[Senate Hearing 110-173]
[From the U.S. Government Publishing Office]
S. Hrg. 110-173
THE NURSING HOME REFORM ACT TURNS
TWENTY: WHAT HAS BEEN ACCOMPLISHED, AND WHAT CHALLENGES REMAIN?
=======================================================================
HEARING
before the
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
WASHINGTON, DC
__________
MAY 2, 2007
__________
Serial No. 110-6
Printed for the use of the Special Committee on Aging
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
U.S. GOVERNMENT PRINTING OFFICE
37-151 PDF WASHINGTON DC: 2007
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SPECIAL COMMITTEE ON AGING
HERB KOHL, Wisconsin, Chairman
RON WYDEN, Oregon GORDON H. SMITH, Oregon
BLANCHE L. LINCOLN, Arkansas RICHARD SHELBY, Alabama
EVAN BAYH, Indiana SUSAN COLLINS, Maine
THOMAS R. CARPER, Delaware MEL MARTINEZ, Florida
BILL NELSON, Florida LARRY E. CRAIG, Idaho
HILLARY RODHAM CLINTON, New York ELIZABETH DOLE, North Carolina
KEN SALAZAR, Colorado NORM COLEMAN, Minnesota
ROBERT P. CASEY, Jr., Pennsylvania DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri BOB CORKER, Tennessee
SHELDON WHITEHOUSE, Rhode Island ARLEN SPECTER, Pennsylvania
Julie Cohen, Staff Director
Catherine Finley, Ranking Member Staff Director
(ii)
C O N T E N T S
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Page
Opening Statement of Senator Herb Kohl........................... 1
Panel I
Kathryn Allen, director of Health Care, U.S. GAO, Washington, DC. 3
James Randolph Farris, M.D., regional administrator, Dallas
Office, Centers for Medicare and Medicaid Services (CMS),
Dallas, TX..................................................... 48
Panel II
Charlene Harrington, professor of Sociology and Nursing,
University of California, San Francisco, CA.................... 68
Alice Hedt, executive director, NCCNHR, Washington, DC........... 83
Mary Ousley, president, Ousley & Associates, former chair,
American Healthcare Association, Richmond, KY.................. 92
Orlene Christie, director, Legislative and Statutory Compliance
Office, Michigan Department of Community Health, Lansing, MI... 103
APPENDIX
Prepared Statement of Senator Gordon Smith....................... 117
Kathryn G. Allen responses to Senator Smith questions............ 118
Randy Farris responses to Senator Smith questions................ 119
Dr. Charlene Harrington responses to Senator Smith questions..... 121
Alice Hedt responses to Senator Smith questions.................. 122
Mary Ousley responses to Senator Smith questions................. 123
Orlene Christie responses to Senator Smith questions............. 124
Additional material submitted by Dr. Charlene Harrington......... 125
Statement of the American Occupational Therapy Association....... 150
Statement of the Center for Medicare Advocacy, Inc............... 154
Statement submitted by Sam Perlin, Long Term Care Advocate
Consultant..................................................... 158
Statement submitted by Cheryl Zuccola............................ 161
Statement submitted by Diane Reed, program director, Consumer
Advocates for Better Care of Montachusett Home Care Corporation 163
Statement submitted by Linda Sadden, State long-term care
ombudsman, Louisiana........................................... 165
Statement submitted by Missouri Coalition for Quality Care....... 166
Statement submitted on behalf of the Friends and Relatives of
Institutionalized AGED (FRIA).................................. 167
Statement submitted by Rose B. McGarry, ombudsman program
director, Elder Services of Merrimack Valley................... 174
Statement of the Center for Advocacy for the Rights and Interests
of the Elderly (CARIE)......................................... 175
Nursing Home Reform Act (OBRA '87): 20 Years of History submitted
by the Senate Special Committee on Aging....................... 179
Broken Promises II prepared by the District of Columbia Long-Term
Care Ombudsman Program......................................... 188
Material submitted by Health Care Policy and Research, University
of Colorado Health Sciences Center............................. 222
Material from Consumer Reports on Nursing Homes.................. 272
Faces of Neglect submitted by NCCNHR Reform...................... 276
(iii)
THE NURSING HOME REFORM ACT TURNS TWENTY: WHAT HAS BEEN ACCOMPLISHED,
AND WHAT CHALLENGES REMAIN?
---------- --
WEDNESDAY, MAY 2, 2007
U.S. Senate,
Special Committee on Aging,
Washington, DC.
The Committee met, pursuant to notice, at 10:28 a.m., in
room 628, Dirksen Senate Office Building, Hon. Herb Kohl
(chairman of the committee) presiding.
Present: Senators Kohl and McCaskill.
OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN
The Chairman. Hello. At this time, we will call this
hearing to order. We welcome all of our guests and witnesses
who are present.
Back in January, as Chairman of the Committee, I promised
that we would take a close look at nursing homes to see if our
seniors are getting the safest, highest-quality care. Today, we
are going to do exactly that.
We know that the vast majority of nursing home providers
care deeply about their residents, and are doing their very
best to provide the best possible care. But as we will hear
today, many problems still exist in some of our Nation's
nursing homes.
The Nursing Home Reform Act became law 20 years ago. Better
known as OBRA 1987, this law set Federal standards for the
quality of services for staffing and for inspection and
oversight of long-term care facilities.
Without question, it has improved nursing home care. For
example, OBRA 1987 led to a sharp drop in unnecessary physical
and chemical restraints of residents. Other accomplishments and
events are on the posters on this podium.
We will hear today from GAO that, in 2006, nearly one in
five nursing homes nationwide were cited for poor care that
caused actual harm to residents. Among a group of facilities
studied in 1998 and 1999 that provided poor care, the agency
found that nearly half have made no progress between that time
and now. Now, this is unacceptable, and it raises questions
about how and why our enforcement system is not getting the job
done.
From CMS, we will hear about the challenges facing State
inspection agencies in overseeing nursing homes. Surveys do the
tough work of visiting facilities, documenting the conditions
and deficiencies they find, and recommending sanctions. But it
is troubling that fines and sanctions are often not levied,
even when inspectors find violations that leave residents
suffering.
For facilities that continually slip in and out of
compliance, regulators need to take much swifter action. Bad
apples give the nursing home industry a black eye, and they
should not be in this business.
This Committee has a long history of closely scrutinizing
the quality of nursing home care, and we intend to reaffirm
that commitment. We need to regularly monitor the nursing home
industry and the performance of Federal and State regulators to
make sure quality standards are met.
As a first step, we will follow this hearing with a written
request to CMS to brief us every 2 months on progress made to
implement the recommendations and GAO's testimony that come out
of this hearing. We will continue to press the Administration
to tighten up the enforcement system and make sanctions stick.
We will work with advocates, the industry and regulators on
proposals to tighten the enforcement process, so that the bad
actors no longer escape sanctions.
