[Congressional Record Volume 141, Number 179 (Monday, November 13, 1995)]
[Senate]
[Pages S16943-S16948]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         THE 7-YEAR BALANCED BUDGET RECONCILIATION ACT OF 1995

  Mr. HATFIELD. Mr. President, I ask that the Chair lay before the 
Senate a message from the House of Representatives on a bill (H.R. 
2491) to provide for reconciliation pursuant to section 105 of the 
concurrent resolution on the budget for fiscal year 1996.
  The PRESIDING OFFICER laid before the Senate the following message 
from the House of Representatives.
       Resolved, That the House disagree to the amendment of the 
     Senate to the bill (H.R. 2491) entitled ``An Act to provide 
     reconciliation pursuant to section 105 of the concurrent 
     resolution on the budget for fiscal year 1996'', and ask a 
     conference with the Senate on the disagreeing votes of the 
     two Houses thereon.
       Ordered, That the following Members be the managers of the 
     conference on the part of the House:
       For consideration of the House bill and the Senate 
     amendment, and modifications committed to conference: Mr. 
     Kasich, Mr. Walker, Mr. Armey, Mr. DeLay, Mr. Boehner, Mr. 
     Sabo, Mr. Bonior, and Mr. Stenholm.
       As additional conferees from the Committee on the Budget, 
     for consideration of title XX of the House bill, and 
     modifications committed to conference: Mr. Kolbe, Mr. Shays, 
     Mr. Hobson, Ms. Slaughter, and Mr. Coyne.
       As additional conferees from the Committee on Agriculture, 
     for consideration of title I of the House bill, and subtitles 
     A-C of title I of the Senate amendment, and modifications 
     committed to conference: Mr. Roberts, Mr. Emerson, Mr. 
     Gunderson, Mr. de la Garza, and [VACANCY].
       As additional conferees from the Committee on Banking and 
     Financial Services, for consideration of title II of the 
     House bill, and title III of the Senate amendment, and 
     modifications committed to conference: Mr. Leach, Mr. 
     McCollum, Mrs. Roukema, Mr. Gonzalez, and Mr. LaFalce.
       As additional conferees from the Committee on Commerce, for 
     consideration of title III of the House bill, and subtitle A 
     of title IV, subtitles A and G of title V, and section 6004 
     of the Senate amendment, and modifications committed to 
     conference: Mr. Bliley, Mr. Schaefer, and Mr. Dingell.
       As additional conferees from the Committee on Commerce, for 
     consideration of title XV of the House bill, and subtitle A 
     of title VII of the Senate amendment, and modifications 
     committed to conference: Mr. Bliley, Mr. Bilirakis, Mr. 
     Hastert, Mr. Greenwood, Mr. Dingell, Mr. Waxman, and Mr. 
     Pallone.
       As additional conferees from the Committee on Commerce, for 
     consideration of title XVI of the House bill, and subtitle B 
     of title VII of the Senate amendment, and modifications 
     committed to conference: Mr. Bliley, Mr. Bilirakis, Mr. 
     Tauzin, Mr. Barton of Texas, Mr. Paxon, Mr. Hall of Texas, 
     Mr. Dingell, Mr. Waxman, Mr. Wyden, and Mr. Pallone. 

[[Page S 16944]]

