[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⪫=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⪫=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⪫=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⪫=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⪫=
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⪫=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⪫=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 
[email protected] and Theodore Merkel of Senator 
Toomey's staff at [email protected]. Thank you for your 
consideration and we look forward to your response.

            Sincerely,

Robert P. Casey, Jr.                Patrick J. Toomey
U.S. Senator                        U.S. Senator

                              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 [email protected]. 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\
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    \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\
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    \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

                      [email protected]

                      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⪫=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⪫=0&lng=0&name=CHAMPAIGN%2520REHAB%2520CENTER&Distn=0.0 (site 
visited July 19, 2019).

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

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

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

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

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

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

The collapse of Skyline Healthcare last year was the most visible and 
vivid example of the problem of allowing companies without adequate 
financial and management resources to take over facilities. On July 19, 
2019, NBC Nightly News broadcast an investigative report on Skyline, 
its collapse, and the impact on residents and their families.\28\ This 
New Jersey company had a handful of facilities, but then, beginning in 
about 2016 or 2017, began to manage facilities across the country, 
primarily facilities that large chains, including Golden Living and 
Manor Care, decided not to operate any longer. In a period of little 
more than a year, Skyline Healthcare began operating between 100 and 
120 facilities in eight states across the country. Then, within a 
similarly short period, it stopped meeting payroll and paying 
vendors.\29\ States went to court to get authority to take over the 
facilities--the legal term is receivership--in order to make sure that 
residents received care, food, medicine, and supplies.
---------------------------------------------------------------------------
    \28\ ``NBC News Investigation: Nursing home chain collapses amid 
allegations of unpaid bills, poor care'' (July 19, 2019), https://
www.nbcnews.com/nightly-news/video/nbc-news-investigation-mursing-home-
chain-collapses-amid-allegations-of-unpaid-bills-poor-care-64181829714; 
Laura Strickler, Stephanie Gosk and Shelby Hanssen, ``A nursing home 
chain grows too fast and collapses, and elderly and disabled residents 
pay the price,'' NBC Nightly News (May 19, 2019), https://
www..nbcnews.com/health/aging/nursing-home-chain-grows-too-fast-
collapses-elderly-disabled-residents-n1025381.
    \29\ Harold Brubaker, ``Questions about Willow Terrace owner after 
nursing home collapse in Nebraska and Kansas,'' Philadelphia Inquirer 
(April 12, 2018), https://www.philly.com/philly/business/questions-
about-skyline-healthcare-after-nursing-home-collapse-in-nebraska-and-
kansas-20180412.html; Lindy Washburn, ``Thousands of nursing home 
patients nationwide affected by NJ company's financial trouble,'' 
Northjersey.com (April 16, 2018), https://www.northjersey
.com/story/news/watchdog/2018/04/16/thousands-nursing-home-patients-
could-affected-fast-growing-nj-nursing-home-company-trouble-nebraska/
493643002/; Nebraska Department of Health and Human Services, 
``Nursing, Assisted Living Facilities Placed in Receivership to Protect 
Health and Safety of Residents'' (News Release, March 23, 2018), http//
dhhs.ne.gov/News%20Release%20Archive/
Nursing,%20Assisted%20Living%20Facilities%20Placed%20in%20
Receivership%20to%20Protect%20Health%20and%20Safety%20of%20Residents.pdf
#search=Nur
sing%2C%20Assisted%20Living%20Facilities%20Placed%20in%20Receivership%20
to%20Protect%
20Health%20and%20Safety%20of%20Residents; Kansas Department for Aging 
and Disability Services, ``KDADS Seeks to Take Over Management of 15 
Kansas Nursing Homes'' (News Release, March 28, 2018), https://
www.kdads.ks.gov/media-center/news-releases/2018/03/29/kdads-seeks-to-
take-over-management-of-15-kansas-nursing-homes.

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

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

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

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

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

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

                             P.O. Box 2496

                         Woburn, MA 01888-0996

                           Tel. 617-448-0185

                            Fax 781-944-6929

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 
                 Letter Submitted by Susan Inglis, R.N.

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

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

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

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

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

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

Sincerely,

Susan Inglis, R.N.

                                 ______
                                 
                               LeadingAge

                       2519 Connecticut Ave., NW

                       Washington, DC 20008-1520

                             P 202-783-2242

                             F 202-783-2255

                        https://leadingage.org/

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

The mission of LeadingAge is to be the trusted voice for aging. Our 
6,000+ members and partners include nonprofit organizations 
representing the entire field of aging services (including 2,000 
nursing homes), 38 state associations, hundreds of businesses, consumer 
groups, foundations and research centers. LeadingAge is also a part of 
the Global Ageing Network, whose membership spans 50 countries. 
LeadingAge is a 50l(c)(3) tax-exempt charitable organization focused on 
education, advocacy and applied research.

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

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

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

LeadingAge member nursing homes go beyond regulatory requirements to 
provide the highest quality care for residents. For example, Safe Care 
for Seniors, a program spearheaded by LeadingAge Minnesota, is designed 
to eliminate preventable harm in the course of caregiving. Through both 
words and actions--and with the senior at the center of all they do--
providers renew their commitment to give safe, quality care to ensure a 
high quality of life for those they serve. Providers, team members, 
residents, and families partner together to promote a culture of safety 
that allows residents to thrive in a community built on safety, trust, 
dignity, and respect. Providers and individuals take a two-fold pledge 
to increase the safety of the people they serve. They promise to always 
treat the people for whom they care with respect and dignity, to take 
steps to get to know them as individuals, and to speak up if they see 
something that may be unsafe or makes them feel uncomfortable.

Gayle Kvenvold, President and CEO of LeadingAge Minnesota put it this 
way: ``. . . we began by asking this question: what is in our power to 
do to bring about the best lives for our elders? And that led us to 
renew our commitment to the heart and soul of our work--respect, safety 
and dignity for those we serve--and to commit as a statewide caregiving 
community and as LeadingAge Minnesota to some of the most meaningful 
work we will ever do. This is our calling, our commitment and our 
culture. Together we will prevent harm before it occurs and create a 
culture of safety. Together we will help those whose lives we touch, 
live their best lives.'' As the national partner of LeadingAge 
Minnesota, LeadingAge is building on and promoting the positive results 
of this initiative to our members in other states.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consider the following:

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

Gayle Kvenvold
President and CEO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior to the survey

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

During the survey

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

Before and at the Informal Dispute Resolution (IDR) Hearing

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

After the survey, while the appeal is pending

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

At the hearing

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

If the case settles

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

After the hearing

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

Some related legislative and regulatory proposals

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

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

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

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

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

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

Chairman Grassley and Ranking Member Wyden:

Introduction

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

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

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

Immediately Reporting Abuse Allegations to Law Enforcement

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

Amend the Privacy Act to Allow Sharing of Survey Agency Information

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

Use the GAO Recommendations in Legislation

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

Further Legislation Related to Abuse Deficiencies

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

Supporting Survey Agencies in Sanctioning Nursing Homes

The agencies tasked with surveying nursing homes must be supported when 
they find deficiencies and determine that sanctions are appropriate. 
Congress should require CMS to support the survey agencies' scope and 
severity findings or publicly provide clear reasons when it does not, 
and require per diem fines, rather than per instance fines.

Adding Professionals to Criminal Background Checks

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

Minimum Staffing Ratios

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

Conclusion

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

Sincerely,

Melanie S. McNeil

                                 ______
                                 
                 New Hampshire Health Care Association

                      5 Sheep Davis Road, Suite E

                     Pembroke, New Hampshire 03275

                         Phone: (603) 226-4900

                          Fax: (603) 226-3376

                             www.nhhca.org

July 23, 2019

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

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

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

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

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

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

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

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

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

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

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

Best regards,

Brendan Williams
President/CEO

Enclosure

                                 ______
                                 

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

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

                            I. Introduction

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

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

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

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

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

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

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

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

    This was a rather disingenuous argument, for where else would a 
remedy lie but in court? Medicaid contracts are effectively contracts 
of adhesion, where there is an enormous imbalance of power between the 
contracting parties--contracts are presented on a take-it-or-leave-it 
basis. For example, if 62 percent of those whom a provider is caring 
for are on Medicaid, as is true for nursing homes on average, how can a 
provider simply refuse a non-negotiable Medicaid contract?\23\
---------------------------------------------------------------------------
    \23\ See Kaiser Family Foundation, ``Medicaid's Role in Nursing 
Home Care'' (June 20, 2017), https://www.kff.org/infographic/medicaids-
role-in-nursing-home-care/; Jessica Wheeler, ``Armstrong vs. 
Exceptional Child Center: Who Should Enforce Equal Access?'', Minnesota 
Law Review (December 22, 2017), http://www.minnesotalawreview.org/2017/
12/armstrong-v-exceptional-child-center/ (``If one believes Medicaid 
beneficiaries should get the same access to health care as the general 
public, allowing providers to bring private enforcement actions is the 
most efficient way to ensure it.'').

    Congressional Democrats, including House Minority Leader Nancy 
Pelosi (D-CA) and then-Senate Majority Leader Harry Reid (D-NV), filed 
their own brief with the Court, disagreeing with the Obama 
Administration's position: ``[t]his case implicates . . . the right to 
seek equitable relief under the Supremacy Clause against state law that 
is inconsistent with Congressional enactments.''\24\ Under their 
interpretation, the law ``provides impoverished, developmentally 
disabled Medicaid patients and the medical providers who serve them a 
means of redress in the court system that they would often not have in 
the political battles over budget priorities.''\25\
---------------------------------------------------------------------------
    \24\ Brief of Members of Congress as Amici Curiae in Support of 
Respondents at 2, Armstrong vs. Exceptional Child Center, 135 S. Ct. 
1378 (2015) (No. 14-15).
    \25\ Id. at 15.

    From his ivory tower, Justice Breyer apparently did not foresee the 
unhappy marriage of administrative deference with a Trump 
Administration that disfavors administrative oversight, when he cast 
his deciding vote in Armstrong.\26\
---------------------------------------------------------------------------
    \26\ See, e.g., Alan Levin and Alyza Sebenius, ``Trump Claims $1.6 
Billion a Year Saved From Cutting Red Tape,'' Bloomberg (October 16, 
2018), https://www.bloomberg.com/news/articles/2018-10-17/trump-
administration-claims-23-billion-in-regulation-savings.

    In March 2018, under the guise of furthering ``President Trump's 
commitment to `cutting the red tape' by relieving states of burdensome 
paperwork requirements,'' CMS proposed a rule to allow states with 
managed care insurers running their Medicaid programs to more freely 
cut Medicaid rates--by up to ``4% percent in overall service category 
spending during a State fiscal year (and 6% over two consecutive 
years)''--without federal oversight.\27\ In its proposed rule, CMS 
states, ``We continue to believe that changes below 4 percent are 
generally nominal[.]''\28\ Indeed, CMS states:
---------------------------------------------------------------------------
    \27\ Press Release, U.S. Centers for Medicare and Medicaid 
Services, ``CMS Proposes Regulation to Alleviate State Burden'' (May 
22, 2018), https://www.cms.gov/newsroom/press-releases/cms-proposes-
regulation-alleviate-state-burden. Many states have turned over their 
Medicaid programs to managed care insurers, despite the lack of any 
empirical evidence that this improves care. See, e.g., Brendan 
Williams, ``Leap of Faith: Managed Care and the Privatization of Long-
Term Care Services,'' 30 Loyola Consumer Law Review 438, 438-459 
(2018). These insurers are intent on maximizing profit to the detriment 
of providers and beneficiaries alike, going so far, for example, as to 
deny wheelchairs to Iowans with disabilities despite physician and 
state orders to provide them. See Jason Clayworth, ``Iowa Medicaid 
Company Forced to Provide Special Wheelchairs to Disabled Clients,'' 
Des Moines Register (August 20, 2018), https://www.
desmoinesregister.com/story/news/investigations/2018/08/20/provide-
them-wheelchairs-judges-teLL-iowa-medicaid-company/976986002/ 
(``[A]ppeals by United Healthcare--each involving a severely disabled 
Iowan who can't walk independently--lingered for more than a year while 
the managed care provider denied doctor and state orders that it pay 
for the specialized equipment.'').
    \28\ Medicaid Program; Methods for Assuring Access to Covered 
Medicaid Services--Exemptions for States With High Managed Care 
Penetration Rates and Rate Reduction Threshold, 83 Fed. Reg. 12696, 
12698 (March 23, 2018) (to be codified at 42 CFR part 447).

        We are requesting comments to determine whether the nominal 
        threshold should be higher or lower than 4 percent for a single 
        SFY and 6 percent for 2 consecutive SFYs, recognizing that 
        state legislatures need sufficient flexibility to manage 
        budgets and make adjustments to Medicaid spending that are 
        unlikely to result in diminished access to care for program 
        beneficiaries.\29\
---------------------------------------------------------------------------
    \29\ Id. at 12699. What about the ability of Medicaid providers 
``to manage budgets''?

    As Professor Andy Schneider of Georgetown University wrote, ``The 
underlying philosophy seems to be `don't ask, don't know.' The federal 
courts will no longer hear provider challenges to low payment rates, 
and now CMS no longer wants information on the effect of payment cuts 
so that it can do its job.''\30\
---------------------------------------------------------------------------
    \30\ Andy Schneider, `` `Rolling Back' the Medicaid Access Rule: 
Don't Ask, Don't Know,'' Say Ahhh! (April 2, 2018), https://
ccf.georgetown.edu/2018/04/02/rolling-back-the-medicaid-access-rule-
dont-ask-dont-know/.

    Increasingly, those needing assistance with the activities of daily 
living have alternatives to nursing home care, where such alternatives 
can meet their needs. A May 2018 report noted that ``[h]ome and 
community-based services (HCBS) have accounted for almost all Medicaid 
LTSS growth in recent years while institutional service expenditures 
remained close to the FY 2010 amount.''\31\ In 2016, HCBS spending 
accounted for 57 percent of Medicaid long-term care spending.\32\ This 
proportion was as high as 81 percent for Oregon and as low as 27 
percent for Mississippi.\33\
---------------------------------------------------------------------------
    \31\ Steve Eiken et al., ``Medicaid Expenditures for Long-Term 
Services and Supports in FY 2016,'' IBM Watson Health (2018), https://
www.medicaid.gov/medicaid/ltss/downloads/reports-and-evaluations/
ltssexpenditures2016.pdf.
    \32\ See id. at 6.
    \33\ See id. at 7.

    Yet, the entire continuum of long-term care faces severe 
challenges, even before the coming age wave crashes upon states' 
---------------------------------------------------------------------------
budgetary shores.