We will also be requesting ideas for improving public
information about the quality of nursing homes. When consumers
look at CMS's Nursing Home Compare Web site, they should be
better able to tell immediately which facilities are providing
good care and which are providing substandard care.
We also want to make sure that the nursing home workforce
is the best it can be by establishing a nationwide system of
background checks for workers in long-term care facilities.
Today, we will hear about groundbreaking work being done in
the State of Michigan. They have successfully organized a
streamlined, cost-effective system of background checks for
people who apply for jobs in long-term care facilities.
Michigan's program is being conducted as part of a pilot
program that was started in 2003. This program is producing
impressive results in other States as well, including my own
State of Wisconsin, and I believe it is time to expand it
nationwide.
The vast majority of long-term care workers do an excellent
job at taking care of our family members. But individuals who
have a record of criminal abuse obviously should not care for
the most vulnerable in our society. To that end, I plan to
introduce legislation that is modeled on Michigan's background
check program.
We look forward to joining with all of our colleagues on
this Committee and in the Congress to ensure that all nursing
home residents are safe and receive the highest quality of
care. Clearly, our Nation's families deserve nothing else.
At this time, I would like to welcome our first panel to
come forward.
Our first witness will be Kathryn Allen, who is director of
Health Care for the U.S. Government Accountability Office. Ms.
Allen has extensive expertise in Medicaid, children's health
issues and long-term care issues, including nursing homes. Ms.
Allen has had a long and distinguished career at GAO, also
directing studies on private health insurance issues, medical
malpractice and access to care.
Also on this panel we have Dr. James Randolph Farris of the
Centers for Medicare and Medicaid Services, CMS. Dr. Farris has
served as the regional administrator of the Dallas office since
1998. In this capacity, Dr. Farris has responsibility for
Medicare, Medicaid, the Clinical Laboratory Improvement Act,
and State Children's Health Insurance Programs in the States of
Texas, Oklahoma, New Mexico, Arkansas and Louisiana. He also
serves as the lead CMS Regional Administrator for rural health
issues and for the survey and certification program.
We thank you very much for being with us.
At this time, Ms. Allen, we would like to hear your
testimony.
STATEMENT OF KATHRYN ALLEN, DIRECTOR OF HEALTH CARE, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC
Ms. Allen. Thank you, Mr. Chairman. I am pleased to be here
today as the Committee acknowledges the 20th anniversary of the
passage of OBRA 1987, which, as you have already mentioned,
contained very important nursing home reform provisions.
The Nation's 1.5 million nursing home residents are a very
vulnerable population of elderly and disabled individuals for
whom remaining at home is no longer feasible. This population
is also expected to increase dramatically in future years,
along with the cost of their care, with the aging of the baby-
boomer population.
The public investment is large. Combined Medicare and
Medicaid payments for nursing home services were almost $73
billion in 2005, including a Federal share of about $49
billion.
In 1986, the Institute of Medicine reported, among other
things, the quality of care in many nursing homes was not
satisfactory. In 1987, GAO issued a report that recommended,
consistent with that report, that Congress pass legislation to
strengthen enforcement of Federal nursing home requirements.
Subsequent to these reports, Congress enacted the nursing
home provisions of OBRA 1987, which changed the focus of
quality standards from inputs in a home's capability to provide
care to its actual delivery of care and the outcomes of that
care.
Since this Committee subsequently asked GAO to investigate
the quality of care in California nursing homes in 1997, we
have reported to and testified before the Congress many times
on these issues, identifying issues and problems in Federal and
State activities that have been designed to detect and correct
quality problems. We have made numerous recommendations to
improve enforcement and oversight.
CMS has taken many actions in response to our
recommendations, and has also undertaken its own initiatives to
address these and other issues. As a result of OBRA and these
other more recent efforts, much has transpired over the last 20
years in terms of assessing, overseeing and improving the
quality of nursing home care.
My remarks today will focus on progress made and some of
the challenges that remain in three specific areas: evaluating
the quality of nursing home care and the enforcement and
oversight functions intended to ensure high-quality care. My
statement will be based on our prior work.
First, OBRA 1987's reforms and subsequent efforts by CMS
and the nursing home industry to improve the quality of care
have indeed focused on resident outcomes, as was intended.
However, as you have already pointed out, a small but
significant share of nursing homes nationwide continue to
experience quality-of-care problems. In last fiscal year 2006,
almost one in five nursing homes nationwide was cited for
serious deficiencies--those that caused actual harm or placed
residents in immediate jeopardy.
Now, while this rate has varied over the last 7 years, we
have regularly found persistently wide variation across the
States in terms of the rate at which they cite serious
deficiencies, which indicates inconsistency in how they assess
quality of care. We have also found understatement in the
severity of reported deficiencies in States where we have
reviewed this in more depth.
My second point: CMS has indeed strengthened its
enforcement capabilities since OBRA 1987 to better ensure that
nursing homes achieve and maintain high-quality care. For
example, the agency has implemented additional sanctions
authorized in the legislation, such as civil monetary
penalties. It has established an immediate sanctions policy for
nursing homes found to repeatedly harm residents, and it has
developed a new enforcement management system. However, several
important initiatives require refinement.
We recently reported that the deterrent effect of CMPs,
civil monetary penalties, was diluted for a sample of homes
that we reviewed with a history of serious deficiencies,
because CMS often imposed penalties at the lower end of the
allowable range. Significant time, sometimes years, could pass
between the citation of deficiencies on a survey and a home's
payment because they are allowed to appeal, and the penalty is
not required to be paid while it is under appeal.
We also found that CMS's immediate sanctions policy is
complex and appears to induce only temporary compliance for
homes with a history of noncompliance. Moreover, CMS's new
enforcement data system are not well-integrated, and the
national reporting capabilities are incomplete, which hinders
the agency's ability to track and monitor enforcement.
Third, CMS has increased its oversight of nursing home
quality and State surveys since the passage of OBRA 1987. But
certain initiatives continue to compete for staff and financial
resources.
In recent years, CMS has focused its resources on prompt
investigation of complaints and allegations of abuse. It has
conducted more frequent and many more Federal comparative
surveys. It has strengthened its fire safety standards and has
upgraded its data systems.
But CMS's intensified oversight efforts, coupled with an
increase in the number of Medicare-Medicaid providers, has
produced greater demands on its resources, which has led to
delays in certain very important activities. For example, the
implementation of new survey methodology has been in process
for 8 years, and resource constraints threaten the planned
expansion of this methodology beyond the initial demonstration
sites.
In conclusion, Mr. Chairman, significant attention from
this Committee, the Congress, the Institute of Medicine and
others served as a very important catalyst to focus national
attention on nursing home quality issues that culminated in the
nursing home reform provisions of OBRA 1987.
Most would agree that many significant reforms and measures
have been initiated and implemented since that time to improve
the quality of nursing home care. But the task is not complete.
It is imperative to continue to focus national attention on and
to ensure public accountability for nursing homes to provide
high-quality care for all residents.