       As additional conferees from the Committee on Economic and 
     Educational Opportunities, for consideration of title IV of 
     the House bill, and title X of the Senate amendment, and 
     modifications committed to conference: Mr. Goodling, Mr. 
     McKeon, and Mr. Clay.
       As additional conferees from the Committee on Government 
     Reform and Oversight, for consideration of title V of the 
     House bill, and title VIII and sections 13001 an 13003 of the 
     Senate amendment, and modifications committed to conference: 
     Mr. Clinger, Mr. Schiff, and Mrs. Collins of Illinois.
       As additional conferees from the Committee on International 
     Relations, for consideration of title VI of the House bill, 
     and section 13002 of the Senate amendment, and modifications 
     committed to conference: Mr. Gilman, Mr. Burton of Indiana, 
     and Mr. Hamilton.
       As additional conferees from the Committee on the 
     Judiciary, for consideration of title VII of the House bill, 
     and title IX and section 12944 of the Senate amendment, and 
     modifications committed to conference: Mr. Hyde, Mr. 
     Moorhead, and Mr. Conyers.
       As additional conferees from the Committee on National 
     Security, for consideration of title VIII of the House bill, 
     and title II of the Senate amendment, and modifications 
     committed to conference: Mr. Spence, Mr. Hunter, and Mr. 
     Dellums.
       As additional conferees from the Committee on Resources, 
     for consideration of title IX of the House bill, and title V 
     (except subtitles A and G) of the Senate amendment, and 
     modifications committed to conference: Mr. Young of Alaska, 
     Mr. Tauzin, and Mr. Miller of California.
       As additional conferees from the Committee on 
     Transportation and Infrastructure, for consideration of title 
     X of the House bill, and subtitles B and C of title IV and 
     title VI (except section 6004) of the Senate amendment, and 
     modifications committed to conference: Mr. Shuster, Mr. 
     Clinger, and Mr. Oberstar.
       As additional conferees from the Committee on Veterans' 
     Affairs, for consideration of title XI of the House bill, and 
     title XI of the Senate amendment, and modifications committed 
     to conference: Mr. Stump, Mr. Hutchinson, and Mr. Montgomery.
       As additional conferees from the Committee on Ways and 
     Means, for consideration of titles XII, XIII, XIV, and XIX of 
     the House bill, and subtitles H and I of title VII and title 
     XII (except section 12944) of the Senate amendment, and 
     modifications committed to conference: Mr. Archer, Mr. Crane, 
     Mr. Thomas, Mr. Shaw, Mr. Bunning of Kentucky, Mr. Gibbons, 
     Mr. Rangel, and Mr. Stark: Provided, That Mr. Matsui is 
     appointed in lieu of Mr. Stark for consideration of title XII 
     of the House bill.
       As additional conferees from the Committee on Ways and 
     Means, for consideration of title XV of the House bill, and 
     subtitle A of title VII of the Senate amendment, and 
     modifications committed to conference: Mr. Archer, Mr. 
     Thomas, Mrs. Johnson of Connecticut, Mr. McCrery, Mr. 
     Gibbons, Mr. Stark, and Mr. Cardin.

  Mr. HATFIELD. I move that the Senate insist on its amendment and 
agree to the conference requested by the House.
  The motion was agreed to.
  The PRESIDING OFFICER. Under the previous order, the four motions to 
instruct the conferees are now in order. The motions to instruct are 
relative to Social Security, health care, Medicare and tax cuts, and 
nursing home standards.


               Motion to Instruct--Nursing Home Standards

  Mr. PRYOR. Mr. President, I have the first motion to instruct the 
conferees, and this motion does, in fact, relate to the nursing home 
standards. Is it in order now?
  The PRESIDING OFFICER. Yes, it is in order.
  Mr. PRYOR. Mr. President, I send my motion to the desk to instruct 
conferees.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:


                      motion to instruct conferees

       Mr. Pryor moves that the managers on the part of the Senate 
     at the conference on the disagreeing votes of the two Houses 
     on the Senate amendments to the bill H.R. 2491 be instructed 
     to insist upon maintaining the Federal nursing home reform 
     provisions of law that were enacted as part of the Omnibus 
     Budget Reconciliation Act of 1987 and that provide for 
     Federal quality standards and mechanisms for enforcement of 
     such standards for nursing homes under the medicare and 
     medicaid programs without an option for a State to receive a 
     waiver of such standards.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arkansas is recognized for 40 minutes.
  The Senator from Michigan will be recognized for 20 minutes.
  Mr. PRYOR. Mr. President, later today, the U.S. Senate is going to be 
making a very, very interesting decision relating to the choice of the 
standards that we are going to employ for the 2 million nursing home 
residents who are today residing in America's nursing homes.
  By the year 2030, Mr. President, we will no longer have 2 million 
nursing home residents. We are going to have 4.3 million nursing home 
residents residing in America's nursing homes. The question that we are 
going to decide this afternoon, Mr. President, is going to be that 
choice that we express as to which standards and how high the standards 
will be of protection--or I should say the protection for these nursing 
home residents who today reside in America's nursing homes.
  In 1987, the U.S. Congress decided, after serious studies, after 
absolute horror stories, that it was time to have uniform standards on 
the Federal level. In 1987, for the first time, sweeping reform 
measures, sweeping standards were enacted in what we call now OBRA '87. 
Mr. President, necessitating this action was the fact that many of the 
States were not complying with the law, nor were they enforcing present 
State standards, nor was there a uniform code of standards nationwide 
that governed the policing, you might say, the regulating and the 
standard setting that protected nursing home patients.
  OBRA '87 came about. Today we are proud to report that, last evening, 
approximately 142,000 nursing home residents in America went to bed, 
went to sleep unrestrained. We are proud to report, Mr. President, that 
30,000 nursing home patients today in America do not have bedsores 
because of the nursing home reforms and the strict guidelines of 1987.
  In 1987, it was not a partisan effort. In fact, the late Senator John 
Heinz, former Senator Durenberger, former Senator Mitchell, majority 
leader George Mitchell of Maine, and many others in the Senate 
coalesced to bring about a bipartisan effort to have uniform, very 
carefully crafted procedures and standards on the national level, 
whereby these nursing home residents would be protected.
  Mr. President, the irony of all of this argument today is, I do not 
know why this issue is before the U.S. Senate. These standards were 
working. In fact, these standards were working very well.
  I ask unanimous consent that each of these letters I will refer to be 
printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                    Beverly Enterprises, Inc.,