    It is not as if older Americans are saving enough to avoid 
Medicaid. As one article reported in August 2018, ``The rate at which 
Americans at least 75-years-old filed for bankruptcy more than tripled 
from 1991 to 2016, while filings among those between 65 and 74 
ballooned more than 200 percent, according to a recent study from a 
group of professors working with data from the Consumer Bankruptcy 
Project.''\34\ Further, of those filing for bankruptcy, ``about three 
in five said unmanageable medical expenses played a role.''\35\
---------------------------------------------------------------------------
    \34\ Andrew Soergel, ``Bankruptcy Soars Among Elderly as Inequality 
Deepens,'' U.S. News and World Report (August 8, 2018), https://
www.usnews.com/news/data-mine/articles/2018-08-08/bankruptcy-soars-
among-elderly-as-inequality-deepens.
    \35\ Tara Siegel Bernard, `` `Too Little Too Late': Bankruptcy 
Booms Among Older Americans,'' New York Times (August 5, 2018), https:/
/www.nytimes.com/2018/08/05/business/bankruptcy-older-americans.html.

    This trend will only get worse, as Americans lack retirement 
resources. A 2014 Time article noted that ``[b]ecause defined benefit 
plans are more costly for employers than defined contribution plans, 
most of them have--you guessed it--scaled back dramatically or 
eliminated these plans altogether in recent years.''\36\ A 2018 
Atlantic article reported that ``the median savings in a 401(k) plan 
for people between the ages of 55 and 64 is currently just $15,000, 
according to the National Institute on Retirement Security, a 
nonprofit.''\37\ As the article noted, ``the current wave of senior 
poverty could just be the beginning. Two-thirds of Americans don't 
contribute any money to a 40l(k) or other retirement account, according 
to Census Bureau researchers.''\38\ Two writers in the Harvard Business 
Review ``predict the U.S. will soon be facing rates of elder poverty 
unseen since the Great Depression[.]''\39\ Meanwhile, ``[t]here's one 
area where the traditional pension plan is getting new life: as a tax 
dodge for wealthy business owners.''\40\
---------------------------------------------------------------------------
    \36\ ``What Is the Difference Between a Defined Benefit Plan and a 
Defined Contribution Plan?'', Time (May 20, 2014), http://time.com/
money/2791222/difference-between-defined-benefit-plan-and-defined-
contribution-plan/. Policymakers of both parties have abetted this 
practice. In 2015, in the progressive State of Washington, even a 
Democratic governor browbeat aerospace machinists into giving up 
defined-benefit pensions in their contract negotiations with Boeing. 
See, e.g., Jim Brunner, ``Labor Group Disinvites Inslee Over Boeing 
Tensions,'' Seattle Times (July 20, 2015), https://
www.seattletimes.com/seattle-news/politics/labor-group-disinvites-
inslee-over-boeing-tensions/.
    \37\ Alana Semuels, ``This is What Life Without Retirement Savings 
Looks Like,'' The Atlantic (February 22, 2018), https://
www.theatlantic.com/business/archive/2018/02/pensions-safety-net-
california/553970/.
    \38\ Id.
    \39\ Teresa Ghilarducci and Tony James, ``Americans Haven't Saved 
Enough for Retirement. What Are We Going to Do About It?'', Harvard 
Business Review (March 28, 2018), https://hbr.org/2018/03/americans-
havent-saved-enough-for-retirement-what-are-we-going-to-do-about-it.
    \40\ Ben Steverman, ``Rich Business Owners Are Using Pension Plans 
to Stash Money and Get a Tax Break,'' Los Angeles Times (August 15, 
2018), https://www.latimes.com/business/la-fi-pension-tax-deduction-
20180815-story.html.

    This article addresses funding for the continuum of long-term care 
through nursing homes, assisted living facilities, and in-home care. 
Next, the article offers some thoughts on how to address the 
governmental costs of long-term care and secure a more stable future.

               II. Long-Term Care's Challenged Continuum

A. Nursing Homes
    Once the default choice for long-term care, today, nursing homes 
(often called ``skilled nursing facilities'') are generally reserved 
for truly-debilitated Medicaid long-term care beneficiaries; in 2014, 
63.1 percent of nursing home residents needed assistance with at least 
four out of five daily living activities.\41\ In eight states, at least 
half of the residents were 85-years-old or older.\42\ Perhaps more 
amazingly, in 10 states, between 10.2 percent and 13.3 percent of 
residents were 95 years old or older.\43\ Most residents had moderate 
to severe cognitive impairment.\44\ Given that women live longer, they 
comprised the majority of residents--65.6 percent.\45\
---------------------------------------------------------------------------
    \41\ U.S. Centers for Medicare and Medicaid Services, Nursing Home 
Data Compendium 2015 Edition 156, https://www.cms.gov/Medicare/
Provider-EnrollmentandCertification/Certifi
cationandComplianc/Downloads/nursinghomedatacompendium_508-2015.pdf.
    \42\ Id. at 153.
    \43\ Id. at 154.
    \44\ Id. at 159.
    \45\ Id. at 199. That proportion is highest in Rhode Island (71.6 
percent) and New Hampshire (71.4 percent). Id.

    The Medicare Payment Advisory Commission's annual report to 
Congress found that in 2016, nursing home services were operating only 
at a .7 percent margin, down from 1.6 percent in 2015--or actually in 
the negative (-2.3%) if Medicare payments were excluded.\46\ 
Nationally, Medicaid spending on nursing home care only went up .9 
percent in 2016 and .7 percent in 2017.\47\
---------------------------------------------------------------------------
    \46\ Medicare Payment Advisory Commission, ``Report to the 
Congress: Medicare Payment Policy'' 207 (2018), http://www.medpac.gov/
docs/default-source/reports/mar18_medpac_
entirereport_sec.pdf?sfvrsn=0. See Stephen Campbell, ``U.S. Nursing 
Assistants Employed in Nursing Homes,'' PHI (2018), https://
phinational.org/resource/u-s-nursing-assistants-employed-in-nursing-
homes-2018/(91 percent of their front-line caregivers, nursing 
assistants, are also women).
    \47\ U.S. Centers for Medicare and Medicaid Services, ``Nursing 
Care Facilities and Continuing Care Retirement Communities 
Expenditures,'' https://www.cms.gov/Research-Statistics-Data-and-
Systems/Statistics-Trends-andReports/NationalHealthExpendData/
NationalHealth
AccountsHistorical.html (open NHE Tables zip file; then open Table 15).

    How has the federal government responded to this funding crisis? It 
has piled on more regulations; although, as this author once argued, 
``[s]hort of nuclear reactors, nursing homes may be the most regulated 
industry-down to the water temperature.''\48\ The new federal 
regulations, which one proponent exulted would mean ``[ab]out 1.4 
million people living in nursing homes across the country can now be 
more involved in their care,''\49\ carry a cost that the federal 
government projected is ``about $831 million in the first year and $736 
million per year for subsequent years. While this is a large amount in 
total, the average cost per facility is estimated to be approximately 
$62,900 in the first year and $55,000 in subsequent years.''\50\
---------------------------------------------------------------------------
    \48\ Brendan Williams, ``Costly New Medicaid Regs Will Cripple 
Nursing Homes,'' The Hill (September 10, 2015), https://thehill.com/
blogs/congress-blog/healthcare/253100-costly-new-medicaid-regs-will-
cripple-nursing-homes.
    \49\ Susan Jaffe, ``New Rules Give Nursing Home Residents More 
Power,'' Washington Post (December 27, 2016), https://
www.washingtonpost.com/national/health-science/new-rules-give-nursing-
home-residents-morepower/2016/12/27/c0959f74-c894-11e6-bf4b-
2c064d32a4bf_story.
html?utm_term=.a2ffb202b7af.
    \50\ Medicare and Medicaid Programs; Reform of Requirements for 
Long-Term Care Facilities, 81 Fed. Reg. 68688, 68844 (October 4, 2016).

    As to the unfunded cost burden, CMS dismissed it: ``We understand 
that for some facilities Medicaid reimbursement accounts for a large 
portion of its funding, however the specifics regarding Medicaid 
funding is regulated by the State and outside the scope of this 
regulation.''\51\ CMS further stated that ``[a]lthough the overall 
magnitude of cost related to this regulation is economically 
significant, we note that these costs are significantly less than the 
amount of Medicare and Medicaid spending for LTC services.''\52\ 
Consider that statement. If the average nursing home in 2016 operated 
at a .7% margin, as the federal government itself reported,\53\ then 
that facility would have needed to generate around $800,000 in income 
just to afford the $55,000 annual cost that the federal government 
projected for its new regulations (possibly an understated amount).
---------------------------------------------------------------------------
    \51\ Id. at 68837.
    \52\ Id. at 68844.
    \53\ See Medicare Payment Advisory Commission, supra note 46.

    The scale of injury that the state governments' knowing failure to 
pay Medicaid care costs is easiest to assess with nursing homes, as the 
Balanced Budget Act of 1997 requires states to file detailed cost 
reports that the states will then audit.\54\
---------------------------------------------------------------------------
    \54\ Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 
(1997).

    Since nursing homes are more visible, and subject to exacting 
reporting and survey requirements, they receive bad publicity for 
issues not uncommon elsewhere among the elderly, such as individual 
with dementia using antipsychotic (AP) drugs.\55\ As the American 
Association of Retired Persons has found, ``While efforts to reduce AP 
use among dementia patients living in nursing homes are showing some 
success, less attention is given to older adults living in the 
community.''\56\ This study found that AP rates rose between 2012 and 
2015 among community-only adults with dementia who were enrolled in 
Medicare Advantage (MA) plans.\57\ According to the National 
Partnership to Improve Dementia Care in Nursing Homes, ``AP use among 
nursing home residents declined by approximately 34 percent during this 
time.''\58\ However, news organizations, like The Washington Post, 
undermine these facts with lurid headlines such as: ``Why are nursing 
homes drugging dementia patients without their consent?''\59\
---------------------------------------------------------------------------
    \55\ Id.
    \56\ Elizabeth A. Carter, ``Off-Label Antipsychotic Use in Older 
Adults with Dementia: Not Just a Nursing Home Problem,'' AARP (2018), 
https://www.aarp.org/content/dam/aarp/ppi/2018/04/off-label-
antipsychotic-use-in-older-adults-with-dementia.PDF.
    \57\ Id.
    \58\ Id. at 2.
    \59\ Hannah Flamm, ``Why Are Nursing Homes Drugging Dementia 
Patients Without Their Consent?'', Washington Post (August 10, 2018), 
https://www.washingtonpost.com/outlook/2018/08/10/8baff64a-9a63-
11e88d5ec6c594024954_story.html?utm_term=.c17529d7c517. This was an 
entirely anecdotal story where the author reports having ``visited more 
than 100 nursing homes across six states'' and extrapolates her 
conclusions from those visits. Id. Yet there are over 15,000 nursing 
homes nationwide. See ``Fast Facts,'' American Health Care Association, 
https://www.ahcancal.org/research_data/Pages/Fast-Facts.aspx (last 
visited August 21, 2018). The federal measure for nursing home 
quality--the five-star system--also has the potential to mislead, as 
consumers will not be aware it grades on a curve. See Brendan Williams, 
``An Attack on New Hampshire Long-Term Care,'' Concord Monitor (2018) 
(it ``requires no fewer than 20 percent of nursing homes in each state 
receive a one-star rating--and roughly 23.3 percent receive a two-star 
rating; only 10 percent can get the highest rating.''). And because 
these assessments are state-specific, a one-star building in a high-
quality state might be a five-star in a low quality state. See id.

    Such stories make it challenging to focus attention on the need to 
improve funding. No other healthcare sector is more vulnerable to being 
defined by anecdotes about single bad actors. Those remembering the 
devastation inflicted by Hurricane Irma in 2017 may recall the Florida 
nursing home where residents died from heat-related causes after the 
hurricane knocked out the facility's air conditioning.\60\ However, 
they are unlikely to even know about every other facility that 
weathered the storm due to extraordinary staff preparation. Some who 
remember Hurricane Katrina in 2005 may recall the tragedy of St. Rita's 
Nursing Home, where 35 residents died at the small family-owned 
facility.\61\ But, those who remember the tragedy may not think about 
all of the facilities where staff heroically saved their charges from 
harm in extreme conditions.\62\ By contrast, few members of the public 
know of the alarming federal report to Congress, declaring that nursing 
homes nationally are effectively operating at a loss \63\ because that 
finding appears to have generated no mainstream media coverage.
---------------------------------------------------------------------------
    \60\ See, e.g., Tonya Alanez and Erika Pesantes, ``12 Nursing Home 
Deaths in Hollywood Ruled as Homicides,'' Sun Sentinel (November 22, 
2017), https://www.sun-sentinel.com/news/hollywood-nursing-home-
hurricane-deaths/fl-sb-nursing-home-homicides-official-20171122-
story.html. There can be no excuse for resident neglect. Even if 
government funding is insufficient to support quality care, a 
responsible provider should close a facility, and not blame external 
forces. See, e.g., Sabriya Rice and Holly K. Hacker, ``Too Many 
Lawsuits or Bad Nursing Home Care? What's Behind Bankruptcy, Injuries, 
Deaths at Texas-Based Chain?'', Dallas Morning News (January 25, 2018), 
https://www.dallasnews.com/business/health-care/2018/01/25/preferred-
care-texas-based-nursing-home-elder-neglect-injury-death-bankruptcy 
(``A stream of documented complaints from three separate states flows 
back to one nursing home operator: Preferred Care of Plano, which filed 
for bankruptcy in November.'' As an excuse for alleged resident 
neglect, the company ``cited more than 160 `predatory' lawsuits'' and 
stated legal fees constrained ``its ability to spend money on patient 
care.'').
    \61\ They will not know that the owners were acquitted of negligent 
homicide charges because they were not the real culprits. See Michael 
Dirda, ``Book World: James A. Cobb Jr.'s `Flood of Lies: The St. Rita's 
Nursing Home Tragedy','' Washington Post (October 16, 2013), https://
www.washingtonpost.com/entertainment/books/book-world-james-a-cobb-jrs-
flood-of-lies-the-st-ritas-nursing-home-tragedy/2013/10/16/08952704-
31bc-11e3-89ae16e186e117d8_story.html?utm
_term=.1663aefc5dde (``[T]he storm itself would have resulted in only a 
foot of flooding; the failure of the levees created the tremendous 10-
foot deluge. And whose fault was that? The Army Corps of Engineers, 
which eventually admitted that the levees were poorly built and 
shoddily maintained.''). That 45 people also died at a New Orleans 
hospital did not initiate an anti-
hospital clamor. See, e.g., Sheri Fink, ``The Deadly Choices at 
Memorial,'' New York Times (August 25, 2009), https://www.nytimes.com/
2009/09/13/magazine/13letters-t-THEDEADLY
CHO_LETTERS.html (``Mortuary workers eventually carried 45 corpses from 
Memorial, more than from any comparable-size hospital in the drowned 
city.''). According to the exhaustive Times article, ``it appears that 
at least 17 patients were injected with morphine or the sedative 
midazolam, or both, after a long-awaited rescue effort was at last 
emptying the hospital.'' Id.
    \62\ In 2018, California nursing homes were forced to evacuate in 
the face of wildfires, as one article related:
       How do you evacuate a nursing home when the deadliest wildfire 
in California history is bearing down and there are 91 men and women to 
move to safety--patients in need of walkers or wheelchairs or confined 
to hospital beds, suffering from dementia, recovering from strokes?
       The fire is coming fast. Help is not.
    Maria L. La Ganga, ``California Fire: If You Stay, You're Dead. How 
a Paradise Nursing Home Evacuated,'' Los Angeles Times (November 17, 
2018), https://www.latimes.com/local/califomia/la-me-ln-nursing-home-
fire-evac-20181117-story.html.
    \63\ See Medicare Payment Advisory Commission, supra note 46.

