing home my mother,
    false reporting to Medicare in MOS reports, so Medicare is not being
    given the correct information that way either. The State Department of
    Health never catches it.

        Wounds could have been prevented at this facility, but it is not
    documented how wounds could have been prevented. My mother has had
    wounds that could have been prevented. I would be happy to testify
    about what the facility could have prevented that ended up in hospital
    visits.

        Hospitals could put a special code if the resident coming from a
    nursing home so that Medicare could track the falls and wounds.

        My mother has had a surveillance camera in her nursing home room.
    In January it was unplugged without permission. The surveillance camera
    has had the memory card taken, the surveillance camera has been
    unplugged, the surveillance camera has been blocked by putting
    something in front of it, it has been damaged. For example the camera
    showed a nursing home employee taking a picture of my mother while she
    was in bed on his shift. He had seen blood from a wound that never got
    reported on his shift or the previous shift by that charge nurse is
    when the open wound actually happened from an error of the Certified
    Nursing Aid that sliced my mother's leg that caused a large wound on
    the bed rail but the CNA never reported it. The Administrator's
    daughter in December looked like she had taken a picture of my mother,
    but the Administrator refused to provide a cell phone policy in a
    records request.

        In January, through errors of the nursing home, my mother ended up
    with a broken arm. My mother was sent to an emergency room as she had
    told me there was only one CNA instead of two helping her with the Sit
    to Stand and that the Sit to Stand legs were still broken. The legs not
    working on the Sit to Stand can cause the resident to have to extend
    their arms stretched out abnormally. The administrator had not had the
    Sit to Stand legs fixed or a new Sit to Stand ordered and I brought up
    in a care meeting in January but it was never documented by the
    Administrator. It was not documented by the Director of Nursing, no
    charge nurse, and no S.S.D. Also in the month of January a hospitality
    aide caused a injury to my mother. Neither of these were documented in
    the January end of month resident nursing January summary in the
    resident's Nursing Progress Notes.

        It would also be excellent if Medicare could have nursing homes
    require a scanning system like many companies do where employees badge
    in and out so there is accuracy of each employee that is actually in
    the building working including the Administrator. When my mother was in
    skilled nursing, due to low staffing and lack of accountability, my
    mother had to be rushed to the hospital from their errors and it was
    not documented accurately in the MDS Medicare report. Medicare does not
    require that nursing homes send in the Notice of Medicare Non Coverage
    to Medicare when skilled nursing is over. Medicare can get charged
    thousands of dollars extra when skilled care was being charged to
    Medicare because Medicare does not have each skilled care itemized with
    the dates on when each skilled care was going on in the billing
    itemization from the nursing home. The Administrator has forged my
    mother's name to the Notice of Medicare Non Coverage, and my mother was
    never told and I was never told as her power of attorney about the
    Notice of Medicare Non Coverage and there was no meeting to prove it.
    The skilled meeting did not exist. The most recent skilled visit with
    my mother, there was not even one nursing meeting talking about
    nursing. It was not allowed. There was a very bad wound that should
    have been prevented.

        The Finance committee needs to crack down on Nursing Homes that
    send the resident to the hospital from the mistakes and errors of the
    nursing home in the United States.

        The Administrator's daughter documented she was caring for my
    mother as a Certified Nursing Aide in documentation, while my mother
    was never there as she was in the hospital so that would be false
    documentation. State Surveyors never wrote her up for false
    documentation.

        I will be happy to testify before the U.S. Senate Finance Committee
    in future Nursing Home Neglect and Abuse and Oversight meetings.

                                     ______

                     Letter Submitted by Susan Inglis, R.N.

    U.S. Senate
    Committee on Finance
    Dirksen Senate Office Building
    Washington, DC 20510-6200

        My mother Patricia D. Inglis is currently living at Fair Haven
    Long-Term Care Facility in Birmingham, Alabama since March 2018. The
    directors and managers believe that 1-3 CNAs (certified nursing
    assistants) on days and evening shifts are enough to take care of 22
    dementia and severe mobility issue residents for baths, meals, and
    diaper changes. I know for a fact my mother never gets her teeth
    cleaned and she sits in her wheelchair for about 12-14 hours a day.
    There are few activities, many of the residents have severe arthritis
    and osteoporosis and are bent over ALL DAY! Some of the residents need
    help with eating and drinking with minimal or little assistance.

        Two weeks ago my mother (dementia and osteoporosis) had an abuse
    grievance written by an LPN on duty about a CNA who was rough with my
    mother placing her in bed and her neck was hurt. My mother informed me
    that the CNA cursed at her and she hit her head against the wall. I
    followed up with the state about the report and was told since my mom
    had dementia that the report was inaccurate and only a CNA and my
    mother were in the room alone. My question is how do I protect my
    mother since no camera or voice recordings are allowed in the State of
    Alabama. My mother was unable to lay her head/neck in her wheelchair
    until a week later.

        I reported alone to the Alabama State of Public Health in March
    2019 about the norovirus outbreak at Fair Haven in which more that half
    the residents had the virus including me and my mother. The State
    investigated the incident and I read the report which was a lie. A
    daughter whose parents live there showed me the empty specimen cups
    from their room. When Fair Haven was investigated they had 5 CNAs, a
    cleanup specialist, and the tables were clean with disinfectant/
    placemats were washed. Now the tables are being wiped with just water,
    dirty washcloths/placemats are not being washed.

        I have come to the conclusion that the nursing home industry along
    with the lobbyists have so much power there is little a family member
    may do to protect them. Fair Haven costs $9,000/month. My fear for my
    mother is that she will run out of money and the lack of decent care is
    horrific.

        Please as a governing body protect the elderly/disabled who are
    vulnerable and cannot speak for themselves. Unfortunately a large
    amount of the American population are gong to end up in a nursing home.
    Let us try to ensure decent care and activities.

    Sincerely,

    Susan Inglis, R.N.

                                     ______

                                   LeadingAge

                           2519 Connecticut Ave., NW

                           Washington, DC 20008-1520

                                 P 202-783-2242

                                 F 202-783-2255

                            https://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, Promoting Elder Justice: A Call for Reform.

    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 (including 2,000
    nursing homes), 38 state associations, hundreds of businesses, consumer
    groups, foundations and research centers. LeadingAge is also a part of
    the Global Ageing Network, whose membership spans 50 countries.
    LeadingAge is a 50l(c)(3) tax-exempt charitable organization focused on
    education, advocacy and applied research.

    Mistreatment of vulnerable elders can never be tolerated in any
    setting. Preventing elder abuse is something that LeadingAge and its
    members have fought for over many years. In the 1980s, we supported and
    promoted ``Untie the Elderly,'' a first of its kind campaign aimed at
    providing alternatives to tying nursing home residents down, a practice
    that now has all but ended. We also have partnered with the Center for
    Advocacy for the Rights and Interests of the Elderly to distribute a
    staff training program for abuse prevention in nursing homes. Our
    members work every day to identify, address, and prevent elder abuse,
    whether in our congregate settings or the wider community.

    Current federal law severely and appropriately punishes incidents of
    abuse committed in nursing homes. The Elder Justice Act provisions of
    the Affordable Care Act, which LeadingAge strongly supported, specify
    that nursing homes and their employees must report any reasonable
    suspicion of a crime committed against a resident to both local law
    enforcement and the state survey agency within specific timeframes. The
    law provides severe penalties for failure to comply with these
    reporting requirements. LeadingAge and its state partner organizations
    have provided extensive resources and education to our member nursing
    homes on preventing abuse and complying with reporting requirements.

    The Nursing Home Reform Act incorporated into the Omnibus Budget
    Reconciliation Act of 1987 (OBRA '87) provides for penalties against
    both individual perpetrators of abuse against nursing home residents
    and against nursing homes where abuse occurs. In addition to the
    reporting requirements of the Elder Justice Act, OBRA regulations
    provide for both annual and complaint-based surveys of nursing homes
    that may be triggered by incident s of abuse or uncover ongoing abusive
    practices. The Centers for Medicare and Medicaid Services (CMS) and
    state agencies have responsibility for enforcing these provisions of
    OBRA '87. Recent Government Accountability Office reports have
    investigated the effectiveness of federal and state enforcement and
    have made recommendations to CMS for improvements.

    LeadingAge member nursing homes go beyond regulatory requirements to
    provide the highest quality care for residents. For example, 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 is building on and promoting the positive results
    of this initiative to our members in other states.

    Any abuse of nursing home residents is intolerable and inexcusable.
    Existing laws and regulations provide mechanisms to detect, punish,
    and, to the extent possible, prevent these kinds of incidents in
    residential settings.

    The same cannot be said for protection of elders living in community-
    based settings. Elder abuse is one of the least reported, investigated,
    and addressed forms of violence against elders. The Department of
    Justice estimates that one in ten older Americans are victims of
    physical, emotional and/or financial abuse. According to statistics
    collected by the National Council on Aging, in approximately 60% of
    reported instances, abuse of an elder has been perpetrated by a family
    member, most often a spouse or adult child. Elders living in the
    community may be vulnerable to abuse due to dementia and other physical
    or mental disabilities. They often are isolated from social networks or
    other resources to turn to for help. And they frequently are dependent
    on the perpetrators of abuse for shelter and day-to-day support.

    LeadingAge members see the impact of abuse every day. Financial and
    material exploitation and physical and emotional abuse deprive elders
    of their dignity and security and can lead to poverty, hunger,
    homelessness, poor health and wellness and even premature death.
    LeadingAge members have been in the forefront of aging services
    providers in attacking this scourge. Our members work with federal,
    state and local authorities to identify and serve older persons who are
    victims of abuse. LeadingAge members created the first shelters for
    older victims of abuse, providing comprehensive shelter for victims of
    elder abuse, and legal, social, and care management services.

    In recent years, we have been at the forefront of developing and
    supporting measures to prevent abuse and protect older people who have
    been abused. Examples include:

          Participating in global discussions about elder abuse and human
    rights through our collaboration with the Global Ageing Network
    (formerly the International Association for Homes and Services for the
    Ageing (IAHSA));
          Working with the Consumer Financial Protection Bureau to develop
    and distribute educational materials and tools for providers to
    recognize, prevent, and respond to financial abuse of older people in
    affordable housing;
          Partnering with district attorneys, law enforcement agencies,
    financial institutions, social service agencies, and businesses that
    come in contact daily with seniors to help them recognize signs of
    physical and financial abuse; and
          Supporting members who are opening abuse shelters using nursing
    homes as temporary refuges for physically, emotionally, and financially
    abused older people in the community.

    An example of long-term care providers as a resource for elders in
    abusive situations is the Hebrew Home at Riverdale, a LeadingAge member
    nursing home in the New York City metropolitan area. The Hebrew Home
    has served low-income elders of all faiths for over a century;
    currently 18,000 older New Yorkers receive services at or through the
    Hebrew Home.

    Since 2005, the Hebrew Home has operated the Harry and Jeanette
    Weinberg Center for Elder Justice. The Center pioneered the provision
    of safe shelter for older people living in the community who are
    experiencing abuse. The Center initiated the SPRiNG (Shelter Partners:
    Regional. National. Global.) Alliance to replicate its flexible shelter
    model in communities throughout the United States and around the world.

    Daniel Reingold, President and CEO of the Hebrew Home, has worked with
    the Elder Justice Coordinating Council, established under the Elder
    Justice Act to better integrate federal, state, and local responses to
    elder abuse situations. He notes that the Hebrew Home now screens new
    residents for signs of past abuse, with services available from the
    Weinberg Center to care for elders who have experienced it. Of the 536
    rehabilitation patients the Hebrew Home screened from May 2017 through
    May 2018, 63 individuals or 12% of the total showed signs of having
    experienced abuse before coming to the nursing home. For over a decade,
    the Hebrew Home has provided the trauma-informed care older people need
    to heal from past abuse.

    In addition to providing temporary shelter to victims of elder abuse,
    who generally cannot be accommodated in traditional domestic violence
    shelters, the Weinberg Center collaborates with the District Attorneys
    of the Bronx, New York City, and Westchester County to train law
    enforcement, social services, and judicial officials in recognizing and
    dealing with elder abuse. The Center's outreach program provides
    resource information in shopping centers, retirement communities,
    senior centers, and other areas where at-risk seniors may find it. The
    Center has replicated its program at 15 other organizations throughout
    the United States and continues working to expand this shelter movement
    for older adults.

    Abusive situations involving elders and their family caregivers can
    develop for a number of reasons. Caring for a dependent elder can be
    emotionally rewarding; it can also be physically, financially, and
    emotionally draining. A Health Affairs blog, A Study of Family
    Caregiver Burden and the Imperative of Practice Change to Address
    Family Caregivers' Unmet Needs, points to the ``well-documented''
    physical and emotional toll caregiving imposes on family members caring
    for someone with dementia and the lack of support family caregivers
    receive. The article argues that addressing the needs of caregivers
    improves not only their situation and that of the family member for
    whom they are caring, but also can help to lower health care costs.

    The article notes the kinds of behaviors family caregivers find most
    challenging--aggression and agitation, repetitive actions,
    incontinence, wandering, and refusal to eat, take medicine, or bathe.
    In nursing homes, care staff are trained in best practices to deal with
    these situations, and staff get respite from them when their shifts
    end. Family caregivers, according to the findings in the article, do
    not have the same level of knowledge of their loved one's disease
    progression or how challenging behaviors can be dealt with
    successfully. And family members do not get respite from the ongoing,
    day-to-day caregiving burden.

    The article recommends interventions to better support family
    caregivers. Several federal programs under the Older Americans Act
    (OAA) provide the kinds of services family member s need to avoid the
    kind of burnout that can lead to abuse of a dependent elder. Adult day
    services, Lifespan Respite Care, and Family Caregiver Support are the
    kinds of services essential to enable families to continue caring for
    loved ones with chronic physical and/or mental disabilities.

    The Older Americans Act is due for reauthorization and it is
    chronically underfunded. LeadingAge urges Congress to reauthorize these
    programs and provide the resources needed to ensure that services will
    be available to family caregivers when they are needed.

    The Geriatric Workforce Enhancement Program under Title VII of the
    Public Health Act includes education for family caregivers on managing
    the challenges posed by Alzheimer's Disease and other dementias. This
    program also is due for reauthorization and also needs increased
    funding.
    Conclusion

    Abuse of nursing home residents must be effectively detected, punished,
    and prevented. LeadingAge will continue working with policymakers,
    consumers, researchers, and families to ensure that all nursing homes
    are safe places for people who need long-term care. We will build on
    our members ' initiatives that have made nursing homes a resource and
    safe haven for older people who have experienced abuse in the
    community.

    It is difficult to accept that most abuse of elders happens not at the
    hand of strangers or nursing home staff, but from the family members on
    whom an elder frequently must depend. But unless this reality is
    recognized and dealt with, elder abuse will continue unchecked.

    The Elder Justice Act established a framework for integrating
    initiatives at all levels of government to detect and deter elder
    abuse. Existing federal programs can help to prevent elder abuse by
    giving family caregivers the skills and resources they need to avoid
    burnout that can lead to abuse. LeadingAge urges this committee and
    Congress to support and enhance these measures to bring about real
    solutions that will ensure the safety and security of all older
    Americans.
                              LeadingAge Minnesota
    August 2, 2019

    U.S. Senate
    Committee on Finance
    Dirksen Senate Office Bldg.
    Washington, DC 20510-6200

    Mr. Chairman and Mr. Ranking Member, LeadingAge Minnesota appreciates
    the opportunity to submit this statement for the record of the Senate
    Finance Committee hearing, Promoting Elder Justice: A Call for Reform
    on July 23, 2019.

    LeadingAge Minnesota is driven to transform and enhance the experience
    of aging. Working alongside our members, professional caregivers,
    advocates and consumers, we are collectively shaping the future of
    long-term services and supports to ensure seniors in Minnesota live
    with dignity, meaning and purpose as they age. Together with 70,000
    professional caregivers, our more than 1,000 members provide quality,
    compassionate care, services and support to 70,000 seniors every day in
    independent senior housing, assisted living communities, in-home care,
    adult day services and skilled nursing facilities.

    We assure you that you can and should continue to be proud of the care
    provided to seniors throughout Minnesota. AARP and the SCAN Foundation
    has consistently ranked Minnesota as one of the top states in the
    nation for the quality of senior care and the options we provide. But
    we know that there is more work that needs to be done to best prepare
    Minnesota for the evolving needs of its rapidly growing aging
    population. As providers, we welcome and embrace the opportunity to
    ensure our care delivery system is prepared to meet the needs of
    seniors today and in the future.

    It is in our power, as providers and professional caregivers, to enable
    the seniors we serve to live their best lives. Maltreatment in any form
    strikes at the very heart--at the very core--of what we do. We own the
    responsibility to look upstream of any tragedy to better understand its
    root causes and to consider the impact on residents and their families
    whose trust and confidence may be in doubt. We are accountable for the
    culture in our organizations and must continually assess our systems
    and processes to ensure we have skilled, compassionate caregivers who
    are providing high quality care and are supported and empowered to
    respond appropriately in difficult situations. Most of all, we are
    committed to preventing potential harm before it occurs.

    The reports released by the United States Government Accountability
    Office (GAO) and the Office of the Inspector General (OIG) raise key
    concerns that must be addressed to protect older adults from abuse. We
    share these concerns and support the recommendations presented in the
    reports.

    The GAO Report, Nursing Homes: Improved Oversight Needed to Better
    Protect Residents from Abuse, provides key data and insight on the
    trends and types of abuse occurring in nursing homes in recent years,
    the risk factors for abuse and challenges facing CMS and other
    stakeholder agencies in investigating abuse, and CMS oversight intended
    to ensure that nursing home residents are free from abuse. The report
    highlighted areas of improvement that we also support, including the
    need for improved reporting, data collection and analysis, transparency
    of that data, and the need to reduce the gaps that can exist in the
    investigations and enforcement process.

    But even as these recommendations will be helpful in improving
    reporting, streamlining enforcement and responding to maltreatment
    after it happens, additional policy changes must be explored to
    facilitate the prevention of maltreatment before it occurs.

    In Minnesota, we have acted in many of the areas recommended by both
    the OIG and GAO reports. In the past few years, the Minnesota
    Legislature and state regulatory agencies have strengthened laws around
    background checks, reporting, data collection, and consumer protection
    in long-term services and supports. Despite these steps forward in our
    state, we continue to see a high number of unsubstantiated and
    substantiated maltreatment reports in long-term services and support
    settings.

    Consider the following:

          Caregivers are the backbone of quality care, but it has become
    increasingly more difficult to recruit and retain professional
    caregivers. It is projected that Minnesota will need 25,000 additional
    professional caregivers over the next decade. Yet, we struggle to fill
    the open positions we have today. In 2018, Minnesota experienced a net
    loss of 1,231 nursing assistants and on any given day in our state you
    will find more than 3,000 open nursing assistant positions. The
    unfortunate reality providers struggle with every day is that fewer and
    fewer individuals seek out this work. If we are to tackle the
    maltreatment epidemic, policymakers and providers must partner to find
    better ways to elevate this profession to attract and retain the best
    and brightest to the field.

          While a necessity in the field of long-term services and
    supports, background checks are not always a dependable way to weed out
    potential employees who would place older adults in vulnerable
    situations where they could be subjected to harm. Minnesota has adopted
    a thorough background check system, but it is not without its
    challenges--from failing to provide timely accurate information to
    access issues where potential employees in rural areas of the state
    cannot easily access a background check location. Policymakers should
    look at ways to improve this system.

          Reporting is one of the most critical elements in the foundation
    of vulnerable adult protection. In Minnesota, long-term services and
    support providers are required to self-report any potential suspected
    cases of maltreatment immediately and then take immediate steps to
    investigate and remedy the situation. This system is also in need of
    improvement as the response time for regulatory and law enforcement
    investigators is not immediate. In some cases, perpetrators of abuse
    may have terminated employment before a formal finding is reached. As
    those perpetrators are rarely flagged in a background check, they have
    the opportunity to again work in another long-term services and support
    setting and continue to pose a risk to the seniors they serve. This
    requires attention at both the state and federal level as, at this
    time, there is no reliable way to prevent this scenario from happening.

    During the 2019 legislative session, LeadingAge Minnesota was proud to
    work in collaboration with lawmakers, regulators and consumer advocates
    to pass the landmark Elder Care and Vulnerable Adult Protection Act of
    2019. This Act will strengthen regulatory oversight and consumer
    protection, as well as provide greater clarity and transparency for
    consumers and their families. Elements of this legislation include
    licensure of assisted living settings, licensed credential for leaders
    in those settings, electronic monitoring in all long-term services and
    support settings, enhanced dementia care standards, more transparency
    in contracts and appeal rights and increased and immediate fines for
    the most egregious acts of harm.

    We recognize and support the need for enhanced regulation, reporting
    and enforcement of negligent behavior and purposeful intent that
    results in harm to the older adults we serve. But this is only one
    frame in the much larger picture of vulnerable adult protection. We
    strongly believe an equal priority must be placed on preventing harm
    before it occurs.

    Recognizing that improvements to a regulatory framework are not enough
    to protect seniors from harm, LeadingAge Minnesota launched a
    comprehensive safety and quality improvement program to proactively
    address the intentional and unintentional harm that can occur in the
    course of caregiving. Safe Care for Seniors provides the structure and
    support to create and strengthen safe, inclusive and trusted
    environments that empower quality, partnership, communication, learning
    and improvement.

    Safe Care for Seniors is being led across Minnesota by dedicated,
    compassionate providers and professional caregivers who are united in
    their mission to enhance the lives of all who live and work in their
    settings. It begins with a pledge to keep those we serve safe from harm
    and provide care with respect and dignity--always. It is then followed
    by a five-step action plan:

          Improving the partnership between residents and families,
    leaders, managers and direct line staff.
          Encouraging and empowering staff, residents and families to
    speak up if they see something unsafe or makes them feel uncomfortable
    and ensuring systems and supports are in place to appropriately respond
    to those concerns.
          Uncovering new opportunities for learning and improvement based
    on reports and data.
          Strengthening the leadership commitment to safe, quality care,
    including the appointment of designated safety champions in each
    setting.
          Creating a Just Culture that supports reporting, learning and
    improvement.

    Since the program launched in February 2019, more than 440
    organizations have taken the Safe Care for Seniors Pledge and committed
    to the five-step action plan. In addition, more than 25,000 caregivers,
    residents and volunteers have demonstrated their commitment to respect,
    safety and dignity by taking the Safe Care for Seniors pledge.

    CONCLUSION

    Elder abuse is an important public health issue as our nation's senior
    population now exceeds the growth rate of the population of the
    national as a whole. As our aging population experiences rapid growth,
    we are seeing a growing gap in the number of professional caregivers as
    well as inadequate reimbursement models in Medicare and Medicaid to
    support to evolving and diverse needs of our aging population.

    No one person, organization or regulatory agency has the solution that
    will ensure older adults live in safe, secure environments that support
    dignity, choice and quality as they age. Even with the proactive,
    preventative focus led by providers and the increased regulatory
    oversight measures by the state and federal government, we must come
    together and take a productive look at the quality of care, services
    and support from all sides--prevention, regulations, workforce and
    funding. It's going to take a lot of us--providers, regulators,
    lawmakers, consumer advocate, older adults and their families--working
    together to advance a resident safety movement that is just, fair and
    ensures a high quality of life for all who live and work in long-term
    services and support settings.

