[Congressional Record Volume 150, Number 138 (Tuesday, December 7, 2004)]
[Senate]
[Pages S11888-S11890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           ELDER JUSTICE ACT

  Mr. GRAHAM of Florida. Mr. President, I wish to commend Senator John 
Breaux and his staff for their excellent work on the Elder Justice Act. 
They have worked long and hard on this legislation, and I share their 
strong desire to see it pass the Senate this year.
  I would like to share the comments I received from two Florida 
attorneys, Nick Cox and Mark Shalloway, who have extensive knowledge 
and experience in elder justice issues.
  Nick Cox is a professor at the Stetson University College of Law in 
St. Petersburg, where he specializes in elder consumer protection 
matters and works on a special Federal project within the Elder Law 
Center. Mr. Cox, a former State prosecutor, worked for Attorneys 
General Bob Butterworth and Charlie Crist as their acting central 
Florida regional deputy and bureau chief of the Economic Crimes 
Division, which is the Florida Attorney General's consumer protection 
unit. Mr. Cox's comments are as follows:


[[Page S11889]]


       I feel very strongly about passage of this act from a 
     consumer protection standpoint. At this time I have been 
     researching criminal elder exploitation issues and have found 
     that there is a complete lacking in good support research. 
     Despite several attempts to get a statistical handle on how 
     bad criminal exploitation of the elderly is, the reports that 
     have been done have been consistently criticized or found to 
     be scientifically/statistically deficient. The Elder Justice 
     Act calls for such research to be done on a national level 
     and would provide the needed data that could assist those of 
     us in the field of identifying the primary issues and 
     hopefully some suggestions for solutions to the problem.
       I also am very excited about the call in the Elder Justice 
     Act for nationwide centers of excellence for study into these 
     matters. We have already begun such work here at Stetson, but 
     we can only address it on a regional basis here given the 
     magnitude of our senior populations in Florida and throughout 
     the Southeast United States. However, the work we have done 
     so far has been very well received and applauded by those in 
     the aging network. I think the Elder Justice Act would also 
     give us some significant strides forward in that respect as 
     well.
       I also, as a former prosecutor, appreciate the attention it 
     seems to give to increasing prosecutions. From the 
     exploitation standpoint, I have experienced the positive 
     outcome of criminally charging scam artists and the resulting 
     change in business practices in that area. My office 
     conducted undercover sting operations with the Florida 
     Department of Law Enforcement. Once we convinced a prosecutor 
     to charge a few of the salesmen and business owners who were 
     targeting and scaring seniors into buying unneeded and 
     overpriced equipment, there was an immediate change in the 
     manner in which other companies conducted business.
       Anything we can do to encourage or mandate criminal 
     prosecutions will be a positive step. I think the Elder 
     Justice Act starts us in the right direction.

  Mark Shalloway is a practicing attorney in West Palm Beach and has 
extensive experience in elder abuse and exploitation. Mr. Shalloway's 
comments are as follows:

       Elder Law attorneys, including my Florida colleagues see a 
     great deal of elder abuse and financial exploitation on a 
     weekly to monthly basis in our offices. The National Academy 
     of Elder Law Attorneys (NAELA) is one of the five founding 
     members of the Elder Justice Coalition that has worked for 
     several years to get this piece of legislation passed. 
     Senator Breaux and other supporters, like yourself, deserve 
     much credit for keeping this bill on the front burner during 
     a year when few bills have been addressed.
       The revised version of S. 333 that the Finance Committee 
     has marked up is not as comprehensive as the original bill, 
     but is a great starting point and should be passed by the 
     full Senate as soon as possible.
       As a Long-Term Care Ombudsman in Florida, I am anecdotally 
     aware of the difficulties in identifying and prosecuting 
     crimes against the elderly. This Act should give greater 
     recognition to a silent but huge and growing problem.

  I agree with the comments of Mr. Cox and Mr. Shalloway, and have thus 
strongly supported passage of the Elder Justice Act.
  During Finance Committee deliberations of the Elder Justice Act, I 
added two critically important provisions to the bill. These amendments 
strengthened the bill immensely, would have greatly improved patient 
safety in long-term care facilities, and, in fact, would have saved 
lives.
  Therefore, I am greatly disappointed that my patient safety 
provisions were the basis of an objection from Senator Gregg. That 
objection resulted in the provisions being stripped from the Elder 
Justice Act. The result? The legislation will do less on behalf of our 
elderly Americans than it could have done, and the elderly will 
continue to suffer from adverse events and death as a result of 
medication errors. This disappoints me deeply.
  I would like to briefly describe the two amendments I had hoped would 
be part of the Elder Justice Act.
  The first would have provided grants to long-term care facilities to 
improve quality and prevent neglect by improving patient safety and 
reducing health care complications and deaths resulting from medication 
errors in long-term care settings.
  Section 108 of the Medicare Modernization Act gave authority to the 
Secretary to make such grants available to physicians in order to 
improve the quality of care and patient safety in physician offices. We 
should strive for no less for our patients in long-term care 
facilities.
  According to the Institute of Medicine, medical errors cause up to 
98,000 deaths in this country each year, in addition to otherwise 
avoidable injuries, hospitalizations, and expenses.