With such ongoing efforts, the momentum of earlier
initiatives can be sustained and perhaps even enhanced, so that
quality of care for all nursing home residents can be secured,
as surely was intended by the Congress when it passed this
legislation.
Mr. Chairman, this concludes my prepared remarks.
[The prepared statement of Ms. Allen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you. That is a very fine statement.
Dr. Farris.
STATEMENT OF DR. JAMES RANDOLPH FARRIS, M.D., REGIONAL
ADMINISTRATOR, DALLAS OFFICE, CENTERS FOR MEDICARE AND MEDICAID
SERVICES (CMS), DALLAS, TX
Dr. Farris. Good morning, Mr. Chairman. I would like to
thank you and the committee for inviting me to discuss the
quality of care provided by nursing homes across our Nation
upon the 20th anniversary of the Omnibus Budget Reconciliation
Act of 1987.
This sweeping legislation ushered in a series of landmark
nursing home reform initiatives designed to significantly
improve quality of care.
More than 3 million elderly and disabled Americans will
receive care in nearly 16,000 Medicare and Medicaid certified
nursing homes this year. About 1.5 million Americans reside in
these nursing homes on any given day.
Our Nation is aging. It is a reality that shapes the public
discourse, looms large in our imaginations, and affects our
everyday lives.
As families struggle to care for aging parents and other
relatives who are living longer but often with coexisting and
chronic health conditions and increasingly complex medical
needs, and as more members of the baby-boom generation age into
seniority, the need for high-quality nursing home care will
grow exponentially.
We have come a long way since OBRA. Nursing home quality,
safety, oversight and enforcement have advanced significantly
since the reforms were implemented in 1990.
Today, we face a changed and, in fact, much improved
landscape that is vastly different from the one that existed
even 10 years ago. To that end, CMS is grateful for the support
and assistance of current and past members of the Senate
Special Committee on Aging who have demonstrated their tireless
commitment to these issues.
My statement before you now, as well as my written
testimony, will describe some of our most significant and
successful initiatives.
At the outset, however, I must express my deep concern for
the future of CMS's nursing home survey, certification and
quality improvement efforts. Without appropriate funding and
adequate resources, the agency will not be able to sustain, let
alone strengthen and expand, the programs and initiatives that
have yielded positive results thus far.
The high priority that CMS has afforded to meeting and
exceeding its statutory requirements in these areas has indeed
paid off. 99.9 percent of all Medicare and Medicaid certified
nursing homes are surveyed every 15 months or less.
In the coming years, however, to our regret, we may need to
shift our limited resources and rethink our priorities. The
Medicare budget for survey and certification has remained flat
for the last 3 years. Should this trend persist, we anticipate
a $25 million shortfall by the middle of fiscal year 2008.
Under such a scenario, it is inevitable that our efforts
will sputter and slow. Already, our implementation of systems
improvements has wound down to a crawl.
Finally, we face the possibility of less frequent surveys
of facilities, diluted oversight of accreditation and
compromised progress on the critical front of quality measures,
in particular the rollout of a key national demonstration
project.
For several years now, improving the safety and quality of
nursing home care has been the focus of much Congressional and
regulatory attention. For CMS and its partners, it has meant
massive effort and unprecedented activity.
Currently, CMS is evaluating the complexity of its
immediate sanctions policy in an effort to strengthen it and
make it more effective, preparing to issue a civil money
penalty analytic tool to help States to monitor enforcement
actions and to improve national consistency, planning to seek
legislative authority to collect civil money penalties during
appeals, planning to analyze the feasibility and costs of
systems modifications to improve the interface between
complaint and enforcement data systems, and continuing to
respond to nursing home complaints in a timely manner.
Nearly 12,000 more complaint investigations were conducted
by the agency and the States in 2005 than in 1999.
Additionally, since 1990, CMS has been posting nursing home
characteristics, survey results and information about facility-
specific complaint investigations on its publicly searchable
Nursing Home Compare Web site.
For the past few years, nursing homes with the worst
quality-of-care track records, dubbed ``special focus
facilities,'' have been subject to more frequent surveys and
decisive punitive actions if significant improvements are not
achieved and sustained. As a result, many nursing homes have
been induced to operate within Federal requirements. Clearly,
such a program requires considerable resources.
In 2005, the last time Congress increased the Medicare
budget for survey and certification, CMS expanded the number of
special focus facilities by 35 percent. To the extent that
Congress supports the President's 2008 proposed budget for
survey and certification, CMS will embark on a highly
recommended special focus facility program expansion.
Mr. Chairman, thank you for the opportunity to testify on
the quality of care in our Nation's nursing homes. With our
combined efforts, continued vigilance and adequate resources, I
am confident that we will see continued improvement on this
front.
I look forward to answering your questions.
[The prepared statement of Dr. Farris follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Dr. Farris.
Ms. Allen, your March report suggests that penalties
applied by CMS against the worst-performing homes appear to be
ineffective, since many of these homes continue to cycle in and
out of compliance.
Why do you think that the penalties are ineffective? How
much of this problem occurs at the State level, and how much of
it is attributable to CMS?
Ms. Allen. It begins at the State level. It is up to the
State to decide to what extent that they will use their own
authority. States do have their own authority to impose
penalties, and some choose to do that. Then, they can decide if
they want to refer to CMS to impose penalties. Some choose to
do that. Then, CMS makes the decision to what extent that it
will provide notice, and then there is an opportunity for
appeals.
With civil monetary penalties, as I said earlier, while it
is under appeal, they do not have to pay it. So there is a
combination of factors that depend on the timeliness and the
effectiveness of it.
One of the reasons that CMS advised us that they tend to go
with the lower end of the range is because they are concerned
that, by taking resources away from the home, that that will
interfere with their ability to provide the care that needs to
be. So they see that that could be really counter to the intent
for putting money toward direct care.
The Chairman. Are these penalties that are meted out almost
always appealed?
Ms. Allen. They are often appealed, yes.
The Chairman. That takes time?
Ms. Allen. Yes, it does. That was one of the
recommendations, though, that we made in our report, and CMS
agreed that it would seek the authority that it needs to try to
have the penalty paid up front when it is imposed. Then, if it
is overturned at a later time, that it is refunded or
something, with perhaps even interest. There is precedent for
that in other Federal programs.
The Chairman. Would that be a significant improvement, or
cause, in your opinion, a significant improvement in these
homes that are being sanctioned, if they were required to pay
the penalty up front pending the appeal?
Ms. Allen. We think it could be more of a deterrent effect,
yes.
The Chairman. What about you, Dr. Farris? Do you think that
would help?
Dr. Farris. I think it would. As my colleague has said, we
are certainly pursuing establishment of escrow accounts that
will allow us to be able to collect those penalties in advance,
up front, and be able to refund them if necessary. But because
of the fact that the appellate process does take a while, it
would send a strong message if we were able to make these
collections early on.