    We call upon you to embrace the unique positioning you have to convene
    an initiative around the much broader solution that is needed to ensure
    a high quality of life for Americans as they age. You have the power to
    bring people together on our mutually shared mission to keep seniors
    safe from harm, and we welcome the opportunity to collaborate and
    embrace the work that will define and implement real solutions to
    ensure the safety and security of older Americans--today and in the
    future.

    Thank you for your leadership and commitment on behalf of older adults.

    Gayle Kvenvold
    President and CEO

                                     ______

                    Statement Submitted by Dean Alan Lerner
    This statement is submitted by Dean A. Lerner as an individual with
    nearly two (2) decades of hands-on experience on the subject matter of
    Elder Justice. By way of background, I am a 1974 Graduate of Grinnell
    College and a 1981 Graduate of Drake University Law School. I am an AV
    rated attorney in the State of Iowa, admitted to our state and federal
    courts. I served for sixteen (16) years as an Iowa Assistant Attorney
    General, three (3) years as Iowa's Chief Deputy Secretary of State, and
    nearly ten (10) years as Iowa's Deputy/Director of my state's
    Department of Inspections & Appeals (DIA) (the state agency responsible
    for federal and state oversight of nursing homes, assisted living
    programs, and other health care facilities, among other statutory
    responsibilities).

    After these full-time positions, totaling nearly thirty (30) years of
    Iowa public service, I served for several years as a part-time
    contractor/consultant to the Centers for Medicare and Medicaid Services
    (CMS), retained to advise the Director of the Division of Nursing Homes
    regarding enforcement of federal nursing home laws and regulations. In
    this capacity, among other responsibilities, I served as an instructor
    to State Survey Agency Directors to educate them in fulfilling their
    contractual survey responsibilities. I also served in a part-time
    contractor/consultant capacity to the United States Attorney for the
    Northern District of Iowa, designated to be the District's Health Care
    Fraud Consultant. In this capacity, [assisted in prosecuting Iowa's
    first Federal False Claims Act case against a nursing home responsible
    for resident harms attributable to grossly substandard care. I also
    participated in the Northern District's Task Force work pursuant to its
    designation by DOJ as one often (10) Districts in the nation to focus
    on elder financial abuse and nursing home failure of care cases.These
    efforts represent only some of my work in the area of Elder Justice. I
    would be honored to share further thoughts and opinions with the
    Committee, based upon my years of experience and substantive expertise.

    Having heard the testimony of witnesses, and having read Statements of
    and to the Committee, I offer the following. Nothing stated herein is
    meant to criticize all nursing homes, many of which are providing the
    quality of care every resident deserves. Nonetheless, serious
    caregiving and oversight problems exist, the solution of which would
    promote Elder Justice.

            1. Follow the money. Although not surprising, it seems
            incredible that the nursing home industry has been able to
            convince Congress, without any examination of this claim, that
            its margin of profit is only one-half of one percent (as
            asserted during the Hearing). The profitability of this
            industry needs to be carefully examined, and the truth of this
            matter exposed. The Committee might begin this inquiry by
            calling self-proclaimed philanthropist David Rubenstein,
            inquiring how much he profited from his Carlyle Group's
            investment in this industry. The Committee might also be
            interested in researching issues with respect to corporate
            regulatory compliance during this period of time, in the
            interest of Elder Justice.

            Most of the Country's nursing homes are for-profit, and
            available studies demonstrate that quality of care is
            correlated to the profit motive. If profits are razor thin, why
            are there so many investor groups continuing to be involved in
            nursing home operations? The nursing home industry is masterful
            when it comes to creative accounting. Profits are hidden among
            ownership/lease holds of real estate, payments to related/
            unrelated management companies, the ownership/operation of the
            facility itself, etc. A team of accountants and attorneys
            should be engaged to unwind purposefully complex
            accounting/legal schemes and to expose the industry's false
            claims about minimal profits. Nursing home Cost Reports should
            be restructured to reveal, rather than to conceal, this
            information. In any event, the Committee needs to ascertain the
            truth. The reality, as will become readily apparent, is that
            vast sums of taxpayer dollars are being directed to profits, as
            opposed to caregiving. If the Committee's concern is Elder
            Justice, following the money is an essential, initial
            determination.

            One clear and easy item for the Committee's consideration is
            whether Governor. Mark Parkinson should be making, annually,
            many millions of dollars as President and CEO of the American
            Health Care Association (AHCA), with annual revenues in the
            tens of millions of dollars. More important is the question
            where his salary and benefits, and the funds for the extensive
            AHCA lobbying operations come from. Is the AHCA's lobbying
            power, announced as a major priority by Mr. Parkinson upon his
            2011 appointment, derived from government taxpayer dollars?
            This is another important area for the Committee's
            investigation when following the money. My understanding, at
            least in Iowa, is that Association Dues are allowed to be
            reimbursed to facilities by Medicaid through facility Cost
            Reports, and passed through to the Associations. In Iowa, the
            Iowa Health Care Association (IHCA), as reflected on its Form
            990 non-profit tax return, garners millions of Medicaid dollars
            for its operations. I suspect that AHCA is funded in much the
            same way. This is just plain wrong, and Elder Justice demands
            otherwise. Excessive profits and Association Dues should be
            dedicated, instead, to direct caregiving by staff, which brings
            me to the next item for the Committee's consideration,
            staffing.

            2. Staffing. While working as a contractor/consultant to the
            CMS Director of the Division of Nursing Homes, my impression
            was that although staff numbers and qualifications and
            training, from RNs to LPNs to CNAs, etc., were recognized as
            the single most important factors to providing proper care,
            care required by law and regulation, CMS would only nibble
            around the edges of addressing this recognized, critical
            problem. The expense factor (the resistance of industry)
            effectively made these critical factors, mandatory training and
            mandated hours, essentially ``off limits'' to CMS. When the
            Committee is prepared to analyze where taxpayer dollars are
            actually spent (see #1 above), a redistribution of resources
            can begin to effectively address the most important factors in
            Elder Justice: trained, mandated, staff caregiving. Mr.
            Parkinson's testimony that mandated staffing requirements will
            not fix the problem is misdirection. Ask any resident at any
            nursing home throughout the Country whether there are enough
            staff to meet the care needs of residents, and the near-
            unanimous answer will be ``no,'' or ``hell no.'' Ask them about
            staffing levels during nights and weekends, and their answers
            will likely be even more emphatic negatives. When addressing
            Elder Justice, the Committee might question whether nights and
            weekends are truly different from weekdays--are already
            insufficient staffing levels justifiably minimized? When do
            abuse and neglect occur?

            The Committee may wish to compare Mr. Parkinson's
            ``elaboration'' regarding AHCA's claimed success in staffing
            (bullet point three on page two of his Testimony) with the
            recent Harvard/Vanderbilt research revealing that 75% of over
            15,000 nursing homes studied were almost never in compliance
            with federal expectations for staffing, given the residents'
            particular acuity levels.

            Ask any staff member who is able to respond (without fear of
            retribution) whether they have been trained properly, and
            whether they have enough time to properly care for residents.
            The answers will be identical.

            Ask any staff member who has been called upon to toilet a
            resident whether they were instructed how they can safely leave
            that resident when a call light/emergency presents. Ask them if
            they were blamed when a resident was harmed, when management/
            ownership was the actual responsible party for staff shortages.
            In Iowa, the time allowed to respond to a call light is fifteen
            (15) minutes. The Committee might wish to consider their loved
            one waiting this amount of time for assistance, assuming this
            time delay is even regularly adhered to.

            Another concern the Committee might be interested in is the
            industry's utilization of contract staffing, instead of
            consistent staff, staff who actually know and love their
            customarily assigned residents.

            If this Committee is truly interested in Elder Justice, these
            are some of the inquiries that should instruct its immediate
            action. And, the Committee might consider meeting with actual
            caregivers and residents, privately.

            3. Regulatory compliance. There are two (2) fundamental
            elements to regulatory compliance. The first is embodied in the
            regulations themselves: what areas do they address and how
            timely is their implementation. Although CMS, several years
            ago, after much study and effort, developed and commenced a
            three-year schedule implementing these new regulations, they
            have been weakened, revised/eliminated, and delayed. Elder
            Justice is not being served by CMS' rulemaking ``adjustments.''
            The Committee is now holding hearings and soliciting Statements
            on issues that have been researched, reported on, and yet
            unaddressed for decades, ever since the passage of OBRA '87,
            the Nursing Home Reform Law. GAO and OIG studies have found
            Elder Justice concerns regarding unimaginable, preventable
            harms to residents. One might think it advisable for this
            Committee to gather these myriad Reports and recommendations
            and read and consider them. Too, the Committee may wish to
            study the Comments submitted regarding the regulations, as the
            regulations were being developed. These Comments, part of the
            rulemaking process, provide a wealth of information.

            It is time that Congress take the side of residents and Elder
            Justice, rather than acceding to the weakening and delays
            sought/demanded by industry. Reductions of ``regulatory
            burdens,'' as characterized by industry, are costing seniors
            their lives. The second element to regulatory compliance is the
            actual enforcement of the regulations. Industry clout and
            political interference with CMS and State Survey Agencies has
            been the subject of at least one OIG Report. When State Survey
            Agencies are not allowed to do their jobs, Elder Justice
            suffers and residents are harmed. When I held Office, I
            proposed legislation that prohibited interference in the Survey
            process, by anyone. A poor performing facility subject to DIA
            oversight was visited by three state legislators, during which
            time campaign fundraising was conducted. Soon thereafter, I was
            contacted and asked to ``explain'' the Department's actions. My
            response was to inform The Des Moines Register of this obvious
            attempt to interfere with the Survey process.

            The Committee may wish to consider whistleblower legislation,
            in addition to passing specific legislation that prohibits
            interference with enforcement. Of course, adequate funding for
            State Survey Agencies to enforce the regulations is another
            crucial element to obtaining Elder Justice. If, for whatever
            reason, states refuse to contribute their required state share
            to receive their federal ``match,'' Surveys suffer.

            Additionally, state Surveyors are often not paid as well as
            industry pays. The outcome is obvious. And, it is common
            knowledge among regulators that Surveyors need at least a
            year's time to effectively fulfill their Survey oversight
            responsibilities. It would take more than my allowed ten (10)
            pages to inform the Committee about interference/inhibitions to
            surveying for regulatory compliance.

            4. Direct Care Workers. When considering changes, Elder Justice
            suggests that the Committee recognize the underpayment,
            scapegoating, and horrific demands placed upon direct care
            workers. In Iowa, during the period of time I held Office, the
            turnover rate for CNA's was around sixty-five percent (65%).
            This workforce wasn't paid a living wage, often lacked health
            insurance, and often lacked necessary basic training to
            understand and care for the residents in their charge. I
            assisted in the drafting of CMS' training manual, Hand in Hand,
            a resource manual (with accompanying videos) provided to
            nursing homes throughout the Country. The Committee may wish to
            determine whether staff are required to complete this training,
            or whether it remains voluntary, or even remains available.
            There will never be Elder Justice without major improvements
            directly impacting this workforce responsible for the health,
            safety and welfare of some of the most vulnerable among us.

            5. Pre-dispute binding arbitration. On July 29, 2019, The Des
            Moines Register printed my Guest Editorial on pre-dispute
            binding arbitration, titled ``Grassley has an opportunity to
            demonstrate his true commitment to Iowa seniors.'' Because my
            editorial addresses this issue head-on, it is copied here,
            verbatim: The Register's July 3 editorial, ``How Grassley can
            help protect seniors,'' discussed a federal regulation that
            should be of great interest to everyone concerned about rolling
            back senior-industry regulations that protect the most
            vulnerable among us. Less than two weeks after the editorial
            was published, the Trump administration issued its final rule
            permitting nursing homes that voluntarily participate in the
            Medicare/
            Medicaid programs to have prospective residents sign pre-
            dispute binding arbitration agreements. This reverses the Obama
            administration's rule that forbade such agreements.

            Why should we care? Signing these agreements means that
            residents (and family members) give up their right to go to
            court over everything, including neglect, abuse, not getting
            medication, being given the wrong medication, and being stolen
            from. Binding arbitration is their only recourse, and there is
            no appeal from the arbitrators' decision. Although the Trump
            administration apparently recognized the draconian effect of
            nursing homes requiring seniors needing care to agree to pre-
            dispute binding arbitration agreements, the administration's
            final rule still permits their use.

            Grassley has an opportunity to demonstrate his true commitment
            to protecting seniors. Changing the law to prohibit nursing
            homes from allowing prospective residents to give up their
            right to sue would ``trump'' the administration's final rule.
            The senator told the editorial board ``it's worth Congress
            having more information on how agreements are used, and there
            are `pros and cons' to arbitration.'' (This statement should
            remind us of another absurd remark: ``. . . there are very fine
            people on both sides.'') He cited the costs of lawsuits on
            nursing home care, and asked whether ``that increased cost just
            mean(s) more money in lawyers' pockets, instead of victims?''

            Let's shed some light on those concerns. First, this issue is
            one that has been before the Congress for many years, so
            there's plenty of information already available on how these
            agreements are used. This includes a 2017 letter to the Centers
            for Medicare and Medicaid Services signed by 31 senators and a
            2015 letter signed by 34 senators, which states: ``Forced
            arbitration clauses in nursing home agreements stack the deck
            against residents and their families who face a wide range of
            potential harms, including physical abuse and neglect, sexual
            assault, and even wrongful death at the hands of those working
            in and managing long-term care facilities. These clauses
            prevent many of our country's most vulnerable individuals from
            seeking justice in a court of law, and instead funnel all types
            of legal claims, no matter how egregious, into a privatized
            dispute resolution system that is often biased toward the
            nursing home. As a result, victims and their families are
            frequently denied any accountability for clear instances of
            wrongdoing.''

            Second, Grassley's comments contain an inherent mistrust of
            American juris prudence, and a misunderstanding of lawsuits
            brought by seniors. Nursing homes purchase insurance policies
            to retain lawyers to defend their actions. The lawyers
            representing injured people take cases on a contingency basis
            and only recover money if the nursing home is found liable by
            citizen juries. Let's be honest, senator. You don't require any
            more information. You are familiar with this issue. Further,
            when industry attorney Kendall Watkins came to your defense
            with his July 12th op-ed, ``Arbitration is an affordable legal
            resource for seniors,'' he, like you, neglected to mention
            critical facts.

            The damage caused to residents by mandatory and voluntary pre-
            dispute binding arbitration agreements is real. In a typical
            agreement, every aspect of each residents' life is subject to
            arbitration. Arbitration stifles/prohibits obtaining
            information from nursing home defendants that would otherwise
            be available to residents, as plaintiffs, through the rules of
            discovery in a court of law. Moreover, unlike a court
            proceeding, arbitration does not occur in a public forum, so
            the nursing homes' actions/abuses are not exposed to the
            public.

            Keeping nursing home abuses from the public does not serve the
            public interest. Researchers from Harvard and Vanderbilt
            medical schools examined records from 15,399 nursing homes
            covering April 2017 through March 2018. The study found that
            75% of skilled nursing facilities were almost never in
            compliance with federal expectations for staffing, given the
            residents' particular acuity levels. Countless studies and even
            federal Office of Inspector General findings over many decades
            point to serious health, safety and welfare issues in nursing
            homes. Most of Iowa's nursing homes are for profit, and
            unfortunate care correlations have been associated with the
            profit motive. The harms caused by these never-ending serious
            problems are all too prevalent, and their redress deserves more
            than arbitration.

            It is well past time for your commitment, Senator Grassley.
            Iowa's seniors are waiting.

            6. Clarification of the definition of abuse and neglect. AHCA's
            faulting an ``unclear'' definition of abuse and neglect for the
            June 2019 OIG findings, ``Incidents of Potential Abuse and
            Neglect at Skilled Nursing Facilities Were Not Always Reported
            and Investigated,'' is ludicrous. See pages 4-5 of Governor.
            Parkinson's Testimony. This assertion, alone, should
            demonstrate to the Committee that some nursing homes are
            actually looking for a reason not to report abuse and neglect.
            They do so in order to avoid oversight and investigation by
            State Survey Agencies and law enforcement into their
            culpability. They do so in order to avoid deficiencies, and in
            order to avoid Immediate Jeopardy determinations, and in order
            to avoid civil money penalties and other enforcement remedies.
            The rule for reporting, pure and simple, is: When in doubt,
            report. This is not too complex to understand. Further, state
            law definitions of abuse and neglect are also different from
            federal definitions. There will always be differences, this is
            not the cause of reporting failures.

            Even if the Committee were to direct CMS to ``clarify once and
            for all the definition of abuse and neglect and ensure that
            those same definitions and reporting standards are consistent
            across all health care settings,'' as ``implored'' by AHCA (pp.
            4-5 of Governor Parkinson's Testimony), nursing homes will
            lawyer up to avoid reporting. Just like the reporting positions
            taken by the Iowa Health Care Association when I supervised the
            State Survey Agency, some facilities will do everything they
            can to avoid reporting. And, if the Committee were to decide to
            pursue a new definition, I predict the industry Associations
            will do everything they can to ensure that the chosen
            definition will limit their reporting responsibilities, and
            offer them an ``out'' for their reporting failures. I fought
            this fight over Iowa's definitions for reporting of abuse and
            neglect when I was the Director of DIA. We changed Iowa's law
            on dependent adult abuse, but the new statute was weakened to
            satisfy industry. Rather than alter definitions, a better
            solution to this issue is to severely sanction failures to
            report.

            7. The States' Long Term Care Ombudsman Programs. A central
            function of the Long Term Care Ombudsman Program is to
            investigate and respond to resident concerns. Applying national
            standards, the Institute of Medicine (IOM) long ago established
            that nearly thirty (30) Ombudspersons were required to attend
            to Iowa's recipient population. Never even approaching this
            recommended minimum, the Iowa Long Term Care Ombudsman program
            has been decimated by staffing cuts (the last reported number
            was 8 remaining Ombudspersons), such that face to face visits
            are rarely, if ever, possible. The Iowa agency responsible for
            these important functions acknowledged that telephone
            conversations would be substituted for on-site visits. Suffice
            to say, this is an embarrassment to the State of Iowa and an
            affront to residents when they are not afforded fundamental
            entitlement to a viable Long Term Care Ombudsman Program. Elder
            Justice demands otherwise.

            8. The Federal Special Focus Facility Program (SFFP). Only
            recently were all of the CMS nominated special focus facility
            names made public. There was no reason, ever, for these CMS
            identified poor performing facilities not to be know to
            prospective residents, and the general public. It is a
            wonderment why CMS chose to secret this information from the
            public, and the Committee may wish to inquire why this was the
            case. The Committee may wish to also inquire whether there are
            any other troubling facts about specific facilities that should
            be made public by CMS.

            When I was Director of DIA , we were allowed to designate four
            (4) federal special focus facilities. It is my understanding
            that every state has been cut by CMS in allowable special focus
            facility designees , Iowa was cut to two (2). The Committee
            should change this to allow additional special focus facility
            designations, and accompanying oversight. At that time, states
            were given the opportunity to choose, from a CMS provided list,
            the facilities they wished to designate. CMS' algorithm for
            compiling this list was never made known to the State Survey
            Agency. The chosen special focus facility was to be surveyed
            more frequently than the ordinary twelve (12) month, no later
            than fifteen (15) month schedule, and the facility was to be
            timely decertified if certain deficient practices were found.

            The Committee may wish to examine the SFFP, and CMS' handling
            of it. The Abbey of Le Mars, Iowa, is the facility (noted
            above) that settled the Northern District's Federal False
            Claims Act case against it. This facility had remained on the
            special focus facility list for over two (2) years, during
            which time residents continued to be harmed. A related concern
            to the SFFP is the reluctance of CMS to actually decertify a
            facility. In order to receive, and maintain certification, a
            facility must be licensed by the state. There is a complex
            interrelationship between the revocation of a state license and
            federal decertification. Appeal rights are also different. The
            Committee may wish to learn more about the manner by which
            facilities that are neglecting and abusing residents can/should
            be eliminated, and the time and effort it takes, all in the
            interest of Elder Justice.

            9. Survey Integrity Thoughts. During my Iowa Survey Agency
            leadership, DIA worked closely on many nursing home enforcement
            cases with Assistant Regional Counsel Richard L. Routman in
            Kansas City, Missouri, US Dept. of HHS. Now retired, living at
            106 Church St., Leesburg, VA, 20176, attorney Routman and I
            collaborated on these thoughts.

            Nursing home fraud is a problem, and takes many forms. In order
            to address some notable concerns, there are several efforts
            that CMS and its partners might tackle. There are three themes
            to our thoughts below: (1) Greater coordination and cooperation
            among federal and state regulators/prosecutors and others; (2)
            sharpened focus on the integrity of the information received
            from nursing homes and their staff; and (3) providing better
            and timely notice to the public of determinations against
            facilities and adjudicated findings. Making the survey and
            appeal process more honest/efficient/effective/public will
            enhance the anti-fraud provisions/proposals set forth below.

            This effort should involve conversations between and among
            State Survey Agency personnel, CMS Regional and Central Office
            staff, counsel, state Assistant Attorneys General, professional
            Disciplinary Boards and their staff and counsel, state
            Ombudsman personnel, US Attorneys/Assistants, MFCU Directors
            and staff, OGC, OIG, investigators from the Fiscal
            Intermediary, and others.

            We have approached these issues from the various stages of the
            federal administrative appeal process, all arising out of the
            state Survey. CMS was given this information.

    Prior to the survey

         1.  All employees at nursing homes, licensed or not, should be
    mandatory reporters of fraud and false statements regarding medical
    records and all matters involving survey activity and enforcement.
         2.  Require licensed persons who are no longer employed by the
    facility being surveyed to cooperate with federal and state nursing
    home surveyors, including providing written statements under oath.
         3.  Require facilities to report to the state when a direct care
    or licensed staff member quits or is fired whether that event is
    connected with any allegation of wrongdoing. Contact the former
    employee prior to the survey for background information.
         4.  Require an employee to report to the state when he or she
    quits or is fired as a result of the employee making an allegation of
    wrongdoing against the facility.
         5.  If an employee quits or is fired as a result of an allegation
    of wrongdoing against the facility, the state is entitled to treat that
    as an ``IJ'' item, authorizing a Complaint Investigation.
         6.  Establish a government-only, inter-agency, confidential and
    password protected website for, among other things, the pre-survey
    solicitation and exchange of information from any other agency about
    the facility soon to be surveyed and any/all of its employees.
         7.  Require the facility to report any claim made on or behalf of
    a resident, any request for arbitration, or filing of a civil lawsuit
    commenced in connection with a claim on behalf of a resident or the
    settlement of any claim on behalf of the resident, within 20 days.
         8.  Develop and exploit contacts with the relevant plaintiff's bar
    and fraud units of insurance companies to determine the existence of
    claims and unusual reimbursement activity.
         9.  Authorize CMS and the state to be present at the arbitration
    hearing of any claim against a nursing home or to acquire a copy of the
    transcript and exhibits, if any.
        10.  Require that a facility provide a plain-English notice and
    telephone (including the state hotline number) and email contact
    information for the state and federal regulators by the signature line
    of the Admission Contract.
        11.  Determine from online and other public sources if the private
    bar has civil actions pending against nursing homes.
        12.  Contact temporary nursing agencies and determine whether the
    facility has utilized temporary staff in numbers beyond expected rates.
        13.  Contact law enforcement and ambulance services to determine if
    any emergency calls have been made to the facility during the time
    period in question.