    While critics challenge the nursing home sector nationally, it is 
better to get old and infirm in some states rather than in others. In 
Oklahoma, for example, one nursing home provider noted the 
reimbursement rate was $146 a day, or $134 if a provider tax was 
subtracted: ``Clearly, $134 a day does not come close to covering the 
cost of round-the-clock room and board, let alone meeting payroll 
requirements for nursing staff. By comparison, Oklahoma state 
legislators receive a daily per-diem $156.50 when they are in 
session.''\64\ Whereas, the 2018 ``basic'' nursing home payment rate in 
Oregon, also the nation's leader in funding HCBS, was $312.87 per 
patient day.\65\
---------------------------------------------------------------------------
    \64\ Tom Coble, ``A Huge Fiscal Cliff Looms for Skilled Nursing,'' 
McKnight's Long-Term Care News (August 17, 2018), https://
www.mcknights.com/guest-columns/a-huge-fiscal-cliff-looms-for-skilled-
nursing/article/788893/. And maybe you get what you pay for. Oklahoma 
had among the nation's lowest-ranked nursing home care quality, 
according to one study. See Corey Jones, ``AARP Report Provides 
Indicators of How Oklahoma Nursing Homes Are `Failing to Provide Basic 
Levels of Care','' Tulsa World (September 4, 2018) (The head of the 
Oklahoma Association of Health Care Providers pointed out that ``the 
reimbursement rate of $144.67 a resident per day in Fiscal Year 2017 
was below the audited cost of $165.38, which was established by the 
Oklahoma Health Care Authority.''). The payment shortfall, cited in the 
Tulsa World article, bears inexorably upon staff compensation, 
recruitment, and retention.
    \65\ See Letter from Oregon Department of Human Services to All 
Oregon Nursing Facilities (July 10, 2018), https://www.oregon.gov/DHS/
PROVIDERS-PARTNERS/LICENSING/AdminAlerts/
1.%20NF%20Rate%20Letter%202018%20-%20Supplemental.pdf.

    Underfunding in Oklahoma caused the 2018 closure of the Pawhuska 
Nursing Home, which had been ``open for more than 60 years,'' 
displacing residents and staff from their rural community.\66\ 
Oklahoma's nursing homes had reportedly ``lost more than $93 million in 
state and federal appropriations since 2010.''\67\ During that time, 
Governor Mary Fallin responded to state budget woes by declaring an 
``Oilfield Prayer Day.''\68\ Cities in Oklahoma were looking to take 
over nursing homes as a gambit to increase facility reimbursement, as 
government-run facilities can draw down more federal reimbursement.\69\ 
In Indiana, ``A wrinkle in Medicaid's complex funding formula gives 
Indiana nursing homes owned or leased by city or county governments a 
funding boost of 30 percent per Medicaid resident. The money is sent to 
the hospitals, which negotiate with the nursing homes over how to divvy 
it up.''\70\ One Pulaski County hospital alone acquired ten nursing 
homes statewide.\71\
---------------------------------------------------------------------------
    \66\ Jessica Remer, ``Pawhuska Nursing Home Shuttering Due to State 
Budget Cuts,'' KTUL.
COM (January 25, 2018), https://ktul.com/news/local/pawhuska-nursing-
home-shuttering-due-to-state-budget-cuts.
    \67\ Id.
    \68\ Derek Hawkins, ``Oklahoma Governor Mary Fallin Says All 
Faiths, Not Just Christians, Should Observe `Oilfield Prayer Day','' 
Washington Post (Oct. 11, 2016), https://www.washingtonpost.com/news/
morning-mix/wp/2016/10/11/okla-gov-mary-fallin-says-all-faiths-not-
just-christians-should-observe-oilfield-prayer-day/
?utm_term=.41926d0ddcda.
    \69\ See Paul Monies, ``Cities Become Owners of Nursing Homes, 
Expecting Windfall from Feds,'' Oklahoma Watch (September 16, 2018), 
https://oklahomawatch.org/2018/09/16/cities-become-owners-of-nursing-
homes-expecting-windfall-from-feds/ (One city, with less than 6,300 
residents, now owns 28 nursing homes around the state, and ``[i]n all, 
licenses for 46 nursing homes are now owned by cities or towns''). 
Whether the federal government would approve this was a gamble.
    \70\ Phil Galewitz, ``Chasing Millions in Medicaid Dollars, 
Hospitals Buy up Nursing Homes,'' Washington Post (October 13, 2017), 
https://www.washingtonpost.com/business/economy/chasing-millions-in-
medicaid-dollars-hospitals-buy-up-nursing-homes/2017/10/13/2be823ca-
a943-11e7-92d1-58c702d2d975_story.html. As these sorts of funding 
schemes are not replicable everywhere, they are just further evidence 
of the need for a federal fix to long-term care finances.
    \71\ Id.

    All long-term care is subject to the vagaries of state budget 
decisions.\72\ In Montana, one 2018 editorial noted that: ``already 
rock bottom Medicaid reimbursement rates were lowered even more, 
leaving providers throughout the state in the impossible position of 
either cutting their Medicaid clients or continuing to serve them at a 
loss.''\73\
---------------------------------------------------------------------------
    \72\ See, e.g., Brendan Williams, ``Do Right by All Medicaid Care 
Providers and Their Vulnerable Clients,'' Nashua Telegraph (January 10, 
2019) (``If New Hampshire's nursing homes are to continue to be a vital 
safety net, the 17-cents-a-day Medicaid funding increase they received 
January 1st, for the over-4,000 residents whose care is state-funded, 
is not going to sustain them.'').
    \73\ Editorial, ``No Way to Run a State Budget,'' The Missoulian 
(August 5, 2018), https://missoulian.com/opinion/editorial/no-way-to-
run-a-state-budget/article_8916f59e-ab44-5137-bf5d-f2096d476b88.html.

    Massachusetts is commonly known as a progressive state, yet one 
Massachusetts nursing home provider wrote a column noting that 
``financial data filed with the state's Center for Health Information 
and Analysis shows that all types of nursing facilities--family 
operated, not-for-profit, regional, and nationally owned--are teetering 
on the edge. How else would you describe a sector with more facilities 
operating on negative rather than positive margins?''\74\ This nursing 
home provider's family has operated facilities in Massachusetts for 65 
years.\75\
---------------------------------------------------------------------------
    \74\ Matt Salmon, ``Nursing Home Sector on Verge of Collapse,'' 
CommonWealth (July 17, 2018), https://commonwealthmagazine.org/opinion/
nursing-home-sector-on-verge-of-collapse/; see also Press Release, 
Massachusetts Senior Care Association, ``Lawmakers Told Many Skilled 
Nursing Facilities on the Verge of Bankruptcy and Possible Closure'' 
(September 11, 2017), https://www.maseniorcare.org/about/newsroom/
lawmakers-told-many-skilled-nursing-facilities-verge-bankruptcy-and-
possible-closure (``A recent analysis of 2016 state cost report data, 
filed with the Center for Health Information and Analysis (CHIA) shows 
three quarters of the state's nursing facilities have a combined 
negative margin of 4.4%, an indication that the sector is experiencing 
an unprecedented financial crisis.'').
    \75\ See Salmon, supra note 75.

    In its 2017 session, the Texas Legislature failed to adopt a common 
mechanism to improve federal Medicaid long-term care funding--a so-
called ``provider tax.''\76\ As one newspaper reported, ``[t]he fee 
would raise an estimated $360 million over 2 years, going a long way 
toward bridging a gap in funding. The Medicaid match would increase 
that to an estimated $800 million.''\77\ In a 2017 column, the 
President of the Texas Health Care Association (the trade group 
representing Medicaid-contracting nursing homes) stated, ``According to 
an analysis of the most recent available Medicaid cost report database, 
the average reportable cost per resident is $157 a day. The average 
reimbursement from the state for these same residents is just 
$138.''\78\
---------------------------------------------------------------------------
    \76\ Every state but Alaska has at least one provider tax. See 
``States and Medicaid Provider Taxes or Fees,'' Kaiser Family 
Foundation. (June 27, 2017), https://www.kff.org/medicaid/fact-sheet/
states-and-medicaid-provider-taxes-or-fees/ (``Provider taxes are 
imposed by states on health care services where the burden of the tax 
falls mostly on providers, such as a tax on inpatient hospital services 
or nursing facility beds. Provider taxes have become an integral source 
of financing for Medicaid.'').
    \77\ Peggy Fikac, ``Nursing Homes Joust Over Fee Proposal: `Granny 
Tax' or Funding Lifeline?,'' San Antonio Express-News (March 27, 2017), 
https://www.mysanantonio.com/news/local/article/Nursing-homes-joust-
over-fee-proposal-Granny-11027904.php.
    \78\ Kevin Warren, ``Texas Nursing Homes Are at the Tipping 
Point,'' Texas Tribune (January 5, 2017), https://www.tribtalk.org/
2017/01/05/texas-nursing-homes-are-at-the-tipping-point/.

    Yet, Empower Texas, a conservative organization, opposed the 
Republican-
sponsored bill, scoring it as anti-taxpayer and describing it as 
``[c]reating new hidden fee[s] on residents of nursing home 
facilities.''\79\ It passed in the Republican House, 96-43, before 
dying in the Senate.\80\
---------------------------------------------------------------------------
    \79\ See HB 2766: Creating New Hidden Fee on Residents of Nursing 
Home Facilities, EmpowerTexans, https://index.empowertexans.com/votes/
2017-house-vote-rv1141 (last visited August 20, 2018).
    \80\ See id.

    After the Texas Legislature failed to improve nursing home rates, 
Genesis HealthCare, one of the nation's largest nursing home providers, 
announced it would sell all 23 of its Texas facilities to a real estate 
investment trust (REIT).\81\ In 2018, the largest nursing home provider 
in Texas, with over one hundred facilities, declared bankruptcy.\82\
---------------------------------------------------------------------------
    \81\ John George, ``Genesis Selling Off 2 Dozen Skilled Nursing 
Facilities in Texas,'' Philadelphia Business Journal (2018).
    \82\ See Holly K. Hacker and Sue Ambrose, ``Texas' Largest Nursing 
Home Operator Files for Bankruptcy, Sparking Concerns About Patients, 
Jobs,'' Dallas Morning News (December 5, 2018), https://
www.dallasnews.com/business/business/2018/12/05/texas-largest-nursing-
home
-operatorfiles-bankruptcy-sparking-concems-patients-jobs.

    REITs are common owners of nursing facilities, though not the state 
bed licenses, and the rent pressures that the care providers face do 
not always operate in the best interests of care.\83\ This creates 
fights between the facility operators and landlords.\84\ Genesis, 
operating more than 450 facilities nationwide, had threatened 
bankruptcy before announcing, in February 2018, that it ``negotiated 
$54 million worth of annual lease reductions that are effective 
retroactively to January 1st. The move will cut the company's rent fees 
by 11 percent, when compared to 2017.''\85\ Also, in 2018, a joint 
venture saved HCR ManorCare, which operated around 500 long-term care 
facilities nationwide, from Chapter 11 bankruptcy by purchasing both 
ManorCare and the REIT that had owned its facilities.\86\ As one 
article noted, ``Former ManorCare landlord Quality Care Properties had 
been locked in an extended battle with its tenant over missed rent 
payments, which eventually sent ManorCare into Chapter 11 bankruptcy 
protection.''\87\ Illustrating the nursing home sector's 
precariousness, the acquiring company saw its bond rating downgraded 
significantly.\88\
---------------------------------------------------------------------------
    \83\ See Peter Whoriskey and Dan Keating, ``Overdoses, Bedsores, 
Broken Bones: What Happened When a Private-Equity Firm Sought to Care 
for Society's Most Vulnerable,'' Washington Post (November 25, 2018) 
(After selling its properties to a real estate investment company, 
``HCR ManorCare had to make massive rent payments to its new landlord, 
and these, according to the company's accounting, raised the company's 
long-term financial obligations to $6 billion.'').
    \84\ See Alex Spanko, ``REITs Adopt Novel Approaches to Stay 
Relevant in Skilled Nursing,'' Skilled Nursing News (June 3, 2018) 
(noting that ``publicly traded REITs also played some role in the 
difficulties facing individual skilled nursing operators: In a world of 
changing reimbursements, staffing pressures, and regulatory scrutiny, 
the skilled nursing model has become increasingly difficult to 
reconcile with annual rent escalators and quarterly scrutiny from 
shareholders.'').
    \85\ George, supra note 82.
    \86\ Jon Chavez, ``ProMedica, Welltower, Finalize Purchase of HCR 
ManorCare, Toledo Blade (July 27, 2018), https://www.toledoblade.com/
business/2018/07/26/ProMedica-Welltower-finalize-purchase-of-HCR-
ManorCare/stories/20180726203.
    \87\ Alex Spanko, ``S&P Downgrades ProMedica in Wake of ManorCare-
Welltower Deal,'' Skilled Nursing News (August 15, 2018), https://
skillednursingnews.com/2018/08/sp-downgrades-promedica-wake-manorcare-
welltower-deal/. A threat to simply turn over the keys can be an 
effective negotiating tactic, as a REIT is unlikely to have any more 
success turning a profit than its provider tenant, and would not want 
empty buildings in its portfolio. That is effectively what HCR 
ManorCare did. See Tara Bannow, ``HCR ManorCare Files for Bankruptcy, 
Proposes Ownership Transfer,'' Modern Healthcare (March 5, 2018), 
https://www.modernhealthcare.com/article/20180305/NEWS/180309949 
(``Struggling nursing home provider HCR ManorCare's parent company 
filed for bankruptcy Sunday, and plans to shift ownership and 
leadership to its landlord, the real estate investment trust Quality 
Care Properties.'').
    \88\ See Spanko, supra note 88 (``The Toledo, Ohio-based hospital 
and skilled nursing chain now sits at BBB, down from the A+ rating 
ProMedica had maintained ahead of its blockbuster deal to acquire 
struggling nursing chain HCR ManorCare.''). More consolidation under 
REIT ownership is likely to occur under a new Medicare payment model. 
See Maggie Flynn, ``PDPM Piles the Pressure on Smaller Skilled Nursing 
Operators,'' Skilled Nursing News (August 27, 2018), https://
skillednursingnews.com/2018/08/pdpm-piles-pressure-smaller-skilled-
nursing-operators/ (Some are predicting ``a wave of skilled nursing 
sales by smaller, mom-and-pop style operators.''). Consolidation can 
bring efficiencies of scale. It can, however, also bring operators who 
are not proficient at care, with systemic, as opposed to individual, 
facility failures. See, e.g., Whoriskey and Keating, supra note 84 
(``Under the ownership of the Carlyle Group, one of the richest 
private-equity firms in the world, the ManorCare nursing-home chain 
struggled financially until it filed for bankruptcy in March.''); Kay 
Lazar, ``Troubled Massachusetts Nursing Home Chain in `Dire' Straits,'' 
Boston Globe (September 1, 2018), https://www.bostonglobe.com/metro/
2018/08/31/troubled-massachusetts-nursing-home-chain-dire-straits-
court-monitor-warns
/WtywMujnoo7Fy2qYdlvdxL/story.html (``With the company's finances 
deteriorating, eight Synergy facilities have been placed into the hands 
of a court-appointed receiver, which is trying to untangle a labyrinth 
of unpaid bills for everything from medicine and food to cleaning 
services, court records show.'').

