[Congressional Record Volume 145, Number 32 (Tuesday, March 2, 1999)]
[Senate]
[Pages S2102-S2105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRAHAM (for himself, Mr. Grassley, Mr. Roth, Mr. Moynihan, 
        Mr. Chafee, Mr. Rockefeller, Mr. Mack, Mr. Breaux, Mr. Kerrey, 
        Ms. Mikulski, Mr. Bryan, Mr. Hollings, Mr. Inouye, Mr. Harkin, 
        Mr. Bayh, and Mr. Robb):
  S. 494. A bill to amend title XIX of the Social Security Act to 
prohibit transfers or discharges of residents of nursing facilities as 
a result of a voluntary withdrawal from participation in the Medicaid 
program; to the Committee on Finance.


          nursing home resident protection amendments of 1999

  Mr. GRAHAM. Mr. President, I would like to take this opportunity to 
commend Senator Grassley, Chairman Roth and Senator Moynihan for their 
bipartisan commitment to protect our nation's seniors from 
indiscriminate dumping by their nursing homes. I would like to request 
that their statements be added to the Record.
  The Nursing Home Residential Security Act of 1999 has the support of 
the

[[Page S2103]]

nursing home industry and senior citizen advocates. It is with their 
support that we encourage the Senate to take action on this important 
piece of legislation. I also have letters of support from the American 
Health Care Association, the National Seniors Law Center, and the 
American Association for Retired Persons which I will include in the 
Record.
  Mr. President, last year, it looked like 93-year-old Adela Mongiovi 
might have to spend her 61st Mother's Day away from the assisted living 
facility that she had called home for the last four years. Her son 
Nelson and daughter-in-law Geri feared that they would have to move 
Adela when officials at the Rehabilitation and Healthcare Center of 
Tampa told them that their Alzheimer's Disease-afflicted mother would 
have to be relocated so that the nursing home could complete 
``renovations.''
  As the Mongiovis told me when I met with them and visited their 
mother in Tampa last April, the real story far exceeded their worst 
fears. The supposedly temporary relocation was actually a permanent 
eviction of all 52 residents whose housing and care were paid for by 
the Medicaid program. Ms. Mongiovi passed away during the holiday 
season and I send my heartfelt condolences to her family.
  The nursing home chain which owns the Tampa facility and several 
others across the United States wanted to purge its nursing homes of 
Medicaid residents, ostensibly to take more private insurance payers 
and Medicare beneficiaries which pay more per resident.
  This may have been a good financial decision in the short run, 
however, its effects on our nation's senior citizens, if practiced on a 
widespread basis, would be even more disastrous.
  In an April 7, 1998, Wall Street Journal article, several nursing 
home executives argued that state governments and Congress are to blame 
for these evictions because they have set Medicaid reimbursements too 
low. While Medicaid payments to nursing homes may need to be revised, 
playing Russian roulette with elderly patients' lives is hardly the way 
to send that message to Congress. And while I am willing to engage in a 
discussion as to the equity of nursing home reimbursement rates, my 
colleagues and I are not willing to allow nursing home facilities to 
dump patients indiscriminately.
  The fact that some nursing home companies are willing to sacrifice 
elderly Americans for the sake of their bottom-line is bad enough. What 
is even worse is their attempt to evade blame for Medicaid evictions. 
The starkest evidence of this shirking of responsibility is found in 
the shell game many companies play to justify evictions. Current law 
allows nursing homes to discharge patients for inability to pay.
  If a facility decreases its number of Medicaid beds, state and 
federal governments are no longer allowed to pay the affected 
residents' bills. They can then be conveniently and unceremoniously 
dumped for--you guessed it--their inability to pay.
  Nursing home evictions have a devastating effect on the health and 
well-being of some of society's most vulnerable members. A recent 
University of Southern California study indicated that those who are 
uprooted from their homes undergo a phenomenon knows as ``transfer 
trauma.'' For these seniors, the consequences are stark. The death rate 
among these seniors is two to three times higher than that for 
individuals who receive continuous care.
  Those of us who believe that our mothers, fathers, and grandparents 
are safe because Medicaid affects only low-income Americans need to 
think again. A three year stay in a nursing home can cost upwards of 
$125,000. As a result, nearly half of all nursing home residents who 
enter as privately-paying patients exhaust their personal savings and 
lose health insurance coverage during their stay. Medicaid becomes many 
retirees' last refuge of financial support.
  On April 19, 1998, the Florida Medicaid Bureau responded to evidence 
of Medicaid dumping in Tampa by levying a steep $260,000 fine against 
the Tampa nursing home. That was a strong and appropriate action, but 
it was only a partial solution. Medicaid funding is a shared 
responsibility of states and the federal government.
  While the most egregious incident occurred in Florida, Medicaid 
dumping is not just a Florida problem. Nursing homes which were once 
locally-run and family-owned are increasingly administered by multi-
state, multi-facility corporations that have the power to affect 
seniors across the United States.
  Mr. President, let me also point out that the large majority of 
nursing homes in America treat residents well and are responsible 
community citizens. Our bill is simple and fair and designed to prevent 
future abuses by bad actors. It would prohibit current Medicaid 
beneficiaries or those who ``spend down'' to Medicaid from being 
evicted from their homes.
  Adele Mongiovi was not just a ``beneficiary.'' She was also a mother 
and grandmother. To Ms. Mongiovi, the Rehabilitation and Health Care 
Center of Tampa was not just an ``assisted living facility''--it was 
her home.
  Mr. President, let us provide security and peace of mind for all of 
our nation's seniors and their families. Mr. President, I ask unanimous 
consent that letters of support for the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                             American Health Care Association,