    During the survey

         1.  During the survey, the Surveyors would provide the
    Administrator, the Director of Nurses, and others, a written
    questionnaire to be signed, under oath, attesting to their knowledge
    that: (a) No false or altered documents have been created or used in
    connection with the survey; (b) No false statements by staff are known
    or believed to have been made to Surveyors; (c) No documents have been
    destroyed or secreted from the Surveyors; (d) No effort has been made
    by staff or others to mislead, obstruct, or impede the survey/
    investigation; (e) Whatever affirmative representation the Surveyor
    wishes to be made by staff regarding the specifics of the survey
    findings.
         2.  If the facility staff decline to sign the questionnaire, have
    in place a protocol with the US Attorney for seeking a temporary
    restraining order or other remedy.
         3.  The Surveyors should routinely gather information identifying
    former staff (and how they can be reached and the circumstances of
    their separation from the facility).
         4.  Introduce the option to Surveyors of using computer recording
    of interviews.
         5.  Authorize CMS to require information from the Quality
    Improvement Organization (QIO) with respect to any training or review
    the QIO has conducted at the facility within the past relevant period.
         6.  Authorize CMS to require that the OIG provide information with
    respect to the facility's operations if a Corporate Integrity Agreement
    is, or was, in place with that facility during the relevant period.
         7.  Require the facility to produce, on CMS' request, all intra-
    staff (including any corporate nurse and any corporate officer or
    employee) email relating to the deficiencies or the survey being
    conducted, both before and during the survey--without interfering in
    the facility's attorney-client relationship.
         8.  Require the facility to produce the underlying computer codes
    to CMS where the nurses' notes and other facility records are generated
    by computer and not in handwritten form.
         9.  Determine the frequency of the facility using agency or
    temporary direct care staff.
        10.  Determine corporate affiliations with other providers of goods
    and services, i.e., is the pharmacy a division or subsidiary of the
    corporation that owns the facility.
        11.  Require that outside providers, such as Physicians and others,
    must cooperate with the Surveyors as a contractual condition of doing
    business with the facility.
        12.  Contact the volunteers and staff of the Long Term Care
    Ombudsman's Office for the facility and solicit information.
        13.  Contact the facility's pharmacy to determine if there are any
    issues involving medication procedures.

    Before and at the Informal Dispute Resolution (IDR) Hearing

         1.  Have the state attorney submit written questions to the
    facility in advance of the IDR with the request that the facility
    address those questions at the IDR. Adopt rules requiring the facility
    to answer those questions at IDR.
         2.  Tape record the IDR.
         3.  Place attendees under oath at the IDR.
         4.  Use IDR for discovery.
         5.  Make the IDR public.

    After the survey, while the appeal is pending

         1.  Consider having the state proceed first with its parallel
    licensure proceeding. Since the state procedures may allow it,
    discovery could occur. If the state prevails, it will be possible for
    CMS to argue claim preclusion against the facility in the federal case.
         2.  Have the Surveyors provide a private report to CMS attorneys
    about impressions, suspicions, and matters calling for further
    investigation while the appeal is pending.
         3.  Establish a protocol for dealing with suspected false
    documents, obstruction of the audit, or other fraud, including: (a) in
    the state proceeding, subpoenaing the attorneys' file and making a
    showing that the facility is using legal services to perpetrate a
    fraud, thereby (arguably) vitiating the confidentiality of attorney-
    client communications or (b) in the federal proceeding, requesting the
    ALJ to issue a subpoena against the facility's attorneys and make the
    required showing under federal law that the attorney-client privilege
    is lost under these circumstances.
         4.  Require the state to advise CMS of the pendency of any other
    state proceeding against the same facility involving allegations in
    common with the federal appeal, including abuse hearings.
         5.  Call for procedures requiring state professional disciplinary
    boards to initiate investigations promptly, gather statements under
    oath and coordinate their investigations with other state and federal
    enforcement agencies, including sharing of information.
         6.  Authorize the ALJ to order production of documents immediately
    if there is a clear entitlement to them. No need to wait until the
    hearing.

    At the hearing

         1.  Provide for public notice of the hearing in the local
    newspaper and a posted notice in the facility to invite members of the
    public to attend the hearing.
         2.  Authorize the ALJ to increase the monetary penalty for fraud,
    or other good cause.
         3.  Authorize the ALJ to impose a penalty, including the
    imposition of attorneys' fees and costs, on the facility or, if
    appropriate, on its attorneys for lack of a reasonable or substantial
    justification for appealing the deficiency. (This is analogous to the
    Equal Access to Justice Act burden the government has to show that it
    was substantially justified in its position even if it lost; also see
    Rule 11, F.R. Civ. P., and the statute prohibiting attorneys from
    multiplying the proceedings.)
         4.  Once the hearing date is scheduled or, in those cases where
    the direct testimony must be submitted in advance in writing, prior to
    the deadline for the first submission of such written testimony, the
    facility cannot dismiss or withdraw the appeal and CMS cannot alter the
    remedy or discontinue the case without the permission of all parties or
    by Order of the ALJ who must find good cause for dismissal. (This
    aligns to the federal rule of civil procedure on voluntary dismissals.)
    Sanctions can be imposed if good cause is not shown.
         5.  Require the facility to include the transcript of the hearing
    on its website or make it available upon request by any person.

    If the case settles

         1.  By the terms of the settlement, the facility and its employees
    must agree to cooperate with future investigations or surveys regarding
    other facilities or persons.
         2.  The terms of the settlement should contain creative
    prospective performance and reporting requirements which address the
    deficiencies being settled, including staffing ratios, in-servicing,
    periodic reports, surprise inspections and surveys, appointment of
    monitors, increases in staff compensation, disclosure of executive
    compensation, and others.
         3.  Establish a protocol for making concessions to a defendant in
    exchange for information evidencing deficiencies or fraudulent conduct
    by others in connection with nursing home care at any facility.
         4.  No bonuses for management for future deficiency-free surveys.

    After the hearing

         1.  Provide information to other agencies or professional boards
    for possible further action; conduct follow-up to determine whether
    additional sanctions were imposed.
         2.  Track the employment of suspected deficient staff and monitor
    their performance in future surveys.

    Some related legislative and regulatory proposals

         1.  Clarify and strengthen the protocols for requiring ombudsman
    staff and volunteers to report fraud and suspected deficiencies to the
    state Survey Agency.
         2.  Confirm that the quality assurance privilege does not protect
    any facility document, other than the committee minutes of the quality
    assurance committee. At least, provide clarification regarding the
    privilege.
         3.  Seek legislative approval for CMS to propound written
    discovery against facilities in administrative appeals.
         4.  Require a facility to respond fully and accurately in writing
    to the request of another facility considering hiring a person once
    employed at the facility, especially if the person were discharged due
    to substandard or abusive conduct. Provide immunity against suit by the
    former employee.
         5.  Require local, state and federal criminal law enforcement
    officials (including county medical examiners) to report to the state
    Survey Agency any information regarding reported elopements, assault,
    rape, suspicious deaths or other possible violations.
         6.  Define and allow the imposition of sanctions against corporate
    officers and directors.
         7.  Remove the dischargeability of claims under bankruptcy laws of
    any successful claim against a nursing home or its officers and
    directors for violating or participating in the violation of federal
    anti-fraud/abuse nursing home regulations.
         8.  Prohibit bonuses for management for future clear surveys.
         9.  Add a fraud tag, or several defining tags, so that Surveyors
    can add that as a deficiency to the administrative proceeding.
        10.  Prohibit the use of any pre-dispute binding arbitration
    clauses in admission documents.
        11.  Require disclosure of related-party transactions between the
    facility (or its owner) and other companies or persons.
        12.  Require the ALJs to issue rulings within a reasonable period
    of time following the hearing, not to exceed six months following the
    filing of briefs.
        13.  Make it illegal to offer or pay any inducements to or to
    threaten retaliation or to retaliate in any way against any current or
    former employee of a nursing home for refusing to disclose or
    disclosing information to government authorities regarding the
    operation of the facility. Add an lJ tag/tags for such action.
        14.  Create similar provisions related to inducements/threats to
    residents, family, visitors, and others.

    10. Miscellaneous legislative proposals, some related to items 1-8
                        above

         1.  Define and require disclosure of profits, establish parameters
    for profit-taking, establish guide lines for salaries and benefits of
    owners, management, executive staff, and others.
         2.  Forbid government payments, directly or indirectly, to
    industry Associations.
         3.  Study, and limit government payments made directly or
    indirectly to facility attorneys challenging government action and
    performing other services. Allow only reasonable hourly rates, only
    upon successful challenges and only for legal work directly related to
    resident care.
         4.  Require sworn Cost Reporting.
         5.  Mandate staffing levels for RNs, LPNs, CNAs.
         6.  Require CMS to develop a team of nationally certified Surveyor
    Specialists who will travel to State Survey Agencies throughout the
    Country for the purpose of training Surveyors and assisting with
    surveys of poor performing facilities.
         7.  Require State Survey Agencies to create Abuse Coordinating
    Units to work with MFCU's and law enforcement on issues of abuse and
    neglect.

                                     ______

                    National Association of State Long-Term
                            Care Ombudsman Programs
    August 5, 2019

    U.S. Senate
    Committee on Finance
    Dirksen Senate Office Building
    Washington, DC 20510-6200

    RE: Senate Finance Committee Hearing: ``Promoting Elder Justice: A Call
    for Reform,'' July 23, 2019

    Chairman Grassley and Ranking Member Wyden:

    Introduction

    The National Association of State Long-Term Care Ombudsman Programs
    (NASOP) extends its thanks to the chairman, ranking member and
    committee members for the hearing held on July 23, 2019 continuing to
    focus on elder justice including protections for residents of long-term
    care facilities. Congress has an opp01tunity to improve the protections
    for older adults by reauthorizing the Elder Justice Act, and
    protections for nursing home residents by requiring stronger
    enforcement of the current protections provided in the Nursing Home
    Reform Act known as the Omnibus Budget Reform Act of 1987 and the
    accompanying nursing home regulations.

    NASOP agrees with the concerns raised by Chairman Grassley and Ranking
    Member Wyden that the nursing home rating system does not provide all
    of the information that individuals and their families need when
    choosing a nursing home. For example, the rating system should include
    how often the information is updated, which information is self-
    reported by each facility, requiring abuse deficiencies to be reported
    in the rating system, and warning that the rating system should not be
    the only consideration when choosing a nursing home.

    NASOP also agrees with a number of concerns raised by the witnesses at
    the hearing and makes the following recommendations.

    Immediately Reporting Abuse Allegations to Law Enforcement

    As the Government Accountability Office (GAO) report points out, delays
    in responding to abuse allegations result in the loss of evidence, the
    inability to substantiate the complaint, and the potential to allow a
    perpetrator to continue abusing residents. Congress should clarify the
    definition of abuse and require that abuse allegations be reported to
    law enforcement by nursing homes, the survey agency, hospital
    personnel, and other mandatory reporters at the time the allegation is
    made or evidence of abuse is discovered. Law enforcement officers are
    trained to investigate crimes, including abuse. Safety of the residents
    is of paramount importance. Confirming the crime occurred, and
    identifying and arresting the perpetrator should be the first priority.
    Whether the survey agency is able to verify that the facility engaged
    in a deficient practice is an important and related issue. In addition,
    some meaningful sanctions should be provided for failure to report, or
    failure to report timely. Such sanctions could be the suspension of a
    professional license, significant fines, or other penalties.

    Amend the Privacy Act to Allow Sharing of Survey Agency Information

    Congress should take action, whether amending the Privacy Act or
    through other legislation to require the Centers for Medicare and
    Medicaid Services (CMS) and the survey agencies with whom they
    contract, to share unredacted information of its investigations with
    law enforcement and prosecutors, if a crime is involved, and with the
    Long-Term Care Ombudsman Program for all of its investigations.

    Use the GAO Recommendations in Legislation

    In addition, Congress should create legislation that builds on the six
    recommendations that are included in the GAO report and to which CMS
    has agreed. Summarizing those six recommendations and expanding on
    them, they include (1) require state survey agencies to report abuse
    and perpetrator type to CMS's database for deficiency, complaint and
    facility reported incident data, require CMS to analyze the data for
    trends, and require CMS to annually report those trends to Congress and
    the public; (2) develop and disseminate a standardized form for
    facility-reported incidents; (3) require the survey agencies to
    immediately refer abuse allegations to law enforcement at the time the
    allegation is made; (4) require CMS to conduct oversight to assure that
    state survey agencies are making referrals to law enforcement; (5)
    require survey agencies to report to law enforcement and state
    registries when the survey agencies substantiate allegations even if
    the state agencies do not cite a federal deficiency; and (6) require
    CMS to confer with law enforcement agencies to develop and provide
    requirements for what must be included in abuse allegation referrals to
    law enforcement.

    Further Legislation Related to Abuse Deficiencies

    Congress should require CMS and the survey agencies to impose and
    implement enforcement actions for abuse deficiencies. Congress should
    require that abuse deficiencies must be cited and made public, even if
    the facility subsequently corrects the deficient practice. It is simply
    not enough that a nursing home corrects its deficient practice; when
    abuse happens it must be made public.

    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.
    Congress should require CMS to support the survey agencies' scope and
    severity findings or publicly provide clear reasons when it does not,
    and require per diem fines, rather than per instance fines.

    Adding Professionals to Criminal Background Checks

    Congress should add the recommendation from the American Health Care
    Association to require facilities to check the National Practitioner
    Data Bank in addition to completing a fingerprint criminal background
    check for all nursing home staff. In addition, Congress should amend
    the National Background Check Program to make it a Requirement of
    Participation for nursing homes certified by Medicare and Medicaid.
    Congress could move the program from CMS to the Department of Justice
    (DOJ) because background checks are a more consistent with DOJ
    expertise.

    Minimum Staffing Ratios

    Congress should set a minimum staffing ratio to residents and require
    that facilities staff above the minimum to meet the residents' needs.
    Minimum staffing ratios could help reduce the incidence of abuse. Some
    reasons given for resident abuse include staff members losing their
    tempers when they are short staffed and stretched too thinly; or not
    enough staff are able to supervise residents who may become aggressive
    when their needs are not being met. In addition, a minimum ratio of
    staff to residents should allow staff more time to notice when a
    resident has changed care needs that require additional interventions.
    Lastly, it adds transparency to the process. With a required minimum
    staff to resident ratio for every day of the week, residents, family
    members, facility staff, surveyors and the public know what the minimum
    number of staff should be.

    Conclusion

    After these hearings, the Senate has identified some needed changes to
    combat abuse of older adults and individuals with disabilities.
    Reauthorizing and fully funding the Elder Justice Act and making
    changes to improve enforcement of resident protections would make
    quality of life better and safer for nursing home residents.

    Sincerely,

    Melanie S. McNeil

                                     ______

                     New Hampshire Health Care Association

                          5 Sheep Davis Road, Suite E

                         Pembroke, New Hampshire 03275

                             Phone: (603) 226-4900

                              Fax: (603) 226-3376

                                 www.nhhca.org

    July 23, 2019

    U.S. Senate
    Committee on Finance
    Dirksen Senate Office Bldg.
    Washington, DC 20510-6200

    Regarding ``Promoting Elder Justice: A Call for Reform,'' July 23, 2019

    On behalf of the New Hampshire Health Care Association, representing
    long-term care facilities capable of serving over 7,100 residents, I
    offer the following thoughts concerning your hearing.

    New Hampshire has the nation's lowest unemployment rate, second-oldest
    population, and New England's largest gap between Medicaid payments and
    costs for nursing home care. Funding has not even kept pace with the
    Consumer Price Index. The state budget is ``balanced'' on caregivers'
    backs due to years of state policymaker neglect.

    The nation's entire nursing home care sector cannot be painted with the
    same brush, and we resent any efforts to do so. In New Hampshire we
    work very collaboratively, and proactively, with our state government
    on maintaining quality amidst funding adversity and the recruitment,
    and retention, challenges inadequate Medicaid funding creates.
    Regardless of those challenges, abuse and neglect is intolerable and we
    would never excuse it.

    In March, the annual report to Congress from the Medicare Payment
    Advisory Commission found the average nursing home margin nationally
    fell to .5% in 2017. And yet, astonishingly, some would have made this
    crisis even worse. Chairman Grassley would have eviscerated the
    Medicaid program under the guise of ``repealing-and-replacing'' the
    Affordable Care Act. To quote Chairman Grassley from a September 20,
    2017 Des Moines Register article:

            ``You know, I could maybe give you 10 reasons why this bill
            shouldn't be considered,'' Grassley said. ``But Republicans
            campaigned on this so often that you have a responsibility to
            carry out what you said in the campaign. That's pretty much as
            much of a reason as the substance of the bill.''

    We are grateful that efforts to effectively destroy Medicaid long-term
    care failed. We would ask that members of the Senate Finance Committee
    assist states like New Hampshire, rather than simply pillory care. We
    don't have the luxury here, as do the states of the chairman and the
    ranking member, of the federal government covering 61.2% of the cost of
    care. The income based Federal Medical Assistance Percentage is only
    50% for New Hampshire, and does not account for the fact that our
    state, with no personal income tax, has no way of capturing personal
    income.

    We would note that the Trump Administration's immigration restrictions
    will further constrain our nation's fragile long-term care system's
    ability to serve an aging society.

    It is demoralizing for our hard-working staff to see their work further
    undervalued by federal lawmakers who refuse to provide funding that
    matches their rhetoric. We look forward to the day when a hearing is
    held to address their needs and dedication, however unlikely that may
    be.

    I enclose, for the record, a copy of a recent article of mine in the
    Seton Hall Legislative Journal about the challenging environment for
    long-term care.

    Best regards,

    Brendan Williams
    President/CEO

    Enclosure

                                     ______

    Failure to Thrive? Long-Term Care's Tenuous Long-Term Future.

                                                     Brendan Williams *
    ---------------------------------------------------------------------------
        * Attorney Brendan Williams is a nationally-published writer on
    civil rights and health care issues. M.A. (Crim. J.), Washington State
    University; J.D., University of Washington School of Law.
    ---------------------------------------------------------------------------

                                I. Introduction

        According to the U.S. Census, by 2030, there will be an estimated
    three million more residents aged 85 and older than there were in
    2012.\1\ The Urban Institute estimated that ``about fifty percent of
    the population ages 85 and older has a disability, compared with only
    10 percent of the population ages 65 to 74.''\2\ This growing
    demographic will have long-term care needs, resulting in serious
    Medicaid cost implications for states.
    ---------------------------------------------------------------------------
        \1\ See, e.g., Jennifer M. Ortman et al., ``An Aging Nation: The
    Older Population in the United States,'' U.S. Census Bureau (2014),
    https://www.census.gov/prod/2014pubs/p25-1140.pdf.
        \2\ Richard W. Johnson et al., ``Meeting the Long-Term Care Needs
    of the Baby Roomers,'' The Retirement Project (2007), https://
    www.urban.org/sites/default/files/publication/43026/311451-Meeting-the-
    Long-Term-Care-Needs-of-the-Baby-Boomers.pdf; see Kaiser Family
    Foundation, ``Medicaid's Role for Seniors'' (2017), http://
    files.kff.org/attachment/Infographic-Medicaids-Role-for-Seniors
    (estimating that 74 percent of those 85 and older have a long-term care
    need).

        What are we doing as a nation to prepare for this ``Silver
    Tsunami''? The answer is simple: effectively nothing. The federal
    government has made no substantive effort to address our aging future
    since the Community Living Assistance Services and Supports (CLASS) Act
    was included in the 2010 Patient Protection and Affordable Care Act
    (ACA).\3\ In 2011, the Obama Administration abandoned CLASS after
    determining that it was ``financially unsustainable.''\4\ CLASS would
    have provided long-term care benefits that voluntary payroll
    contributions would have financed.\5\ Congress took bipartisan action
    to repeal CLASS as part of the American Taxpayer Relief Act of 2012
    (Taxpayer Relief Act).\6\ The Taxpayer Relief Act created a Commission
    on Long-Term Care.\7\ The Commission's ambitious task was to ``develop
    a plan for the establishment, implementation, and financing of a
    comprehensive, coordinated, and high-quality system that ensures the
    availability of long-term services and supports for individuals in need
    of such services and supports.''\8\ It was intended to benefit the
    elderly, those with ``substantial cognitive or functional
    limitations,'' those needing help performing daily activities, and
    those wanting a long-term care plan.\9\ Predictably, the 2013 report to
    Congress noted, ``The Commission did not agree on a financing approach,
    and, therefore, makes no recommendation.''\10\ For example, the
    Commission considered, but ultimately did not agree upon, creating a
    long-term care benefit within Medicare.\11\
    ---------------------------------------------------------------------------
        \3\ Patient Protection and Affordable Care Act, Pub. L. No. 111-
    148, 124 Stat. 119 (2010).
        \4\ See, e.g., Jason Kane, ``What the Death of the CLASS Act Means
    for Long-Term Disability Care,'' PBS (October 14, 2011), https://
    www.pbs.org/newshour/health/what-the-death-of-the-class-act-means-for-
    long-term-disability-care.
        \5\ Id.
        \6\ See American Taxpayer Relief Act of 2012, Pub. L. No. 112-240
    Sec. 642, 126 Stat. 2313, 2358.
        \7\ See id. Sec. 643(a).
        \8\ Id.
        \9\ Id. Sec. 643(b).
        \10\ U.S. Senate Committee on Long-Term Care, Report to the
    Congress 61 (2013), http://Itccommission.org/Itccommission/wp-content/
    uploads/2013/12/Commission-on-Long-Term-Care-Final-Report-9-26-13.pdf.
        \11\ Id. at 66-68.

        Meanwhile, with no national plan to address our current, let alone
    future, long-term care needs, the federal deficit is exploding due to
    President Trump's tax cuts.\12\ This could potentially create a
    collision between demographic needs and resources, and policymakers
    have made it clear where their priorities lie. For example, former U.S.
    House Speaker Paul Ryan. (R-WI) asserted that ``it's the health care
    entitlements that are the big drivers of our debt, so we spend more
    time on the health care entitlements--because that's really where the
    problem lies, fiscally speaking.''\13\
    ---------------------------------------------------------------------------
        \12\ See, e.g., Jim Tankersley, ``How the Trump Tax Cut Is Helping
    to Push the Federal Deficit to $1 Trillion,'' New York Times (July 25,
    2018), https://www.nytimes.com/2018/07/25/business/trump-corporate-tax-
    cut-deficit.html (``The Trump administration had said that the tax cuts
    would pay for themselves by generating increased revenue from faster
    economic growth, but the White House has acknowledged in recent weeks
    that the deficit is growing faster than it had expected.'').
        \13\ Jeff Stein, ``Ryan Says Republicans to Target Welfare,
    Medicare, Medicaid Spending in 2018,'' Washington Post (December 6,
    2017), https://www.washingtonpost.com/news/wonk/wp/2017/12/01/gop-eyes-
    post-tax-cut-changes-to-welfare-medicare-and-social-security/
    ?noredirect=
    on&utm_term=.f73f06fe4d79 (Although Ryan is no longer in office, this
    conservative philosophy lives on.).