    In 2017, Kindred Healthcare--once one of the nation's largest 
nursing home companies--sold all of its nursing homes.\89\ Four that 
subsequently closed were located in Massachusetts.\90\
---------------------------------------------------------------------------
    \89\ See, e.g., Marty Stempniak, ``Kindred Shareholders Approve 
Sale to Humana,'' McKnight's Long-Term Care News (April 6, 2018), 
https://www.mcknights.com/news/kindred-shareholders-approve-sale-to-
humana/.
    \90\ Shira Schoenberg, ``Kindred Healthcare, Heritage Nursing to 
Collectively Close Five Massachusetts Nursing Homes, Leaving 600 to 
Find New Place to Live,'' MassLive (December 5, 2017), https://
www.masslive.com/politics/index.ssf/2017/12/
five_massachusetts_nursing_hom.html.

    As was true for the small Pawhuska Nursing Home in rural Oklahoma, 
state funding pressures have not been limited to large, profit-oriented 
chains. In Illinois, for example, a 113-year-old, 98-bed nursing home 
closed in 2018 due to state inefficiency in processing Medicaid 
payments.\91\ As the State Journal-Register reported:
---------------------------------------------------------------------------
    \91\ See Dean Olsen, ``Medicaid Processing Backlog a Fatal Blow for 
Girard Nursing Home,'' State Journal-Register (July 9, 2018), https://
www.sj-r.com/news/20180706/medicaid-processing-backlog-fatal-blow-for-
girard-nursing-home.

        For Pleasant Hill, a not-for-profit facility associated with 
        the Church of the Brethren, waiting on $2.3 million in Medicaid 
        payments for residents whose applications remain pending--some 
        as long as two to 3 years and some involving people who have 
        died during the wait--has become too much of a burden.\92\
---------------------------------------------------------------------------
    \92\ Id.

    The delayed payments amounted to ``44 percent of the nursing home's 
annual spending.''\93\
---------------------------------------------------------------------------
    \93\ Id.

    Citing inadequate Medicaid payments that caused it to lose over $1 
million annually, a 45-year-old nonprofit nursing home in New Hampshire 
closed its doors in 2016.\94\ This is particularly troubling 
considering New Hampshire has the nation's second-oldest median 
age.\95\ In 2018, the president and CEO of Catholic Charities New 
Hampshire wrote that ``our 800 nursing home employees serve 
approximately 1,000 residents; of those, 60 to 78 percent are on 
Medicaid. Historically, we operate on a 1.5 to 2.5 percent margin. But 
last year we had a negative margin.''\96\
---------------------------------------------------------------------------
    \94\ John P. Gregg, ``Clough Center To Close,'' Valley News (June 
16, 2016), https://www.vnews.com/New-London-Hospital-to-Close-Clough-
Nursing-Home-2888282.
    \95\ See Press Release, U.S. Census Bureau, The Nation's Older 
Population Is Still Growing, Census Bureau Reports (June 22, 2017) 
(noting that, nationally, ``Residents age 65 and over grew from 35.0 
million in 2000, to 49.2 million in 2016, accounting for 12.4 percent 
and 15.2 percent of the total population, respectively.'').
    \96\ Thomas E. Blonski, ``A Troubling Future for New Hampshire's 
Elderly?'', Concord Monitor (March 1, 2018), https://
www.concordmonitor.com/A-troubling-future-for-NH-elderly-15824078 (even 
charities cannot long afford to operate at a loss.).

    Nursing home providers in seemingly-progressive states are not 
immune from funding pressures. After winning a $24 million Medicaid 
recovery lawsuit, nursing homes in Rhode Island were threatened with 
the retribution of an 8.5 percent state budget cut in 2018, so they 
settled the lawsuit and instead agreed to ``a 1.5 percent increase on 
July 1, and another 1 percent in October.''\97\
---------------------------------------------------------------------------
    \97\ Katherine Gregg, ``State, Nursing Homes Reach Potential 
Settlement in Medicaid Lawsuit,'' Providence Journal (June 12, 2018), 
https://www.providencejournal.com/news/20180612/state-nursing-homes-
reach-potential-settlement-in-medicaid-lawsuit.

    A 2017 RAND Corporation study found that ``[a]mong persons age 57 
to 61, 56 percent will stay in a nursing home at least one night during 
their lifetime.''\98\ Michael Hurd, the study's lead author, noted that 
due to the unviability of long-term care insurance, ``people should be 
prepared to use the societally provided insurance, which is 
Medicaid.''\99\
---------------------------------------------------------------------------
    \98\ Press Release, RAND Corp., ``Average American's Risk of 
Needing Nursing Home Care is Higher Than Previously Estimated'' (August 
28, 2017), https://www.rand.org/news/press/2017/08/28/index1.html.
    \99\ Id.

    But, will the facilities be there for them? According to one 2018 
report, ``The 31 largest metropolitan markets have 13,586 fewer nursing 
home beds now than in late 2005.''\100\ Some states are trying to do 
better. In Maine and Massachusetts, in 2018, lawmakers voted to 
dramatically increase nursing home funding to afford better wages for 
caregivers.\101\ In Maine, legislators even overcame a gubernatorial 
veto.\102\ Following her 2018 re-election, Oregon Governor Kate Brown, 
a Democrat, proposed a ten percent Medicaid funding increase for long-
term care facilities.\103\ These are very positive efforts. However, 
they not only accentuate the disparate treatment of nursing home care 
by states, but they may not be sustainable in the event of an economic 
downturn--when Medicaid is often on the chopping block. In other words, 
a federal funding strategy is still needed.
---------------------------------------------------------------------------
    \100\ Paula Span, ``In the Nursing Home, Empty Beds and Quiet 
Halls,'' New York Times (September 28, 2018), https://www.nytimes.com/
2018/09/28/health/nursing-homes-occupancy
.html. As the story notes:
       For more than 40 years, Morningside Ministries operated a 
nursing home in San Antonio, caring for as many as 113 elderly 
residents. The facility, called Chandler Estate, added a small 
independent living building in the 1980s and an even smaller assisted 
living center in the 1990s, all on the same four-acre campus.The whole 
complex stands empty now.
    Id.
    \101\ See Brendan Williams, ``NH Needs to Invest in Care for 
Seniors,'' Portsmouth Herald (July 11, 2018), https://
www.seacoastonline.com/news/20180711/nh-needs-to-invest-in-care-for-
seniors. In Massachusetts, the Legislature adopted a budget specifying 
that ``not less than $38,300,000 shall be expended to fund a rate add-
on for wages, shift differentials, bonuses, benefits and related 
employee costs paid to direct care staff of nursing homes; provided 
further, that MassHealth regulations for this rate add-on shall 
prioritize spending on hourly wage increases, shift differentials or 
bonuses paid to certified nurses' aides and housekeeping, laundry, 
dietary and activities staff[.]'' See 2018 Mass. Acts ch. 154 
Sec. 4000-0641.
    \102\ See Mal Leary, ``LePage Vetoes More than 20 Bills, Including 
Funding for Prison and Direct Care Workers,'' Maine Pubic (July 2, 
2018), http://www.mainepublic.org/post/lepage-vetoes-more-20-bills-
including-funding-prison-and-direct-care-workers. The Maine legislators 
approved provided one-time additional funding for wage increases for 
workers in long-term care facilities of ``[a]n amount equal to 10% of 
allowable wages and associated benefits and taxes. . . .'' 2018 Me. 
Laws ch. 460 Sec. B-3(1), http://www.mainelegislature.org/legis/bills/
getPDF.asp?paper=HP0653&item=3&snum=128. Going forward, the law also 
provides ``an inflation adjustment for a cost-of-living percentage 
change in nursing facility reimbursement each year in accordance with 
the United States Department of Labor, Bureau of Labor Statistics 
Consumer Price Index medical care services index.'' Id. at Sec. B-1. 
And yet even Maine, with the nation's oldest population, saw a record 
number of nursing home closures in 2018. See Jackie Farwell, ``Record 
Number of Maine Nursing Homes Closed This Year, Displacing Hundreds,'' 
Bangor Daily News (December 12, 2018), https://bangordailynews.com/
2018/12/12/mainefocus/record-number-of-maine-nursing-homes-closed-this-
year-displacing-hundreds/ (``The personal toll of the closures on the 
elderly and their families is acute, said Trish Thorsen, program 
manager for the Maine Long-Term Care Ombudsman Program, which advocates 
for nursing home residents.''). Rural facilities are particularly 
vulnerable. See id. In South Dakota, it was reported in December 2018 
that ``[t]he health and stability of some of South Dakota's most 
vulnerable residents are being threatened by a wave of closures of 
long-term care facilities across the state.'' Bart Pfankuch, ``Wave of 
Nursing Home Closures Hitting Small South Dakota Communities,'' South 
Dakota News Watch (December 12, 2018), https://www.sdnewswatch.org/
stories/wave-of-nursing-home-closures-hitting-small-south-dakota-
communities/ (``Nursing homes are sometimes the biggest employer in 
small towns and employees are typically laid off upon closure. 
Residents of rural nursing homes tend to be locals and uprooting them 
from their long-term homes is physically and emotionally traumatic for 
the patients and their loved ones.'').
    \103\ See Hillary Borrud, ``Top Takeaways from Governor Kate 
Brown's $23.6 Billion Budget Proposal,'' Oregonian (November 29, 2018), 
https://www.oregonlive.com/politics/2018/11/top-takeaways-from-gov-
kate-browns-236-billion-budget-proposal.html.
---------------------------------------------------------------------------
B. Assisted Living Facilities
    According to the National Center for Assisted Living, ``There are 
30,200 assisted living communities with 1 million licensed beds in the 
United States today.''\104\
---------------------------------------------------------------------------
    \104\ See National Center for Assisted Living, https://
www.ahcancal.org/ncal/facts/Pages/Communities.aspx (last visited March 
4, 2019).

    Oregon was the first state, in 1981, to apply for a federal waiver 
to serve Medicaid beneficiaries in long-term care settings other than 
nursing homes, and it is credited with having the first assisted living 
facility.\105\ An Oregonian article identified the ``trade-offs'' of 
assisted living: ``It's less regulated than nursing homes, which lets 
residents be more independent about where they move and what they do. 
But there's also less safety regulation and checks that people are 
having good health outcomes.''\106\
---------------------------------------------------------------------------
    \105\ See Lynne Terry, ``Winners and Losers as Oregon's Population 
Ages,'' Oregon Business (July 9, 2018), https://www.oregonbusiness.com/
article/real-estate/item/18395-boomer-s-future.
    \106\ See Andy Dworkin, ``Oregon Among National Leaders in Number 
of Assisted Living Facilities,'' Oregonian (January 5, 2010), https://
www.oregonlive.com/news/index.ssf/2010/01/
oregon_among_national_leaders.html.

    The growth of the sector can lead to challenges. In 2014, Brookdale 
Senior Living acquired Emeritus Corporation for $2.8 billion, expanding 
its footprint to 1,100 assisted living facilities.\107\ In August 2018, 
amidst news that Brookdale was selling 27 facilities, its stock had 
reportedly fallen to $8.19 per share from over $38 per share in 
2015.\108\ Brookdale was not reported at risk of insolvency,\109\ but 
its challenges as a sector leader show that in long-term care, the 
expression ``[i]f you build it, he will come''\110\ is not a guaranteed 
business proposition.\111\
---------------------------------------------------------------------------
    \107\ Eleanor Kennedy, ``$2.8-billion Brookdale-Emeritus Merger 
Closes,'' Nashville Business Journal (July 31, 2014), https://
www.bizjournals.com/nashville/blog/health-care/2014/07/2-8-billion-
brookdale-emeritus-merger-closes.html.
    \108\ John Stinnett, ``Brookdale's CEO on What's Fueling the Sale 
of 28 Facilities,'' Nashville Business Journal (August 20, 2018), 
https://www.bizjournals.com/nashville/news/2018/08/20/brookdales-ceo-
on-whats-fueling-the-sale-of-28.html.
    \109\ Instead, some investors have pressed the company to sell some 
of its valuable real estate. See Joel Stinnett, ``Activist Investor 
Renews Criticism of Brookdale Senior Living,'' Nashville Business 
Journal (August 10, 2018), https://www.bizjournals.com/nashville/news/
2018/08/10/activist-investor-renews-criticism-of-brookdale.html.
    \110\ See ``Field of Dreams Quotes,'' IMDB, https://www.imdb.com/
title/tt0097351/quotes (last visited Jan. 25, 2018).
    \111\ Building booms can lead to overcapacity bubbles, which is why 
nursing home providers tend to favor certificate of need and bed 
moratorium laws. In New Hampshire, one assisted living facility 
declared bankruptcy with a ``$16.6 million debt and losing money 
daily.'' See Bob Sanders, ``Financial Woes Threaten Seacoast Assisted 
Living Facility,'' New Hampshire Business Review (May 2, 2017), https:/
/www.nhbr.com/May-12-2017/Financial-woes-threaten-Seacoast-assisted-
living-facility/.