  Although technologies are available to reduce errors and save lives, 
start-up costs and a lack of awareness have slowed the diffusion of 
these technologies, and prevented our long-term care facilities and 
elderly patients from reaping the benefits of these technologies.
  The grant program would improve patient safety among the elderly by 
reducing medication errors in long-term care facilities. Grant money 
could be used by long-term care facilities to purchase proven 
technologies; the adoption of computer physician order entry systems, 
for example, is an essential component of any effective strategy to 
reduce medication errors.
  Purchase and deployment of such systems is a substantial investment. 
Costs can delay the rapid introduction of new information technologies 
into long-term care facilities that already are grappling with other 
major financial challenges.
  The grant program would have reduced this barrier by providing 
financial incentives for long term care facilities to adopt the 
resource intensive information technologies essential to system wide 
strategies for reducing and eventually ending most medication errors.
  We know how to improve patient safety. We know how to save lives. My 
provision to create a grant program would have done just that, and I 
deeply regret having to strike the provision because of Senator Gregg's 
objection to it.
  My second amendment would have required the Secretary of Health and 
Human Services to develop a plan for adopting open standards to enable 
improved electronic submission of clinical data by long term care 
facilities and allowing electronic transmission of data using such 
standards.
  Although the Medicare Modernization Act requires the Secretary to 
develop uniform standards relating to requirements for electronic 
prescription drug programs, there is no provision for adopting uniform 
standards for data not related to prescription drug programs and no 
requirement that the Secretary allow long term care facilities to 
submit data electronically to HHS using uniform open standards.
  The use of open standards is critical to ensuring that systems are 
able to communicate with each other and without human manipulation, 
thus allowing information to be processed automatically and quickly. 
Automatic, expedited processing of information will reduce neglect in 
the form of medical errors and save lives.
  Currently, data may only be transmitted electronically using 
spreadsheets, PDFs, or SAS transport files. This form of submission 
does not allow systems to communicate with each other, and slows the 
processing of information.
  I would like to explain the importance of this amendment to my 
constituents back in Florida and to people throughout our country.
  Flu season is approaching. Without timely and accurate information to 
guide public health officials and physicians, seniors in my State and 
throughout the country are at risk. But, the public health system 
currently relies on a slow and unreliable methods of tracking outbreaks 
such as postcards and phonecalls from physicians and other medical 
professionals. If I want to get information on the health status of 290 
million Americans, post cards and telephone calls simply aren't 
adequate. We need to use electronic reporting based on some common 
method of collecting that data to make public health safer.
  Vioxx provides another example. Vioxx is a drug used for arthritis by 
seniors throughout the world; it was withdrawn by its manufacturer this 
fall. Vioxx was first sold in the United States 5 years ago and has 
been marketed in more than 80 countries. Worldwide sales of Vioxx in 
2003 were $2.5 billion. It is a major drug with broad use. But, the FDA 
relies on slow and unreliable methods of tracking problems associated 
with drugs that may only appear after they go into broad use. Although 
prescriptions are one of the most thoroughly computerized areas in 
medicine, the FDA relies on slow and unreliable methods to track 
medical problems resulting from drug use. We need to use electronic 
reporting based on common method of collecting that data to make drug 
use safer.

[[Page S11890]]

  One last example: heart conditions are one of the leading diseases 
affecting Medicare patients and heart attacks can result in deaths and 
high costs. Many heart attack victims can be helped if they receive 
drugs to assist their damaged heart while it recovers. CMS studies 
indicate that many of the victims do not receive those medications. 
But, CMS collects that data with great effort--relying on many health 
professionals to extract data from clinical records and summarize the 
data for analysis. By the time the data is available, the patient has 
met their fate and the time for correcting a mistake, for getting them 
a lifesaving drug, has passed. We need to use electronic reporting 
based on a common method of collecting data to improve quality of care 
and patient safety for those in long-term care facilities, and for all 
Medicare patients.
  I had hoped to see these measures pass in my final days in the Senate 
and thus leave patients with a safer medical system. I am deeply 
disappointed in the removal of the amendments from the Elder Justice 
Act.
  However because of my great desire to see the Elder Justice Act go 
through, I removed my hold on the legislation on Wednesday, November 
17. It is my understanding that the Elder Justice Act has not yet 
cleared the Senate because of Republican objections to the substance of 
the legislation.
  I share Senator Breaux's desire to see the legislation enacted this 
year, and fervently hope that may still be possible.

                          ____________________