        Medicaid is a state and federal partnership. Each state receives a
    federal match of no less than one dollar for every dollar spent on
    Medicaid, based upon ``per capita income''--poorer states receive more,
    and wealthier states receive less.\14\ Lately, while most public and
    political attention has focused on Medicaid expansion under the ACA,
    ``legacy'' or ``traditional'' Medicaid has funded long-term care for
    decades.\15\
    ---------------------------------------------------------------------------
        \14\ See 42 U.S.C. Sec. 1396d(b) (2012). This has the unintended
    effect of allowing poorer states to further reduce taxes at the expense
    of ``donor'' states. Brendan Williams, ``My Turn: A Fairer Return on
    Federal Dollars for NH,'' Concord Monitor (July 13, 2016), https://www.
    concordmonitor.com/N-H-Medicaid-funding-3398300 (``For every dollar New
    Hampshire spends on Medicaid it receives one federal dollar--evenly
    splitting the responsibility. In contrast, in Mississippi the federal
    government pays 74.6% of the Medicaid bill. This subsidy from states
    like New Hampshire allows policymakers in poorer states to more easily
    fund Medicaid while crowing about their fiscal conservatism.'').
        \15\ Traditional Medicaid was also under assault in legislation
    that just ostensibly sought to repeal and replace the ACA. See Dylan
    Scott, ``How Medicaid Became the Most Important Battleground in
    American Health Care,'' Vox (November 10, 2017), https://www.vox.com/
    policy-and-politics/2017/11/10/16118644/medicaid-future (``Medicaid,
    long the forgotten sibling of our social safety net, has now become the
    central battleground in the fight over America's social compact.'').
    Under spending caps that came close to congressional passage,
    ``Medicaid spending would have been cut by 35 percent, versus current
    law, after 2 decades of those spending caps.'' Id. CMS Administrator
    Seema Verma continues to advocate for implementing limits on Medicaid
    spending. Priyanka Dayal McCluskey, ``Medicaid Needs to Change, Head of
    Program Says in Boston, and That Includes Spending Caps,'' Boston Globe
    (April 25, 2018), https://www.bostonglobe.com/business/2018/04/25/
    medicaid-needs-change-trump-head-program-says-boston/
    BnjdhASdGtHEdQxxybC6qO/story.html (``Spending limits could be imposed
    on a per-
    patient basis, or per state. State spending caps are known as block
    grants.''). These artificial caps would be disastrous given the
    inexorability of the coming age wave. State parsimony has been enough
    of a ``cap'' without limiting federal matching funds and creating a
    disincentive for states to spend. But tragic consequences are unlikely
    to dissuade the current administration. See Brendan Williams,
    ``Medicaid Cuts Are the Real `Death Panels','' USA Today (April 28,
    2017), https://www.usatoday.com/story/opinion/2017/04/28/medicaid-cuts-
    real-death-panels-column/100939932/ (``Seema Verma designed an Iowa
    managed care system with disastrous new administrative burdens, payment
    delays and denials for providers--along with massive state cost
    overruns.''). At the same time Verma seeks to cut Medicaid funding, she
    is seeking to increase nursing home staffing with no new Medicaid
    funding to pay for it. See Press Release, U.S. Centers for Medicare and
    Medicaid Services, CMS Strengthens Nursing Home Oversight and Safety to
    Ensure Adequate Staffing (November 30, 2018). This could create a
    perfect staffing crisis storm. In New Hampshire, for example, Medicaid
    rates were only going up an average of .11 percent on January 1, 2019,
    equal to 7 cents per resident, per day, in a state with the third-
    lowest unemployment rate. See Brendan Williams, ``Lawmakers Must
    Address Medicaid Funding Neglect,'' Concord Monitor (November 21,
    2018), https://www.concordmonitor.com/Medicare-payments-21678575.

        Medicaid's vital safety net faces existential threats, largely as a
    result of two successive presidents' indifference towards Medicaid.\16\
    The nation has come a distance from the compassion that President
    Lyndon Johnson demonstrated in signing Medicare and Medicaid into law
    in the library of President Harry Truman, handing out 72 pens used to
    sign the measure.\17\ Johnson promised that ``no longer will this
    nation refuse the hand of justice to those who have given a lifetime of
    service and wisdom and labor to the progress of this progressive
    country.''\18\ In an emotional speech, Johnson stated, ``There are
    those alone in suffering who will now hear the sound of some
    approaching footsteps coming to help.''\19\
    ---------------------------------------------------------------------------
        \16\ See, e.g., Brendan Williams, ``How the Obama administration
    made it possible to gut Medicaid,'' The Hill (June 12, 2017), https://
    thehill.com/blogs/pundits-blog/healthcare/337467-how-the-obama-
    administration-made-it-possible-to-gut-medicaid.
        \17\ See John D. Morris, ``President Signs Medicare Bill; Praises
    Truman,'' New York Times (July 31, 1965), https://
    timesmachine.nytimes.com/timesmachine/1965/07/31/101558385.pdf.
        \18\ ``Transcript of Remarks by Truman and Johnson on Medicare,''
    New York Times (July 31, 2015), https://timesmachine.nytimes.com/
    timesmachine/1965/07/31/101558459.pdf.
        \19\ Id.

        However, Johnson's lofty ideals in 1965 got in the way of today's
    parsimony toward the poor. In 2015, at the urging of the Obama
    Administration and state governments, the U.S. Supreme Court held that
    providers did not have standing to sue over Medicaid cuts in Armstrong
    v. Exceptional Child Center, Inc.\20\ Siding with the majority in the
    5-4 decision, Justice Breyer rhapsodized ``that administrative agencies
    are far better suited to this task than judges.''\21\ Thus, only the
    U.S. Centers for Medicare and Medicaid Services (CMS), under the U.S.
    Department of Health and Human Services, was the proper arbiter of
    providers' Medicaid underfunding claims.
    ---------------------------------------------------------------------------
        \20\ 135 S. Ct. 1378, 1384 (2015).
        \21\ Id. at 1388 (Breyer, J., concurring in part and concurring in
    the judgment).

    ---------------------------------------------------------------------------
        In its brief, the Obama Administration stated:

            The reimbursement relationship between a State and a provider
            is essentially contractual in nature. It would be anomalous for
            one party to a prospective or existing contract (a provider) to
            have a legal right--a cause of action--to insist that the other
            party (the State) increase its offer for a future contract or
            to increase its payments under an existing contract.\22\
    ---------------------------------------------------------------------------
        \22\ Brief for the United States as Amicus Curiae Supporting
    Petitioners at 31, Armstrong vs. Exceptional Child Center, 135 S. Ct.
    1378 (2015) (No. 14-15).

        This was a rather disingenuous argument, for where else would a
    remedy lie but in court? Medicaid contracts are effectively contracts
    of adhesion, where there is an enormous imbalance of power between the
    contracting parties--contracts are presented on a take-it-or-leave-it
    basis. For example, if 62 percent of those whom a provider is caring
    for are on Medicaid, as is true for nursing homes on average, how can a
    provider simply refuse a non-negotiable Medicaid contract?\23\
    ---------------------------------------------------------------------------
        \23\ See Kaiser Family Foundation, ``Medicaid's Role in Nursing
    Home Care'' (June 20, 2017), https://www.kff.org/infographic/medicaids-
    role-in-nursing-home-care/; Jessica Wheeler, ``Armstrong vs.
    Exceptional Child Center: Who Should Enforce Equal Access?'', Minnesota
    Law Review (December 22, 2017), http://www.minnesotalawreview.org/2017/
    12/armstrong-v-exceptional-child-center/ (``If one believes Medicaid
    beneficiaries should get the same access to health care as the general
    public, allowing providers to bring private enforcement actions is the
    most efficient way to ensure it.'').

        Congressional Democrats, including House Minority Leader Nancy
    Pelosi (D-CA) and then-Senate Majority Leader Harry Reid (D-NV), filed
    their own brief with the Court, disagreeing with the Obama
    Administration's position: ``[t]his case implicates . . . the right to
    seek equitable relief under the Supremacy Clause against state law that
    is inconsistent with Congressional enactments.''\24\ Under their
    interpretation, the law ``provides impoverished, developmentally
    disabled Medicaid patients and the medical providers who serve them a
    means of redress in the court system that they would often not have in
    the political battles over budget priorities.''\25\
    ---------------------------------------------------------------------------
        \24\ Brief of Members of Congress as Amici Curiae in Support of
    Respondents at 2, Armstrong vs. Exceptional Child Center, 135 S. Ct.
    1378 (2015) (No. 14-15).
        \25\ Id. at 15.

        From his ivory tower, Justice Breyer apparently did not foresee the
    unhappy marriage of administrative deference with a Trump
    Administration that disfavors administrative oversight, when he cast
    his deciding vote in Armstrong.\26\
    ---------------------------------------------------------------------------
        \26\ See, e.g., Alan Levin and Alyza Sebenius, ``Trump Claims $1.6
    Billion a Year Saved From Cutting Red Tape,'' Bloomberg (October 16,
    2018), https://www.bloomberg.com/news/articles/2018-10-17/trump-
    administration-claims-23-billion-in-regulation-savings.

        In March 2018, under the guise of furthering ``President Trump's
    commitment to `cutting the red tape' by relieving states of burdensome
    paperwork requirements,'' CMS proposed a rule to allow states with
    managed care insurers running their Medicaid programs to more freely
    cut Medicaid rates--by up to ``4% percent in overall service category
    spending during a State fiscal year (and 6% over two consecutive
    years)''--without federal oversight.\27\ In its proposed rule, CMS
    states, ``We continue to believe that changes below 4 percent are
    generally nominal[.]''\28\ Indeed, CMS states:
    ---------------------------------------------------------------------------
        \27\ Press Release, U.S. Centers for Medicare and Medicaid
    Services, ``CMS Proposes Regulation to Alleviate State Burden'' (May
    22, 2018), https://www.cms.gov/newsroom/press-releases/cms-proposes-
    regulation-alleviate-state-burden. Many states have turned over their
    Medicaid programs to managed care insurers, despite the lack of any
    empirical evidence that this improves care. See, e.g., Brendan
    Williams, ``Leap of Faith: Managed Care and the Privatization of Long-
    Term Care Services,'' 30 Loyola Consumer Law Review 438, 438-459
    (2018). These insurers are intent on maximizing profit to the detriment
    of providers and beneficiaries alike, going so far, for example, as to
    deny wheelchairs to Iowans with disabilities despite physician and
    state orders to provide them. See Jason Clayworth, ``Iowa Medicaid
    Company Forced to Provide Special Wheelchairs to Disabled Clients,''
    Des Moines Register (August 20, 2018), https://www.
    desmoinesregister.com/story/news/investigations/2018/08/20/provide-
    them-wheelchairs-judges-teLL-iowa-medicaid-company/976986002/
    (``[A]ppeals by United Healthcare--each involving a severely disabled
    Iowan who can't walk independently--lingered for more than a year while
    the managed care provider denied doctor and state orders that it pay
    for the specialized equipment.'').
        \28\ Medicaid Program; Methods for Assuring Access to Covered
    Medicaid Services--Exemptions for States With High Managed Care
    Penetration Rates and Rate Reduction Threshold, 83 Fed. Reg. 12696,
    12698 (March 23, 2018) (to be codified at 42 CFR part 447).

            We are requesting comments to determine whether the nominal
            threshold should be higher or lower than 4 percent for a single
            SFY and 6 percent for 2 consecutive SFYs, recognizing that
            state legislatures need sufficient flexibility to manage
            budgets and make adjustments to Medicaid spending that are
            unlikely to result in diminished access to care for program
            beneficiaries.\29\
    ---------------------------------------------------------------------------
        \29\ Id. at 12699. What about the ability of Medicaid providers
    ``to manage budgets''?

        As Professor Andy Schneider of Georgetown University wrote, ``The
    underlying philosophy seems to be `don't ask, don't know.' The federal
    courts will no longer hear provider challenges to low payment rates,
    and now CMS no longer wants information on the effect of payment cuts
    so that it can do its job.''\30\
    ---------------------------------------------------------------------------
        \30\ Andy Schneider, `` `Rolling Back' the Medicaid Access Rule:
    Don't Ask, Don't Know,'' Say Ahhh! (April 2, 2018), https://
    ccf.georgetown.edu/2018/04/02/rolling-back-the-medicaid-access-rule-
    dont-ask-dont-know/.

        Increasingly, those needing assistance with the activities of daily
    living have alternatives to nursing home care, where such alternatives
    can meet their needs. A May 2018 report noted that ``[h]ome and
    community-based services (HCBS) have accounted for almost all Medicaid
    LTSS growth in recent years while institutional service expenditures
    remained close to the FY 2010 amount.''\31\ In 2016, HCBS spending
    accounted for 57 percent of Medicaid long-term care spending.\32\ This
    proportion was as high as 81 percent for Oregon and as low as 27
    percent for Mississippi.\33\
    ---------------------------------------------------------------------------
        \31\ Steve Eiken et al., ``Medicaid Expenditures for Long-Term
    Services and Supports in FY 2016,'' IBM Watson Health (2018), https://
    www.medicaid.gov/medicaid/ltss/downloads/reports-and-evaluations/
    ltssexpenditures2016.pdf.
        \32\ See id. at 6.
        \33\ See id. at 7.

        Yet, the entire continuum of long-term care faces severe
    challenges, even before the coming age wave crashes upon states'
    ---------------------------------------------------------------------------
    budgetary shores.

        It is not as if older Americans are saving enough to avoid
    Medicaid. As one article reported in August 2018, ``The rate at which
    Americans at least 75-years-old filed for bankruptcy more than tripled
    from 1991 to 2016, while filings among those between 65 and 74
    ballooned more than 200 percent, according to a recent study from a
    group of professors working with data from the Consumer Bankruptcy
    Project.''\34\ Further, of those filing for bankruptcy, ``about three
    in five said unmanageable medical expenses played a role.''\35\
    ---------------------------------------------------------------------------
        \34\ Andrew Soergel, ``Bankruptcy Soars Among Elderly as Inequality
    Deepens,'' U.S. News and World Report (August 8, 2018), https://
    www.usnews.com/news/data-mine/articles/2018-08-08/bankruptcy-soars-
    among-elderly-as-inequality-deepens.
        \35\ Tara Siegel Bernard, `` `Too Little Too Late': Bankruptcy
    Booms Among Older Americans,'' New York Times (August 5, 2018), https:/
    /www.nytimes.com/2018/08/05/business/bankruptcy-older-americans.html.

        This trend will only get worse, as Americans lack retirement
    resources. A 2014 Time article noted that ``[b]ecause defined benefit
    plans are more costly for employers than defined contribution plans,
    most of them have--you guessed it--scaled back dramatically or
    eliminated these plans altogether in recent years.''\36\ A 2018
    Atlantic article reported that ``the median savings in a 401(k) plan
    for people between the ages of 55 and 64 is currently just $15,000,
    according to the National Institute on Retirement Security, a
    nonprofit.''\37\ As the article noted, ``the current wave of senior
    poverty could just be the beginning. Two-thirds of Americans don't
    contribute any money to a 40l(k) or other retirement account, according
    to Census Bureau researchers.''\38\ Two writers in the Harvard Business
    Review ``predict the U.S. will soon be facing rates of elder poverty
    unseen since the Great Depression[.]''\39\ Meanwhile, ``[t]here's one
    area where the traditional pension plan is getting new life: as a tax
    dodge for wealthy business owners.''\40\
    ---------------------------------------------------------------------------
        \36\ ``What Is the Difference Between a Defined Benefit Plan and a
    Defined Contribution Plan?'', Time (May 20, 2014), http://time.com/
    money/2791222/difference-between-defined-benefit-plan-and-defined-
    contribution-plan/. Policymakers of both parties have abetted this
    practice. In 2015, in the progressive State of Washington, even a
    Democratic governor browbeat aerospace machinists into giving up
    defined-benefit pensions in their contract negotiations with Boeing.
    See, e.g., Jim Brunner, ``Labor Group Disinvites Inslee Over Boeing
    Tensions,'' Seattle Times (July 20, 2015), https://
    www.seattletimes.com/seattle-news/politics/labor-group-disinvites-
    inslee-over-boeing-tensions/.
        \37\ Alana Semuels, ``This is What Life Without Retirement Savings
    Looks Like,'' The Atlantic (February 22, 2018), https://
    www.theatlantic.com/business/archive/2018/02/pensions-safety-net-
    california/553970/.
        \38\ Id.
        \39\ Teresa Ghilarducci and Tony James, ``Americans Haven't Saved
    Enough for Retirement. What Are We Going to Do About It?'', Harvard
    Business Review (March 28, 2018), https://hbr.org/2018/03/americans-
    havent-saved-enough-for-retirement-what-are-we-going-to-do-about-it.
        \40\ Ben Steverman, ``Rich Business Owners Are Using Pension Plans
    to Stash Money and Get a Tax Break,'' Los Angeles Times (August 15,
    2018), https://www.latimes.com/business/la-fi-pension-tax-deduction-
    20180815-story.html.

        This article addresses funding for the continuum of long-term care
    through nursing homes, assisted living facilities, and in-home care.
    Next, the article offers some thoughts on how to address the
    governmental costs of long-term care and secure a more stable future.

                   II. Long-Term Care's Challenged Continuum

    A. Nursing Homes
        Once the default choice for long-term care, today, nursing homes
    (often called ``skilled nursing facilities'') are generally reserved
    for truly-debilitated Medicaid long-term care beneficiaries; in 2014,
    63.1 percent of nursing home residents needed assistance with at least
    four out of five daily living activities.\41\ In eight states, at least
    half of the residents were 85-years-old or older.\42\ Perhaps more
    amazingly, in 10 states, between 10.2 percent and 13.3 percent of
    residents were 95 years old or older.\43\ Most residents had moderate
    to severe cognitive impairment.\44\ Given that women live longer, they
    comprised the majority of residents--65.6 percent.\45\
    ---------------------------------------------------------------------------
        \41\ U.S. Centers for Medicare and Medicaid Services, Nursing Home
    Data Compendium 2015 Edition 156, https://www.cms.gov/Medicare/
    Provider-EnrollmentandCertification/Certifi
    cationandComplianc/Downloads/nursinghomedatacompendium_508-2015.pdf.
        \42\ Id. at 153.
        \43\ Id. at 154.
        \44\ Id. at 159.
        \45\ Id. at 199. That proportion is highest in Rhode Island (71.6
    percent) and New Hampshire (71.4 percent). Id.

        The Medicare Payment Advisory Commission's annual report to
    Congress found that in 2016, nursing home services were operating only
    at a .7 percent margin, down from 1.6 percent in 2015--or actually in
    the negative (-2.3%) if Medicare payments were excluded.\46\
    Nationally, Medicaid spending on nursing home care only went up .9
    percent in 2016 and .7 percent in 2017.\47\
    ---------------------------------------------------------------------------
        \46\ Medicare Payment Advisory Commission, ``Report to the
    Congress: Medicare Payment Policy'' 207 (2018), http://www.medpac.gov/
    docs/default-source/reports/mar18_medpac_
    entirereport_sec.pdf?sfvrsn=0. See Stephen Campbell, ``U.S. Nursing
    Assistants Employed in Nursing Homes,'' PHI (2018), https://
    phinational.org/resource/u-s-nursing-assistants-employed-in-nursing-
    homes-2018/(91 percent of their front-line caregivers, nursing
    assistants, are also women).
        \47\ U.S. Centers for Medicare and Medicaid Services, ``Nursing
    Care Facilities and Continuing Care Retirement Communities
    Expenditures,'' https://www.cms.gov/Research-Statistics-Data-and-
    Systems/Statistics-Trends-andReports/NationalHealthExpendData/
    NationalHealth
    AccountsHistorical.html (open NHE Tables zip file; then open Table 15).

        How has the federal government responded to this funding crisis? It
    has piled on more regulations; although, as this author once argued,
    ``[s]hort of nuclear reactors, nursing homes may be the most regulated
    industry-down to the water temperature.''\48\ The new federal
    regulations, which one proponent exulted would mean ``[ab]out 1.4
    million people living in nursing homes across the country can now be
    more involved in their care,''\49\ carry a cost that the federal
    government projected is ``about $831 million in the first year and $736
    million per year for subsequent years. While this is a large amount in
    total, the average cost per facility is estimated to be approximately
    $62,900 in the first year and $55,000 in subsequent years.''\50\
    ---------------------------------------------------------------------------
        \48\ Brendan Williams, ``Costly New Medicaid Regs Will Cripple
    Nursing Homes,'' The Hill (September 10, 2015), https://thehill.com/
    blogs/congress-blog/healthcare/253100-costly-new-medicaid-regs-will-
    cripple-nursing-homes.
        \49\ Susan Jaffe, ``New Rules Give Nursing Home Residents More
    Power,'' Washington Post (December 27, 2016), https://
    www.washingtonpost.com/national/health-science/new-rules-give-nursing-
    home-residents-morepower/2016/12/27/c0959f74-c894-11e6-bf4b-
    2c064d32a4bf_story.
    html?utm_term=.a2ffb202b7af.
        \50\ Medicare and Medicaid Programs; Reform of Requirements for
    Long-Term Care Facilities, 81 Fed. Reg. 68688, 68844 (October 4, 2016).

        As to the unfunded cost burden, CMS dismissed it: ``We understand
    that for some facilities Medicaid reimbursement accounts for a large
    portion of its funding, however the specifics regarding Medicaid
    funding is regulated by the State and outside the scope of this
    regulation.''\51\ CMS further stated that ``[a]lthough the overall
    magnitude of cost related to this regulation is economically
    significant, we note that these costs are significantly less than the
    amount of Medicare and Medicaid spending for LTC services.''\52\
    Consider that statement. If the average nursing home in 2016 operated
    at a .7% margin, as the federal government itself reported,\53\ then
    that facility would have needed to generate around $800,000 in income
    just to afford the $55,000 annual cost that the federal government
    projected for its new regulations (possibly an understated amount).
    ---------------------------------------------------------------------------
        \51\ Id. at 68837.
        \52\ Id. at 68844.
        \53\ See Medicare Payment Advisory Commission, supra note 46.

        The scale of injury that the state governments' knowing failure to
    pay Medicaid care costs is easiest to assess with nursing homes, as the
    Balanced Budget Act of 1997 requires states to file detailed cost
    reports that the states will then audit.\54\
    ---------------------------------------------------------------------------
        \54\ Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251
    (1997).