    Unlike nursing homes, assisted living facilities may find it 
possible, even preferable, to operate without Medicaid contracts.\112\ 
Since this does not allow residents to age-in-place upon spending down 
their resources, it can lead to some troubling stories:
---------------------------------------------------------------------------
    \112\ In Arkansas, for example, assisted living facilities faced a 
possible 22% Medicaid cut going into 2019. See Andy Davis, ``Proposal 
to Cut Aid for Elderly, Disabled Pulled; State Officials Will Study 
Plan for 8,800 ARChoices Clients,'' Arkansas Democrat Gazette (December 
19, 2018), https://www.arkansasonline.com/news/2018/dec/19/proposal-to-
cut-aid-for-elderly-disable-1/.

        Assisted Living Concepts Inc. drew attention within its first 
        year as a public company when it began forcing people such as 
        Gladys Dixon, nearly blind and a few days shy of 103 years old, 
        to leave its assisted living centers.
        Dixon was among those whose care was paid for by Medicaid, 
        which pays much lower rates than other residents pay. At the 
        time, Assisted Living Concepts, which went public in 2006, 
        planned to increase profits by accepting only so-called 
        private-pay residents.\113\
---------------------------------------------------------------------------
    \113\ Guy Boulton, ``Assisted Living Concepts Purchase Completed,'' 
Milwaukee-Wisconsin Journal Sentinel (July 13, 2013), http://
archive.jsonline.com/business/assisted-living-concepts-purchase-
completed-b9953271z1-215347351.html.

    Yet there can be no requirement that facilities take residents that 
cause them to operate at a loss. In New York City, for example, the 
Medicaid assisted living payment can be as low as $75.85 per day.\114\
---------------------------------------------------------------------------
    \114\ See ``January 1, 2018 Assisted Living Program Minimum Wage 
Rate Schedule,'' New York Department of Health (April 2018), https://
www.health.ny.gov/facilities/long_term_care/reimbursement/alp/2018-01-
01_alp_min_wage_rates.htm (Schedule for ``PA = REDUCED PHYSICAL 
FUNCTIONING A''). A similarly-classed resident's care would only be 
worth $44.33 a day to the state in upstate rural New York. Id.

    In those cases where there are Medicaid residents, there has been 
publicity as to what the federal government gets in exchange for 
Medicaid payments to assisted living facilities, given the patchwork of 
state regulations and laws.\115\ In 2018, The New York Times reported, 
``Federal investigators say they have found huge gaps in the regulation 
of assisted living facilities, a shortfall that they say has 
potentially jeopardized the care of hundreds of thousands of people 
served by the booming industry.''\116\ The article also noted that 
``[s]tates reported spending more than $10 billion a year in federal 
and state funds for assisted living services for more than 330,000 
Medicaid beneficiaries, an average of more than $30,000 a person, the 
Government Accountability Office found in a survey of states.''\117\
---------------------------------------------------------------------------
    \115\ Robert Pear, ``U.S. Pays Billions for `Assisted Living,' but 
What Does It Get?'', New York Times (February 3, 2018), https://
www.nytimes.com/2018/02/03/us/politics/assisted-living-gaps.html.
    \116\ Id.
    \117\ Id.

    Yet there was far less to that General Accountability Office (GAO) 
report than media accounts, as it was based upon 2014 data and involved 
an admittedly ``nongeneralizable sample of three states: Georgia, 
Nebraska, and Wisconsin.''\118\ In 2014, a new CMS rule was adopted, 
requiring greater reporting by states.\119\ CMS needs to enforce that 
expectation. The GAO found that even accessing Medicaid assisted living 
was a challenge, reporting common factors that states identified:
---------------------------------------------------------------------------
    \118\ See U.S. Government Accountability Office, GAO-18-179, 
``Medicaid Assisted Living Services: Improved Federal Oversight of 
Beneficiary Health and Welfare is Needed'' 5 (2018).
    \119\ See Medicaid Program; State Plan Home and Community-Based 
Services, 5-Year Period for Waivers, Provider Payment Reassignment, and 
Home and Community-Based Setting Requirements for Community First 
Choice and Home and Community-Based Services (HCBS) Waivers, 79 Fed. 
Reg. 2947, 2969 (January 16, 2014) (``While we are not changing the 
existing quality assurances through this rule, we clarified that states 
must continue to assure health and welfare of all participants when 
target groups are combined under one waiver, and assure that they have 
the mechanisms in place to demonstrate compliance with that 
assurance.'').

        (1) [T]he number of assisted living facilities willing to 
        accept Medicaid beneficiaries (13 states or 27 percent of the 
---------------------------------------------------------------------------
        48 states);

        (2) program enrollment caps (9 states or 19 percent of the 48 
        states);

        (3) beneficiaries' inability to pay for assisted living 
        facility room and board (9 states or 19 percent of the 48 
        states), which Medicaid typically does not cover; and

        (4) low rates the state Medicaid program paid assisted living 
        facilities (8 states or 17 percent of the 48 states).\120\
---------------------------------------------------------------------------
    \120\ U.S. Government Accountability Office, supra note 122, at 40.

    Given the cost of the federal regulatory regime that applies to 
nursing homes, assisted living should remain state-regulated. Too often 
in long-term care, the impetus for regulation is driven by the outlier 
as opposed to an empirical basis.\121\ States are getting the benefit 
of their bargain, such as New Hampshire, where 24/7 care, meals, and 
housing in an assisted living facility cost the state a daily Medicaid 
rate of just $50.96.\122\ That is less than the cost of a cheap 
motel.\123\
---------------------------------------------------------------------------
    \121\ The prevalence of staph infections, like methicillin-
resistant Staphylococcus aureus (MRSA), have not led to a strict, 
overarching federal regulatory regime for hospitals--just Medicare 
reimbursement penalties. See, e.g., Anthony Sannazzaro, ``MRSA: The 
Superbug Poised to Cost Hospitals Super Sums,'' Infection Control Today 
(December 29, 2015), https://www.infectioncontroltoday.com/bacterial/
mrsa-superbug-poised-cost-hospitals-super-sums.
    \122\ See Williams, supra note 102 (``At least one Portsmouth dog-
sitting service charges more overnight than the $50.96 the state is 
willing to reimburse for assisted living care.'').
    \123\ Id.

    Moreover, the scope of care that assisted living facilities can 
provide varies widely by state. In Washington, where the licensure of 
such facilities dates to 1957, facilities may not admit, or retain, 
``any aged person requiring nursing or medical care of a type provided 
by'' a nursing home, except when registered nurses are available, and 
upon a doctor's order that a supervised medication service is needed, 
---------------------------------------------------------------------------
it may be provided. Whereas, under California law:

        The Legislature hereby finds and declares that in order to 
        protect the health and safety of elders in care at residential 
        care facilities for the elderly, appropriate oversight and 
        regulation of residential care facilities for the elderly 
        requires regular, periodic inspections of these facilities in 
        addition to investigations in response to complaints. It is the 
        intent of the Legislature to increase the frequency of 
        unannounced inspections.\124\
---------------------------------------------------------------------------
    \124\ California Health and Safety Code Sec. 1569.331 (2018).

    In Texas, ``inspection and survey personnel will perform 
inspections and surveys, follow-up visits, complaint investigations, 
investigations of abuse or neglect, and other contact visits from time 
to time as they deem appropriate or as required for carrying out the 
responsibilities of licensing.''\125\
---------------------------------------------------------------------------
    \125\ Texas Administrative Code Sec. 92.81 (2018).

    These types of oversight standards should be adopted in all states. 
Yet oversight alone will not be enough to make assisted living a 
reliable option for Medicaid beneficiaries--only funding can accomplish 
this goal. Policymakers who are only focused on nursing home care and 
home care may overlook assisted living, which provides a social 
---------------------------------------------------------------------------
atmosphere in a residential setting.

    Some states may have more exotic, small facility-based care options 
that are beyond the reach of this article. In Washington State, adult 
family homes have been described as ``a growing, lightly regulated 
housing option for the state's aged and frail. DSHS licenses 
residential homeowners to rent out bedrooms and provide care for up to 
six residents.''\126\ In 2010, there was a move to increase their 
licensure fee tenfold, from $100 per bed annually to $1,000, so that, 
like assisted living facilities and nursing homes, adult family homes 
would pay for oversight.\127\ The impetus behind this movement came 
partly from a Seattle Times investigation that ``uncovered myriad 
accounts of inadequately trained caregivers who imprisoned the elderly 
in their rooms, roped residents into beds at night and drugged others 
into submission.''\128\ The providers successfully resisted any 
increase in licensure fees.\129\ Eight years later, the fee, at $225 
per bed through June 30, 2020,\130\ falls far short of the regulatory 
cost identified in 2010.\131\ This is the only class of facility-based 
care providers in the United States that collectively bargain with a 
state as if unionized.\132\
---------------------------------------------------------------------------
    \126\ Michael J. Berens, ``Adult-Home Owners Avoid Big Fee 
Increase,'' Seattle Times (April 8, 2015), https://
www.seattletimes.com/seattle-news/special-reports/adult-home-owners-
avoid-big-fee-increase/.
    \127\ See id.
    \128\ Id.
    \129\ Id.
    \130\ 2018 Wash. Sess. Laws ch. 299 Sec. 205(b)(i). A question with 
such very small-scale facilities is whether mandatory reporting of 
abuse or neglect will actually occur; i.e., will Mom blow the whistle 
on Pop?
    \131\ See Berens, supra note 131.
    \132\ See Wash. Rev. Code Sec. 41.56.029(1) (2018) (``Solely for 
the purposes of collective bargaining . . . the governor is the public 
employer of adult family home providers who, solely for the purposes of 
collective bargaining, are public employees.'').
---------------------------------------------------------------------------
C. Home Care
    According to the AARP's 2018 Home and Community Preferences Survey, 
more than 70% of those 50-and-older would prefer to remain in their 
communities and in their personal residences.\133\
---------------------------------------------------------------------------
    \133\ Joanne Binette and Kerri Vasold, ``2018 Home and Community 
Preferences: A National Survey of Adults Age 18-Plus,'' AARP (August 
2018), https://www.aarp.org/research/topics/community/info-2018/2018-
home-community-preference.html.

    In-home care offers these promises to those whose physical or 
mental impairment does not require facility-based care.\134\ Oregon 
law, for example, requires the state to make health and social services 
available that ``[a]llow the older citizen and citizen with a 
disability to live independently at home or with others as long as the 
citizen desires without requiring inappropriate or premature 
institutionalization.''\135\
---------------------------------------------------------------------------
    \134\ See, e.g., ``What Is the Difference Between In-Home Care and 
Home Health Care?'', 
Winston-Salem Journal (December 31, 2018) (``You might consider hiring 
in-home care if you or a loved one needs assistance with activities of 
daily living, does not drive or have access to transportation or live 
alone and are at risk for social isolation.'').
    \135\ Or. Rev. Stat. Sec. 10.020(3)(a)(2018).

    The Paraprofessional Healthcare Institute (PHI) reports that there 
are ``over 2 million home care workers'' as compared to ``600,000 
nursing assistants employed in nursing homes. . . .''\136\ PMI 
estimates that between 2016 and 2026, home care will add over 1 million 
jobs, ``which represents the largest growth of any job sector in the 
country.''\137\
---------------------------------------------------------------------------
    \136\ ``Understanding the Direct Care Workforce,'' PHI, https://
phinational.org/policy-research/key-facts-faq/ (last visited December 
4, 2018).
    \137\ Id.

    Although, this is a challenged workforce. As of 2018, the median 
wage was $11.03 per hour.\138\ Accordingly, that report found that 
``[o]ne in five home care workers lives below the federal poverty line 
(FPL) and over half rely on some form of public assistance.''\139\ 
Almost 90 percent are women, and 30 percent are immigrants.\140\
---------------------------------------------------------------------------
    \138\ Campbell, supra note 46 at 2.
    \139\ Id.
    \140\ Id. at 3.

    The New York Times noted, ``providing care for older people, in 
their homes or in facilities, has become the classic example of a job 
native-born Americans would rather not take.''\141\ Thus, immigration 
restrictions threaten to make things worse.\142\ A 2017 Politico 
article warned that ``[o]ne of the biggest future crises in U.S. health 
care is about to collide with the hottest political issue of the Trump 
era: immigration.''\143\ The article noted that ``[t]here's a reason 
foreign-born workers take so many home health jobs: they're low-paid, 
low-skilled and increasingly plentiful. Barriers to entry are low; a 
high school degree is not usually a requirement and neither is previous 
work experience.''\144\ Yet, ``[o]ther low-wage workplaces (McDonald's, 
for instance) offer much better benefits, even tuition 
reimbursement[.]''\145\
---------------------------------------------------------------------------
    \141\ Paula Span, ``If Immigrants Are Pushed Out, Who Will Care for 
the Elderly?'', New York Times (February 2, 2018), https://
www.nytimes.com/2018/02/02/health/illegal-immigrants-caregivers.html.
    \142\ See id.
    \143\ Ted Hesson, ``Why Baby Roomers Need Immigrants,'' Politico 
(October 25, 2017), https://www.politico.com/agenda/story/2017/10/25/
immigrants-caretaker-workforce-000556.
    \144\ Id.
    \145\ Id.

    Not only is our future home care workforce at risk, but our current 
workforce is as well. According to a 2018 Washington Post article, 
59,000 Haitians live in the United States under temporary protected 
status (TPS), a humanitarian program that has given them permission to 
live and work in this country since the earthquake. Many are nursing 
assistants, home health aides and personal care attendants--the trio of 
jobs that often defines direct-care workers.\146\ PHI estimated that 
the direct care workforce also included 69,800 ``non-U.S. citizens from 
Mexico.''\147\
---------------------------------------------------------------------------
    \146\ Melissa Bailey, ``As Trump Targets Immigrants, Elderly and 
Others Brace to Lose Caregivers,'' Washington Post (March 24, 2018), 
https://www.washingtonpost.com/national/health-science/as-trump-
targets-immigrants-elderly-and-others-brace-to-lose-caregivers/2018/03/
24/72d5a0d0-2d3e-11e8-8ad6-fbc50284fcstory.html?utm_term=.828236b697.
    \147\ Id.

    Today all of these workers face the real prospect of deportation. 
---------------------------------------------------------------------------
The Post reported:

        The Trump administration's immigration restrictions may 
        exacerbate a serious shortage of direct-care workers, warns 
        Paul Osterman, a professor at the Massachusetts Institute of 
        Technology's Sloan School of Management. He forecasts a 
        national shortfall of 151,000 workers by 2030 and of 355,000 
        workers by 2040. If immigrants lose their work permits, the gap 
        would widen further.\148\
---------------------------------------------------------------------------
    \148\ Id.

    Indeed, the number of immigrant caregivers might be higher than 
reported, as The New York Times noted: ``In the so-called gray market, 
where consumers hire home care workers directly and often pay them 
under the table, the proportion is likely far higher.''\149\
---------------------------------------------------------------------------
    \149\ Span, supra note 147.