                                 Fort Smith, AR, October 25, 1995.
     Hon. David Pryor,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Pryor: Beverly Enterprises, the nation's 
     largest provider of long term care services in the United 
     States, supports strong, uniform and consistent Federal 
     Standards for nursing homes and believes the focus of current 
     efforts should be on improving, not eliminating the current 
     standards.
       Since Congress enacted the Nursing Home Reform Statute of 
     1987 (OBRA '87), Beverly has supported the Statute and 
     continues to support the retention of Federal Standards.
       It is critical that the health, well-being and dignity of 
     our nation's elderly citizens be protected in every nursing 
     home in the country. We believe that Federal quality 
     standards are an effective way to ensure that this is 
     achieved.
       Beverly's commitment to the OBRA '87 Standards is evidenced 
     by our institution's training programs throughout the company 
     and the adoption and application of standards that in many 
     instances exceed OBRA requirements. Prior to the 
     implementation of OBRA '87, in October of 1990, our quality 
     Management program required our facilities to meet standards 
     similar to those required by OBRA '87. As a result we have 
     exceeded the compliance rate of the industry as a whole for 
     the last five years. The recent Consumer Report study 
     recognized Beverly's compliance rates.
       We recognize the need for industry-wide standards. We agree 
     fully that there must be uniformity and consistency in 
     quality standards across the States. OBRA '87 has been an 
     impartial landmark in setting the ground work and we urge 
     Congress not to eliminate the progress that has been made in 
     improving the care provided to our nation's frail elderly.
           Sincerely,
     David Banks.
                                                                    ____


   Statement of Stewart Bainum, Jr., Submitted to the Senate Special 
                  Committee on Aging, October 26, 1995

       As the Chairman and Chief Executive Officer of Manor Care, 
     Inc., I want to express our strong support for retention of 
     the Nursing Home Reform Act of 1987 (OBRA `87). Manor Care 
     owns and operates 170 skilled nursing 

[[Page S 16945]]
     facilities in 28 states, and provides care to over 20,000 residents.
       The OBRA `87 reforms represent the most comprehensive 
     revision of nursing home regulations since the inception the 
     Medicare and Medicaid programs in the sixties. As I recall, 
     the bill was over 1000 pages long, and addressed critical 
     areas of care, such as resident assessment and care planning, 
     nurse aid training and testing, resident rights, nurse 
     staffing ratios, and enforcement. The final product reflected 
     the agreement reached among 60 national organizations, 
     representing consumers, seniors, providers, and state 
     regulators. It was a painstaking process that worked. In 
     fact, OBRA might depict one of the finest collaborative 
     achievements ever in the history of health care legislation.
       Manor Care proudly supported OBRA in 1987 because the 
     legislation offered a valuable means of protecting and 
     promoting the quality of life for one of the most vulnerable 
     segments of our population. We must afford nursing home 
     residents an environment which is safe and ensures their 
     physical and mental well-being. OBRA `87 has been widely 
     successful in accomplishing this goal.
       Manor Care pledges to continue to meet these federal 
     quality standards because they are reasonable, and have led 
     to significant improvements in the care delivered to our 
     residents. As a national company, we are supportive of the 
     uniformity and consistency these standards provide across the 
     states.
        OBRA created a system of care delivery to help guarantee 
     the dignity and respect of institutionalized seniors. Do not 
     undo the valuable work that has been done. We ask that 
     Congress support retention of the Nursing Home Reform Act and 
     its standards. Stated most simply, it is the right thing to 
     do.