        Since nursing homes are more visible, and subject to exacting
    reporting and survey requirements, they receive bad publicity for
    issues not uncommon elsewhere among the elderly, such as individual
    with dementia using antipsychotic (AP) drugs.\55\ As the American
    Association of Retired Persons has found, ``While efforts to reduce AP
    use among dementia patients living in nursing homes are showing some
    success, less attention is given to older adults living in the
    community.''\56\ This study found that AP rates rose between 2012 and
    2015 among community-only adults with dementia who were enrolled in
    Medicare Advantage (MA) plans.\57\ According to the National
    Partnership to Improve Dementia Care in Nursing Homes, ``AP use among
    nursing home residents declined by approximately 34 percent during this
    time.''\58\ However, news organizations, like The Washington Post,
    undermine these facts with lurid headlines such as: ``Why are nursing
    homes drugging dementia patients without their consent?''\59\
    ---------------------------------------------------------------------------
        \55\ Id.
        \56\ Elizabeth A. Carter, ``Off-Label Antipsychotic Use in Older
    Adults with Dementia: Not Just a Nursing Home Problem,'' AARP (2018),
    https://www.aarp.org/content/dam/aarp/ppi/2018/04/off-label-
    antipsychotic-use-in-older-adults-with-dementia.PDF.
        \57\ Id.
        \58\ Id. at 2.
        \59\ Hannah Flamm, ``Why Are Nursing Homes Drugging Dementia
    Patients Without Their Consent?'', Washington Post (August 10, 2018),
    https://www.washingtonpost.com/outlook/2018/08/10/8baff64a-9a63-
    11e88d5ec6c594024954_story.html?utm_term=.c17529d7c517. This was an
    entirely anecdotal story where the author reports having ``visited more
    than 100 nursing homes across six states'' and extrapolates her
    conclusions from those visits. Id. Yet there are over 15,000 nursing
    homes nationwide. See ``Fast Facts,'' American Health Care Association,
    https://www.ahcancal.org/research_data/Pages/Fast-Facts.aspx (last
    visited August 21, 2018). The federal measure for nursing home
    quality--the five-star system--also has the potential to mislead, as
    consumers will not be aware it grades on a curve. See Brendan Williams,
    ``An Attack on New Hampshire Long-Term Care,'' Concord Monitor (2018)
    (it ``requires no fewer than 20 percent of nursing homes in each state
    receive a one-star rating--and roughly 23.3 percent receive a two-star
    rating; only 10 percent can get the highest rating.''). And because
    these assessments are state-specific, a one-star building in a high-
    quality state might be a five-star in a low quality state. See id.

        Such stories make it challenging to focus attention on the need to
    improve funding. No other healthcare sector is more vulnerable to being
    defined by anecdotes about single bad actors. Those remembering the
    devastation inflicted by Hurricane Irma in 2017 may recall the Florida
    nursing home where residents died from heat-related causes after the
    hurricane knocked out the facility's air conditioning.\60\ However,
    they are unlikely to even know about every other facility that
    weathered the storm due to extraordinary staff preparation. Some who
    remember Hurricane Katrina in 2005 may recall the tragedy of St. Rita's
    Nursing Home, where 35 residents died at the small family-owned
    facility.\61\ But, those who remember the tragedy may not think about
    all of the facilities where staff heroically saved their charges from
    harm in extreme conditions.\62\ By contrast, few members of the public
    know of the alarming federal report to Congress, declaring that nursing
    homes nationally are effectively operating at a loss \63\ because that
    finding appears to have generated no mainstream media coverage.
    ---------------------------------------------------------------------------
        \60\ See, e.g., Tonya Alanez and Erika Pesantes, ``12 Nursing Home
    Deaths in Hollywood Ruled as Homicides,'' Sun Sentinel (November 22,
    2017), https://www.sun-sentinel.com/news/hollywood-nursing-home-
    hurricane-deaths/fl-sb-nursing-home-homicides-official-20171122-
    story.html. There can be no excuse for resident neglect. Even if
    government funding is insufficient to support quality care, a
    responsible provider should close a facility, and not blame external
    forces. See, e.g., Sabriya Rice and Holly K. Hacker, ``Too Many
    Lawsuits or Bad Nursing Home Care? What's Behind Bankruptcy, Injuries,
    Deaths at Texas-Based Chain?'', Dallas Morning News (January 25, 2018),
    https://www.dallasnews.com/business/health-care/2018/01/25/preferred-
    care-texas-based-nursing-home-elder-neglect-injury-death-bankruptcy
    (``A stream of documented complaints from three separate states flows
    back to one nursing home operator: Preferred Care of Plano, which filed
    for bankruptcy in November.'' As an excuse for alleged resident
    neglect, the company ``cited more than 160 `predatory' lawsuits'' and
    stated legal fees constrained ``its ability to spend money on patient
    care.'').
        \61\ They will not know that the owners were acquitted of negligent
    homicide charges because they were not the real culprits. See Michael
    Dirda, ``Book World: James A. Cobb Jr.'s `Flood of Lies: The St. Rita's
    Nursing Home Tragedy','' Washington Post (October 16, 2013), https://
    www.washingtonpost.com/entertainment/books/book-world-james-a-cobb-jrs-
    flood-of-lies-the-st-ritas-nursing-home-tragedy/2013/10/16/08952704-
    31bc-11e3-89ae16e186e117d8_story.html?utm
    _term=.1663aefc5dde (``[T]he storm itself would have resulted in only a
    foot of flooding; the failure of the levees created the tremendous 10-
    foot deluge. And whose fault was that? The Army Corps of Engineers,
    which eventually admitted that the levees were poorly built and
    shoddily maintained.''). That 45 people also died at a New Orleans
    hospital did not initiate an anti-
    hospital clamor. See, e.g., Sheri Fink, ``The Deadly Choices at
    Memorial,'' New York Times (August 25, 2009), https://www.nytimes.com/
    2009/09/13/magazine/13letters-t-THEDEADLY
    CHO_LETTERS.html (``Mortuary workers eventually carried 45 corpses from
    Memorial, more than from any comparable-size hospital in the drowned
    city.''). According to the exhaustive Times article, ``it appears that
    at least 17 patients were injected with morphine or the sedative
    midazolam, or both, after a long-awaited rescue effort was at last
    emptying the hospital.'' Id.
        \62\ In 2018, California nursing homes were forced to evacuate in
    the face of wildfires, as one article related:
           How do you evacuate a nursing home when the deadliest wildfire
    in California history is bearing down and there are 91 men and women to
    move to safety--patients in need of walkers or wheelchairs or confined
    to hospital beds, suffering from dementia, recovering from strokes?
           The fire is coming fast. Help is not.
        Maria L. La Ganga, ``California Fire: If You Stay, You're Dead. How
    a Paradise Nursing Home Evacuated,'' Los Angeles Times (November 17,
    2018), https://www.latimes.com/local/califomia/la-me-ln-nursing-home-
    fire-evac-20181117-story.html.
        \63\ See Medicare Payment Advisory Commission, supra note 46.

        While critics challenge the nursing home sector nationally, it is
    better to get old and infirm in some states rather than in others. In
    Oklahoma, for example, one nursing home provider noted the
    reimbursement rate was $146 a day, or $134 if a provider tax was
    subtracted: ``Clearly, $134 a day does not come close to covering the
    cost of round-the-clock room and board, let alone meeting payroll
    requirements for nursing staff. By comparison, Oklahoma state
    legislators receive a daily per-diem $156.50 when they are in
    session.''\64\ Whereas, the 2018 ``basic'' nursing home payment rate in
    Oregon, also the nation's leader in funding HCBS, was $312.87 per
    patient day.\65\
    ---------------------------------------------------------------------------
        \64\ Tom Coble, ``A Huge Fiscal Cliff Looms for Skilled Nursing,''
    McKnight's Long-Term Care News (August 17, 2018), https://
    www.mcknights.com/guest-columns/a-huge-fiscal-cliff-looms-for-skilled-
    nursing/article/788893/. And maybe you get what you pay for. Oklahoma
    had among the nation's lowest-ranked nursing home care quality,
    according to one study. See Corey Jones, ``AARP Report Provides
    Indicators of How Oklahoma Nursing Homes Are `Failing to Provide Basic
    Levels of Care','' Tulsa World (September 4, 2018) (The head of the
    Oklahoma Association of Health Care Providers pointed out that ``the
    reimbursement rate of $144.67 a resident per day in Fiscal Year 2017
    was below the audited cost of $165.38, which was established by the
    Oklahoma Health Care Authority.''). The payment shortfall, cited in the
    Tulsa World article, bears inexorably upon staff compensation,
    recruitment, and retention.
        \65\ See Letter from Oregon Department of Human Services to All
    Oregon Nursing Facilities (July 10, 2018), https://www.oregon.gov/DHS/
    PROVIDERS-PARTNERS/LICENSING/AdminAlerts/
    1.%20NF%20Rate%20Letter%202018%20-%20Supplemental.pdf.

        Underfunding in Oklahoma caused the 2018 closure of the Pawhuska
    Nursing Home, which had been ``open for more than 60 years,''
    displacing residents and staff from their rural community.\66\
    Oklahoma's nursing homes had reportedly ``lost more than $93 million in
    state and federal appropriations since 2010.''\67\ During that time,
    Governor Mary Fallin responded to state budget woes by declaring an
    ``Oilfield Prayer Day.''\68\ Cities in Oklahoma were looking to take
    over nursing homes as a gambit to increase facility reimbursement, as
    government-run facilities can draw down more federal reimbursement.\69\
    In Indiana, ``A wrinkle in Medicaid's complex funding formula gives
    Indiana nursing homes owned or leased by city or county governments a
    funding boost of 30 percent per Medicaid resident. The money is sent to
    the hospitals, which negotiate with the nursing homes over how to divvy
    it up.''\70\ One Pulaski County hospital alone acquired ten nursing
    homes statewide.\71\
    ---------------------------------------------------------------------------
        \66\ Jessica Remer, ``Pawhuska Nursing Home Shuttering Due to State
    Budget Cuts,'' KTUL.
    COM (January 25, 2018), https://ktul.com/news/local/pawhuska-nursing-
    home-shuttering-due-to-state-budget-cuts.
        \67\ Id.
        \68\ Derek Hawkins, ``Oklahoma Governor Mary Fallin Says All
    Faiths, Not Just Christians, Should Observe `Oilfield Prayer Day',''
    Washington Post (Oct. 11, 2016), https://www.washingtonpost.com/news/
    morning-mix/wp/2016/10/11/okla-gov-mary-fallin-says-all-faiths-not-
    just-christians-should-observe-oilfield-prayer-day/
    ?utm_term=.41926d0ddcda.
        \69\ See Paul Monies, ``Cities Become Owners of Nursing Homes,
    Expecting Windfall from Feds,'' Oklahoma Watch (September 16, 2018),
    https://oklahomawatch.org/2018/09/16/cities-become-owners-of-nursing-
    homes-expecting-windfall-from-feds/ (One city, with less than 6,300
    residents, now owns 28 nursing homes around the state, and ``[i]n all,
    licenses for 46 nursing homes are now owned by cities or towns'').
    Whether the federal government would approve this was a gamble.
        \70\ Phil Galewitz, ``Chasing Millions in Medicaid Dollars,
    Hospitals Buy up Nursing Homes,'' Washington Post (October 13, 2017),
    https://www.washingtonpost.com/business/economy/chasing-millions-in-
    medicaid-dollars-hospitals-buy-up-nursing-homes/2017/10/13/2be823ca-
    a943-11e7-92d1-58c702d2d975_story.html. As these sorts of funding
    schemes are not replicable everywhere, they are just further evidence
    of the need for a federal fix to long-term care finances.
        \71\ Id.

        All long-term care is subject to the vagaries of state budget
    decisions.\72\ In Montana, one 2018 editorial noted that: ``already
    rock bottom Medicaid reimbursement rates were lowered even more,
    leaving providers throughout the state in the impossible position of
    either cutting their Medicaid clients or continuing to serve them at a
    loss.''\73\
    ---------------------------------------------------------------------------
        \72\ See, e.g., Brendan Williams, ``Do Right by All Medicaid Care
    Providers and Their Vulnerable Clients,'' Nashua Telegraph (January 10,
    2019) (``If New Hampshire's nursing homes are to continue to be a vital
    safety net, the 17-cents-a-day Medicaid funding increase they received
    January 1st, for the over-4,000 residents whose care is state-funded,
    is not going to sustain them.'').
        \73\ Editorial, ``No Way to Run a State Budget,'' The Missoulian
    (August 5, 2018), https://missoulian.com/opinion/editorial/no-way-to-
    run-a-state-budget/article_8916f59e-ab44-5137-bf5d-f2096d476b88.html.

        Massachusetts is commonly known as a progressive state, yet one
    Massachusetts nursing home provider wrote a column noting that
    ``financial data filed with the state's Center for Health Information
    and Analysis shows that all types of nursing facilities--family
    operated, not-for-profit, regional, and nationally owned--are teetering
    on the edge. How else would you describe a sector with more facilities
    operating on negative rather than positive margins?''\74\ This nursing
    home provider's family has operated facilities in Massachusetts for 65
    years.\75\
    ---------------------------------------------------------------------------
        \74\ Matt Salmon, ``Nursing Home Sector on Verge of Collapse,''
    CommonWealth (July 17, 2018), https://commonwealthmagazine.org/opinion/
    nursing-home-sector-on-verge-of-collapse/; see also Press Release,
    Massachusetts Senior Care Association, ``Lawmakers Told Many Skilled
    Nursing Facilities on the Verge of Bankruptcy and Possible Closure''
    (September 11, 2017), https://www.maseniorcare.org/about/newsroom/
    lawmakers-told-many-skilled-nursing-facilities-verge-bankruptcy-and-
    possible-closure (``A recent analysis of 2016 state cost report data,
    filed with the Center for Health Information and Analysis (CHIA) shows
    three quarters of the state's nursing facilities have a combined
    negative margin of 4.4%, an indication that the sector is experiencing
    an unprecedented financial crisis.'').
        \75\ See Salmon, supra note 75.

        In its 2017 session, the Texas Legislature failed to adopt a common
    mechanism to improve federal Medicaid long-term care funding--a so-
    called ``provider tax.''\76\ As one newspaper reported, ``[t]he fee
    would raise an estimated $360 million over 2 years, going a long way
    toward bridging a gap in funding. The Medicaid match would increase
    that to an estimated $800 million.''\77\ In a 2017 column, the
    President of the Texas Health Care Association (the trade group
    representing Medicaid-contracting nursing homes) stated, ``According to
    an analysis of the most recent available Medicaid cost report database,
    the average reportable cost per resident is $157 a day. The average
    reimbursement from the state for these same residents is just
    $138.''\78\
    ---------------------------------------------------------------------------
        \76\ Every state but Alaska has at least one provider tax. See
    ``States and Medicaid Provider Taxes or Fees,'' Kaiser Family
    Foundation. (June 27, 2017), https://www.kff.org/medicaid/fact-sheet/
    states-and-medicaid-provider-taxes-or-fees/ (``Provider taxes are
    imposed by states on health care services where the burden of the tax
    falls mostly on providers, such as a tax on inpatient hospital services
    or nursing facility beds. Provider taxes have become an integral source
    of financing for Medicaid.'').
        \77\ Peggy Fikac, ``Nursing Homes Joust Over Fee Proposal: `Granny
    Tax' or Funding Lifeline?,'' San Antonio Express-News (March 27, 2017),
    https://www.mysanantonio.com/news/local/article/Nursing-homes-joust-
    over-fee-proposal-Granny-11027904.php.
        \78\ Kevin Warren, ``Texas Nursing Homes Are at the Tipping
    Point,'' Texas Tribune (January 5, 2017), https://www.tribtalk.org/
    2017/01/05/texas-nursing-homes-are-at-the-tipping-point/.

        Yet, Empower Texas, a conservative organization, opposed the
    Republican-
    sponsored bill, scoring it as anti-taxpayer and describing it as
    ``[c]reating new hidden fee[s] on residents of nursing home
    facilities.''\79\ It passed in the Republican House, 96-43, before
    dying in the Senate.\80\
    ---------------------------------------------------------------------------
        \79\ See HB 2766: Creating New Hidden Fee on Residents of Nursing
    Home Facilities, EmpowerTexans, https://index.empowertexans.com/votes/
    2017-house-vote-rv1141 (last visited August 20, 2018).
        \80\ See id.

        After the Texas Legislature failed to improve nursing home rates,
    Genesis HealthCare, one of the nation's largest nursing home providers,
    announced it would sell all 23 of its Texas facilities to a real estate
    investment trust (REIT).\81\ In 2018, the largest nursing home provider
    in Texas, with over one hundred facilities, declared bankruptcy.\82\
    ---------------------------------------------------------------------------
        \81\ John George, ``Genesis Selling Off 2 Dozen Skilled Nursing
    Facilities in Texas,'' Philadelphia Business Journal (2018).
        \82\ See Holly K. Hacker and Sue Ambrose, ``Texas' Largest Nursing
    Home Operator Files for Bankruptcy, Sparking Concerns About Patients,
    Jobs,'' Dallas Morning News (December 5, 2018), https://
    www.dallasnews.com/business/business/2018/12/05/texas-largest-nursing-
    home
    -operatorfiles-bankruptcy-sparking-concems-patients-jobs.

        REITs are common owners of nursing facilities, though not the state
    bed licenses, and the rent pressures that the care providers face do
    not always operate in the best interests of care.\83\ This creates
    fights between the facility operators and landlords.\84\ Genesis,
    operating more than 450 facilities nationwide, had threatened
    bankruptcy before announcing, in February 2018, that it ``negotiated
    $54 million worth of annual lease reductions that are effective
    retroactively to January 1st. The move will cut the company's rent fees
    by 11 percent, when compared to 2017.''\85\ Also, in 2018, a joint
    venture saved HCR ManorCare, which operated around 500 long-term care
    facilities nationwide, from Chapter 11 bankruptcy by purchasing both
    ManorCare and the REIT that had owned its facilities.\86\ As one
    article noted, ``Former ManorCare landlord Quality Care Properties had
    been locked in an extended battle with its tenant over missed rent
    payments, which eventually sent ManorCare into Chapter 11 bankruptcy
    protection.''\87\ Illustrating the nursing home sector's
    precariousness, the acquiring company saw its bond rating downgraded
    significantly.\88\
    ---------------------------------------------------------------------------
        \83\ See Peter Whoriskey and Dan Keating, ``Overdoses, Bedsores,
    Broken Bones: What Happened When a Private-Equity Firm Sought to Care
    for Society's Most Vulnerable,'' Washington Post (November 25, 2018)
    (After selling its properties to a real estate investment company,
    ``HCR ManorCare had to make massive rent payments to its new landlord,
    and these, according to the company's accounting, raised the company's
    long-term financial obligations to $6 billion.'').
        \84\ See Alex Spanko, ``REITs Adopt Novel Approaches to Stay
    Relevant in Skilled Nursing,'' Skilled Nursing News (June 3, 2018)
    (noting that ``publicly traded REITs also played some role in the
    difficulties facing individual skilled nursing operators: In a world of
    changing reimbursements, staffing pressures, and regulatory scrutiny,
    the skilled nursing model has become increasingly difficult to
    reconcile with annual rent escalators and quarterly scrutiny from
    shareholders.'').
        \85\ George, supra note 82.
        \86\ Jon Chavez, ``ProMedica, Welltower, Finalize Purchase of HCR
    ManorCare, Toledo Blade (July 27, 2018), https://www.toledoblade.com/
    business/2018/07/26/ProMedica-Welltower-finalize-purchase-of-HCR-
    ManorCare/stories/20180726203.
        \87\ Alex Spanko, ``S&P Downgrades ProMedica in Wake of ManorCare-
    Welltower Deal,'' Skilled Nursing News (August 15, 2018), https://
    skillednursingnews.com/2018/08/sp-downgrades-promedica-wake-manorcare-
    welltower-deal/. A threat to simply turn over the keys can be an
    effective negotiating tactic, as a REIT is unlikely to have any more
    success turning a profit than its provider tenant, and would not want
    empty buildings in its portfolio. That is effectively what HCR
    ManorCare did. See Tara Bannow, ``HCR ManorCare Files for Bankruptcy,
    Proposes Ownership Transfer,'' Modern Healthcare (March 5, 2018),
    https://www.modernhealthcare.com/article/20180305/NEWS/180309949
    (``Struggling nursing home provider HCR ManorCare's parent company
    filed for bankruptcy Sunday, and plans to shift ownership and
    leadership to its landlord, the real estate investment trust Quality
    Care Properties.'').
        \88\ See Spanko, supra note 88 (``The Toledo, Ohio-based hospital
    and skilled nursing chain now sits at BBB, down from the A+ rating
    ProMedica had maintained ahead of its blockbuster deal to acquire
    struggling nursing chain HCR ManorCare.''). More consolidation under
    REIT ownership is likely to occur under a new Medicare payment model.
    See Maggie Flynn, ``PDPM Piles the Pressure on Smaller Skilled Nursing
    Operators,'' Skilled Nursing News (August 27, 2018), https://
    skillednursingnews.com/2018/08/pdpm-piles-pressure-smaller-skilled-
    nursing-operators/ (Some are predicting ``a wave of skilled nursing
    sales by smaller, mom-and-pop style operators.''). Consolidation can
    bring efficiencies of scale. It can, however, also bring operators who
    are not proficient at care, with systemic, as opposed to individual,
    facility failures. See, e.g., Whoriskey and Keating, supra note 84
    (``Under the ownership of the Carlyle Group, one of the richest
    private-equity firms in the world, the ManorCare nursing-home chain
    struggled financially until it filed for bankruptcy in March.''); Kay
    Lazar, ``Troubled Massachusetts Nursing Home Chain in `Dire' Straits,''
    Boston Globe (September 1, 2018), https://www.bostonglobe.com/metro/
    2018/08/31/troubled-massachusetts-nursing-home-chain-dire-straits-
    court-monitor-warns
    /WtywMujnoo7Fy2qYdlvdxL/story.html (``With the company's finances
    deteriorating, eight Synergy facilities have been placed into the hands
    of a court-appointed receiver, which is trying to untangle a labyrinth
    of unpaid bills for everything from medicine and food to cleaning
    services, court records show.'').

        In 2017, Kindred Healthcare--once one of the nation's largest
    nursing home companies--sold all of its nursing homes.\89\ Four that
    subsequently closed were located in Massachusetts.\90\
    ---------------------------------------------------------------------------
        \89\ See, e.g., Marty Stempniak, ``Kindred Shareholders Approve
    Sale to Humana,'' McKnight's Long-Term Care News (April 6, 2018),
    https://www.mcknights.com/news/kindred-shareholders-approve-sale-to-
    humana/.
        \90\ Shira Schoenberg, ``Kindred Healthcare, Heritage Nursing to
    Collectively Close Five Massachusetts Nursing Homes, Leaving 600 to
    Find New Place to Live,'' MassLive (December 5, 2017), https://
    www.masslive.com/politics/index.ssf/2017/12/
    five_massachusetts_nursing_hom.html.

        As was true for the small Pawhuska Nursing Home in rural Oklahoma,
    state funding pressures have not been limited to large, profit-oriented
    chains. In Illinois, for example, a 113-year-old, 98-bed nursing home
    closed in 2018 due to state inefficiency in processing Medicaid
    payments.\91\ As the State Journal-Register reported:
    ---------------------------------------------------------------------------
        \91\ See Dean Olsen, ``Medicaid Processing Backlog a Fatal Blow for
    Girard Nursing Home,'' State Journal-Register (July 9, 2018), https://
    www.sj-r.com/news/20180706/medicaid-processing-backlog-fatal-blow-for-
    girard-nursing-home.

            For Pleasant Hill, a not-for-profit facility associated with
            the Church of the Brethren, waiting on $2.3 million in Medicaid
            payments for residents whose applications remain pending--some
            as long as two to 3 years and some involving people who have
            died during the wait--has become too much of a burden.\92\
    ---------------------------------------------------------------------------
        \92\ Id.

        The delayed payments amounted to ``44 percent of the nursing home's
    annual spending.''\93\
    ---------------------------------------------------------------------------
        \93\ Id.