    What is the alternative for those desperate for care? Gone are the 
days of parents expecting their children to provide care. The 
Minneapolis Star Tribune reported, ``Family sizes have been shrinking 
for decades, which means there will be fewer adults to care for older 
relatives in the years ahead. By 2030, the ratio of informal caregivers 
to those in most need of care will be at 4 to 1, down from a peak of 7 
to 1 in 2010.''\150\ The article further noted, ``Family caregivers 
have been described as America's other Social Security. The nation's 
health system would go broke if it had to pay for their work, valued at 
$470 billion a year in free care, according to AARP.''\151\
---------------------------------------------------------------------------
    \150\ Jackie Crosby, `` `Invisible Workforce' of Caregivers Is 
Wearing Out as Boomers Age,'' Minneapolis Star Tribune (June 3, 2018), 
http://www.startribune.com/invisible-workforce-of-caregivers-is-
wearing-out/483250981/.
    \151\ Id.

    Standards for home care can vary widely. Per citizen's initiative, 
Washington State requires the most hours of ``entry-level training'' 
(75 hours) for those providing home care to non-family members.\152\ 
However, Washington is also on a path to provide living wages to home 
care workers. Under their union contract with the state, each Medicaid 
home care worker (or ``individual provider'') makes no less than $15 an 
hour and receives health care benefits.\153\
---------------------------------------------------------------------------
    \152\ Wash. Rev. Code Sec. 74.39A.074(1)(b).
    \153\ See ``Collective Bargaining Agreement, State of Washington 
and Service Employees International Union'' 775, 2017-2019 (2017), 
http://seiu775.org/files/2017/09/Homecare17_19
WebReady-signature-page-w-mou.pdf.

    By contrast, Missouri cut $50 million from in-home care in 
2017.\154\ ``[A]t least 7,844 disabled Missourians'' were at risk, 
according to the House Budget chair.\155\ And it was not as if home 
care in Missouri was prospering before. In 2016, Republican legislators 
overrode a gubernatorial veto and, through legislation, rejected the 
governor's plan to raise Medicaid home care workers' wages to between 
$8.50 and $10.15 per hour.\156\
---------------------------------------------------------------------------
    \154\ Samantha Liss, ``After Missouri Cuts Funding for the 
Disabled, Some Fear They May Be Forced into Nursing Homes,'' St. Louis 
Post-Dispatch (August 16, 2018), https://www.stltoday.com/news/local/
govt-and-politics/after-missouri-cuts-funding-for-the-disabled-some-
fear-they/article_76b2dac9-76ed-5545-9689-e87650d4a3ab.html.
    \155\ Id.
    \156\ Jack Suntrup, ``Home Health Care Workers Likely Won't See 
Raise After Lawmakers Override Nixon Veto,'' St. Louis Post-Dispatch 
(May 3, 2016), https://www.stltoday.com/news/local/govt-and-politics/
home-health-care-workers-likely-won-t-see-raise-after/article_db94402f-
0ee6-5405-9fe4-7717616a2de6.html.

    Too often, the plight of home care workers is invisible. Ai-jen 
Poo, executive director of the National Domestic Workers Alliance, 
---------------------------------------------------------------------------
stated:

        This is a workforce where the private home is their workplace. 
        So you could go into any neighborhood or apartment building and 
        not know which of these homes are also workplaces. There's no 
        list anywhere. They're not registered anywhere. There's no 
        other coworkers. You're mostly isolated and alone. And there's 
        certainly no HR department or anything like that.\157\
---------------------------------------------------------------------------
    \157\ Ivette Feliciano and Corinne Segal, `` `You're Mostly 
Isolated and Alone.' Why Some Domestic Workers Are Vulnerable to 
Exploitation,'' PBS (August 12, 2018), https://www.pbs.org/newshour/
nation/ai-jen-poo-domestic-workers-exploitation.

    This invisibility, coupled with the fact that the workforce is 
predominantly non-white women,\158\ caring for an elderly population 
that is largely women, cannot be factored out in explaining home care's 
funding neglect.\159\
---------------------------------------------------------------------------
    \158\ See Campbell, supra note 46 at 3 (only 40% of home care 
workers are white). The roots of U.S. home care trace back to slavery, 
as one scholar notes. See Rebecca Donovan, ``Home Care Work: A Legacy 
of Slavery in U.S. Health Care,'' Affilia at 33-44 (September 1, 1987) 
(``The specific job tasks of the home attendant or home health aide 
(shopping, cleaning, and cooking) are the same household tasks once 
performed by black women as slaves and later as domestic servants in 
private households.'').
    \159\ The Trump Administration is making it harder for home care 
workers to organize into unions. See, e.g., Michael Hiltzik, 
``Targeting Home Healthcare Workers, the Trump Administration Opens 
Another Front in its War on Public Employees,'' Los Angeles Times (July 
30, 2018), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-home-
health-20180730-story.html (``Medicaid authorities have launched a new 
attack on unions serving home healthcare workers . . . aimed 
transparently at depriving their unions of financial resources.'').
---------------------------------------------------------------------------

                            III. CONCLUSION

    As U.S. Rep. Debbie Dingell (D-MI) has explained, those 
contemplating long-term care will often ``encounter a fragmented system 
with multiple programs intended to support their needs and the needs of 
their loved ones, each of which has its own complicated rules and 
regulations.''\160\ She noted that ``[t]he average American may think 
Medicare provides for long-term care,'' but the reality is that it 
covers very little.\161\
---------------------------------------------------------------------------
    \160\ Debbie Dingell, ``Aging with Dignity Out of Reach for Many in 
America,'' Detroit Free Press (July 11, 2015), https://www.freep.com/
story/opinion/contributors/2015/07/10/retirement-long-term-care/
29998343/.
    \161\ Id.; see ``Skilled Nursing Facility (SNF) Care,'' 
Medicare.gov, https://www.medicare.gov/coverage/skilled-nursing-
facility-care.html (last visited March 4, 2019) (If you meet ``the 3-
day inpatient hospital stay requirement'' and are discharged from a 
hospital, Medicare will cover a nursing home stay for up to 100 days--
paying in full for 20 days, and in part for up to 80 days thereafter.).

    In Maine, the Senate Democratic leader who pushed for higher wages 
for nursing home workers stated, ``In Maine, we talk a lot about taking 
care of our seniors but words only go so far.''\162\ He could have been 
referring to the nation as a whole.
---------------------------------------------------------------------------
    \162\ Press Release, Me. Sen. Troy Jackson, Budget Committee 
Unanimously Votes to Fund Jackson Nursing Home Bill (June 12, 2018), 
http://www.mainesenate.org/budget-committee-unanimously-votes-to-fund-
jackson-nursing-home-bill/.

    Rather than have long-term care providers in the states ride a 
roller coaster of funding uncertainty, lurching from one existential 
crisis to the next, it makes more sense for the federal government to 
have a funding strategy that recognizes Medicaid has become de facto 
long-term care insurance.\163\
---------------------------------------------------------------------------
    \163\ See 42 U.S.C. Sec. 1396d(y)(1) (2018) (The federal government 
will pay no less than 90% of the state costs of Medicaid expansion.). 
And yet it pays as little as 50% of long-term care Medicaid costs in 
many states. See 42 U.S.C. 1396d(b) (``[T]he Federal medical assistance 
percentage shall in no case be less than 50 per centum''); see also 
Williams, supra note 14. This incongruity shows the marginalization of 
``traditional'' Medicaid.

    The Commission on Long-Term Care reported in 2013 that ``[e]xpanded 
market penetration of private LTC insurance has been limited by the 
cost of coverage and medical underwriting, and is further hampered 
today by insurers reassessing the market due to unforeseen demographic 
and investment conditions.''\164\ Matters have not improved since.\165\
---------------------------------------------------------------------------
    \164\ See U.S. Senate Committee on Long-Term Care, supra note 10, 
at 67.
    \165\ See, e.g., Brendan Williams, ``The Truth Behind Long-Term 
Care Insurance,'' McKnight's Long-Term Care News (July 6, 2018), 
https://www.mcknights.com/guest-columns/the-truth-behind-long-term-
care-insurance/article/779005/ (``The long-term care insurance market 
should be our canary in the coalmine. No longer can we delude ourselves 
into thinking private sector solutions alone can avert a demographic 
disaster.'').

    Absent a private sector fix, the answer would seem to be one of the 
scenarios that the Commission shared: a comprehensive Medicare benefit 
for long-term services and supports (LTSS) ``financed through a 
combination of an increase to the current Medicare payroll tax and the 
creation of a Part A premium.''\166\ Under this guarantee:
---------------------------------------------------------------------------
    \166\ See U.S. Senate Committee on Long-Term Care, supra note 10, 
at 67. An effort to fund a long-term care benefit through a payroll tax 
was introduced in the Washington Legislature in 2017. See Ron Lieber, 
``One State's Quest to Introduce Long-Term Care Benefits,'' New York 
Times (March 9, 2018), https://www.nytimes.com/2018/03/09/your-money/
washington-state-long-term-care.html (noting that ``[a]s the need to 
finalize the legislation approached, AARP, citing various unanswered 
questions, came out against it.''). The idea had some editorial 
support. See Editorial, ``Use Payroll Tax to Set Up Long-Term Care 
Benefit,'' Everett Herald (February 15, 2017), https://
www.heraldnet.com/opinion/editorial-use-payroll-tax-to-set-up-long-
term-care-benefit/ (``Some will balk at seeing another deduction from 
their paychecks, but providing for our own long-term care is a 
responsibility we owe to our children and one that we should no longer 
avoid.''). The author proposed such a tax in 2011. See Brendan 
Williams, ``Schools vs. Elder Care,'' Everett Herald (July 10, 2011), 
https://www.heraldnet.com/opinion/schools-vs-elder-care/ (``Call it a 
`half-cent solution.' A payroll tax of .5% of earnings, split evenly 
between employers and employees (as the 2.9% Medicare Part A tax is) 
would generate more than $600 million a year for long-term care.''). 
The effort was being renewed in 2019. See Jerry Reilly, ``The state and 
its citizens both need lawmakers to pass the Long-Term Care Trust 
Act,'' Olympian (January 22, 2019), https://www.theolympian.com/
opinion/op-ed/artic1e224917090.html. Yet, while states can be forgiven 
for doing their utmost to avert a demographic disaster, a national 
crisis really requires a national strategy, rather than placing the 
onus upon states. In Maine, Question 1 before the voters in 2018 would 
have funded a ``Universal Home Care Program'' by imposing ``a 3.8 
percent tax on income and wages over the maximum annual wage amount 
subject to Social Security taxes, which is now $128,400.'' Michael 
Shepherd, ``Following the Money on Maine's Home Care Ballot Question,'' 
Bangor Daily News (September 17, 2018), https://bangordailynews.com/
2018/09/17/politics/following-the-money-on-maines-home-care-ballot-
question/. The measure failed overwhelmingly. See J. Craig Anderson, 
``Question 1 Proposal for Tax-Funded Home Care Headed for Defeat,'' 
Portland Press Herald (November 7, 2018), https://www.pressherald.com/
2018/11/06/question-1-appears-headed-for-defeat-in-early-returns/.

        Qualifying individuals would be eligible for reasonable and 
        necessary LTSS services that would include: Skilled nursing 
        facility care or daily skilled care; home health care without 
        the need for a skilled service; personal care attendant 
        services; care management and coordination; adult day center 
        services; respite care options to support family or other 
        volunteer caregiver; outpatient therapies; other reasonable and 
        necessary services.\167\
---------------------------------------------------------------------------
    \167\ Id.

    This was not the first time a bipartisan commission had recommended 
such action. In September 1990, the ``Pepper Commission,'' or 
Bipartisan Commission on Comprehensive Health Care, made its own report 
to Congress that looked holistically at health care reform needs and 
included long-term care.\168\ It recommended ``social insurance for 
home and community-based care and for the first three months of nursing 
home care, for all Americans.''\169\ Under that system, ``[p]eople who 
need nursing home care for short periods would have their resources 
preserved intact to return home.''\170\ Recognizing the ``urgent needs 
of the currently disabled and their families'' the Commission 
recommended ``that the plan be put into place a step at a time over a 
4-year period.''\171\
---------------------------------------------------------------------------
    \168\ S. Rep. No. 101-114 (1990).
    \169\ Id. at 14.
    \170\ Id. at 15.
    \171\ Id.

    Policymakers continue to discuss a single-payer ``Medicare for 
All'' approach to basic health care, without reference to long-term 
care.\172\ However, it is time that lawmakers refocus their attention 
on ensuring that Medicare better serves the comprehensive health care 
needs of the elderly population that it was originally intended to 
serve.\173\ Otherwise, states will flounder in meeting Medicaid demand.
---------------------------------------------------------------------------
    \172\ Chris Farrell, ``Could This Idea Help Fix America's Shortage 
of Home Care Workers?'', Forbes (August 15, 2017), https://
www.forbes.com/sites/nextavenue/2017/08/15/could-this-idea-help-fix-
americas-shortage-of-home-care-workers/ (MIT Professor Osterman has 
been quoted stating: ``Long-term care is absolutely the stepchild of 
health care on multiple dimensions.''). Policymakers already distracted 
by ACA debate now also must contend with the opioid crisis. See, e.g., 
German Lopez, ``We're Failing in the Opioid Crisis. A New Study Shows a 
More Serious Approach Would Save Lives,'' Vox (August 23, 2018), 
https://www.vox.com/policy-and-politics/2018/8/23/17769392/opioid-
epidemic-drug-overdose-death-study (``The opioid epidemic is the 
deadliest drug overdose crisis in US history--on track to kill more 
people over the next decade than currently live in entire American 
cities like Miami or Baltimore.''). For policymakers who are reactive, 
it is easier to focus on the crisis at hand (and their next election), 
rather than look ahead to the future.
    \173\ Howard Gleckman, ``Americans Are Baffled by Long-Term Care 
Financing, but Want Medicare to Pay for It,'' Forbes (May 30, 2017), 
https://www.forbes.com/sites/howardgleckman/2017/05/3OJamericans-are-
baffled-by-long-term-care-financing-but-want-medicare-to-pay-for-it/ 
(``While a majority of Americans incorrectly think that the current 
Medicare program pays for long-term care, a growing majority also 
thinks the program should provide such a benefit.''); see also Emily 
Swanson, ``Poll: Older Americans Want Medicare-Covered Long-Term 
Care,'' AP (May 25, 2017), http://www.apnorc.org/news-media/Pages/Poll-
Older-Americans-want-Medicare-covered-long-term-care.aspx (``70 percent 
of older Americans say they favor a government-administered long-term 
care insurance program, up from 53 percent who said so a year ago.'').