The Chairman. Ms. Allen, your testimony cites concerns that
CMS's double-G immediate sanctions policy, in which homes cited
for actual harm in successive inspections are immediately
notified by CMS that a sanction will be implemented, is not
working as intended.
Should CMS consider scrapping the 15-day notification
interval during which homes can correct the deficiencies and
escape the proposed penalty? What else might we do?
Ms. Allen. We did not recommend that they scrap the 15-day
notice, because the home deserves to have notice. But what we
do recommend is that CMS simplify the policy, because the
immediate sanctions policy is a complicated policy. It is even
very complicated to explain about with all the requirements and
how it works.
Again, we made some recommendations to CMS about how it
could simplify it and remove some of the barriers that get in
the way of even imposing the penalties. Again, CMS has agreed
that the complexity has been a hindrance to its implementation,
and they are working to do that.
The Chairman. Dr. Farris, you want to comment on that?
Dr. Farris. Yes. We agree on those comments. It is
important for us to take a look at the reasons why some homes
do conform, some homes do correct the deficiencies that they
have, and some homes don't.
Certainly, we agree that there is some complexity to the
double-G policy, and we are re-evaluating that policy. We are
going to look at it and see if it would make sense to
significantly change it.
The period of time that facilities have for their notice is
a required period of time, so we really can't scrap that. But
we can look at ways that we can more efficiently and more
effectively give them notification that they are out of
compliance and that we do plan to impose penalties.
We certainly are looking at revamping that policy and
simplifying it to make it more workable and more effective.
The Chairman. How important is it, in your opinions, that
we really do come up with a system that more effectively does
sanction those facilities successfully that are not in
compliance and require them to get in compliance or go out of
business?
Is this something that you would say is a really, really
high priority in this industry, that we do a much better job of
ferreting out those institutions that are not providing the
kind of quality care? That we have a system to not only
identify them, but insist that there be quick compliance or
that they be fined or even put out of business?
What is your sense of priority on this, Ms. Allen?
Ms. Allen. GAO would suggest that there needs to be some
mechanism to deal with the homes that repeatedly are out of
compliance on a continuous basis. We had multiple examples of
that in our most recent report that was just released.
When so many Federal dollars are going into these homes and
there are vulnerable residents who are experiencing significant
neglect from the care, it is difficult to explain how those
homes can be allowed to continue to participate in the Federal
programs.
Now, as CMS responded in its comments to our report, and we
would agree, that sometimes it takes a combination of factors.
Sometimes it is not sanctions alone, monetary sanctions,
because, again, that could be taking money out of the system.
But there are other ways. There is denial of payment for
new admissions. There are temporary managers that can go in.
Perhaps if the home is a member of a chain, there can be ways
to have the chains hold them accountable for bringing in
additional resources. There can be alternatives.
One of the concerns about terminating a home is, that what
happens with the residents? There is the concern about transfer
trauma. Where do the residents go? That is a difficult issue.
But at the same time, which is worse: staying in a home
where a person is receiving very poor and negligent care, or
moving to a facility where they may receive better care? It is
a very difficult dilemma.
But again, it seems like that, for the homes that are
providing very poor care on a continuous basis, there really is
a question whether they should be allowed to continue in the
Federal program.
The Chairman. Thank you.
Dr. Farris, what are your thoughts?
Dr. Farris. We think that there is definitely a great need
to prioritize, making certain that homes that do participate in
the Medicare and Medicaid programs provide good-quality care.
There are a number of mechanisms that can be implemented to
ensure this short of termination.
I think Ms. Allen is entirely correct in mentioning
entities such as transfer trauma. We know that transfer trauma
is a real problem for some residents of long-term care
facilities, particularly those who are cognitively impaired.
We also know that, in the part of the world where I live,
there are access problems. There are times when closing a
facility may mean that the next closest facility is anywhere
from 60 to 200 miles away. This imposes a hardship on families
who would like to go and visit their relatives.
So we are looking, No. 1, as I said earlier, to try to find
a way to find out why some homes will improve and implement
sustainable corrections and why others will not.
The special focus facilities that I mentioned earlier would
be one example. We started out in 1999 with 100 of those
facilities. We expanded it in 2005 to 135. We are looking very
closely at what we can do to improve the quality of care in
these facilities, which are considered the worst of the worst.
There are a number of different modalities that are
available, as I said and as Ms. Allen mentioned, in addition to
the civil monetary penalties we have, denial of payment for new
admissions, but we also have the ability to go in and provide
them with directed plans of care and directed plans of
correction.
We are also looking not to penalize the residents of these
homes, who are really helpless in this situation and very
vulnerable. So we are looking at ways that we can work with the
boards of directors of these homes, and particularly in cases
where they are parts of national chains. We want to make
certain that, if the owners are not the operators, we make the
owners aware of the fact that poor care is being rendered in
these facilities.
So we are applying a multi-pronged approach to try to bring
these facilities along, and we are studying what works and what
does not over the course of time. I think that we will be able
to come up with some measures and some mechanisms that will
allow us to ensure high-quality care and terminate only when it
is absolutely necessary.
The Chairman. This is, I think fairly obviously, but I
think we need to highlight it and discuss it a bit. We are
talking about, in every case almost, management, right? It is
people who are in charge of the facility or their immediate
bosses.
I have found, in my experience, where you have good
management, inevitably you have a well-operated business,
whether it be nursing homes or anything else. Where you have
poor managers, that is where you run into trouble.
Isn't it true, or is it not true, that in these problem
facilities, if you could replace management with a different
management, you would almost be certain to expect improvement?
Would you make that judgment?
Ms. Allen.
Ms. Allen. It is management. It is leadership. It is also
resources. It is a matter of the resources that are going into
the home, in terms of nursing level, the nurse aid level, as
well as nutrition and a number of things. So it is not only the
leadership, but it is also the financial resources, as well.
The Chairman. I am sure that is true.
Dr. Farris.
Dr. Farris. Ms. Allen is absolutely right. It is multi-
factorial. We think that the resource constraints that some
facilities have would need to be addressed in order to allow
them to provide better care, working with the leadership, and
again, particularly if the ownership is different from the
management of the facilities.
It is important to make sure that that board of directors
that is in charge, or the owners of the facilities, are made
aware of the fact that there are problems there that need to be
addressed. In some instances, perhaps in many instances, those
boards or that leadership can actually bring to bear some of
the other parameters that will allow us to make corrections,
such as infusing more resources into it.
The Chairman. We have, what, about 16,000 nursing homes
across the country, and the estimate is that perhaps 20 percent
are on that list of having to need great improvement, so that
is like 3,000.
Is that somewhere in the ballpark, without trying to be too
arithmatic? Because obviously even the other 80 percent, many
of those can improve. But in terms of really needing direct
attention, would you say that there may be 20 percent out of
the 16,000 that you might estimate that would be on that list?
Ms. Allen.
Ms. Allen. Yes, that is correct. But may I just add a
comment to that, or another perspective?