        Citing inadequate Medicaid payments that caused it to lose over $1
    million annually, a 45-year-old nonprofit nursing home in New Hampshire
    closed its doors in 2016.\94\ This is particularly troubling
    considering New Hampshire has the nation's second-oldest median
    age.\95\ In 2018, the president and CEO of Catholic Charities New
    Hampshire wrote that ``our 800 nursing home employees serve
    approximately 1,000 residents; of those, 60 to 78 percent are on
    Medicaid. Historically, we operate on a 1.5 to 2.5 percent margin. But
    last year we had a negative margin.''\96\
    ---------------------------------------------------------------------------
        \94\ John P. Gregg, ``Clough Center To Close,'' Valley News (June
    16, 2016), https://www.vnews.com/New-London-Hospital-to-Close-Clough-
    Nursing-Home-2888282.
        \95\ See Press Release, U.S. Census Bureau, The Nation's Older
    Population Is Still Growing, Census Bureau Reports (June 22, 2017)
    (noting that, nationally, ``Residents age 65 and over grew from 35.0
    million in 2000, to 49.2 million in 2016, accounting for 12.4 percent
    and 15.2 percent of the total population, respectively.'').
        \96\ Thomas E. Blonski, ``A Troubling Future for New Hampshire's
    Elderly?'', Concord Monitor (March 1, 2018), https://
    www.concordmonitor.com/A-troubling-future-for-NH-elderly-15824078 (even
    charities cannot long afford to operate at a loss.).

        Nursing home providers in seemingly-progressive states are not
    immune from funding pressures. After winning a $24 million Medicaid
    recovery lawsuit, nursing homes in Rhode Island were threatened with
    the retribution of an 8.5 percent state budget cut in 2018, so they
    settled the lawsuit and instead agreed to ``a 1.5 percent increase on
    July 1, and another 1 percent in October.''\97\
    ---------------------------------------------------------------------------
        \97\ Katherine Gregg, ``State, Nursing Homes Reach Potential
    Settlement in Medicaid Lawsuit,'' Providence Journal (June 12, 2018),
    https://www.providencejournal.com/news/20180612/state-nursing-homes-
    reach-potential-settlement-in-medicaid-lawsuit.

        A 2017 RAND Corporation study found that ``[a]mong persons age 57
    to 61, 56 percent will stay in a nursing home at least one night during
    their lifetime.''\98\ Michael Hurd, the study's lead author, noted that
    due to the unviability of long-term care insurance, ``people should be
    prepared to use the societally provided insurance, which is
    Medicaid.''\99\
    ---------------------------------------------------------------------------
        \98\ Press Release, RAND Corp., ``Average American's Risk of
    Needing Nursing Home Care is Higher Than Previously Estimated'' (August
    28, 2017), https://www.rand.org/news/press/2017/08/28/index1.html.
        \99\ Id.

        But, will the facilities be there for them? According to one 2018
    report, ``The 31 largest metropolitan markets have 13,586 fewer nursing
    home beds now than in late 2005.''\100\ Some states are trying to do
    better. In Maine and Massachusetts, in 2018, lawmakers voted to
    dramatically increase nursing home funding to afford better wages for
    caregivers.\101\ In Maine, legislators even overcame a gubernatorial
    veto.\102\ Following her 2018 re-election, Oregon Governor Kate Brown,
    a Democrat, proposed a ten percent Medicaid funding increase for long-
    term care facilities.\103\ These are very positive efforts. However,
    they not only accentuate the disparate treatment of nursing home care
    by states, but they may not be sustainable in the event of an economic
    downturn--when Medicaid is often on the chopping block. In other words,
    a federal funding strategy is still needed.
    ---------------------------------------------------------------------------
        \100\ Paula Span, ``In the Nursing Home, Empty Beds and Quiet
    Halls,'' New York Times (September 28, 2018), https://www.nytimes.com/
    2018/09/28/health/nursing-homes-occupancy
    .html. As the story notes:
           For more than 40 years, Morningside Ministries operated a
    nursing home in San Antonio, caring for as many as 113 elderly
    residents. The facility, called Chandler Estate, added a small
    independent living building in the 1980s and an even smaller assisted
    living center in the 1990s, all on the same four-acre campus.The whole
    complex stands empty now.
        Id.
        \101\ See Brendan Williams, ``NH Needs to Invest in Care for
    Seniors,'' Portsmouth Herald (July 11, 2018), https://
    www.seacoastonline.com/news/20180711/nh-needs-to-invest-in-care-for-
    seniors. In Massachusetts, the Legislature adopted a budget specifying
    that ``not less than $38,300,000 shall be expended to fund a rate add-
    on for wages, shift differentials, bonuses, benefits and related
    employee costs paid to direct care staff of nursing homes; provided
    further, that MassHealth regulations for this rate add-on shall
    prioritize spending on hourly wage increases, shift differentials or
    bonuses paid to certified nurses' aides and housekeeping, laundry,
    dietary and activities staff[.]'' See 2018 Mass. Acts ch. 154
    Sec. 4000-0641.
        \102\ See Mal Leary, ``LePage Vetoes More than 20 Bills, Including
    Funding for Prison and Direct Care Workers,'' Maine Pubic (July 2,
    2018), http://www.mainepublic.org/post/lepage-vetoes-more-20-bills-
    including-funding-prison-and-direct-care-workers. The Maine legislators
    approved provided one-time additional funding for wage increases for
    workers in long-term care facilities of ``[a]n amount equal to 10% of
    allowable wages and associated benefits and taxes. . . .'' 2018 Me.
    Laws ch. 460 Sec. B-3(1), http://www.mainelegislature.org/legis/bills/
    getPDF.asp?paper=HP0653&item=3&snum=128. Going forward, the law also
    provides ``an inflation adjustment for a cost-of-living percentage
    change in nursing facility reimbursement each year in accordance with
    the United States Department of Labor, Bureau of Labor Statistics
    Consumer Price Index medical care services index.'' Id. at Sec. B-1.
    And yet even Maine, with the nation's oldest population, saw a record
    number of nursing home closures in 2018. See Jackie Farwell, ``Record
    Number of Maine Nursing Homes Closed This Year, Displacing Hundreds,''
    Bangor Daily News (December 12, 2018), https://bangordailynews.com/
    2018/12/12/mainefocus/record-number-of-maine-nursing-homes-closed-this-
    year-displacing-hundreds/ (``The personal toll of the closures on the
    elderly and their families is acute, said Trish Thorsen, program
    manager for the Maine Long-Term Care Ombudsman Program, which advocates
    for nursing home residents.''). Rural facilities are particularly
    vulnerable. See id. In South Dakota, it was reported in December 2018
    that ``[t]he health and stability of some of South Dakota's most
    vulnerable residents are being threatened by a wave of closures of
    long-term care facilities across the state.'' Bart Pfankuch, ``Wave of
    Nursing Home Closures Hitting Small South Dakota Communities,'' South
    Dakota News Watch (December 12, 2018), https://www.sdnewswatch.org/
    stories/wave-of-nursing-home-closures-hitting-small-south-dakota-
    communities/ (``Nursing homes are sometimes the biggest employer in
    small towns and employees are typically laid off upon closure.
    Residents of rural nursing homes tend to be locals and uprooting them
    from their long-term homes is physically and emotionally traumatic for
    the patients and their loved ones.'').
        \103\ See Hillary Borrud, ``Top Takeaways from Governor Kate
    Brown's $23.6 Billion Budget Proposal,'' Oregonian (November 29, 2018),
    https://www.oregonlive.com/politics/2018/11/top-takeaways-from-gov-
    kate-browns-236-billion-budget-proposal.html.
    ---------------------------------------------------------------------------
    B. Assisted Living Facilities
        According to the National Center for Assisted Living, ``There are
    30,200 assisted living communities with 1 million licensed beds in the
    United States today.''\104\
    ---------------------------------------------------------------------------
        \104\ See National Center for Assisted Living, https://
    www.ahcancal.org/ncal/facts/Pages/Communities.aspx (last visited March
    4, 2019).

        Oregon was the first state, in 1981, to apply for a federal waiver
    to serve Medicaid beneficiaries in long-term care settings other than
    nursing homes, and it is credited with having the first assisted living
    facility.\105\ An Oregonian article identified the ``trade-offs'' of
    assisted living: ``It's less regulated than nursing homes, which lets
    residents be more independent about where they move and what they do.
    But there's also less safety regulation and checks that people are
    having good health outcomes.''\106\
    ---------------------------------------------------------------------------
        \105\ See Lynne Terry, ``Winners and Losers as Oregon's Population
    Ages,'' Oregon Business (July 9, 2018), https://www.oregonbusiness.com/
    article/real-estate/item/18395-boomer-s-future.
        \106\ See Andy Dworkin, ``Oregon Among National Leaders in Number
    of Assisted Living Facilities,'' Oregonian (January 5, 2010), https://
    www.oregonlive.com/news/index.ssf/2010/01/
    oregon_among_national_leaders.html.

        The growth of the sector can lead to challenges. In 2014, Brookdale
    Senior Living acquired Emeritus Corporation for $2.8 billion, expanding
    its footprint to 1,100 assisted living facilities.\107\ In August 2018,
    amidst news that Brookdale was selling 27 facilities, its stock had
    reportedly fallen to $8.19 per share from over $38 per share in
    2015.\108\ Brookdale was not reported at risk of insolvency,\109\ but
    its challenges as a sector leader show that in long-term care, the
    expression ``[i]f you build it, he will come''\110\ is not a guaranteed
    business proposition.\111\
    ---------------------------------------------------------------------------
        \107\ Eleanor Kennedy, ``$2.8-billion Brookdale-Emeritus Merger
    Closes,'' Nashville Business Journal (July 31, 2014), https://
    www.bizjournals.com/nashville/blog/health-care/2014/07/2-8-billion-
    brookdale-emeritus-merger-closes.html.
        \108\ John Stinnett, ``Brookdale's CEO on What's Fueling the Sale
    of 28 Facilities,'' Nashville Business Journal (August 20, 2018),
    https://www.bizjournals.com/nashville/news/2018/08/20/brookdales-ceo-
    on-whats-fueling-the-sale-of-28.html.
        \109\ Instead, some investors have pressed the company to sell some
    of its valuable real estate. See Joel Stinnett, ``Activist Investor
    Renews Criticism of Brookdale Senior Living,'' Nashville Business
    Journal (August 10, 2018), https://www.bizjournals.com/nashville/news/
    2018/08/10/activist-investor-renews-criticism-of-brookdale.html.
        \110\ See ``Field of Dreams Quotes,'' IMDB, https://www.imdb.com/
    title/tt0097351/quotes (last visited Jan. 25, 2018).
        \111\ Building booms can lead to overcapacity bubbles, which is why
    nursing home providers tend to favor certificate of need and bed
    moratorium laws. In New Hampshire, one assisted living facility
    declared bankruptcy with a ``$16.6 million debt and losing money
    daily.'' See Bob Sanders, ``Financial Woes Threaten Seacoast Assisted
    Living Facility,'' New Hampshire Business Review (May 2, 2017), https:/
    /www.nhbr.com/May-12-2017/Financial-woes-threaten-Seacoast-assisted-
    living-facility/.

        Unlike nursing homes, assisted living facilities may find it
    possible, even preferable, to operate without Medicaid contracts.\112\
    Since this does not allow residents to age-in-place upon spending down
    their resources, it can lead to some troubling stories:
    ---------------------------------------------------------------------------
        \112\ In Arkansas, for example, assisted living facilities faced a
    possible 22% Medicaid cut going into 2019. See Andy Davis, ``Proposal
    to Cut Aid for Elderly, Disabled Pulled; State Officials Will Study
    Plan for 8,800 ARChoices Clients,'' Arkansas Democrat Gazette (December
    19, 2018), https://www.arkansasonline.com/news/2018/dec/19/proposal-to-
    cut-aid-for-elderly-disable-1/.

            Assisted Living Concepts Inc. drew attention within its first
            year as a public company when it began forcing people such as
            Gladys Dixon, nearly blind and a few days shy of 103 years old,
            to leave its assisted living centers.
            Dixon was among those whose care was paid for by Medicaid,
            which pays much lower rates than other residents pay. At the
            time, Assisted Living Concepts, which went public in 2006,
            planned to increase profits by accepting only so-called
            private-pay residents.\113\
    ---------------------------------------------------------------------------
        \113\ Guy Boulton, ``Assisted Living Concepts Purchase Completed,''
    Milwaukee-Wisconsin Journal Sentinel (July 13, 2013), http://
    archive.jsonline.com/business/assisted-living-concepts-purchase-
    completed-b9953271z1-215347351.html.

        Yet there can be no requirement that facilities take residents that
    cause them to operate at a loss. In New York City, for example, the
    Medicaid assisted living payment can be as low as $75.85 per day.\114\
    ---------------------------------------------------------------------------
        \114\ See ``January 1, 2018 Assisted Living Program Minimum Wage
    Rate Schedule,'' New York Department of Health (April 2018), https://
    www.health.ny.gov/facilities/long_term_care/reimbursement/alp/2018-01-
    01_alp_min_wage_rates.htm (Schedule for ``PA = REDUCED PHYSICAL
    FUNCTIONING A''). A similarly-classed resident's care would only be
    worth $44.33 a day to the state in upstate rural New York. Id.

        In those cases where there are Medicaid residents, there has been
    publicity as to what the federal government gets in exchange for
    Medicaid payments to assisted living facilities, given the patchwork of
    state regulations and laws.\115\ In 2018, The New York Times reported,
    ``Federal investigators say they have found huge gaps in the regulation
    of assisted living facilities, a shortfall that they say has
    potentially jeopardized the care of hundreds of thousands of people
    served by the booming industry.''\116\ The article also noted that
    ``[s]tates reported spending more than $10 billion a year in federal
    and state funds for assisted living services for more than 330,000
    Medicaid beneficiaries, an average of more than $30,000 a person, the
    Government Accountability Office found in a survey of states.''\117\
    ---------------------------------------------------------------------------
        \115\ Robert Pear, ``U.S. Pays Billions for `Assisted Living,' but
    What Does It Get?'', New York Times (February 3, 2018), https://
    www.nytimes.com/2018/02/03/us/politics/assisted-living-gaps.html.
        \116\ Id.
        \117\ Id.

        Yet there was far less to that General Accountability Office (GAO)
    report than media accounts, as it was based upon 2014 data and involved
    an admittedly ``nongeneralizable sample of three states: Georgia,
    Nebraska, and Wisconsin.''\118\ In 2014, a new CMS rule was adopted,
    requiring greater reporting by states.\119\ CMS needs to enforce that
    expectation. The GAO found that even accessing Medicaid assisted living
    was a challenge, reporting common factors that states identified:
    ---------------------------------------------------------------------------
        \118\ See U.S. Government Accountability Office, GAO-18-179,
    ``Medicaid Assisted Living Services: Improved Federal Oversight of
    Beneficiary Health and Welfare is Needed'' 5 (2018).
        \119\ See Medicaid Program; State Plan Home and Community-Based
    Services, 5-Year Period for Waivers, Provider Payment Reassignment, and
    Home and Community-Based Setting Requirements for Community First
    Choice and Home and Community-Based Services (HCBS) Waivers, 79 Fed.
    Reg. 2947, 2969 (January 16, 2014) (``While we are not changing the
    existing quality assurances through this rule, we clarified that states
    must continue to assure health and welfare of all participants when
    target groups are combined under one waiver, and assure that they have
    the mechanisms in place to demonstrate compliance with that
    assurance.'').

            (1) [T]he number of assisted living facilities willing to
            accept Medicaid beneficiaries (13 states or 27 percent of the
    ---------------------------------------------------------------------------
            48 states);

            (2) program enrollment caps (9 states or 19 percent of the 48
            states);

            (3) beneficiaries' inability to pay for assisted living
            facility room and board (9 states or 19 percent of the 48
            states), which Medicaid typically does not cover; and

            (4) low rates the state Medicaid program paid assisted living
            facilities (8 states or 17 percent of the 48 states).\120\
    ---------------------------------------------------------------------------
        \120\ U.S. Government Accountability Office, supra note 122, at 40.

        Given the cost of the federal regulatory regime that applies to
    nursing homes, assisted living should remain state-regulated. Too often
    in long-term care, the impetus for regulation is driven by the outlier
    as opposed to an empirical basis.\121\ States are getting the benefit
    of their bargain, such as New Hampshire, where 24/7 care, meals, and
    housing in an assisted living facility cost the state a daily Medicaid
    rate of just $50.96.\122\ That is less than the cost of a cheap
    motel.\123\
    ---------------------------------------------------------------------------
        \121\ The prevalence of staph infections, like methicillin-
    resistant Staphylococcus aureus (MRSA), have not led to a strict,
    overarching federal regulatory regime for hospitals--just Medicare
    reimbursement penalties. See, e.g., Anthony Sannazzaro, ``MRSA: The
    Superbug Poised to Cost Hospitals Super Sums,'' Infection Control Today
    (December 29, 2015), https://www.infectioncontroltoday.com/bacterial/
    mrsa-superbug-poised-cost-hospitals-super-sums.
        \122\ See Williams, supra note 102 (``At least one Portsmouth dog-
    sitting service charges more overnight than the $50.96 the state is
    willing to reimburse for assisted living care.'').
        \123\ Id.

        Moreover, the scope of care that assisted living facilities can
    provide varies widely by state. In Washington, where the licensure of
    such facilities dates to 1957, facilities may not admit, or retain,
    ``any aged person requiring nursing or medical care of a type provided
    by'' a nursing home, except when registered nurses are available, and
    upon a doctor's order that a supervised medication service is needed,
    ---------------------------------------------------------------------------
    it may be provided. Whereas, under California law:

            The Legislature hereby finds and declares that in order to
            protect the health and safety of elders in care at residential
            care facilities for the elderly, appropriate oversight and
            regulation of residential care facilities for the elderly
            requires regular, periodic inspections of these facilities in
            addition to investigations in response to complaints. It is the
            intent of the Legislature to increase the frequency of
            unannounced inspections.\124\
    ---------------------------------------------------------------------------
        \124\ California Health and Safety Code Sec. 1569.331 (2018).

        In Texas, ``inspection and survey personnel will perform
    inspections and surveys, follow-up visits, complaint investigations,
    investigations of abuse or neglect, and other contact visits from time
    to time as they deem appropriate or as required for carrying out the
    responsibilities of licensing.''\125\
    ---------------------------------------------------------------------------
        \125\ Texas Administrative Code Sec. 92.81 (2018).

        These types of oversight standards should be adopted in all states.
    Yet oversight alone will not be enough to make assisted living a
    reliable option for Medicaid beneficiaries--only funding can accomplish
    this goal. Policymakers who are only focused on nursing home care and
    home care may overlook assisted living, which provides a social
    ---------------------------------------------------------------------------
    atmosphere in a residential setting.

        Some states may have more exotic, small facility-based care options
    that are beyond the reach of this article. In Washington State, adult
    family homes have been described as ``a growing, lightly regulated
    housing option for the state's aged and frail. DSHS licenses
    residential homeowners to rent out bedrooms and provide care for up to
    six residents.''\126\ In 2010, there was a move to increase their
    licensure fee tenfold, from $100 per bed annually to $1,000, so that,
    like assisted living facilities and nursing homes, adult family homes
    would pay for oversight.\127\ The impetus behind this movement came
    partly from a Seattle Times investigation that ``uncovered myriad
    accounts of inadequately trained caregivers who imprisoned the elderly
    in their rooms, roped residents into beds at night and drugged others
    into submission.''\128\ The providers successfully resisted any
    increase in licensure fees.\129\ Eight years later, the fee, at $225
    per bed through June 30, 2020,\130\ falls far short of the regulatory
    cost identified in 2010.\131\ This is the only class of facility-based
    care providers in the United States that collectively bargain with a
    state as if unionized.\132\
    ---------------------------------------------------------------------------
        \126\ Michael J. Berens, ``Adult-Home Owners Avoid Big Fee
    Increase,'' Seattle Times (April 8, 2015), https://
    www.seattletimes.com/seattle-news/special-reports/adult-home-owners-
    avoid-big-fee-increase/.
        \127\ See id.
        \128\ Id.
        \129\ Id.
        \130\ 2018 Wash. Sess. Laws ch. 299 Sec. 205(b)(i). A question with
    such very small-scale facilities is whether mandatory reporting of
    abuse or neglect will actually occur; i.e., will Mom blow the whistle
    on Pop?
        \131\ See Berens, supra note 131.
        \132\ See Wash. Rev. Code Sec. 41.56.029(1) (2018) (``Solely for
    the purposes of collective bargaining . . . the governor is the public
    employer of adult family home providers who, solely for the purposes of
    collective bargaining, are public employees.'').
    ---------------------------------------------------------------------------
    C. Home Care
        According to the AARP's 2018 Home and Community Preferences Survey,
    more than 70% of those 50-and-older would prefer to remain in their
    communities and in their personal residences.\133\
    ---------------------------------------------------------------------------
        \133\ Joanne Binette and Kerri Vasold, ``2018 Home and Community
    Preferences: A National Survey of Adults Age 18-Plus,'' AARP (August
    2018), https://www.aarp.org/research/topics/community/info-2018/2018-
    home-community-preference.html.

        In-home care offers these promises to those whose physical or
    mental impairment does not require facility-based care.\134\ Oregon
    law, for example, requires the state to make health and social services
    available that ``[a]llow the older citizen and citizen with a
    disability to live independently at home or with others as long as the
    citizen desires without requiring inappropriate or premature
    institutionalization.''\135\
    ---------------------------------------------------------------------------
        \134\ See, e.g., ``What Is the Difference Between In-Home Care and
    Home Health Care?'',
    Winston-Salem Journal (December 31, 2018) (``You might consider hiring
    in-home care if you or a loved one needs assistance with activities of
    daily living, does not drive or have access to transportation or live
    alone and are at risk for social isolation.'').
        \135\ Or. Rev. Stat. Sec. 10.020(3)(a)(2018).

        The Paraprofessional Healthcare Institute (PHI) reports that there
    are ``over 2 million home care workers'' as compared to ``600,000
    nursing assistants employed in nursing homes. . . .''\136\ PMI
    estimates that between 2016 and 2026, home care will add over 1 million
    jobs, ``which represents the largest growth of any job sector in the
    country.''\137\
    ---------------------------------------------------------------------------
        \136\ ``Understanding the Direct Care Workforce,'' PHI, https://
    phinational.org/policy-research/key-facts-faq/ (last visited December
    4, 2018).
        \137\ Id.

        Although, this is a challenged workforce. As of 2018, the median
    wage was $11.03 per hour.\138\ Accordingly, that report found that
    ``[o]ne in five home care workers lives below the federal poverty line
    (FPL) and over half rely on some form of public assistance.''\139\
    Almost 90 percent are women, and 30 percent are immigrants.\140\
    ---------------------------------------------------------------------------
        \138\ Campbell, supra note 46 at 2.
        \139\ Id.
        \140\ Id. at 3.

