[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
[all]