One of the things that I mentioned in my remarks is that
there is great variation across the States with that number. It
ranges from about 2 percent in one State that reports on
nursing homes that are cited for actual deficiencies to a high
of almost 50 percent of homes in another State.
We don't believe that the actual quality really varies that
much. What we believe, rather, is that it shows differences in
terms of how quality is assessed. That is one of the reasons--
and at the same time, we also have found that there is
understatement.
So there could be understatement across the States across
the board. So we continue to be concerned about what the data
are telling us.
That is one of the reasons, though, that we would like to
suggest it is so important that some of the measures that CMS
is working on, for example its survey methodology, is so very
important, because we need to know what is going on in the
homes. There needs to be more consistency in terms of how the
level of care and quality of care is being assessed.
So I just wanted to make that remark. We are confident that
about 20 percent of the homes are being cited for deficiency of
care, but it does vary across the States very significantly. We
need to pay attention to that variation, as well.
The Chairman. That is a good comment.
Dr. Farris.
Dr. Farris. I think that that variation is key to this
discussion. We are working with State survey agencies. We have
begun to implement training for the State survey agencies to
make certain that we take out any differential that may be
there on a State-by-State basis to make sure that the protocols
are implemented consistently across the country.
In terms of the numbers of facilities, again, as we said,
we have already identified 135 of the worst of the worst
facilities. Certainly we think that that number could be
expanded. I wouldn't go so far as to say it could be expanded
to 20 percent based upon the variation and the variability that
we just talked about, but it can certainly be expanded beyond
135.
To the extent that the resources are infused into the
survey and certification budget, we can expand that number,
just as we did in 2005 where we increased it by 35 percent, to
be able to look at a larger number of the worst of the worst
and to begin to work with them to bring them into compliance.
The Chairman. Would you say that, if you had sufficient
resources, an increase in the resources that you have now, that
you could make a quick and significant improvement in these
troubled homes?
Dr. Farris. We can certainly begin to effectuate
improvements and to find ways to not only implement these
improvements but to also ensure that they are sustainable, to
work with these homes on an ongoing basis and to work with our
State survey agencies, again, to achieve consistency.
But also to work with the homes through the various
modalities that we talked about, applying not only sanctions
but also management, different management to come in, and
directed plans of care, to ensure that they do come into
compliance and continue or begin to provide good quality of
care on a sustainable basis.
The Chairman. Ms. Allen, is it a question of resources?
Ms. Allen. I think that there is no doubt that additional
resources would be helpful.
The Chairman. OK.
We have with us the very fine Senator from Missouri, Claire
McCaskill.
Would you make some comments, ask some questions?
Senator McCaskill. Thank you, Mr. Chairman.
One of the issues I think, having done a number of audits
on nursing home care as the State auditor in Missouri, and
looking at what I think those of us who have spent some time on
this issue call the roller-coaster syndrome, that is the right-
to-cure problem.
There is this incredible tension between the inspectors on
the ground in terms of keeping that facility open and
penalizing appropriately to mandate that the care improves.
Reality: You have a small nursing home in a small
community, and they are getting cited and curing, getting cited
and curing, and, frankly, were it not for the reality of where
would those people go, I think they might be tougher and,
frankly, appropriately tougher on some of the nursing homes.
But I think what happens to the inspectors on the ground
that are doing the surveys is, one, they develop relationships
with the administrators. They see some administrators that are
trying to do good but are having difficulty, whether it is--I
know we are going to talk about the nursing shortage, but there
is a real shortage in terms of qualified health care
professionals, especially at the level of pay that some of
these nursing homes can give.
I guess, has there been any efforts to look at having a
mandatory plan in place in every State that would allow for the
transferal of patients on an immediate basis so that tension is
relieved?
In other words, having so many beds being required to be
available in facilities that haven't had Class I violations,
that haven't had the history of problems, and that--because I
think if you really began to have some dramatic penalties,
like, ``Hey, you are done, we are shutting the door,'' I think
you would have more of a deterrent effect on some of the other
consistently problematic homes.
Have there been any States that you are aware of that have
always had kind of a plan in place to transfer nursing home
residents, long-term care residents, to other facilities?
Ms. Allen. GAO has not specifically looked at that
systematically.
We do know that one of the more effective penalties has
been denial of payment for new admissions. In other words, if
there are problems, to simply say we are not going to allow any
more to come in until you correct that. In other words, if
there is something to affect the income stream, that can be a
powerful incentive to correct.
One of the other issues, though, in some respects, the
occupancy rate of nursing homes has been coming down. So in
some communities, it may be possible to transfer residents to
another nearby facility. There may be other beds. If there are
Medicaid beds available--and that is typically the population
we are talking about, Medicaid beds--there may not be a
Medicaid-certified bed available, so that is an issue of
availability.
There may also be, though, the issue of, in the smaller
community, more rural community, is there an available facility
for them to go to? That is one of the very difficult issues.
Are there alternatives for that?
There is the issue of transfer trauma that is a very
difficult issue as well. So we acknowledge it is a very
difficult issue about what do we do at that point where there
is a tradeoff between poor care being delivered, particularly
for those that is chronically poor care, cycling in and out of
compliance, the roller-coaster effect.
If you care about the resident, which is better or worse:
moving the resident someplace else out of that facility, which
is more compassionate, or to leave them in that facility, where
they may continue to get----
Senator McCaskill. Less-than-great care.
Ms. Allen. Less-than-quality care.
Dr. Farris. Well, Senator, you raise a very important point
that actually revolves around the issue of access. As we begin
to look at imposing sanctions against a nursing home, and
particularly if we are considering strongly the termination of
the provider agreement for that nursing home, we begin to work
in conjunction with the State to find places where there is
adequate capacity for patients to be moved.
Aside from the conversation about the transfer trauma,
which is a real entity, we have found that there are
circumstances in which it is very difficult to move patients
from one facility to another.
In some instances it will be imposed by geographic
constraints. There may not be another home within 60 to 100
miles, where a number of patients could be transferred, and
this imposes a hardship on the families that would want to
visit those patients.
We also have to look at special needs that some patients
may have. Some facilities have a particular expertise in taking
care of certain types of patients. One of the ones that we
recently dealt with had to do with ventilator patients. There
is not a lot of capacity if you need to move patients from a
home where there are ventilator-dependent patients. There are
some homes that have large populations of pediatric patients,
which require some special care, and you cannot put those into
every particular situation.
So access becomes very important as we start to look at
where we can move people. We always work with the States to
allow them to tell us where that capacity is, or if it is not
there.
So, yes, you are absolutely right. There are instances in
which we are not able to move forward with termination because
of access issues or because of real strong concerns about
transfer trauma.
But there are other modalities that we can implement, short
of termination, such as bringing in new managers, different
managers, imposing directed plans of care, that we will force
them to implement. These modalities have been shown to actually
bring them back into compliance.
But as we have said, one of the things that we are looking
for is to find sustainable corrections.
Senator McCaskill. Right.