        The New York Times noted, ``providing care for older people, in
    their homes or in facilities, has become the classic example of a job
    native-born Americans would rather not take.''\141\ Thus, immigration
    restrictions threaten to make things worse.\142\ A 2017 Politico
    article warned that ``[o]ne of the biggest future crises in U.S. health
    care is about to collide with the hottest political issue of the Trump
    era: immigration.''\143\ The article noted that ``[t]here's a reason
    foreign-born workers take so many home health jobs: they're low-paid,
    low-skilled and increasingly plentiful. Barriers to entry are low; a
    high school degree is not usually a requirement and neither is previous
    work experience.''\144\ Yet, ``[o]ther low-wage workplaces (McDonald's,
    for instance) offer much better benefits, even tuition
    reimbursement[.]''\145\
    ---------------------------------------------------------------------------
        \141\ Paula Span, ``If Immigrants Are Pushed Out, Who Will Care for
    the Elderly?'', New York Times (February 2, 2018), https://
    www.nytimes.com/2018/02/02/health/illegal-immigrants-caregivers.html.
        \142\ See id.
        \143\ Ted Hesson, ``Why Baby Roomers Need Immigrants,'' Politico
    (October 25, 2017), https://www.politico.com/agenda/story/2017/10/25/
    immigrants-caretaker-workforce-000556.
        \144\ Id.
        \145\ Id.

        Not only is our future home care workforce at risk, but our current
    workforce is as well. According to a 2018 Washington Post article,
    59,000 Haitians live in the United States under temporary protected
    status (TPS), a humanitarian program that has given them permission to
    live and work in this country since the earthquake. Many are nursing
    assistants, home health aides and personal care attendants--the trio of
    jobs that often defines direct-care workers.\146\ PHI estimated that
    the direct care workforce also included 69,800 ``non-U.S. citizens from
    Mexico.''\147\
    ---------------------------------------------------------------------------
        \146\ Melissa Bailey, ``As Trump Targets Immigrants, Elderly and
    Others Brace to Lose Caregivers,'' Washington Post (March 24, 2018),
    https://www.washingtonpost.com/national/health-science/as-trump-
    targets-immigrants-elderly-and-others-brace-to-lose-caregivers/2018/03/
    24/72d5a0d0-2d3e-11e8-8ad6-fbc50284fcstory.html?utm_term=.828236b697.
        \147\ Id.

        Today all of these workers face the real prospect of deportation.
    ---------------------------------------------------------------------------
    The Post reported:

            The Trump administration's immigration restrictions may
            exacerbate a serious shortage of direct-care workers, warns
            Paul Osterman, a professor at the Massachusetts Institute of
            Technology's Sloan School of Management. He forecasts a
            national shortfall of 151,000 workers by 2030 and of 355,000
            workers by 2040. If immigrants lose their work permits, the gap
            would widen further.\148\
    ---------------------------------------------------------------------------
        \148\ Id.

        Indeed, the number of immigrant caregivers might be higher than
    reported, as The New York Times noted: ``In the so-called gray market,
    where consumers hire home care workers directly and often pay them
    under the table, the proportion is likely far higher.''\149\
    ---------------------------------------------------------------------------
        \149\ Span, supra note 147.

        What is the alternative for those desperate for care? Gone are the
    days of parents expecting their children to provide care. The
    Minneapolis Star Tribune reported, ``Family sizes have been shrinking
    for decades, which means there will be fewer adults to care for older
    relatives in the years ahead. By 2030, the ratio of informal caregivers
    to those in most need of care will be at 4 to 1, down from a peak of 7
    to 1 in 2010.''\150\ The article further noted, ``Family caregivers
    have been described as America's other Social Security. The nation's
    health system would go broke if it had to pay for their work, valued at
    $470 billion a year in free care, according to AARP.''\151\
    ---------------------------------------------------------------------------
        \150\ Jackie Crosby, `` `Invisible Workforce' of Caregivers Is
    Wearing Out as Boomers Age,'' Minneapolis Star Tribune (June 3, 2018),
    http://www.startribune.com/invisible-workforce-of-caregivers-is-
    wearing-out/483250981/.
        \151\ Id.

        Standards for home care can vary widely. Per citizen's initiative,
    Washington State requires the most hours of ``entry-level training''
    (75 hours) for those providing home care to non-family members.\152\
    However, Washington is also on a path to provide living wages to home
    care workers. Under their union contract with the state, each Medicaid
    home care worker (or ``individual provider'') makes no less than $15 an
    hour and receives health care benefits.\153\
    ---------------------------------------------------------------------------
        \152\ Wash. Rev. Code Sec. 74.39A.074(1)(b).
        \153\ See ``Collective Bargaining Agreement, State of Washington
    and Service Employees International Union'' 775, 2017-2019 (2017),
    http://seiu775.org/files/2017/09/Homecare17_19
    WebReady-signature-page-w-mou.pdf.

        By contrast, Missouri cut $50 million from in-home care in
    2017.\154\ ``[A]t least 7,844 disabled Missourians'' were at risk,
    according to the House Budget chair.\155\ And it was not as if home
    care in Missouri was prospering before. In 2016, Republican legislators
    overrode a gubernatorial veto and, through legislation, rejected the
    governor's plan to raise Medicaid home care workers' wages to between
    $8.50 and $10.15 per hour.\156\
    ---------------------------------------------------------------------------
        \154\ Samantha Liss, ``After Missouri Cuts Funding for the
    Disabled, Some Fear They May Be Forced into Nursing Homes,'' St. Louis
    Post-Dispatch (August 16, 2018), https://www.stltoday.com/news/local/
    govt-and-politics/after-missouri-cuts-funding-for-the-disabled-some-
    fear-they/article_76b2dac9-76ed-5545-9689-e87650d4a3ab.html.
        \155\ Id.
        \156\ Jack Suntrup, ``Home Health Care Workers Likely Won't See
    Raise After Lawmakers Override Nixon Veto,'' St. Louis Post-Dispatch
    (May 3, 2016), https://www.stltoday.com/news/local/govt-and-politics/
    home-health-care-workers-likely-won-t-see-raise-after/article_db94402f-
    0ee6-5405-9fe4-7717616a2de6.html.

        Too often, the plight of home care workers is invisible. Ai-jen
    Poo, executive director of the National Domestic Workers Alliance,
    ---------------------------------------------------------------------------
    stated:

            This is a workforce where the private home is their workplace.
            So you could go into any neighborhood or apartment building and
            not know which of these homes are also workplaces. There's no
            list anywhere. They're not registered anywhere. There's no
            other coworkers. You're mostly isolated and alone. And there's
            certainly no HR department or anything like that.\157\
    ---------------------------------------------------------------------------
        \157\ Ivette Feliciano and Corinne Segal, `` `You're Mostly
    Isolated and Alone.' Why Some Domestic Workers Are Vulnerable to
    Exploitation,'' PBS (August 12, 2018), https://www.pbs.org/newshour/
    nation/ai-jen-poo-domestic-workers-exploitation.

        This invisibility, coupled with the fact that the workforce is
    predominantly non-white women,\158\ caring for an elderly population
    that is largely women, cannot be factored out in explaining home care's
    funding neglect.\159\
    ---------------------------------------------------------------------------
        \158\ See Campbell, supra note 46 at 3 (only 40% of home care
    workers are white). The roots of U.S. home care trace back to slavery,
    as one scholar notes. See Rebecca Donovan, ``Home Care Work: A Legacy
    of Slavery in U.S. Health Care,'' Affilia at 33-44 (September 1, 1987)
    (``The specific job tasks of the home attendant or home health aide
    (shopping, cleaning, and cooking) are the same household tasks once
    performed by black women as slaves and later as domestic servants in
    private households.'').
        \159\ The Trump Administration is making it harder for home care
    workers to organize into unions. See, e.g., Michael Hiltzik,
    ``Targeting Home Healthcare Workers, the Trump Administration Opens
    Another Front in its War on Public Employees,'' Los Angeles Times (July
    30, 2018), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-home-
    health-20180730-story.html (``Medicaid authorities have launched a new
    attack on unions serving home healthcare workers . . . aimed
    transparently at depriving their unions of financial resources.'').
    ---------------------------------------------------------------------------

                                III. CONCLUSION

        As U.S. Rep. Debbie Dingell (D-MI) has explained, those
    contemplating long-term care will often ``encounter a fragmented system
    with multiple programs intended to support their needs and the needs of
    their loved ones, each of which has its own complicated rules and
    regulations.''\160\ She noted that ``[t]he average American may think
    Medicare provides for long-term care,'' but the reality is that it
    covers very little.\161\
    ---------------------------------------------------------------------------
        \160\ Debbie Dingell, ``Aging with Dignity Out of Reach for Many in
    America,'' Detroit Free Press (July 11, 2015), https://www.freep.com/
    story/opinion/contributors/2015/07/10/retirement-long-term-care/
    29998343/.
        \161\ Id.; see ``Skilled Nursing Facility (SNF) Care,''
    Medicare.gov, https://www.medicare.gov/coverage/skilled-nursing-
    facility-care.html (last visited March 4, 2019) (If you meet ``the 3-
    day inpatient hospital stay requirement'' and are discharged from a
    hospital, Medicare will cover a nursing home stay for up to 100 days--
    paying in full for 20 days, and in part for up to 80 days thereafter.).

        In Maine, the Senate Democratic leader who pushed for higher wages
    for nursing home workers stated, ``In Maine, we talk a lot about taking
    care of our seniors but words only go so far.''\162\ He could have been
    referring to the nation as a whole.
    ---------------------------------------------------------------------------
        \162\ Press Release, Me. Sen. Troy Jackson, Budget Committee
    Unanimously Votes to Fund Jackson Nursing Home Bill (June 12, 2018),
    http://www.mainesenate.org/budget-committee-unanimously-votes-to-fund-
    jackson-nursing-home-bill/.

        Rather than have long-term care providers in the states ride a
    roller coaster of funding uncertainty, lurching from one existential
    crisis to the next, it makes more sense for the federal government to
    have a funding strategy that recognizes Medicaid has become de facto
    long-term care insurance.\163\
    ---------------------------------------------------------------------------
        \163\ See 42 U.S.C. Sec. 1396d(y)(1) (2018) (The federal government
    will pay no less than 90% of the state costs of Medicaid expansion.).
    And yet it pays as little as 50% of long-term care Medicaid costs in
    many states. See 42 U.S.C. 1396d(b) (``[T]he Federal medical assistance
    percentage shall in no case be less than 50 per centum''); see also
    Williams, supra note 14. This incongruity shows the marginalization of
    ``traditional'' Medicaid.

        The Commission on Long-Term Care reported in 2013 that ``[e]xpanded
    market penetration of private LTC insurance has been limited by the
    cost of coverage and medical underwriting, and is further hampered
    today by insurers reassessing the market due to unforeseen demographic
    and investment conditions.''\164\ Matters have not improved since.\165\
    ---------------------------------------------------------------------------
        \164\ See U.S. Senate Committee on Long-Term Care, supra note 10,
    at 67.
        \165\ See, e.g., Brendan Williams, ``The Truth Behind Long-Term
    Care Insurance,'' McKnight's Long-Term Care News (July 6, 2018),
    https://www.mcknights.com/guest-columns/the-truth-behind-long-term-
    care-insurance/article/779005/ (``The long-term care insurance market
    should be our canary in the coalmine. No longer can we delude ourselves
    into thinking private sector solutions alone can avert a demographic
    disaster.'').

        Absent a private sector fix, the answer would seem to be one of the
    scenarios that the Commission shared: a comprehensive Medicare benefit
    for long-term services and supports (LTSS) ``financed through a
    combination of an increase to the current Medicare payroll tax and the
    creation of a Part A premium.''\166\ Under this guarantee:
    ---------------------------------------------------------------------------
        \166\ See U.S. Senate Committee on Long-Term Care, supra note 10,
    at 67. An effort to fund a long-term care benefit through a payroll tax
    was introduced in the Washington Legislature in 2017. See Ron Lieber,
    ``One State's Quest to Introduce Long-Term Care Benefits,'' New York
    Times (March 9, 2018), https://www.nytimes.com/2018/03/09/your-money/
    washington-state-long-term-care.html (noting that ``[a]s the need to
    finalize the legislation approached, AARP, citing various unanswered
    questions, came out against it.''). The idea had some editorial
    support. See Editorial, ``Use Payroll Tax to Set Up Long-Term Care
    Benefit,'' Everett Herald (February 15, 2017), https://
    www.heraldnet.com/opinion/editorial-use-payroll-tax-to-set-up-long-
    term-care-benefit/ (``Some will balk at seeing another deduction from
    their paychecks, but providing for our own long-term care is a
    responsibility we owe to our children and one that we should no longer
    avoid.''). The author proposed such a tax in 2011. See Brendan
    Williams, ``Schools vs. Elder Care,'' Everett Herald (July 10, 2011),
    https://www.heraldnet.com/opinion/schools-vs-elder-care/ (``Call it a
    `half-cent solution.' A payroll tax of .5% of earnings, split evenly
    between employers and employees (as the 2.9% Medicare Part A tax is)
    would generate more than $600 million a year for long-term care.'').
    The effort was being renewed in 2019. See Jerry Reilly, ``The state and
    its citizens both need lawmakers to pass the Long-Term Care Trust
    Act,'' Olympian (January 22, 2019), https://www.theolympian.com/
    opinion/op-ed/artic1e224917090.html. Yet, while states can be forgiven
    for doing their utmost to avert a demographic disaster, a national
    crisis really requires a national strategy, rather than placing the
    onus upon states. In Maine, Question 1 before the voters in 2018 would
    have funded a ``Universal Home Care Program'' by imposing ``a 3.8
    percent tax on income and wages over the maximum annual wage amount
    subject to Social Security taxes, which is now $128,400.'' Michael
    Shepherd, ``Following the Money on Maine's Home Care Ballot Question,''
    Bangor Daily News (September 17, 2018), https://bangordailynews.com/
    2018/09/17/politics/following-the-money-on-maines-home-care-ballot-
    question/. The measure failed overwhelmingly. See J. Craig Anderson,
    ``Question 1 Proposal for Tax-Funded Home Care Headed for Defeat,''
    Portland Press Herald (November 7, 2018), https://www.pressherald.com/
    2018/11/06/question-1-appears-headed-for-defeat-in-early-returns/.

            Qualifying individuals would be eligible for reasonable and
            necessary LTSS services that would include: Skilled nursing
            facility care or daily skilled care; home health care without
            the need for a skilled service; personal care attendant
            services; care management and coordination; adult day center
            services; respite care options to support family or other
            volunteer caregiver; outpatient therapies; other reasonable and
            necessary services.\167\
    ---------------------------------------------------------------------------
        \167\ Id.

        This was not the first time a bipartisan commission had recommended
    such action. In September 1990, the ``Pepper Commission,'' or
    Bipartisan Commission on Comprehensive Health Care, made its own report
    to Congress that looked holistically at health care reform needs and
    included long-term care.\168\ It recommended ``social insurance for
    home and community-based care and for the first three months of nursing
    home care, for all Americans.''\169\ Under that system, ``[p]eople who
    need nursing home care for short periods would have their resources
    preserved intact to return home.''\170\ Recognizing the ``urgent needs
    of the currently disabled and their families'' the Commission
    recommended ``that the plan be put into place a step at a time over a
    4-year period.''\171\
    ---------------------------------------------------------------------------
        \168\ S. Rep. No. 101-114 (1990).
        \169\ Id. at 14.
        \170\ Id. at 15.
        \171\ Id.

        Policymakers continue to discuss a single-payer ``Medicare for
    All'' approach to basic health care, without reference to long-term
    care.\172\ However, it is time that lawmakers refocus their attention
    on ensuring that Medicare better serves the comprehensive health care
    needs of the elderly population that it was originally intended to
    serve.\173\ Otherwise, states will flounder in meeting Medicaid demand.
    ---------------------------------------------------------------------------
        \172\ Chris Farrell, ``Could This Idea Help Fix America's Shortage
    of Home Care Workers?'', Forbes (August 15, 2017), https://
    www.forbes.com/sites/nextavenue/2017/08/15/could-this-idea-help-fix-
    americas-shortage-of-home-care-workers/ (MIT Professor Osterman has
    been quoted stating: ``Long-term care is absolutely the stepchild of
    health care on multiple dimensions.''). Policymakers already distracted
    by ACA debate now also must contend with the opioid crisis. See, e.g.,
    German Lopez, ``We're Failing in the Opioid Crisis. A New Study Shows a
    More Serious Approach Would Save Lives,'' Vox (August 23, 2018),
    https://www.vox.com/policy-and-politics/2018/8/23/17769392/opioid-
    epidemic-drug-overdose-death-study (``The opioid epidemic is the
    deadliest drug overdose crisis in US history--on track to kill more
    people over the next decade than currently live in entire American
    cities like Miami or Baltimore.''). For policymakers who are reactive,
    it is easier to focus on the crisis at hand (and their next election),
    rather than look ahead to the future.
        \173\ Howard Gleckman, ``Americans Are Baffled by Long-Term Care
    Financing, but Want Medicare to Pay for It,'' Forbes (May 30, 2017),
    https://www.forbes.com/sites/howardgleckman/2017/05/3OJamericans-are-
    baffled-by-long-term-care-financing-but-want-medicare-to-pay-for-it/
    (``While a majority of Americans incorrectly think that the current
    Medicare program pays for long-term care, a growing majority also
    thinks the program should provide such a benefit.''); see also Emily
    Swanson, ``Poll: Older Americans Want Medicare-Covered Long-Term
    Care,'' AP (May 25, 2017), http://www.apnorc.org/news-media/Pages/Poll-
    Older-Americans-want-Medicare-covered-long-term-care.aspx (``70 percent
    of older Americans say they favor a government-administered long-term
    care insurance program, up from 53 percent who said so a year ago.'').

                                     ______

                   Letter Submitted by Kathie Northrup Platt

    Thursday, August 1, 2019

    U.S. Senate
    Committee on Finance

    To Members of the Hearing:

    While the reports to your committee largely focused on reporting and
    preventing physical and emotional harms to residents of nursing homes
    and assisted living facilities, these reports also touched on a third
    area less often addressed because it is less obvious, yet no less
    serious. I am speaking of financial exploitation and elder financial
    abuse. Sometimes a facility might be guilty of taking financial
    advantage of its residents. But more often than not, they would not
    risk such obvious law breaking. I am speaking instead of an even more
    insidious form of elder financial exploitation: abuse that is committed
    by a close relative or family friend of the elder in long-term care.
    The injury is compounded when the facility suspects this (and even
    reports this suspicion to other family members of the elder in
    residence), but then fails to take appropriate action to report it to
    law enforcement authorities, much less track or follow up, or insist on
    investigation and prosecution when warranted.

    I am currently faced with this exact situation pertaining to my elderly
    98-year-old father in the secure memory care unit at the Brunswick at
    Attleboro Retirement Community in Langhorne, Pennsylvania. Because my
    elderly father is having all of his physical, social and emotional
    needs met at a facility that meets the highest standards of care, the
    unaddressed and unreported elder abuse I would like to bring to the
    attention of your committee is an abuse that is falling under the
    radar. That it is hidden makes it no less notorious, dangerous or
    destructive, but possibly even more so. I strongly believe that
    suspected financial exploitation of a senior in residence is an abuse
    that the assisted living facility or nursing home should be required by
    law to report to law enforcement authorities, and then continually
    track and follow up until disproven or prosecuted.

    I address your committee out of deep concern and helplessness due to
    the weakness or nonexistence of laws to protect elders from covert
    financial exploitation and abuse. There is a dangerous absence of laws
    instructing Assisted Living and Nursing Home Administrators regarding
    suspected financial exploitation and financial crimes against elder
    residents. There is, additionally, a serious and hazardous disconnect
    between agencies tasked with the business of protecting elders against
    financial and other crimes against their person and property.

    When administrators become suspicious of financial crimes and other
    improprieties being committed by those who have familiar or intimate
    access to our elderly family member in independent living, assisted
    living or nursing care, executives and staff ought to be required by
    law to act and involve law enforcement and not just sit idly by or
    complain to family members of those same seniors, expressing their
    concerns to us and then tasking us (who have few or no resources and no
    power) with the full responsibility to investigate and prosecute.

    I am the only daughter and only living child of Robert F. Northrup, 98,
    living in the secure memory care unit of the assisted living facility
    at the Brunswick at Attleboro Retirement Community in Langhorne,
    Pennsylvania. Five months after my father's second wife died (in
    December 2011), my family and I helped my father move into the
    independent living at Attleboro Retirement Community. He was then 91
    (April 2012).

    Within 2 years my father met and ``fell in love'' with another
    resident, Sue, and they married May 18, 2014. Dad was then 93 and Sue
    was 96. I did not know any of my father's new wife's adult children,
    but met them for the first time at the wedding. Early on I learned that
    RD (Sue's middle daughter who lives in Austin, Texas), managed all of
    Sue's finances. But I gave this no more thought as my father always
    managed his own business and had assured me (prior to the wedding) that
    nothing in either his or his new wife' s will would change and that
    they would keep their bank accounts separate.

    Although irregularities became noticeable early on in this marriage in
    the tenth decade of my elderly father's life, I was notified by the
    retirement facility of suspected abuses against my father's well-being
    and wealth soon after his move from independent living to the secure
    memory care unit January 2019 . As soon as I learned from Attleboro
    staff (by email to me) that my dad had been moved from Independent
    Living to the secure memory unit in the assisted living at the
    Brunswick at Attleboro, I immediately flew up from Texas to
    Pennsylvania to check on my father and meet with Attleboro staff.

    On this occasion (and several occasions afterwards), the Executive
    Director of Attleboro, MK, confided in me her concerns regarding RD (my
    father's wife's middle daughter): How RD had tried to prevent the move
    of my dad from independent living to memory care; how RD had threatened
    legal action against Attleboro for moving my father to memory care; how
    RD tried to prevent her own mother from joining my father in memory
    care (although Sue also suffers significant cognitive decline); how Sue
    was finally ``allowed'' by her daughter to move over to assisted
    living, but not into memory care; how Sue actually does live in memory
    care with my father--because that is where she wants and needs to be
    (even though RD insisted in February that her mother sign a contract
    for an expensive apartment outside of memory care that she has never
    used); how RD persuaded my father to add her as alternate on his POA
    (even though my father is in the locked memory care unit and deemed
    totally incapacitated); how Attleboro (Executive director and social
    workers and other staff members) suspect financial exploitation of my
    father's resources by RD to pay for this unused apartment, as well as
    other mismanagement of my father's resources; how Sue's other daughters
    will have nothing to do with their sister RD because they see her
    exploitation of my father and want to distance themselves from it . . .
    and the list goes on.

    What is obvious to everyone involved is that both my cognitively-
    impaired father (98) and his cognitively-impaired elderly wife (101) of
    five years were manipulated by RD, the wife's middle daughter, to the
    end that RD now has full power and control (durable POA) over both my
    father's person and property, as well as her mother's person and
    property. Although every staff member at Attleboro Community, every
    local elder care and oversight agency in Bucks County, as well as
    family members on both sides, are aware of or have been notified about
    the situation and are concerned by, if not deeply disturbed by it, so
    far no one (in authority at the care facility, or in the social
    services system, or in law enforcement) has any power or motivation to
    investigate and prosecute this woman, RD. Meanwhile, everyone looks to
    me, the non-professional, and the only living child and daughter of my
    father, to handle this investigation with resources and power that I do
    not have! This adds injury to injury, not only as my father daily
    suffers the depletion of his lifelong wealth for the ultimate benefit
    of RD, but also as this exacerbates the angst experienced by myself and
    by our family as we helplessly watch these crimes against my father--
    and the depletion of his resources--escalate unaddressed.