                                 ______
                                 
               Letter Submitted by Kathie Northrup Platt

Thursday, August 1, 2019

U.S. Senate
Committee on Finance

To Members of the Hearing:

While the reports to your committee largely focused on reporting and 
preventing physical and emotional harms to residents of nursing homes 
and assisted living facilities, these reports also touched on a third 
area less often addressed because it is less obvious, yet no less 
serious. I am speaking of financial exploitation and elder financial 
abuse. Sometimes a facility might be guilty of taking financial 
advantage of its residents. But more often than not, they would not 
risk such obvious law breaking. I am speaking instead of an even more 
insidious form of elder financial exploitation: abuse that is committed 
by a close relative or family friend of the elder in long-term care. 
The injury is compounded when the facility suspects this (and even 
reports this suspicion to other family members of the elder in 
residence), but then fails to take appropriate action to report it to 
law enforcement authorities, much less track or follow up, or insist on 
investigation and prosecution when warranted.

I am currently faced with this exact situation pertaining to my elderly 
98-year-old father in the secure memory care unit at the Brunswick at 
Attleboro Retirement Community in Langhorne, Pennsylvania. Because my 
elderly father is having all of his physical, social and emotional 
needs met at a facility that meets the highest standards of care, the 
unaddressed and unreported elder abuse I would like to bring to the 
attention of your committee is an abuse that is falling under the 
radar. That it is hidden makes it no less notorious, dangerous or 
destructive, but possibly even more so. I strongly believe that 
suspected financial exploitation of a senior in residence is an abuse 
that the assisted living facility or nursing home should be required by 
law to report to law enforcement authorities, and then continually 
track and follow up until disproven or prosecuted.

I address your committee out of deep concern and helplessness due to 
the weakness or nonexistence of laws to protect elders from covert 
financial exploitation and abuse. There is a dangerous absence of laws 
instructing Assisted Living and Nursing Home Administrators regarding 
suspected financial exploitation and financial crimes against elder 
residents. There is, additionally, a serious and hazardous disconnect 
between agencies tasked with the business of protecting elders against 
financial and other crimes against their person and property.

When administrators become suspicious of financial crimes and other 
improprieties being committed by those who have familiar or intimate 
access to our elderly family member in independent living, assisted 
living or nursing care, executives and staff ought to be required by 
law to act and involve law enforcement and not just sit idly by or 
complain to family members of those same seniors, expressing their 
concerns to us and then tasking us (who have few or no resources and no 
power) with the full responsibility to investigate and prosecute.

I am the only daughter and only living child of Robert F. Northrup, 98, 
living in the secure memory care unit of the assisted living facility 
at the Brunswick at Attleboro Retirement Community in Langhorne, 
Pennsylvania. Five months after my father's second wife died (in 
December 2011), my family and I helped my father move into the 
independent living at Attleboro Retirement Community. He was then 91 
(April 2012).

Within 2 years my father met and ``fell in love'' with another 
resident, Sue, and they married May 18, 2014. Dad was then 93 and Sue 
was 96. I did not know any of my father's new wife's adult children, 
but met them for the first time at the wedding. Early on I learned that 
RD (Sue's middle daughter who lives in Austin, Texas), managed all of 
Sue's finances. But I gave this no more thought as my father always 
managed his own business and had assured me (prior to the wedding) that 
nothing in either his or his new wife' s will would change and that 
they would keep their bank accounts separate.

Although irregularities became noticeable early on in this marriage in 
the tenth decade of my elderly father's life, I was notified by the 
retirement facility of suspected abuses against my father's well-being 
and wealth soon after his move from independent living to the secure 
memory care unit January 2019 . As soon as I learned from Attleboro 
staff (by email to me) that my dad had been moved from Independent 
Living to the secure memory unit in the assisted living at the 
Brunswick at Attleboro, I immediately flew up from Texas to 
Pennsylvania to check on my father and meet with Attleboro staff.

On this occasion (and several occasions afterwards), the Executive 
Director of Attleboro, MK, confided in me her concerns regarding RD (my 
father's wife's middle daughter): How RD had tried to prevent the move 
of my dad from independent living to memory care; how RD had threatened 
legal action against Attleboro for moving my father to memory care; how 
RD tried to prevent her own mother from joining my father in memory 
care (although Sue also suffers significant cognitive decline); how Sue 
was finally ``allowed'' by her daughter to move over to assisted 
living, but not into memory care; how Sue actually does live in memory 
care with my father--because that is where she wants and needs to be 
(even though RD insisted in February that her mother sign a contract 
for an expensive apartment outside of memory care that she has never 
used); how RD persuaded my father to add her as alternate on his POA 
(even though my father is in the locked memory care unit and deemed 
totally incapacitated); how Attleboro (Executive director and social 
workers and other staff members) suspect financial exploitation of my 
father's resources by RD to pay for this unused apartment, as well as 
other mismanagement of my father's resources; how Sue's other daughters 
will have nothing to do with their sister RD because they see her 
exploitation of my father and want to distance themselves from it . . . 
and the list goes on.

What is obvious to everyone involved is that both my cognitively-
impaired father (98) and his cognitively-impaired elderly wife (101) of 
five years were manipulated by RD, the wife's middle daughter, to the 
end that RD now has full power and control (durable POA) over both my 
father's person and property, as well as her mother's person and 
property. Although every staff member at Attleboro Community, every 
local elder care and oversight agency in Bucks County, as well as 
family members on both sides, are aware of or have been notified about 
the situation and are concerned by, if not deeply disturbed by it, so 
far no one (in authority at the care facility, or in the social 
services system, or in law enforcement) has any power or motivation to 
investigate and prosecute this woman, RD. Meanwhile, everyone looks to 
me, the non-professional, and the only living child and daughter of my 
father, to handle this investigation with resources and power that I do 
not have! This adds injury to injury, not only as my father daily 
suffers the depletion of his lifelong wealth for the ultimate benefit 
of RD, but also as this exacerbates the angst experienced by myself and 
by our family as we helplessly watch these crimes against my father--
and the depletion of his resources--escalate unaddressed.

While I have been regularly notified by the Long Term Care facility, 
over the past seven months, of suspected abuses being committed against 
my father in the secure memory care unit, as a family member only (I am 
not an attorney or law enforcement officer), I am absolutely powerless 
and personally under-resourced to investigate and prosecute those 
individuals suspected of foul play (financial crimes and other acts of 
exploitation including manipulation and emotional abuse) against my at-
risk elderly father. Without the full support and involvement of long-
term care administrators, the legal community and law enforcement, and 
a seamless and empowering continuity between agencies (ombudsmen, legal 
aid, district attorney's office, network of victim's assistance, etc.), 
family members such as myself are simply powerless to protect our 
elderly parents against emotional and financial exploitation and other 
crimes.

Although I was fully advised by LTC administrators (at the facility 
that cares for my father) of their suspicions and the high probability 
of financial abuses taking place, have been prompted to take action, 
and have been provided much sympathy for my father's (and our family's) 
predicament, all responsibility for action has been left to me. I am 
expected to hire an attorney and petition for guardianship, even hire a 
detective if necessary, or whatever else might be required, to 
investigate, convict and stop this alleged criminal from her crimes 
against my father.

The narrative history of dozens, maybe hundreds, of other families who 
have been made aware of emotional and financial crimes against their 
elderly parents and who have been tasked with taking legal action 
against alleged criminals taking advantage of vulnerable elders, has 
shown how ineffective concerned family members are (even when they have 
the resources to hire an attorney and pursue justice, often for many 
years) to ``prove'' the financial crimes or emotional manipulation 
committed against their vulnerable elderly parent(s).

I have discovered that there is no end of agencies out there to whom we 
can turn and pour out our grievances or express our suspicion of 
emotional/financial abuse. In fact, family members can cry out as long 
and as loud as we like, and agency officials will listen for a while 
and agree that the situation is highly irregular, suspicious, even 
outrageous, and definitely a problem. But, in the end, these agencies 
tell us that there is nothing they can do. Either by word, or by 
neglect, agencies and officials shift the full responsibility to handle 
these alleged crimes back to us--either because officials/agencies are 
disinterested, otherwise engaged, or powerless.

More often than not, because our elderly parents cannot or will not 
speak up for themselves (are even unwittingly complicit in these same 
crimes being committed against them), the authorities, the agencies, 
even the attorneys themselves, finally tell us that there is nothing 
they or we can do.Therefore, what is grossly obvious to everyone, must 
suddenly be ignored. The result is benign neglect, or gross 
irresponsibility, on the part of those who should be most informed 
concerned and proactive about protecting the elderly. These same 
administrators and agency officials have received all the educational 
and legal training family members have not, yet somehow still lack the 
authority or mandate to act to protect our elderly parents. It adds 
insult to injury to watch exploitation go unaddressed because 
administrators and agencies will do nothing to investigate those 
suspected of committing financial crimes against this most vulnerable 
class of society--the aging, the elderly, those with diminished 
capacity, who are powerless to recognize the crimes being committed 
against them, to report these crimes, or act in their own best 
interest.

The problem is: I have not been silent or inactive since my Dad's move 
to memory care in February, especially in view of the increasing list 
of concerns and complaints I have received from Attleboro staff, from 
members of my father's wife's family, and from my own observations of 
the improper, and allegedly illegal behavior of RD regarding my 
father's wealth and well-being.

Over the past seven months I have contacted and re-contacted: The Long-
Term Care Ombudsman of Bucks County, Legal Aid of Southeastern 
Pennsylvania, Area Agency on Aging--Older Adult Protective Services, 
Disability Rights Network of Pennsylvania, Pennsylvania Senior LAW 
Center, Bucks County Bar Association Lawyer Referral Program, Bucks 
County District Attorney's Office-Chief of Economic Crimes and Deputy 
District Attorney, Bucks County Crimes Against Older Adults Task Force, 
and Bucks County Network of Victim Assistance. I have contacted all the 
key workshop presenters at the 16th Annual Neff Elder Abuse Symposium 
2019 including the Bucks County DA's Office on A Look at Criminal 
Prosecution/Case Studies; the Bucks County Register of Wills on Rapid 
Changes in Guardianship Law; Elder Financial Exploitation; and the 
Bucks County Area on Aging and Court Orders; as well as contacted 
numerous specialists in the field of elder financial exploitation 
(including David Brancaccio of Marketplace Radio on Brains and Losses, 
and Pam Glassner on Last Will and Embezzlement).

Additionally, I have consulted at length with numerous certified elder 
law attorneys (CELAs), and although I have been advised by Attleboro 
Community (where my father resides) to petition for guardianship, I 
have also been warned by those same attorneys (and by other individuals 
and families who have already pursued the legal route regarding their 
own elder family member's financial exploitation, spent a small 
fortune, and failed to stop the exploitation) what a steep, expensive 
and impossible battle this may be when waged against a woman who is 
more savvy, resourced and experienced than ourselves, with no limit to 
legal and political power at her disposal providing her with all the 
leverage she needs to keep doing what she is doing and getting away 
with is for as long as she likes without conscience, restraint or 
remorse. Why is she able to do this? Because the LAW is simply too weak 
or too poorly defined to address these ``gray areas''--despite a 
preponderance of personal reports and evidence that My Father Is Being 
Financially Exploited.

Ironically, because all of my father's physical, social/emotional and 
medical needs are being well-managed and met by the LTC, and he is in 
no immediate danger of physical abuse, he is not a high priority on the 
DA's (or anyone else's) list. If he made poor choices and allowed his 
wife's daughter to take over control of all his finances, his will, his 
estate, and his resources, if he (albeit in a state of cognitive 
decline) was persuaded to allow his elderly wife's daughter to usurp 
his POA and manage his wealth in such a way as to preserve his wife's 
wealth for the eventual benefit of the savvy, unscrupulous step-
daughter, while drawing down his own estate to his loss and the loss of 
his heirs (but unrealized by him in his present state of dementia), 
then that is ``his free choice.''

Although I have been consistently proactive since February, contacting 
and providing in-depth information to every social and legal agency in 
Bucks County responsible for elder care, oversight and the prevention 
of elder abuse--continually following up on all of my own, as well as 
Attleboro's concerns--I have not received any real or practical help. 
Although Attleboro Retirement Community staff have direct and indirect 
knowledge of my father's financial exploitation, they rely on me (my 
father's daughter) entirely to challenge RD (my father's wife's 
daughter) in court. They will assume no personal responsibility to 
expose or report the alleged moral and financial crimes against my 
father they have suspected and continue to suspect.

Likewise, the elderly wife's own family members (her eldest and 
youngest daughters and their spouses) who have been witnesses to the 
``inappropriate'' and illegal behavior of their sister (they will no 
longer even talk to RD), will do nothing, but have abdicated entirely, 
wanting to distance themselves as far as possible from their sister and 
from any implication that they had knowledge of RD's crimes as they 
occurred over the past 5 years. Everyone (personal and professional) 
seems to rely on me entirely to take legal action--although the track 
record shows that exploited seniors and their family members rarely 
``win'' against the financial exploiter.

I believe that it is the responsibility of Law Enforcement: the Bucks 
County DA's office, the Attorney General of Pennsylvania, even the US 
Attorney's Office, if necessary, to thoroughly investigate the 
allegations against RD, to subpoena financial documents, to follow the 
paper trail, and to interview all the staff members and care givers at 
Attleboro Community, the social service agencies involved in my 
father's care and legal protection, the CPAs, attorneys, family members 
on both sides, ombudsmen, etc., in order to determine the root cause of 
the mounting allegations against RD, to ascertain their validity, or 
not, and to take appropriate legal action.

While we all ``know'' that the financial abuse of my father is 
occurring--and has been for some time--no one in authority is willing 
to take responsibility to report this or to thoroughly investigate this 
due to the relative ``invisibility of the crime'' (being committed by a 
retired ``cost analyst specialist'') and due to the lack of clear 
guidelines regarding jurisdiction and responsibility to report. 
Although, as far as we know, my father has always received excellent 
social-emotional, physical care at Attleboro, they and other agencies 
have failed to report to local law enforcement agencies the suspected 
financial crimes against my father that they have every reason to 
suspect based on a preponderance of circumstantial (and other) evidence 
that has been mounting over the past 5 years since my father's marriage 
(at age 93) to Sue (then 96).

Today RD has assumed full control over the person and property of both 
her mother, Sue, and of my father, Robert Northrup, against the 
protests of Attleboro and family members on both sides. But no agency 
so far contacted will seriously or actively investigate this, although 
we have sounded and re-sounded the alarms, and expressed our outrage 
and concern. Please understand that family members are relatively 
powerless if the law does not have guidelines and standards in place to 
protect elders, even those still deemed fully capacitated, from the 
financial and emotional exploitation to which their age renders them 
vulnerable.