  Mr. PRYOR. Mr. President, one of the letters is from Beverly 
Enterprises, dated October 25, 1995. This is the largest provider of 
long-term care services in the United States, supporting keeping the 
stronger--not the weaker--standards embodied in this concept and 
instructing our conferees to maintain the strongest nursing home 
standards.
  I will quote from the letter:

       Beverly Enterprises, the nation's largest provider of long-
     term care services in the United States, supports strong 
     uniform and consistent Federal standards for nursing homes 
     and believes the focus of current efforts should be on 
     improving, not eliminating the current standards.

  This is signed by David Banks, the chief operating officer and 
chairman of the board of Beverly Enterprises.
  Here is a statement of Stewart Bainum, Jr., to the Special Committee 
on Aging, October 26, 1995.

       As Chairman and Chief Executive Officer of Manor Care, 
     Inc., I want to express our strong support for retention of 
     the Nursing Home Reform Act of 1987.
       Manor Care proudly supported OBRA in 1987 because the 
     legislation offered a valuable means of protecting and 
     promoting the quality of life of one of the most vulnerable 
     segments of our population.

  Mr. President, what we have seen is, once again, that these standards 
are working so well--they are working as the Congress intended them to 
work--and we have seen a dramatic decrease in the dehydration of 
nursing home residents, a 50-percent decrease in dehydration since 
1987. Second, we have seen a remarkable decrease of physical 
restraints, some 50 percent, as compared to pre-1987 periods. We have 
seen a remarkable decrease in indwelling urinary catheters used on 
nursing home residents. We also point with great pride to that 
significant victory. Across the board, the nursing home regulations 
have not only worked, but they have worked well and they are working 
today.
  So why are we trying to repeal the nursing home standards that 
everyone agreed to in 1987, that even the major providers agree to 
today, that all of the statistics show are working, that the nursing 
home residents are being protected, as they have been never before 
protected in our nursing homes? Why is it that we are suddenly trying 
to eliminate these standards?
  Mr. President, to me, that is a mystery.
  On October 27, by a vote of 51 to 48 in this Chamber, the Senate went 
on record as adopting the more stringent and retaining the Federal 
standards for nursing home protection.
  A short while later, only about 6 hours later, Mr. President, we were 
discussing and had laid before the Senate the so-called Roth amendment 
which was sponsored by our colleague and friend, Senator Roth, the 
chairman of the Finance Committee.
  By a vote of 57 to 42, Senator Roth's amendment prevailed. In my 
opinion and in the opinion of others, Mr. President, we dramatically, I 
should say, weakened the present nursing home standards.
  This is just not my opinion that we are weakening these standards, 
Mr. President. It is also the opinion written on November 1 by the 
National Association of State Long-Term Care Ombudsman Program 
Directors, Mr. President.

       Today we are writing to voice our opposition--from the 
     ombudsmen who are out there in these nursing homes every 
     day--to Senator Roth's omnibus floor amendment [which] was 
     passed and included nursing home provisions that can gravely 
     weaken the quality of care standards you helped to reinstate.
       . . . we believe this will be harmful to the quality of 
     care provided to nursing home residents across the country.

  Mr. President, not only do the ombudsmen out there in these homes 
every day feel that we are about to weaken these standards unless we 
instruct our conferees to keep the present hard standards--I should say 
stronger standards.
  We have a letter from the Nursing Home Reform Coalition group.

       The Coalition, however, does have serious concerns about 
     the amendment providing for state waivers from the federal 
     standards, passed by the Senate on Friday, October 27. The 
     language in the amendment would allow States with standards 
     ``equivalent to or stricter than'' the federal requirements 
     to use its own standards.

                           *   *   *   *   *

       We urge you, Senator Pryor, and your colleagues, to 
     consider the following recommendations:
       Do not support maintaining this waiver provision

                           *   *   *   *   *

       Provisions giving the Secretary the authority to take 
     action against a facility providing substandard care, and 
     where the state has not taken adequate enforcement action.