I have so many areas I would like to cover in this because
of the work that we did on this in Missouri. But one of the
things that is troubling me about the future of nursing home
care is that there is a trend in my State to begin to use
nursing homes as an alternative to mental health facilities by
public administrators.
In the urban areas of our State, there are mental health
facilities that the courts can use to place people that they
believe must be put in a facility. But as you probably are
aware, in our country, we began trying to de-institutionalize
our mental health patients by moving them ``out into the
community.'' Well, in some instances, that meant to a homeless
shelter. In rural areas, where you don't have any kind of
safety net for the homeless population, many times they end up
in a probate court as a ward of the court, and the court
determines they must be placed somewhere.
Well, if you are in a relatively rural area, where are you
going to place these people that may be schizophrenic or
psychopaths? Well, they are being placed in nursing homes.
So you have two types of populations in the same nursing
home. You have an elderly geriatric population that, frankly,
with what is changing in our health care spectrum, where we are
going all the way from assisted living, home health care, and
we have the wide spectrum that we didn't have--people's notion
that people are going into nursing homes to play checkers and
maybe stay a while and go back home, that is not what the
reality is in nursing homes now in terms of acuity.
We have a much larger population. It is non-ambulatory. You
have people that have much more aggressive needs in terms of
day-to-day care because they are only there because the
hospital is not letting them stay in the hospital anymore, and
they are going there to die because they can't be cared for in
their home with hospice, or whatever. Many of them are.
Then, you have the juxtaposition of a mental health
population under the same roof, with two separate requirements
in terms of regulation. You may have a probate judge telling
that nursing home, ``You must keep this population from
wandering anywhere. They must be in lockdown.'' Then, you have
the requirement for the nursing home population that you put
them in the least restrictive environment, that you can't use
restraints or you are not allowed to use restraints because
that, in fact, would be sanctioned if you were inappropriately
using restraints on the geriatric population. Well, then
inspectors come in to do surveys, and they see a mental health
patient that is being used with restraints, and they are
getting cited.
So, what steps has CMS taken to acknowledge these two
different types of population?
If it is happening in my State, I am sure it is happening
in other States, this juxtaposition between--and kind of the
gray area in the middle is the Alzheimer's. What is happening
is a lot of these mental health patients are ending up in
Alzheimer's units. So, that is completely inappropriate.
By the way, a lot of these staff don't have a requirement
to even train their people on the mental health issues, how to
deal with the mental health population. So you have people who
have been trained to deal with somebody who is non-ambulatory
and geriatric that is now dealing with a sociopath or a
schizophrenic. It is just not good.
I am curious what, if anything, is going on in your agency
to acknowledge that this is happening in our country, and
taking steps to make sure that we have the appropriate
regulations, inspections and training in place.
Dr. Farris. Yes, Senator. You, again, raise a very
important point. This has been recognized, and it is something
that is being addressed by the leadership at CMS.
The long-term care team that has been put together across
the agency, across CMS, where we have input from a number of
different sources, is taking this sort of situation under
advisement. It has been recognized.
If I may change hats for just one second and go back to my
former life as a public health official, the de-
institutionalizing of the mentally ill that took place back in
the 1980's has really caused a number of problems not only in
this particular setting, but----
Senator McCaskill. Don't even get me started on the group
homes that have nobody doing surveys. I mean, there are no
surveys going on in these mental health group homes.
What is going on in terms of abusive practices and wrong
medication, the top of my head can blow off if I start thinking
about what is going on to these poor people in some of these
group homes across our country.
Dr. Farris. Let me just say that, during the time that I
was the Dallas County health director in Texas, the largest
mental health institution in Dallas was the Dallas County Jail.
Senator McCaskill. Right.
Dr. Farris. Until we are able to address the appropriate
placement of patients with mental illnesses, actually through
the system of jurisprudence, we tried to implement a system
where there were diversion programs to keep people out of the
criminal justice system who had mental illnesses.
I think we need to begin to look at this problem from the
same perspective as it relates to nursing home patients,
because many of the patients who go into the nursing homes are
not going because they want to; they are being sent there. So
it has to be addressed at a different level.
Senator McCaskill. I am worried about the families of the
elderly. I mean, what I worry about is we are not doing full
disclosure. If you are about to place a loved one in a nursing
home, do we have an obligation to tell them that they have a
half a dozen sociopaths that have been committed to that
facility?
We are talking about young people. We are talking about
people, many of whom have tendencies to act out, sexually and
aggressively, and in terms of assaultive behavior, and they are
being heavily medicated in order to deal with that.
Do we have an obligation to make sure that consumers that
are going to use a nursing home are aware that there are these
people in the nursing home? Do we need specific regulations
requiring that nursing homes that have these dual populations,
that there is two standards of training and that States should
have two sets of regs, making sure that there is the
appropriate oversight in both areas?
Dr. Farris. Well, Senator, I think as the group that I
mentioned, our long-term care team at CMS, begins to delve more
deeply into these issues, we will be more than happy to get
back with you to let you know where our thinking is going on
this and how we plan to address this issue.
Senator McCaskill. I would appreciate that, because, at the
same time, we do have a problem of census in terms of these
homes. So homes are looking at ways to fill the beds, so they
are turning to this issue. Now, some are doing it responsibly,
with training. Some of them aren't.
I think getting a handle on this is really important
because, as these nursing homes deal with struggling census--
and census is the bottom-line determinator as to whether or not
they can afford to pay the people who work there to give the
care that is necessary.
I don't want to shut off the availability of bed space to
mentally ill people who need it, and it may be that we need to
take a role as government in designating facilities as those
that are appropriate to receive these types of patients when we
are confident that we have the appropriate amount of training
and oversight in place.
Dr. Farris. We will be very happy to get back with you on
that.
Senator McCaskill. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator McCaskill. Those
were really insightful comments based on your experience and
questions, and made a real contribution.
We thank you both for being here this morning. You have
been excellent witnesses, and I think you have shed a lot of
light on this issue. Thank you so much.
Dr. Farris. Thank you.
The Chairman. Our first witness on our second panel will be
Charlene Harrington, who is a professor of sociology and
nursing at the University of California in San Francisco.
Professor Harrington's research focuses on quality, access,
utilization and nursing home expenditures, home and community-
based care, as well as personal care services. She has been a
leader in nursing home care reform efforts for the past 3
decades. She has served on the Institute of Medicine's panel,
whose 1986 report led to the passage of the Nursing Home Reform
Act of 1987.
The second witness will be Alice Hedt, executive director
of the National Citizens Coalition for Nursing Home Reform,
which is an advocacy organization that provides information and
leadership and Federal and State regulatory legislative policy
development to improve care and life for residents of nursing
homes and other long-term care facilities. Ms. Hedt will
testify that conditions in many nursing homes are still
unacceptable, and provide the Committee with recommendations of
creating a stronger enforcement system.
Our third witness will be Mary Ousley. Ms. Ousley is the
president of Ousley & Associates, former chair of the American
Healthcare Association, which is the largest trade organization
representing long-term care. Since 1988, she has acted as an
advisor, provider representative on the policy and regulatory
development of OBRA 1987, on survey and final certification, as
well as on enforcement.