                                 Washington, DC, February 3, 1999.
     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senator Graham: I am writing to lend the support of 
     the American Health Care Association to the Nursing Home 
     Protection Amendments of 1999, which you introduced as S. 
     2308 last year and plan to reintroduce this year. This 
     legislation helps to ensure a secure environment for 
     residents of nursing facilities which withdraw from the 
     Medicaid program.
       We know firsthand that a nursing facility is one's home, 
     and we strive to make sure resident are healthy and secure in 
     their home. We strongly support the clarifications your bill 
     will provide to both current and future nursing facility 
     residents, and do not believe residents should be discharged 
     because of inadequacies in the Medicaid program.
       The bill addresses a troubling symptom of what could be a 
     much larger problem. The desire to end participation in the 
     Medicaid program is a result of the unwillingness of some 
     states to adequately fund the quality of care that residents 
     expect and deserve. Thus, some providers may opt out of the 
     program to maintain a higher level of quality than is 
     possible when relying on inadequate Medicaid rates. Nursing 
     home residents should not be the victims of the inadequacies 
     of their state's Medicaid program.
       In 1996, the Congress voted to retain all standards for 
     nursing facilities. We support those standards. In 1997, 
     Congress voted separately to eliminate requirements that 
     states pay for those standards. These two issues are 
     inextricably linked, and must be considered together. We 
     welcome the opportunity to have this debate as Congress moves 
     forward on this issue.
       Again, we appreciate the chance to work with you to provide 
     our residents with quality care in a home-like setting that 
     is safe and secure. We also feel that it would be most 
     effective when considered in the context of the relationship 
     between payment and quality and access to care.
       Finally, we greatly appreciate the inclusive manner in 
     which this legislation was crafted, and strengthened. When 
     the views of consumers, providers, and regulators are 
     considered together, the result, as with your bill, is 
     intelligent public policy.
       We look forward to working with you to further clarify 
     Medicaid policy and preserve our ability to provide the best 
     care and security for our residents.
           Sincerely yours,
                                                    Bruce Yarwood,
     Legislative Counsel.
                                  ____