    While I have been regularly notified by the Long Term Care facility,
    over the past seven months, of suspected abuses being committed against
    my father in the secure memory care unit, as a family member only (I am
    not an attorney or law enforcement officer), I am absolutely powerless
    and personally under-resourced to investigate and prosecute those
    individuals suspected of foul play (financial crimes and other acts of
    exploitation including manipulation and emotional abuse) against my at-
    risk elderly father. Without the full support and involvement of long-
    term care administrators, the legal community and law enforcement, and
    a seamless and empowering continuity between agencies (ombudsmen, legal
    aid, district attorney's office, network of victim's assistance, etc.),
    family members such as myself are simply powerless to protect our
    elderly parents against emotional and financial exploitation and other
    crimes.

    Although I was fully advised by LTC administrators (at the facility
    that cares for my father) of their suspicions and the high probability
    of financial abuses taking place, have been prompted to take action,
    and have been provided much sympathy for my father's (and our family's)
    predicament, all responsibility for action has been left to me. I am
    expected to hire an attorney and petition for guardianship, even hire a
    detective if necessary, or whatever else might be required, to
    investigate, convict and stop this alleged criminal from her crimes
    against my father.

    The narrative history of dozens, maybe hundreds, of other families who
    have been made aware of emotional and financial crimes against their
    elderly parents and who have been tasked with taking legal action
    against alleged criminals taking advantage of vulnerable elders, has
    shown how ineffective concerned family members are (even when they have
    the resources to hire an attorney and pursue justice, often for many
    years) to ``prove'' the financial crimes or emotional manipulation
    committed against their vulnerable elderly parent(s).

    I have discovered that there is no end of agencies out there to whom we
    can turn and pour out our grievances or express our suspicion of
    emotional/financial abuse. In fact, family members can cry out as long
    and as loud as we like, and agency officials will listen for a while
    and agree that the situation is highly irregular, suspicious, even
    outrageous, and definitely a problem. But, in the end, these agencies
    tell us that there is nothing they can do. Either by word, or by
    neglect, agencies and officials shift the full responsibility to handle
    these alleged crimes back to us--either because officials/agencies are
    disinterested, otherwise engaged, or powerless.

    More often than not, because our elderly parents cannot or will not
    speak up for themselves (are even unwittingly complicit in these same
    crimes being committed against them), the authorities, the agencies,
    even the attorneys themselves, finally tell us that there is nothing
    they or we can do.Therefore, what is grossly obvious to everyone, must
    suddenly be ignored. The result is benign neglect, or gross
    irresponsibility, on the part of those who should be most informed
    concerned and proactive about protecting the elderly. These same
    administrators and agency officials have received all the educational
    and legal training family members have not, yet somehow still lack the
    authority or mandate to act to protect our elderly parents. It adds
    insult to injury to watch exploitation go unaddressed because
    administrators and agencies will do nothing to investigate those
    suspected of committing financial crimes against this most vulnerable
    class of society--the aging, the elderly, those with diminished
    capacity, who are powerless to recognize the crimes being committed
    against them, to report these crimes, or act in their own best
    interest.

    The problem is: I have not been silent or inactive since my Dad's move
    to memory care in February, especially in view of the increasing list
    of concerns and complaints I have received from Attleboro staff, from
    members of my father's wife's family, and from my own observations of
    the improper, and allegedly illegal behavior of RD regarding my
    father's wealth and well-being.

    Over the past seven months I have contacted and re-contacted: The Long-
    Term Care Ombudsman of Bucks County, Legal Aid of Southeastern
    Pennsylvania, Area Agency on Aging--Older Adult Protective Services,
    Disability Rights Network of Pennsylvania, Pennsylvania Senior LAW
    Center, Bucks County Bar Association Lawyer Referral Program, Bucks
    County District Attorney's Office-Chief of Economic Crimes and Deputy
    District Attorney, Bucks County Crimes Against Older Adults Task Force,
    and Bucks County Network of Victim Assistance. I have contacted all the
    key workshop presenters at the 16th Annual Neff Elder Abuse Symposium
    2019 including the Bucks County DA's Office on A Look at Criminal
    Prosecution/Case Studies; the Bucks County Register of Wills on Rapid
    Changes in Guardianship Law; Elder Financial Exploitation; and the
    Bucks County Area on Aging and Court Orders; as well as contacted
    numerous specialists in the field of elder financial exploitation
    (including David Brancaccio of Marketplace Radio on Brains and Losses,
    and Pam Glassner on Last Will and Embezzlement).

    Additionally, I have consulted at length with numerous certified elder
    law attorneys (CELAs), and although I have been advised by Attleboro
    Community (where my father resides) to petition for guardianship, I
    have also been warned by those same attorneys (and by other individuals
    and families who have already pursued the legal route regarding their
    own elder family member's financial exploitation, spent a small
    fortune, and failed to stop the exploitation) what a steep, expensive
    and impossible battle this may be when waged against a woman who is
    more savvy, resourced and experienced than ourselves, with no limit to
    legal and political power at her disposal providing her with all the
    leverage she needs to keep doing what she is doing and getting away
    with is for as long as she likes without conscience, restraint or
    remorse. Why is she able to do this? Because the LAW is simply too weak
    or too poorly defined to address these ``gray areas''--despite a
    preponderance of personal reports and evidence that My Father Is Being
    Financially Exploited.

    Ironically, because all of my father's physical, social/emotional and
    medical needs are being well-managed and met by the LTC, and he is in
    no immediate danger of physical abuse, he is not a high priority on the
    DA's (or anyone else's) list. If he made poor choices and allowed his
    wife's daughter to take over control of all his finances, his will, his
    estate, and his resources, if he (albeit in a state of cognitive
    decline) was persuaded to allow his elderly wife's daughter to usurp
    his POA and manage his wealth in such a way as to preserve his wife's
    wealth for the eventual benefit of the savvy, unscrupulous step-
    daughter, while drawing down his own estate to his loss and the loss of
    his heirs (but unrealized by him in his present state of dementia),
    then that is ``his free choice.''

    Although I have been consistently proactive since February, contacting
    and providing in-depth information to every social and legal agency in
    Bucks County responsible for elder care, oversight and the prevention
    of elder abuse--continually following up on all of my own, as well as
    Attleboro's concerns--I have not received any real or practical help.
    Although Attleboro Retirement Community staff have direct and indirect
    knowledge of my father's financial exploitation, they rely on me (my
    father's daughter) entirely to challenge RD (my father's wife's
    daughter) in court. They will assume no personal responsibility to
    expose or report the alleged moral and financial crimes against my
    father they have suspected and continue to suspect.

    Likewise, the elderly wife's own family members (her eldest and
    youngest daughters and their spouses) who have been witnesses to the
    ``inappropriate'' and illegal behavior of their sister (they will no
    longer even talk to RD), will do nothing, but have abdicated entirely,
    wanting to distance themselves as far as possible from their sister and
    from any implication that they had knowledge of RD's crimes as they
    occurred over the past 5 years. Everyone (personal and professional)
    seems to rely on me entirely to take legal action--although the track
    record shows that exploited seniors and their family members rarely
    ``win'' against the financial exploiter.

    I believe that it is the responsibility of Law Enforcement: the Bucks
    County DA's office, the Attorney General of Pennsylvania, even the US
    Attorney's Office, if necessary, to thoroughly investigate the
    allegations against RD, to subpoena financial documents, to follow the
    paper trail, and to interview all the staff members and care givers at
    Attleboro Community, the social service agencies involved in my
    father's care and legal protection, the CPAs, attorneys, family members
    on both sides, ombudsmen, etc., in order to determine the root cause of
    the mounting allegations against RD, to ascertain their validity, or
    not, and to take appropriate legal action.

    While we all ``know'' that the financial abuse of my father is
    occurring--and has been for some time--no one in authority is willing
    to take responsibility to report this or to thoroughly investigate this
    due to the relative ``invisibility of the crime'' (being committed by a
    retired ``cost analyst specialist'') and due to the lack of clear
    guidelines regarding jurisdiction and responsibility to report.
    Although, as far as we know, my father has always received excellent
    social-emotional, physical care at Attleboro, they and other agencies
    have failed to report to local law enforcement agencies the suspected
    financial crimes against my father that they have every reason to
    suspect based on a preponderance of circumstantial (and other) evidence
    that has been mounting over the past 5 years since my father's marriage
    (at age 93) to Sue (then 96).

    Today RD has assumed full control over the person and property of both
    her mother, Sue, and of my father, Robert Northrup, against the
    protests of Attleboro and family members on both sides. But no agency
    so far contacted will seriously or actively investigate this, although
    we have sounded and re-sounded the alarms, and expressed our outrage
    and concern. Please understand that family members are relatively
    powerless if the law does not have guidelines and standards in place to
    protect elders, even those still deemed fully capacitated, from the
    financial and emotional exploitation to which their age renders them
    vulnerable.

    As is frequently the case, when my father married Sue in the tenth
    decade of his life, he was (unknown by us at the time) already at the
    top of the slippery slope of cognitive decline. It didn't take much for
    Sue's middle daughter, RD, to nudge him along in a direction that not
    only served her best interest (change his will into a trust for her
    mother, commingle my father's accounts with her mother's, use my
    father's resources entirely to pay for her mother's living and care
    while building up her mother's social security in a joint mother-
    daughter account, etc). These subtle and progressive changes eventually
    lead to RD's complete and, so far, unchallenged overthrow of my
    father's person and property, for the shrewd purpose of building up
    wealth for herself and her own family at my father's expense.

    While I do not personally have the power or resources to investigate,
    expose, fight or stop this woman's financial abuse of my father, I know
    that you do and that something can and must be done. Please understand
    that the law must go above and beyond addressing the more obvious
    physical abuse of seniors in long-term care facilities, to address the
    often hidden abuse by relatives or ``friends'' of seniors resulting in
    the extortion of their lifelong wealth and legacies. Although often
    ``invisible'' and hidden from view, and even unnoticed by the senior
    himself who is suffering the abuse, we--the family members who know and
    love our parent best--know and suffer on his/her behalf, even as we
    lose hold of the legacy we were asked to protect.

    Below Are Excerpts From the Senate Finance Committee Hearing Members
    Statements That Reinforce and Illuminate the Concerns I Have Expressed:

    Senator Ron Wyden states that ``instances of physical, sexual, mental
    and emotional abuse in nursing homes appear to be on the rise'' and
    that ``abuse happened in homes of all ratings, top and bottom. A good
    rating did not indicate that a nursing home prevented abuse.''

    Megan H. Tinker, Senior Advisor for Legal Affairs, OIG, expressed that
    ``A SNF must ensure that all incidents involving alleged abuse and
    neglect are reported immediately to the administrator of the facility
    and the Survey agency'' (5) but ``Providers frequently failed to alert
    law enforcement to incidents of potential abuse or neglect . . . even
    though all States require certain individuals to report suspected
    abuse, neglect or exploitation of vulnerable adults'' (6).

    ``. . . (C)overed individuals are required to report any reasonable
    suspicion of a crime, such as certain instances of abuse, neglect, or
    exploitation'' (7). Furthermore, ``CMS does not require all incidents
    of potential abuse or neglect and related referrals made to law
    enforcement to be recorded and tracked in their complaint and incident
    tracking system'' (5). And yet, ``Analyzing the data can help identify
    individual incidents of unreported abuse or neglect, and patterns and
    trends of abuse or neglect involving specific providers, beneficiaries,
    or patients who may require immediate intervention to protect their
    health, safety and rights'' (7).

    ``OIG investigates potential criminal and civil violations and pursues
    administrative actions to hold accountable those who victimize
    residents of nursing homes'' (9) and ``CMS and law enforcement cannot
    adequately protect victims of abuse and neglect from harm if they do
    not first know the harm is occurring'' (10).

    John E. Dicken, Director, Health Care, GAO, reports that ``nursing home
    residents often have physical or cognitive limitations that can leave
    them particularly vulnerable to abuse'' and ``incidents of abuse may be
    underreported'' (1).

    Unfortunately ``This testimony addresses physical abuse, mental and
    verbal abuse--which we refer to as mental/verbal abuse--and sexual
    abuse but does not address other forms of abuse, such as financial
    abuse or neglect'' (Footnote 2) (1).

    ``Despite federal law requiring nursing homes to self-report
    allegations of abuse and covered individuals to report reasonable
    suspicion of crimes against residents, CMS has not provided guidance to
    nursing homes on what information they should include in facility-
    reported incidents, contributing to a lack of information for state
    survey agencies and delays in their investigations. . . . Therefore,
    facility-reported incidents play a unique and significant role in
    identifying abuse deficiencies in nursing homes, making it critical
    that incident reports provided by nursing homes include the information
    necessary for state agencies to prioritize and investigate'' (5-6).

    ``Because CMS requires a state survey agency to make referrals to law
    enforcement only after abuse is substantiated_a process that can often
    take weeks or months_law enforcement investigations can be
    significantly delayed . . . delay in receiving referrals limits their
    ability to collect evidence and prosecute cases. . . . As such we
    recommend that CMS require state survey agencies to immediately refer
    to law enforcement any reasonable suspicion of a crime against a
    resident . . . in order to ensure a prompt investigation of these
    incidents'' (7).

    Robert B. Blancato, National Coordinator, The Elder Justice Coalition,
    writes, ``Ending elder abuse, neglect, and exploitation is a bipartisan
    issue and goal. . . . The Elder Justice Coalition is a non-partisan
    3,000-member group dedicated to advancing elder justice policy at the
    federal level. . . . Members provide direct services to elder abuse
    victims, such as the National Adult Protective Services Association and
    the National Association of State Long-Term Care Ombudsmen, or provide
    public outreach and advocacy on elder abuse. . . .''

    ``Justice Department figures say one in ten older adults are victims of
    elder abuse. We also know from reports that victims of financial elder
    abuse lose at least $3 billion a year, with other reports suggesting
    dramatically higher losses'' (1).

    ``The same federal report noted that many elder abuse victims have
    organic conditions such as dementia, brain injuries and other factors
    that lead to diminished or limited cognitive capacity. They are more
    susceptible to abuse, neglect and financial exploitation'' (2).

    ``All forms of elder abuse, apart from self-neglect, are crimes and its
    victims are crime victims'' (4).

    ``The Elder Abuse Forensic Center model is designed to provide case
    review by a multidisciplinary team, consultation, assessment, tracking,
    and help to implement person-centered care plans in the most complex
    cases of abuse, neglect, exploitation, and self-neglect of older
    adults. Research published by The Gerontological Society of America
    states that `elder abuse forensic centers improve victim welfare by
    increasing necessary prosecutions and conservatorships and reducing the
    recurrence of protective service referrals. Elder abuse forensic
    centers provide a process designed to efficiently address client
    safety, client welfare and protection of assets' ''(5).

    ``Much of the abuse, neglect and exploitation that takes place behind
    the closed doors of long term care facilities is severely underreported
    by residents, family, staff, and the state survey agencies. There are
    various reasons for this including the fear of retaliation.''

    ``Better oversight by CMS is needed that includes tools that nursing
    homes are mandated to use to record and report abuse and perpetrator
    type. We need to be sure the reports are made in a timely manner for
    the treatment and safety of the resident'' (6).

    ``Failure to improve the federal response to elder abuse may be one of
    the worst examples of ageism in public policy'' (9).

    Mark Parkinson, President and CEO, AHCA, comments: `` `CMS guidance was
    not clear and therefore SNFs interpreted it inconsistently.' They did
    not try to hide these cases; instead they did not believe the cases met
    the CMS definition so they did not need to report them. It was not due
    to lack of awareness that education will correct, but confusion as to
    the CMS definition and reporting requirements. Interestingly, the OIG
    report goes on to state that even the survey agency officials across
    states have different interpretations of the term' suspicious.
    `Ultimately,' the OIG concludes that, `the lack of clear guidance from
    CMS results in incidents going unreported by the SNFs' '' (4).

    ``The Elder Justice Act needs to require that CMS and other agencies
    use the same definition of abuse and neglect, separate them in
    enforcement and tracking, and standardize the reporting guidelines
    (including time to report) for all health care settings to be
    consistent'' (4).

    Lori Smetanka of The National Consumer Voice for Quality Long-Term Care
    reports: ``My colleagues and I communicate daily with residents, family
    members, citizen advocates, and long-term care ombudsmen who see and
    experience the failures of the systems designed to protect residents''
    (1).

    ``There have been significant changes in the ownership and management
    of nursing homes, with an increasing number of nursing facilities part
    of a multi-facility or corporate structure, and an increase in private
    equity ownership. Division of ownership and management is occurring
    among numerous affiliated entities that derive profits, but who are not
    responsible for the quality of care. Further, many of the decisions
    that affect care, including operational budgets and staffing levels,
    are made at the corporate level, yet CMS oversight is limited to
    individual facilities, (4).

    ``Examples of inadequate nursing home oversight include low complaint
    substantiation rates and findings of harm in less than 5% of deficiency
    citations. Enforcement has been further weakened by policy changes that
    CMS has implemented'' (5).

    ``New rules provide less protections for residents and less
    accountability for nursing facilities by, among other things, weakening
    standards relating to infection prevention, use of antipsychotic
    medications, and responding to resident and family grievances'' (6).

    ``Numerous GAO and OIG reports . . . show the need for continued
    federal and state action to strengthen elder abuse reporting,
    prevention, and response. The failure of appropriate reporting of abuse
    or suspicions of abuse is unacceptable. Failures to report prolong the
    victimization and suffering of those being abused and put at
    significant risk other residents who are in contact with the abuser.''

    ``We recommend that Congress take the following actions: (1) add state
    surveyors to the list of covered individuals who are required to report
    suspicion of abuse or neglect to law enforcement; (2) direct CMS to
    fully enforce the Affordable Care Act's requirement for individuals to
    report possible criminal acts to law enforcement; (3) impose civil
    money penalties against the nursing home or other licensed entity for
    failure to report abuse or suspicions of a crime; (4) increase funding
    for the Long-Term Care Ombudsman Program to enhance the program's
    capacity to assist in abuse prevention and advocate for residents who
    have been victimized'' (7).

    ``The needs of nursing home (and assisted living) residents is
    significant. Residents' acuity level has (de)creased, 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. We can do better'' (8).

    Thank you for reviewing my statement and for entering it into the
    record.

    Sincerely,

    Kathie Northrup Platt

                                     ______

                      Letter Submitted by LaDawn Whiteside

    August 6, 2019

    U.S. Senate
    Committee on Finance
    Dirksen Senate Office Building
    Washington, DC 20510-6200

    Re: Promoting Elder Justice: A Call for Reform Hearing 7/23/19

    To Whom It May Concern:

    I listened to the Senate Finance Committee hearing of July 23, 2019
    with anticipation. I have worked in the elder care industry for over 30
    years. I have been a direct care worker, regulator, and now am an Abuse
    in Late Life Advocate and Elder Care Mediator in Montana. I applaud
    your efforts to protect and empower older adults.

    I live in Montana which is one of the few States that do not have
    required background checks for people working as paid caregivers for
    older adults. There are many pros and cons associated with background
    checks. I believe that people think a background check (criminal
    history check) provides more of a safety net than it actually does. I
    believe that the nursing home industry is already held to a very high
    standard with regard to the safety of residents. I believe that the
    screening requirements currently in the regulations give facilities
    options to use the best method for them. Different sizes and cultures
    in communities make some tools for elder abuse prevention better than
    others. A background check is not the only tool for ensuring the safety
    of older adults.

    Instead of adding additional requirements to nursing homes (most
    regulated industry in healthcare), we need to focus on services/
    caregiving provided in community based settings. The majority of elder
    abuse occurs in the home setting, not in nursing homes as the public
    believes.

    Nursing homes have been required to report all allegations of abuse for
    over a decade. Last time I counted, the federal abuse regulations were
    90 pages long. We now have the data necessary to improve upon the
    preventive system in nursing homes. We can define reporting
    requirements in a way that decreases the noncriminal reports and
    investigations being completed. We are now educating the law
    enforcement system to take over the investigation of the massive amount
    of criminal and non-criminal abuse allegations. I applaud this
    direction as the investigations will now be conducted by an outside
    entity. However, the current Department of Justice system is not
    capable of investigating all of these allegations in a timely manner.
    The DOJ does not have adequate resources to do keep up with existing
    workload caused by the federal nursing home regulations: Particularly
    with victims who are older and/or fragile and ill, they cannot wait for
    9 months for their case to be investigated by law enforcement.

    The five day time frame required for nursing homes at CFR 42.483 is
    appropriate and ensures evidence is not lost. I am advocating for the
    Medicaid Fraud Control Units across the county take over the majority
    of the medical industry investigations and that the organizations
    investigating be made a higher priority to enable timely investigation.

    My second concern raised by the hearing is that the assisted living
    (AL) industry was absent during the hearing. The people being cared for
    in assisted living are the same type of residents we see in nursing
    homes. They are ill, not able to provide their own care, receive and
    benefit from a lot of services paid for by Medicare. These people are
    directly affected by criminals who are trying to take advantage of
    them. For the following reasons, I believe the assisted living industry
    needs more attention than nursing homes:

          The majority of people living in AL facilities are paying with
    personal funds. As mentioned in the hearing, 2/3 of the residents
    living in nursing homes are Medicaid beneficiaries. Just living in an
    AL setting results older adults to be a target for financial
    exploitation. These vulnerable people receive an inordinately high
    number of ``robo'' calls and solicitations. I feel that nonprofits
    target this group of people for fundraising purposes because they
    continue to contribute even if they don't have the resources anymore.
    If it comes in the mail as a bill, they believe they must pay it. It
    meets my definition of coercion as opposed to self-determination.
          Nationally, there are almost no regulations for AL facilities,
    despite the clientele being the same who live in nursing homes. During
    the hearing it was reported that the profit margin for nursing homes
    was .5%. Congress should require the AL industry, with huge profit
    margins to comply with the same (or better) regulations as nursing
    homes. The only option in Montana AL facilities to report abuse is a
    local 911 number and Adult Protective Services workers. Other than
    State definitions of abuse, the AL industry has almost no reporting
    requirements for abuse. Compared with nursing homes, this is
    unacceptable to me.
          The Durable Medical Equipment (DME) industry is constantly under
    scrutiny for their business methods and taking advantage of older
    Americans with physical disability's.
          Staff training requirements in ALs are largely company driven as
    opposed to federal regulations driving the industry. An AL isn't
    required to do hire staff that have met a specific training criteria
    such as a Skills Checklist or a back ground check or a criminal
    history.

    My third comment is regarding the long term care Ombudsman program.
    This wonderful program needs support, direction and funding. In Montana
    local long term care Ombudsman wear so many hats they are spinning in
    circles. They have too many bosses and lack appropriate or adequate
    funding and staffing. This Committee should direct pressure on the
    individual States to prioritize the long term care Ombudsman and
    recognize these workers for the front line work that they do to improve
    the lives of older adults.

    My fourth comment is about arbitration in both nursing homes and AL
    facilities. Arbitration takes the power and control away from residents
    and their decision makers. Fundamentally, I am against arbitration.
    Mediation is the avenue Congress should endorse; it keeps the power in
    the hands of the people involved.

    Lastly, I am appreciate of the IRS tax deduction for AL and nursing
    home care to preserve estates large and small. This incentive to ``pay
    their own way'' is a great option and recognizes the high cost of
    caregiving. After all, people prefer to stay at home as long as
    possible. We tax payers want people to pay their own way as long as
    possible. Compare the price of AL in the USA. It's not more affordable
    than living in a nursing home.

    Sincerely,

    LaDawn Whiteside

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