Our last witness will be Orlene Christie, who is director
of the Legislative and Statutory Compliance Office for the
Michigan Department of Community Health. Ms. Christie will
discuss how Michigan has designed and implemented its
background check program, which excludes individuals with
certain criminal histories and records of abuse from working in
nursing homes.
So we welcome you all here.
We would start with your testimony, Ms. Harrington.
STATEMENT OF MS. CHARLENE HARRINGTON, PROFESSOR OF SOCIOLOGY
AND NURSING, UNIVERSITY OF CALIFORNIA, SAN FRANCISCO, CA
Ms. Harrington. Thank you, Mr. Chairman.
I first became aware of the serious quality problems in
nursing homes in 1976, when I was the director of the
California Licensing and Certification Program. At that time,
about one-third of California nursing homes were providing
substandard care.
Today, over 30 years later and 20 years after the adoption
of OBRA 1987, still a very large percent of nursing homes offer
poor care, resulting in harm, jeopardy and death to residents.
Literally dozens of studies, including those by the GAO and the
OIG and researchers, have documented these persistent quality
problems.
I am going to argue today that three areas need to be
improved in order to ensure high-quality care: first, the
enforcement of existing laws; second, adequate nurse staffing
levels; and third, financial accountability for government
funding.
The GAO should be commended for its new report and its
recommendations, which I certainly endorse. CMS should revise
its enforcement procedures and practices to streamline them, to
increase the size of penalties, and take swift action against
poor performing nursing homes.
In addition, our studies of the wide variation in
enforcement practices across States have found that the States
that do a better job of enforcement are those that receive
higher survey and certification funds from CMS. This shows the
need for increased Federal funding for State survey agencies.
Moving to the underlying issue of poor quality in nursing
homes, I really think there is no mystery about it. The basic
problem is that we have inadequate nurse staffing levels in
nursing homes.
The positive relationship between high nurse staffing
levels, especially R.N. staffing, and the quality of care in
nursing homes has been shown in numerous studies. A study by
Abt Associates for CMS in 2001 reported that a minimum of 4.1
hours per resident per day, including .75 R.N. hours, are
needed to prevent harm to residents with long stays in nursing
homes. Two IOM reports have recommended increased minimum
Federal staffing standards for nursing homes.
Unfortunately, the total nurse staffing levels across the
country have remained flat for the last 10 years, well below
the recommended levels, and some nursing homes have dangerously
low staffing. Shockingly, R.N. staffing hours have declined by
25 percent across the Nation since the year 2000 alone.
The decline is directly related to the implementation of
the Medicare Prospective Payment System, because nursing homes
no longer need to provide the level of nursing care that is
paid for in the Medicare rate. Recognizing the low staffing,
some States have begun to set their own minimum staffing
levels, and Florida has recently established a 3.9 total nurse
staffing level.
Studies have shown that nursing homes will increase
staffing if the Medicaid reimbursement rates are increased.
This encourages nursing homes to add more staff. But a new
study that I have just done shows that high State minimum
licensed staffing standards are the most effective policy that
you can use to get the staffing levels up.
The nursing turnover rates continue to be high, and those
reduce the continuity and the quality of care, and they
increase the cost of nursing homes. Turnover rates are directly
related to the heavy workloads that nurses have and the low
wages and benefits and poor working conditions.
Now, government is paying 61 percent of the Nation's
nursing home expenditures, so it has focused most of its
efforts on cost containment. The majority of State Medicaid
programs have adopted prospective payment systems, and nursing
homes respond by cutting their staff and cutting their quality
to stay under those rates.
In 1998, when Medicare adopted prospective payment, it was
established, but with very little or no accountability. One way
to make nursing homes more financially accountable under
prospective payment is to establish cost centers.
Four cost centers should be set up: one for direct care,
like nursing and therapy; one for indirect care, like
housekeeping and dietary; three, for capital costs; and four,
for administrative costs.
After the rates are determined for each cost center, the
nursing home should be prevented from shifting funds away from
the nursing and the direct care to pay for administrative costs
for capital or profits. Retrospective audits should be
conducted to collect funds that were not expended on the direct
and indirect care that it was allocated for, and penalties
should be issued for diverting funds away from direct care.
In summary, we need to improve the enforcement, the
staffing levels and the financial accountability if we are ever
going to solve these intractable quality problems.
Thank you very much.
[The prepared statement of Ms. Harrington follows:]
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The Chairman. Thank you for your very fine statement.
Ms. Hedt.
STATEMENT OF MS. ALICE H. HEDT, EXECUTIVE DIRECTOR, NATIONAL
CITIZENS' COALITION FOR NURSING HOME REFORM, WASHINGTON, DC
Ms. Hedt. Good morning.
Twenty years ago I was a local ombudsman in North Carolina,
working with 12,000 residents in eight counties. I joined the
Coalition for Nursing Home Reform because that organization was
leading the way to get OBRA written and implemented. I am
honored to be here to represent that organization today.
Senator Kohl, we particularly want to thank you for your
leadership on criminal background checks, on funding on the
ombudsman program, and on the Elder Justice Act.
I also want to point out that your homestate, Wisconsin,
has one of the best procedures for nursing home closures, so
that residents do not suffer from transfer trauma like they do
in some of the other States. It should be held up as a model
for the rest of the Country.
The Chairman. Thank you.
Ms. Hedt. When OBRA was passed in 1987, a lot of changes
started happening in nursing homes that I was able to observe.
Those changes included taking off of restraints of
residents. At that time, over 40 percent of residents were
restrained. If you think about it a minute, if those numbers
were realized today, it would mean that 680,000 people each
year would be restrained in nursing homes. Right now, our rate
is about 10 percent. We need to make a lot of improvements in
that, but there has been a significant change.
Residents also were chemically restrained, and one
resident, Judith Mangum, who has been on our board of directors
and been in a nursing home since before OBRA, told me that she
went into the nursing home and was literally drugged because
she was 21 years old and they didn't know what to do with her.
We have seen significant changes in that area.
Social workers at that time became very involved in
promoting residents' rights, and so did long-term care
ombudsmen. One of those particularly that is still with us is
from Missouri, Carol Scott, the State ombudsman. They worked
hard to make sure that residents knew that they don't give up
their Constitutional rights as United States citizens just
because they enter a facility.
Mail started being delivered every day. People started
knocking on doors before they went into residents' rooms. There
were huge improvements.
I was proud to be a part of an organization that led a
coalition to bring about nursing home reform, and that included
many people in the room today--consumers, providers, health
professionals.
Sadly, our vision for nursing home reform was not realized,
and has not been realized over the last 20 years. I want to
point to four major reasons why.