                                          National Senior Citizens


                                                   Law Center,

                                 Washington, DC, February 3, 1999.
     Senator Bob Graham,
     Washington, DC.
       Dear Senator Graham: Last spring, the Vencor Corporation 
     began to implement a policy of withdrawing its nursing 
     facilities from participation in the Medicaid program. The 
     abrupt, involuntary transfer of large numbers of Medicaid 
     residents followed. Although Vencor reversed its policy, in 
     light of Congressional concern, state agency action, and 
     adverse publicity, the situation highlighted an issue in need 
     of an explicit federal legislative solution--the rights of 
     Medicaid residents to remain in their home when their nursing 
     facility voluntarily ceases to participate in the federal 
     payment program.
       I supported the legislation you introduced in the last 
     Congress and have read the draft bill that you will introduce 
     to address this issue in this session. The bill protects 
     residents who were admitted at a time when their facility 
     participated in Medicaid by prohibiting the facility from 
     involuntarily transferring them later when it decides to 
     discontinue its participation. As you know, many people in 
     nursing facilities begin their residency paying privately for 
     their care and

[[Page S2104]]

     choose the facility in part because of promises that they can 
     stay when they exhaust their private funds and become 
     eligible for Medicaid. In essence, your bill requires the 
     facility to honor the promises it made to these residents at 
     the time of their admission. It continues to allow facilities 
     to withdraw from the Medicaid program, but any withdrawal is 
     prospective only. All current residents may remain in their 
     home.
       This bill gives peace of mind to older people and their 
     families by affirming that their Medicaid-participating 
     facility cannot abandon them if it later voluntarily chooses 
     to end its participation in Medicaid.
       The National Senior Citizens Law Center supports this 
     legislation. We look forward to working with your staff on 
     this legislation and on other bills to protect the rights and 
     interests of nursing facility residents and other older 
     people. In particular, we suggest that you consider 
     legislation addressing a related issue of concern to Medicaid 
     beneficiaries and their families--problems of nursing 
     facilities' discriminatory admissions practices.
       Many facilities limit the extent of their participation in 
     the Medicaid program by certifying only a small number of 
     beds for Medicaid. As a consequence of their limited 
     participation in the Medicaid program, they discriminate 
     against program beneficiaries by denying them admission. In 
     addition, residents who pay privately and become eligible for 
     Medicaid during their residency in the facility because of 
     the high cost of nursing facility care are also affected by 
     limited bed, or distinct part, certification. Once such 
     residents become impoverished and need to rely on Medicaid to 
     help pay for their care, they are often told that ``no 
     Medicaid beds are available'' and that they must move. 
     Facilities engage in other practices that discriminate 
     against people who need to rely on Medicaid for their care. 
     We would be happy to work with your staff in developing 
     legislative solutions to these concerns.
       Thank you for your work and leadership on these important 
     issues.
           Sincerely,
     Toby S. Edelman.
                                  ____



                                                          AARP

                                Washington, DC, February 25, 1999.
     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC
       Dear Senator Graham: AARP appreciates your leadership in 
     sponsoring the Nursing Home Residential Security Act of 1999, 
     a bill that protects low-income nursing home residents from 
     discharge when a nursing home withdraws from the Medicaid 
     program.
       Across the country, some nursing home operators have been 
     accused of dumping Medicaid residents--among the most 
     defenseless of all health care patients. As with similar 
     complaints about hospitals and physicians, these violations 
     can be serious threats to people's health and safety. Yet, 
     federal and state governments have been limited to their 
     oversight and enforcement capacities. This bill would 
     establish clear legal authority to prevent inappropriate 
     discharges, even when a nursing home withdraws from the 
     Medicaid program. AARP believes that this is an important and 
     necessary step in protecting access to nursing homes for our 
     nation's most vulnerable citizens.
       This bill offers important protections because of the 
     documented that Medicaid patients face, especially people 
     seeking nursing home care. For years, there has been strong 
     evidence demonstrating that people who are eligible for 
     Medicaid have a harder time gaining entry to a nursing home 
     than do private payers. In some parts of the country, there 
     is a shortage of nursing home beds. Under such circumstances, 
     only private-pay patients have real choice among nursing 
     homes. Medicaid patients are often forced to choose a home 
     that they would not have otherwise chosen, despite concerns 
     about its quality of care or location.
       Under the proposed legislation, government survey, 
     certification, and enforcement authority would continue, even 
     after the facility withdraws from the Medicaid program, and 
     the facility would be required to continue to comply with it. 
     The bill also protects prospective residents by requiring 
     oral and written notice that the nursing home has withdrawn 
     from the Medicaid program. Thus, the prospective nursing home 
     resident would be given notice that the home would be 
     permitted to transfer or discharge a new resident at such 
     time as the resident is unable to pay for care.
       Access to quality nursing homes has been a long-standing 
     and serious concern for AARP. It is an issue that affects, in 
     a real way, our members and their families. The current 
     patchwork system of long-term care forces many Americans to 
     spend down to pay for expensive nursing home care. Therefore, 
     it is unfair to penalize such order, frail nursing home 
     residents who must rely on Medicaid at a critical time in 
     their lives.
       Again, thank you for your leadership on this issue. If we 
     can be of further assistance, please give me a call or have 
     your staff contact Maryanne Keenan of our Federal Affairs 
     staff at (202) 434-3772.
           Sincerely,
                                                  Horace B. Deets.