  Mr. President, I ask unanimous consent that the letter from the 
Nursing Home Reform group, from the Ombudsmen who have written in about 
the nursing home standards be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         National Association of State Long-Term Care Ombudsman 
           Programs,
                                     Austin, TX, November 1, 1995.
     Hon. David Pryor,
     U.S. Senate,
     Washington, DC.
       Dear Senator Pryor: Thank you for your successful effort in 
     offering an amendment that reinstated the nursing home 
     quality standards into the Senate Budget Reconciliation Bill. 
     It was rewarding that it received some bipartisan support. 
     This was particularly meaningful considering the House Bill 
     eliminated these critical federal standards entirely.
       Today we are writing to voice our opposition to Senator 
     Roth's omnibus floor amendment was passed and included 
     nursing home provisions that can gravely weaken the quality 
     of care standards you helped reinstate.
       As you know, the Roth amendment allows States to apply for 
     and be granted waivers from the federal nursing home 
     regulations. As stated in the amendment, a State can seek a 
     waiver if it has equivalent to or stricter requirements as 
     determined by the Secretary of Health and Human Services. For 
     the following reasons, we believe this will be harmful to the 
     quality of care provided to nursing home residents across the 
     country.
       It could lead to 52 different sets of standards. This would 
     make federal oversight and enforcement impossible.
       The provision lets the door open for States to seek private 
     accreditation of nursing homes as their form of quality 
     standards. The Ombudsman Program's experience has shown that 
     accreditation alone is no indication of quality care.
       This would crate another level of federal bureaucracy 
     charged with the task of approving and then monitoring the 
     waiver.
       There would be increased cost upon the states to write and 
     apply for a waiver as well as the federal government's cost 
     with the administration of the waivers.
                                                                    ____

                                      National Citizens' Coalition


                                      for Nursing Home Reform,

                                 Washington, DC, November 1, 1995.
     Hon. David Pryor,
     U.S. Senate,
     Washington, DC.
       Dear Senator Pryor: The National Citizens' Coalition for 
     Nursing Home Reform commends you for your leadership in 
     having the federal nursing home standards maintained in 
     federal law. As you are aware, federal standards are critical 
     to achieving and maintaining uniform basic good standards of 
     quality of care and life for our nation's nursing home 
     residents, many of whom are frail and vulnerable.
       The Coalition, however, does have serious concerns about 
     the amendment providing for state waivers from the federal 
     standards, passed by the Senate on Friday, October 27. The 
     language in the amendment would allow 