As is frequently the case, when my father married Sue in the tenth 
decade of his life, he was (unknown by us at the time) already at the 
top of the slippery slope of cognitive decline. It didn't take much for 
Sue's middle daughter, RD, to nudge him along in a direction that not 
only served her best interest (change his will into a trust for her 
mother, commingle my father's accounts with her mother's, use my 
father's resources entirely to pay for her mother's living and care 
while building up her mother's social security in a joint mother-
daughter account, etc). These subtle and progressive changes eventually 
lead to RD's complete and, so far, unchallenged overthrow of my 
father's person and property, for the shrewd purpose of building up 
wealth for herself and her own family at my father's expense.

While I do not personally have the power or resources to investigate, 
expose, fight or stop this woman's financial abuse of my father, I know 
that you do and that something can and must be done. Please understand 
that the law must go above and beyond addressing the more obvious 
physical abuse of seniors in long-term care facilities, to address the 
often hidden abuse by relatives or ``friends'' of seniors resulting in 
the extortion of their lifelong wealth and legacies. Although often 
``invisible'' and hidden from view, and even unnoticed by the senior 
himself who is suffering the abuse, we--the family members who know and 
love our parent best--know and suffer on his/her behalf, even as we 
lose hold of the legacy we were asked to protect.

Below Are Excerpts From the Senate Finance Committee Hearing Members 
Statements That Reinforce and Illuminate the Concerns I Have Expressed:

Senator Ron Wyden states that ``instances of physical, sexual, mental 
and emotional abuse in nursing homes appear to be on the rise'' and 
that ``abuse happened in homes of all ratings, top and bottom. A good 
rating did not indicate that a nursing home prevented abuse.''

Megan H. Tinker, Senior Advisor for Legal Affairs, OIG, expressed that 
``A SNF must ensure that all incidents involving alleged abuse and 
neglect are reported immediately to the administrator of the facility 
and the Survey agency'' (5) but ``Providers frequently failed to alert 
law enforcement to incidents of potential abuse or neglect . . . even 
though all States require certain individuals to report suspected 
abuse, neglect or exploitation of vulnerable adults'' (6).

``. . . (C)overed individuals are required to report any reasonable 
suspicion of a crime, such as certain instances of abuse, neglect, or 
exploitation'' (7). Furthermore, ``CMS does not require all incidents 
of potential abuse or neglect and related referrals made to law 
enforcement to be recorded and tracked in their complaint and incident 
tracking system'' (5). And yet, ``Analyzing the data can help identify 
individual incidents of unreported abuse or neglect, and patterns and 
trends of abuse or neglect involving specific providers, beneficiaries, 
or patients who may require immediate intervention to protect their 
health, safety and rights'' (7).

``OIG investigates potential criminal and civil violations and pursues 
administrative actions to hold accountable those who victimize 
residents of nursing homes'' (9) and ``CMS and law enforcement cannot 
adequately protect victims of abuse and neglect from harm if they do 
not first know the harm is occurring'' (10).

John E. Dicken, Director, Health Care, GAO, reports that ``nursing home 
residents often have physical or cognitive limitations that can leave 
them particularly vulnerable to abuse'' and ``incidents of abuse may be 
underreported'' (1).

Unfortunately ``This testimony addresses physical abuse, mental and 
verbal abuse--which we refer to as mental/verbal abuse--and sexual 
abuse but does not address other forms of abuse, such as financial 
abuse or neglect'' (Footnote 2) (1).

``Despite federal law requiring nursing homes to self-report 
allegations of abuse and covered individuals to report reasonable 
suspicion of crimes against residents, CMS has not provided guidance to 
nursing homes on what information they should include in facility-
reported incidents, contributing to a lack of information for state 
survey agencies and delays in their investigations. . . . Therefore, 
facility-reported incidents play a unique and significant role in 
identifying abuse deficiencies in nursing homes, making it critical 
that incident reports provided by nursing homes include the information 
necessary for state agencies to prioritize and investigate'' (5-6).

``Because CMS requires a state survey agency to make referrals to law 
enforcement only after abuse is substantiated_a process that can often 
take weeks or months_law enforcement investigations can be 
significantly delayed . . . delay in receiving referrals limits their 
ability to collect evidence and prosecute cases. . . . As such we 
recommend that CMS require state survey agencies to immediately refer 
to law enforcement any reasonable suspicion of a crime against a 
resident . . . in order to ensure a prompt investigation of these 
incidents'' (7).

Robert B. Blancato, National Coordinator, The Elder Justice Coalition, 
writes, ``Ending elder abuse, neglect, and exploitation is a bipartisan 
issue and goal. . . . The Elder Justice Coalition is a non-partisan 
3,000-member group dedicated to advancing elder justice policy at the 
federal level. . . . Members provide direct services to elder abuse 
victims, such as the National Adult Protective Services Association and 
the National Association of State Long-Term Care Ombudsmen, or provide 
public outreach and advocacy on elder abuse. . . .''

``Justice Department figures say one in ten older adults are victims of 
elder abuse. We also know from reports that victims of financial elder 
abuse lose at least $3 billion a year, with other reports suggesting 
dramatically higher losses'' (1).

``The same federal report noted that many elder abuse victims have 
organic conditions such as dementia, brain injuries and other factors 
that lead to diminished or limited cognitive capacity. They are more 
susceptible to abuse, neglect and financial exploitation'' (2).

``All forms of elder abuse, apart from self-neglect, are crimes and its 
victims are crime victims'' (4).

``The Elder Abuse Forensic Center model is designed to provide case 
review by a multidisciplinary team, consultation, assessment, tracking, 
and help to implement person-centered care plans in the most complex 
cases of abuse, neglect, exploitation, and self-neglect of older 
adults. Research published by The Gerontological Society of America 
states that `elder abuse forensic centers improve victim welfare by 
increasing necessary prosecutions and conservatorships and reducing the 
recurrence of protective service referrals. Elder abuse forensic 
centers provide a process designed to efficiently address client 
safety, client welfare and protection of assets' ''(5).

``Much of the abuse, neglect and exploitation that takes place behind 
the closed doors of long term care facilities is severely underreported 
by residents, family, staff, and the state survey agencies. There are 
various reasons for this including the fear of retaliation.''

``Better oversight by CMS is needed that includes tools that nursing 
homes are mandated to use to record and report abuse and perpetrator 
type. We need to be sure the reports are made in a timely manner for 
the treatment and safety of the resident'' (6).

``Failure to improve the federal response to elder abuse may be one of 
the worst examples of ageism in public policy'' (9).

Mark Parkinson, President and CEO, AHCA, comments: `` `CMS guidance was 
not clear and therefore SNFs interpreted it inconsistently.' They did 
not try to hide these cases; instead they did not believe the cases met 
the CMS definition so they did not need to report them. It was not due 
to lack of awareness that education will correct, but confusion as to 
the CMS definition and reporting requirements. Interestingly, the OIG 
report goes on to state that even the survey agency officials across 
states have different interpretations of the term' suspicious. 
`Ultimately,' the OIG concludes that, `the lack of clear guidance from 
CMS results in incidents going unreported by the SNFs' '' (4).

``The Elder Justice Act needs to require that CMS and other agencies 
use the same definition of abuse and neglect, separate them in 
enforcement and tracking, and standardize the reporting guidelines 
(including time to report) for all health care settings to be 
consistent'' (4).

Lori Smetanka of The National Consumer Voice for Quality Long-Term Care 
reports: ``My colleagues and I communicate daily with residents, family 
members, citizen advocates, and long-term care ombudsmen who see and 
experience the failures of the systems designed to protect residents'' 
(1).

``There have been significant changes in the ownership and management 
of nursing homes, with an increasing number of nursing facilities part 
of a multi-facility or corporate structure, and an increase in private 
equity ownership. Division of ownership and management is occurring 
among numerous affiliated entities that derive profits, but who are not 
responsible for the quality of care. Further, many of the decisions 
that affect care, including operational budgets and staffing levels, 
are made at the corporate level, yet CMS oversight is limited to 
individual facilities, (4).

``Examples of inadequate nursing home oversight include low complaint 
substantiation rates and findings of harm in less than 5% of deficiency 
citations. Enforcement has been further weakened by policy changes that 
CMS has implemented'' (5).

``New rules provide less protections for residents and less 
accountability for nursing facilities by, among other things, weakening 
standards relating to infection prevention, use of antipsychotic 
medications, and responding to resident and family grievances'' (6).

``Numerous GAO and OIG reports . . . show the need for continued 
federal and state action to strengthen elder abuse reporting, 
prevention, and response. The failure of appropriate reporting of abuse 
or suspicions of abuse is unacceptable. Failures to report prolong the 
victimization and suffering of those being abused and put at 
significant risk other residents who are in contact with the abuser.''

``We recommend that Congress take the following actions: (1) add state 
surveyors to the list of covered individuals who are required to report 
suspicion of abuse or neglect to law enforcement; (2) direct CMS to 
fully enforce the Affordable Care Act's requirement for individuals to 
report possible criminal acts to law enforcement; (3) impose civil 
money penalties against the nursing home or other licensed entity for 
failure to report abuse or suspicions of a crime; (4) increase funding 
for the Long-Term Care Ombudsman Program to enhance the program's 
capacity to assist in abuse prevention and advocate for residents who 
have been victimized'' (7).

``The needs of nursing home (and assisted living) residents is 
significant. Residents' acuity level has (de)creased, and the majority 
have some form of dementia. The increased prevalence of physical and 
cognitive impairments makes residents more at risk of abuse and 
neglect. We can do better'' (8).

Thank you for reviewing my statement and for entering it into the 
record.

Sincerely,

Kathie Northrup Platt

                                 ______
                                 
                  Letter Submitted by LaDawn Whiteside

August 6, 2019

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

Re: Promoting Elder Justice: A Call for Reform Hearing 7/23/19

To Whom It May Concern:

I listened to the Senate Finance Committee hearing of July 23, 2019 
with anticipation. I have worked in the elder care industry for over 30 
years. I have been a direct care worker, regulator, and now am an Abuse 
in Late Life Advocate and Elder Care Mediator in Montana. I applaud 
your efforts to protect and empower older adults.

I live in Montana which is one of the few States that do not have 
required background checks for people working as paid caregivers for 
older adults. There are many pros and cons associated with background 
checks. I believe that people think a background check (criminal 
history check) provides more of a safety net than it actually does. I 
believe that the nursing home industry is already held to a very high 
standard with regard to the safety of residents. I believe that the 
screening requirements currently in the regulations give facilities 
options to use the best method for them. Different sizes and cultures 
in communities make some tools for elder abuse prevention better than 
others. A background check is not the only tool for ensuring the safety 
of older adults.

Instead of adding additional requirements to nursing homes (most 
regulated industry in healthcare), we need to focus on services/
caregiving provided in community based settings. The majority of elder 
abuse occurs in the home setting, not in nursing homes as the public 
believes.

Nursing homes have been required to report all allegations of abuse for 
over a decade. Last time I counted, the federal abuse regulations were 
90 pages long. We now have the data necessary to improve upon the 
preventive system in nursing homes. We can define reporting 
requirements in a way that decreases the noncriminal reports and 
investigations being completed. We are now educating the law 
enforcement system to take over the investigation of the massive amount 
of criminal and non-criminal abuse allegations. I applaud this 
direction as the investigations will now be conducted by an outside 
entity. However, the current Department of Justice system is not 
capable of investigating all of these allegations in a timely manner. 
The DOJ does not have adequate resources to do keep up with existing 
workload caused by the federal nursing home regulations: Particularly 
with victims who are older and/or fragile and ill, they cannot wait for 
9 months for their case to be investigated by law enforcement.

The five day time frame required for nursing homes at CFR 42.483 is 
appropriate and ensures evidence is not lost. I am advocating for the 
Medicaid Fraud Control Units across the county take over the majority 
of the medical industry investigations and that the organizations 
investigating be made a higher priority to enable timely investigation.

My second concern raised by the hearing is that the assisted living 
(AL) industry was absent during the hearing. The people being cared for 
in assisted living are the same type of residents we see in nursing 
homes. They are ill, not able to provide their own care, receive and 
benefit from a lot of services paid for by Medicare. These people are 
directly affected by criminals who are trying to take advantage of 
them. For the following reasons, I believe the assisted living industry 
needs more attention than nursing homes:

      The majority of people living in AL facilities are paying with 
personal funds. As mentioned in the hearing, 2/3 of the residents 
living in nursing homes are Medicaid beneficiaries. Just living in an 
AL setting results older adults to be a target for financial 
exploitation. These vulnerable people receive an inordinately high 
number of ``robo'' calls and solicitations. I feel that nonprofits 
target this group of people for fundraising purposes because they 
continue to contribute even if they don't have the resources anymore. 
If it comes in the mail as a bill, they believe they must pay it. It 
meets my definition of coercion as opposed to self-determination.
      Nationally, there are almost no regulations for AL facilities, 
despite the clientele being the same who live in nursing homes. During 
the hearing it was reported that the profit margin for nursing homes 
was .5%. Congress should require the AL industry, with huge profit 
margins to comply with the same (or better) regulations as nursing 
homes. The only option in Montana AL facilities to report abuse is a 
local 911 number and Adult Protective Services workers. Other than 
State definitions of abuse, the AL industry has almost no reporting 
requirements for abuse. Compared with nursing homes, this is 
unacceptable to me.
      The Durable Medical Equipment (DME) industry is constantly under 
scrutiny for their business methods and taking advantage of older 
Americans with physical disability's.
      Staff training requirements in ALs are largely company driven as 
opposed to federal regulations driving the industry. An AL isn't 
required to do hire staff that have met a specific training criteria 
such as a Skills Checklist or a back ground check or a criminal 
history.

My third comment is regarding the long term care Ombudsman program. 
This wonderful program needs support, direction and funding. In Montana 
local long term care Ombudsman wear so many hats they are spinning in 
circles. They have too many bosses and lack appropriate or adequate 
funding and staffing. This Committee should direct pressure on the 
individual States to prioritize the long term care Ombudsman and 
recognize these workers for the front line work that they do to improve 
the lives of older adults.

My fourth comment is about arbitration in both nursing homes and AL 
facilities. Arbitration takes the power and control away from residents 
and their decision makers. Fundamentally, I am against arbitration. 
Mediation is the avenue Congress should endorse; it keeps the power in 
the hands of the people involved.

Lastly, I am appreciate of the IRS tax deduction for AL and nursing 
home care to preserve estates large and small. This incentive to ``pay 
their own way'' is a great option and recognizes the high cost of 
caregiving. After all, people prefer to stay at home as long as 
possible. We tax payers want people to pay their own way as long as 
possible. Compare the price of AL in the USA. It's not more affordable 
than living in a nursing home.

Sincerely,

LaDawn Whiteside

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