  Mr. GRASSLEY. Mr. President, today I am pleased to join Senators 
Graham, Roth, and Moynihan in introducing legislation that will be an 
important step in safeguarding our most vulnerable citizens. The 
Nursing Home Residential Security Act of 1999 will protect nursing home 
residents who are covered by Medicaid from being thrown out of a 
facility to make room for a more lucrative, private-pay patient.
  It is hard to believe that a facility would uproot a frail individual 
for the sole purpose of a few extra dollars. However, in the past year 
there have been documented cases of Medicaid beneficiaries who have 
been at risk of being forced to leave a facility based solely on 
reimbursement status. The result is often severe trauma and a mortality 
rate that is two to three times higher than other nursing home 
residents. This is no way to treat our elderly.
  I want to make it clear that these situations are rare. The vast 
majority of nursing homes are compassionate and decent facilities. My 
state of Iowa has been privileged to have many nursing homes that stand 
as models of quality care. Unfortunately, a few bad apples can damage 
the reputation of an entire industry. That is why I am pleased that 
this bipartisan legislation has the support of the nursing home 
industry as well as senior citizens' advocates.
  This commonsense proposal would prevent nursing homes who have 
already accepted a Medicaid patient from evicting or transferring the 
patient based solely on payment status. Nursing homes would still be 
entitled to decide who gains access to their facilities, however, they 
would be required to inform new residents that if they spend down to 
Medicaid, they are entitled to discharge or transfer them to another 
facility.
  This legislation is an important step in protecting these frail 
individuals. People move into nursing homes for around-the-clock health 
care in a safe environment. The last thing they expect is to be put out 
on the street. That's also the last thing they deserve. This bill 
prevents residents from getting hurt if their nursing home pulls out of 
Medicaid and ensures that people know their rights up front, before 
they enter a facility.
  This commonsense proposal has also been introduced in the House of 
Representatives by Congressman Bilirakis where it has received strong 
bipartisan support. I encourage my colleagues in the Senate to 
cosponsor this worthwhile proposal. And, I look forward to the passage 
of this resolution this year.
  Mr. ROTH. Mr. President, today, I am pleased to join with Senator 
Moynihan, Senator Graham, and Senator Grassley to introduce important 
legislation to protect some of our most vulnerable citizens--nursing 
home residents. Our bill will keep nursing home residents who rely on 
Medicaid from being ``dumped'' out of the facility they call home, 
should that facility decide to drop participation in the Medicaid 
program.
  The problem we will solve with this bill does not occur often. In 
fact, nearly 90 percent of all nursing homes participate in the 
Medicaid program. Pullouts are very rare and usually result from 
facilities deciding to close. But when a still-functioning facility 
decides to stop serving Medicaid clients, our bill will ensure that 
current residents do not find themselves pushed out of the place they 
view as home.
  Recently, Medicaid beneficiaries in facilities in Indiana and Florida 
found themselves in precisely this horrible situation. They were forced 
out of nursing homes that decided to drop participation in the Medicaid 
program. Residents' well-being was disrupted and families were forced 
to scramble to develop other care alternatives.
  Our new legislation, and H.R. 540, its companion bill in the House, 
will protect current residents from displacement. The bill simply 
requires that facilities withdrawing from the Medicaid program continue 
to care for current residents under the terms and conditions of the 
Medicaid program until those residents no longer require care. 
Facilities would essentially phase-down participation in Medicaid 
rather than dropping from the program overnight.
  Both the nursing home industry and senior citizens' advocates support 
our legislation. This is a common sense, good-government bill that will 
enhance the peace of mind of low-income elderly and disabled 
individuals.
  I applaud the House Conference Committee for having already held a 
hearing on H.R. 540, and Representatives