[[Page S 16946]]
     States with standards ``equivalent to or stricter than'' the federal 
     requirements to use its own standards.
       If states had standards that were stronger than the federal 
     standards, there would be no need for a waiver, as the 
     stronger standards could be implemented through state 
     licensing requirements. States and facilities are always held 
     to the higher of state or federal standards. Thus, nothing is 
     gained by providing for such a waiver.
       Further, it is unclear whether all of the state's standards 
     would have to be equal to or stronger than the federal 
     requirements, or whether a state waiver request would be 
     approved if some of the state standards were equal or 
     stronger. Only enforcement provisions are specified in the 
     amendment language, thus casting doubt that all standards in 
     state law will be evaluated.
       When evaluating standards, it is not enough to approve a 
     waiver request based on the fact that a state plan contains 
     the same broad categories of requirements contained in the 
     federal standards. The Secretary has the responsibility of 
     also evaluating the substance of each category under the 
     state plan, and only approve a waiver if the substance of 
     each category is equal to or stronger than the federal 
     standards.
       To highlight the importance of the substantive requirements 
     of the federal standards, the bill recently passed by the 
     House of Representatives contains what have been described as 
     ``Quality Standards for Nursing Homes,'' provisions which 
     will replace the standards contained in the Nursing Home 
     Reform Act. In reality, the provisions in the House bill are 
     a mere shell--lacking any substance--of the requirements 
     under the Nursing Home Reform Act. Evaluating any State plan 
     under the type of general provisions contained in the House 
     bill, is no guarantee of the strength of those state 
     provisions. We have prepared side-by-side comparisons of 
     the requirements contained in the House MediGrant bill 
     with the requirements in the Nursing Home Reform Act, and 
     would be happy to share that with you. The same omission 
     occurs in the lack of substantive language in the waiver 
     provision.
       Many states will argue that they currently have provisions 
     that are as good or better than the federal law. Most states 
     currently make that argument. California, for example, 
     announced in October 1990, the effective date of the nursing 
     home reform act, that since it's law was as good as the 
     federal law, it would not implement the federal law. A class 
     action lawsuit was filed against the state to compel 
     implementation of the law. The federal district court ruled 
     that California's law was not equivalent to federal law, and 
     ordered the state to implement the entire law immediately.
       Currently, no state has all the provisions of the Federal 
     law, and there is no provision for a waiver from the federal 
     standards. This amendment will result only in costly and 
     unnecessary reviews of state plans and time spent defending 
     denials of waiver requests. Considering the budgetary cuts 
     facing the state and the federal governments, this is surely 
     not the most effective use of limited funds and resources.
       The language in this amendment leaves several other 
     loopholes which would undermine the strength of the federal 
     standards. First, there is a provision for a 120-day approval 
     period, a time frame that includes public comment. This time 
     frame is not adequate for public comment to be solicited, 
     received, and the state plan evaluated. So the question 
     arises, what happens if there has been no approval or denial 
     by the 120th day? The amendment language is silent. It would 
     be a travesty if the waiver were deemed approved. We could 
     guarantee that states would then be free to implement 
     standards that were not at least equal to the federal 
     requirements. Residents would, once again, be put at risk of 
     being subjected to lower quality standards, poor care, and 
     violations of their rights.
       Additionally, the amendment language does not include any 
     authority for the federal government to take enforcement 
     action against facilities. The enforcement authorized by the 
     amendment is against the State for failing to comply with 
     Medicaid law, or with the state law they have been granted a 
     waiver to use a place of federal law. Thus the Secretary 
     could never take action against a facility, an important tool 
     for achieving facility compliance in meeting contract 
     obligations.
       Further, subparagraph (b) Penalty for Noncompliance limits 
     the federal government's ability to enforce the Medicaid 
     requirements to a withholding of ``up to but not more than'' 
     2% of the State's ``MediGrant.'' Studies have shown that poor 
     care in nursing homes results in high costs to Medicare due 
     to unnecessary hospitalizations. The state, however, incurs 
     no cost after the resident leaves the nursing facility for 
     the hospital. Thus, it may prove to be less costly for some 
     states to incur a 2% penalty than to ensure that quality 
     standards are being maintained.
       Uniform standards for nursing homes, in addition to 
     providing protections for residents and families, also serve 
     another purpose. Standardized resident-level data is 
     necessary in order to generate quality indicators. This 
     enables Federal oversight of quality issues across states and 
     facilitates quality improvement activities which result in 
     cost effective techniques for the care of nursing home 
     residents. This data also provides meaningful consumer 
     information. Allowing states to obtain a waiver from the 
     federal standards would seriously inhibit the ability to 
     collect this important data.
       We urge you, Senator Pryor, and your colleagues, to 
     consider the following recommendations:
       Do not support maintaining this waiver provision.
       If it is inevitable that this provision will remain in the 
     bill, we urge you support including the following provisions 
     in the bill:
       The requirement for a written determination that all 
     provisions and substance of state law are equal to or 
     stricter than the federal requirements in assuring that 
     residents attain and/or maintain their highest practicable 
     physical, mental, and psychosocial well-being before a waiver 
     will be granted;
       Stating that any waiver request not approved in writing 
     within the specified time period would be deemed denied;
       Provisions giving the Secretary the authority to take 
     action against a facility providing substandard care, and 
     where the state has not taken adequate enforcement action;
       Requirement that the penalty for failure of a State to 
     comply with a provision of Medicaid law, or State law 
     requirements under a waiver, is the current 100% withholding 
     of Medicaid payments to the state;
       Including a private right of action for residents and their 
     representatives to challenge the Secretary's granting of a 
     waiver before it goes into effect.
       Thank you for your dedication to the quality of care and 
     services provided to nursing home residents. We look forward 
     to working with you on these issues.
           Sincerely,
                                                      Elma Holder,
                                               Executive Director.

  Mr. PRYOR. I offer also some other concerns I have about the 
standards as set forth in the Roth language versus the language that we 
are trying to get the conferees to adopt at this time.
  First, in States that get waivers, the Secretary of HHS will have no 
enforcement authority against individual facilities and weaker 
enforcement authority against the States as a whole.
  Now, why do we want weaker authority? Why do we want weaker 
standards? This is something that we are asking today as a question.
  The second weakness is, Mr. President, that the language only says 
what the Secretary can do to the States, not to individual nursing 
homes.
  For example, if a State has been given a waiver, if HHS determines 
that the State, for example, of New Hampshire has laws and regulations 
that are equal to or better than the Federal provisions, so the HHS 
Secretary stamps a document saying, ``You are under no Federal 
regulations,'' then the State of New Hampshire at that time, 
notwithstanding that a nursing home or several nursing homes absolutely 
are giving unconscionable treatment to their nursing home residents, 
the Federal Government has no authority, no empowerment to do anything 
about those particular homes.
  They can move against a State. They cannot move against the 
particular homes. Those residents, those nursing home residents, Mr. 
President, are sitting there, lying there, housed there absolutely 
helpless and without an advocate to come to their side to protect them.
  The third concern, Mr. President, current law today allows the 
Secretary to withhold all Medicaid funds from the States that have 
problems in nursing homes.
  Senator Roth's amendment that was approved by the Senate which 
preempted the so-called Pryor-Cohen amendment, the Roth amendment only 
allows the Secretary to withhold 2 percent of Medicaid funds from 
waiver States.
  What kind of a lever is that? What kind of a bargaining chip is that, 
just to be able to hold 2 percent of the Medicaid funds from those 
States with a waiver?
  Also, Mr. President, look at the litigation. Just imagine the 
litigation that is going to result if we do not keep the present 
standards. If we wade off into this unknown field that our colleagues 
on the other side of the aisle have presented to us and say, ``If you 
get a waiver, you can do this,'' but there are no guidelines. We are 
not sure what is going to be the law or the regulations that each State 
will adopt. We will just do our best.
  Mr. President, how much litigation is going to result from this 
indecision, from this attempt at obfuscation of the nursing home 
standards that have served us so well since 1987? To me it is 
unconscionable for us to think about watering down the present 
standards that we see today that have served us so well in nursing home 
standards.
  Mr. President, I am very hopeful that the Senate later on this 
afternoon 

[[Page S 16947]]
when we begin our voting process is going to support this motion to 
instruct the conferees to keep the present nursing home standards that 
we have and, once again, that have served us so very well.
  Mr. President, we are also looking today at the typical nursing home 
resident. We look at those nursing home residents and realize that 
before 1987 and before we had these particular nursing home standards 
that we are trying to maintain today--look at the characteristics of a 
nursing home patient, of a nursing home resident. All of us in this 
Chamber, perhaps, have someone in a nursing home--an aunt, uncle, a 
mother, dad, grandmother, grandparent, grandfather, relative, good 
friend. We will look at the characteristic of the nursing home patient 
and residents that we have today.
  Mr. President, 77 percent of all of the nursing home residents need 
help in dressing; 63 percent need help in toileting; 91 percent need 
help in bathing; 66 percent have a mental disorder. Mr. President, 
also, over 50 percent of the nursing home residents today in America 
have no relative, no friend, no one that becomes their friend and their 
advocate to make periodic visits, to make certain that basic rights are 
adhered to.
  We have certain things that OBRA '87 brought about. The right for the 
nursing home patients and residents to choose their own physician. We 
are about to repeal that, perhaps. We have basically the protection 
that the nursing home residents can open their own mail and have the 
confidentiality of their medical records being protected. We are about 
to repeal that.
  Mr. President, the average nursing home resident out there today, we 
feel, needs every protection, the highest standards that we can bring 
about. And for us to turn our back and say we are going to, basically, 
obliterate these standards and have them no longer, in my opinion would 
be a tragedy and a disgrace.