[[Page S2105]]

Bilirakis and Davis are to be congratulated for their leadership on 
this important issue. As we introduce our bill in the Senate today, I 
would like to particularly thank Senator Bob Graham, whose commitment 
to this legislation has been pivotal. Working with him, Senator 
Moynihan, Senator Grassley, and other original Finance Committee 
cosponsors Senators Chafee, Mack, Rockefeller, Breaux, Bryan, and 
Kerrey, I look forward to taking up the bill up in our committee.
  Mr. MOYNIHAN. Mr. President, I am pleased to join my colleagues 
Senators Graham, Roth and Grassley in introducing this legislation--the 
Nursing Home Residential Security Act of 1999. It is a modest 
modification providing an enormous protection for nursing home 
residents.
  The situation today is as follows. Frail elderly individuals who 
require nursing home care are faced with costs of $40,000 to $50,000 on 
average per year. These sums quickly deplete family savings. As a 
result, about two-thirds of nursing home residents at some point spend 
down their assets and require the assistance of Medicaid coverage. 
Because Medicaid typically has low reimbursement rates, nursing homes, 
in turn, must carefully balance their finances by screening which 
patients to accept, limiting the number of Medicaid residents. When 
nursing homes can no longer operate with low Medicaid rates, they may 
choose to reduce the number of beds available for Medicaid residents or 
no longer participate in the Medicaid program altogether.
  What, then, happens to the residents who depend on Medicaid to cover 
their nursing home costs? The Wall Street Journal first reported on 
April 7 of last year what has occurred: Vencor Inc., with the nation's 
largest nursing home chain of 310 facilities, decided to withdraw 
participation in the Medicaid program. Residents covered by Medicaid 
were so notified and told they would have to leave the nursing homes--
their homes.
  Industry analysts had predicted that some other companies may follow 
Vencor's lead in jettisoning Medicaid residents. For example, 
Renaissance Healthcare Corp. withdrew from Medicaid the year before due 
to rising expenses.
  The evictions in Vencor's Indiana and Florida nursing homes caused 
panic among residents and their families, and aggravated some patients' 
frail medical conditions. In all, it was a wrenching experience for 
residents and their families.
  Our legislation is a small modification amid an otherwise larger 
problem. The bill would merely protect current Medicaid residents in 
nursing homes from evictions if their nursing home decides to withdraw 
from the Medicaid program. Nursing homes will be able to continue to 
screen patients for acceptance into their facility. The screening 
process is quite sophisticated and includes collection of information 
about assets and income to determine when the individual will likely 
spend down his or her resources before requiring Medicaid coverage.
  The larger dilemma still exists. We need a system that both covers 
our frail elderly in nursing homes after they spend themselves into 
poverty due to nursing home costs and ensures that nursing homes can 
stay in business in order to provide such services.
  Momentum is moving behind this legislation. Our bill enjoys 
bipartisan support in Congress as well as support from the nursing home 
industry and advocates. On the Senate side, we introduce this bill 
today with a total of 15 sponsors. Last week, the House Commerce 
Subcommittee on Health and Environment held a hearing on this 
legislation. Chairman Roth and I are committed to marking up this bill 
in our Committee in the near future. I commend Senator Graham for his 
leadership in initiating this proposal, and urge its early adoption.
                                 ______