  Mr. President, I see my colleague from Michigan, who has now come to 
the floor. I understand he is going to manage this issue for the other 
side. So, since he wants to speak, I assume, I will at this point yield 
the floor and reserve the remainder of my time.
  Mr. President, I suggest the absence of a quorum and ask unanimous 
consent that the time for the quorum not be charged against either 
side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ABRAHAM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ABRAHAM. Mr. President, I yield myself such time as I may need to 
speak more generally on the reconciliation bill that is going to be 
dealt with later this week.
  Earlier, when this issue regarding motions to instruct was being 
talked about, there were several I was considering bringing. Because of 
the unanimous-consent agreement that was entered into, these are 
precluded from being brought here today, but I would like to speak 
responsive to those because I think it is important, as our conferees 
begin to meet, that they focus on some of the issues of difference that 
existed between the Senate package and the package that passed the 
House.
  In particular, as you will note, Mr. President, back during the final 
hours of debate on the reconciliation bill, the so-called Byrd rule was 
invoked to remove from the Senate reconciliation bill a number of 
provisions which related to the welfare reform proposals that are in 
the reconciliation bill. I had considered bringing back some of those 
in the form of instructions to our Senate conferees to accede to what 
the House has attempted to do in these areas, because I think it was a 
huge mistake for the Senate to remove some of these things from our 
package.
  Specifically, during the final hours of that debate we removed part 
of the welfare reform bill that would have provided States with an 
incentive, in the form of additional dollars, to those States that were 
able to reduce the rate of illegitimate births, of out-of-wedlock 
births, through various programs they might enact so long as they did 
not simultaneously increase the abortion rate as a way they might 
accomplish the reduction in the out-of-wedlock births. This was a topic 
we debated at great length here in the Senate when the topic of welfare 
reform was before us. It is one that really had quite a bit of 
consensus support on both sides of the aisle. In fact, an amendment 
relating to it was defeated, an effort to take it out of our welfare 
bill, with more than 60 Senators voting to retain this so-called 
illegitimacy bonus language in the bill.
  I think we have heard, from both sides of the aisle and across 
America, great concern expressed in an ongoing basis over the problem 
of rising numbers of illegitimate births in our country. Indeed, we 
have even heard percentages that are projected to be as high as 40 
percent of all children born in this country by the year 2000 will be 
born out of wedlock. The social indicators are that children born under 
these circumstances typically have higher rates of dropout from school, 
higher drug abuse rates, higher likelihood of becoming, themselves, 
involved in some type of criminal activity. It is a problem that spans 
the entire country and it is one which we in the Congress, I think, 
have responsibility to address.
  The one and only way in which we attempted to address this very 
specifically in the welfare reform bill was through this provision, 
which would have provided States with the incentive to reduce the 
number of illegitimate births. For that reason, I was stunned when the 
Byrd rule was invoked, to try to remove--and in fact it did remove--
this provision from the bill. In my judgment it was a terrible 
statement to make at the time when people from all political 
perspectives are arguing this is a problem of national concern and a 
problem we must address.
  I can understand there were politics involved in the invocation of 
the Byrd rule with regard to the reconciliation bill on a number of 
fronts. But this statement was a mistake. I think making this statement 
sent the wrong signal. I think in many ways it was a repudiation of the 
concerns of average men and women, citizens across this country, who 
have been focusing on what we are doing here and asking, hoping the 
Congress will be responsive to a serious problem.
  So, Mr. President, I say again, even though it is not in the form of 
an instruction, it is this Senator's hope the conferees will work to 
make sure the provisions in the reconciliation bill which addressed 
out-of-wedlock births in the form of providing States with financial 
incentives to address these problems locally will keep such language in 
whatever package returns to us.
  Another provision which was likewise removed was the provision which 
would have capped the amount of time that people could be recipients of 
welfare benefits to 5 years. As I have traveled throughout my State, 
one of the concerns I hear expressed constantly by people is the notion 
that they do not want to see welfare become a way of life. The best and 
surest way to address that, I think, was the approach which we took 
here in the Senate in the welfare bill we did consider. It was 
overwhelmingly adopted. Approximately 87 Senators joined together to 
support the bill. In that bill we had a 5-year limit on the benefits 
that people would be allowed to receive from the welfare system. That, 
too, was a provision that was struck during the debate on the 
reconciliation package, again, I think sending absolutely the worst 
possible signal the Congress of the United States could send to people 
in this country who look to us to set rules that are fair and 
responsive to their concerns.
  As I talk to the hard-working men and women of my State, who pay 
their bills and pay the taxes and are genuinely compassionate toward 
those in need, what I hear them say is, ``Fine, we want to provide a 
safety net. We want to be helpful. But we think there are certain 
points at which enough is enough. Five years seems like a reasonable 
period of time for them.''
  For that reason, I sincerely hope, again, the conferees on the 
reconciliation package, whether or not it is in the form of an 
instruction from us, will be responsive to these concerns and retain 
the sort of language which we had 

[[Page S 16948]]
in the Senate bill prior to the invocation of the Byrd rule during the 
last hours of debate.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. PRYOR. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that the time for the quorum not be charged 
against either side.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GREGG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Abraham). Without objection, it is so 
ordered.
  Mr. GREGG. Mr. President, I yield myself 5 minutes off the motion.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized.

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