The first, as Ms. Harrington discussed, is staffing. We
know, that there has to be a minimum standard of 4.1 hours of
nursing care per resident each day to have adequate care, so
that residents are not harmed. Ninety percent of facilities do
not staff at this standard. Moreover, consumers do not know at
what levels facilities are staffing because there is not
accurate, audited, publicly available data on nursing home
staffing at this time. NCCNHR has a staffing standard that
details the staff needed for quality care. NCCNHR has a
staffing standard that details the staff needed for quality
care.
Particularly important is the role of nurses. We know that
pressure sores, weight loss and other serious problems that
residents can experience can be directly impacted by having
more R.N. care.
A lot of times, we forget that there are high costs to poor
care. When we don't have enough staff, it results in high cost
and increased hospitalizations, more pressure sores and other
things that are very costly to us as a society.
The second big area is the enforcement of OBRA that needs
to be addressed. We fully support the GAO recommendations that
were brought forth today.
From a consumer viewpoint, we feel strongly that
information about sanctions needs to be made available to the
public. Right now, if I choose a nursing home, I can't tell if
that nursing home has been sanctioned or not. I don't know if
admissions have been closed. This information needs to be on
Nursing Home Care. Consumers have a right to know which nursing
homes the states and CMS have sanctioned.
We also feel that temporary managers should be used, and
the good-performing facilities should be able to take over
poor-performing facilities so that it is not the residents that
suffer.
Residents and their family members also need to be involved
in dispute resolution. Right now, it is the facilities that
have the option of disputing the survey's findings, not the
complainant or the resident.
I want to put into the record our ``Faces of Neglect''
book. This documents family members who suffer terribly in
nursing homes, and whose facilities, in most cases, were not
sanctioned. The system literally broke down for these families.
We need to make sure that other Americans do not suffer like
these families did.
Third, I want to point out that facilities themselves can
make a huge difference in implementing OBRA. OBRA called for
individualized resident care. If care is individualized, that
will handle the issues around people with mental illness,
because facilities should have staff that are trained and
equipped to handle those facilities. If care is individualized,
that should handle the issues of people with very specific
needs going into facilities and with dementia that need to be
handled.
Besides staffing and enforcement, we want to make sure that
every nursing home in the country uses total quality management
practices to work for individualized care. The Pioneer Movement
can assist in this, the Quality Improvement Organizations
(QIOs), the Advancing Excellence Campaign, are all resources
that facilities can use to improve management and move toward
individualized care.
Finally, consumers are asking that information be made
publicly available that they need. Consumers need to know about
the staffing levels. They need to know about if a facility has
been sanctioned. They need to know, and want to know, about the
cost reports and how tax dollars are being used in facilities.
Basically, they need to know who owns and manages facilities.
Right now, that information is not available to the public on
nursing home compare.
Today, 20 years after the implementation of OBRA, a lot of
us that worked on that issue will soon need long-term care, as
will our family members. So I thank you for holding this
hearing and not forgetting the 3 million Americans who need and
utilize nursing home care now and those of us who will need
care in the future.
Thank you.
[The prepared statement of Ms. Hedt follows:]
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The Chairman. Thank you very much, Alice.
Mary Ousley.
STATEMENT OF MS. MARY OUSLEY, PRESIDENT, OUSLEY & ASSOCIATES,
FORMER CHAIR, AMERICAN HEALTH CARE ASSOCIATION, RICHMOND, KY
Ms. Ousley. Thank you. Thank you, Chairman Kohl, Members of
the Committee.
Twenty years ago, the passage of the Omnibus Budget
Reconciliation Act ushered in an era of change in resident
care. Congress made the care mandate very clear: All certified
facilities must obtain or maintain the highest practical
mental, physical, psychosocial well-being for each resident.
A second mandate of OBRA 1987 was the requirement that each
facility establish a quality improvement committee. This
important committee offered a platform from which each facility
could evaluate their own outcomes of care, as well as the
processes that generated good outcomes of care.
This commitment to quality improvement is best demonstrated
by a recent quote by acting CMS Administrator Leslie Norwalk.
She states, ``Nursing home providers have been on the leading
edge of this quality movement, long before hospitals, doctors,
home health providers, pharmacy, dialysis facilities and others
came to the table. The nursing home industry was out front with
quality first to volunteer effort to elevate quality and
accountability.'' She goes on to say that quality measurement
is working in nursing homes, and it is the best path to high
quality.
OBRA 1987 was also intended to move the survey and
certification process in a new direction. The statute
envisioned a resident-centered, outcome-oriented, consistent
system of oversight. Unfortunately, the system that we have
today, many times, bears little resemblance to that vision.
What we have is a system that defines success and quality in a
regulatory context that is often measured by the level of fines
levied and the violations tallied, not by the actual quality of
care or quality of life.
We, the American Healthcare Association and all of our
members, take very seriously the recently released GAO report,
and acknowledge that we still have many challenges ahead of us
in addressing and improving the Nation's most troubled
facilities. However, we are also pleased to note in the report
that it indicates that there has been a dramatic decrease in
the number of facilities cited for actual harm or immediate
jeopardy.
From a historical and comparative standpoint, let us
briefly look at the 2003 GAO report, which found an almost 30
percent reduction in the number of actual harm deficiencies
cited over an 18-month period. However, it went on to say that
it was unclear whether this was due to an understatement of
deficiencies or, as we would argue, whether or not it was a
true indication of quality improvement.
This dichotomy points to the central problem in
understanding today's oversight process and underscores the
inability to distinguish the failure to identify deficiencies
and true quality improvement.
The GAO makes several recommendations in their report, and
I want to highlight and speak to just a few of those.
Recommendations include: Expand the CMS Nursing Home
Compare site to include imposed sanctions and homes subject to
immediate sanctions, we agree. But we also agree with the
concern that the GAO raises in the report that says that if
these data are to be put on the Web, then we need to make sure
that they are accurate and understandable by families.
No. 2, expand the special focus facility program to include
all homes that meet criteria as poor-performing. We support the
transparent processes that ensure improvement in these
facilities, and encourage greater involvement by the quality
improvement organizations in each and every State.
As it has been clearly demonstrated that such cooperation
is effective in improving the quality of care, I do want to say
we are supportive of CMS terminating consistently poor-
performing facilities that cannot achieve or sustain compliance
over time.
No. 3, ensure the consistency of the imposition of civil
monetary penalties by issuing standardized grids, which was
piloted in 2006. We disagree with this recommendation. We
believe that circumstances surrounding noncompliance must be
evaluated on an individual basis before any remedy can be
imposed, and we do not believe a standardized grid would
achieve this goal.
We believe the path to continued improvement is found in
assessing the effectiveness of the joint Federal provider
nursing home quality initiative and our own quality first. I am
proud to say it is working, and it is being effective.
Here are some of the facts. Key quality indicators tracked
by the initiative over the past 5 years have shown improvement,
including improvement in pain management for nursing home
residents, reduced use of restraints, decreased number of
residents with depression, and decrease in occurrences of
pressure ulcers, just to mention a few.
We all know that the satisfaction of residents and families
are absolutely paramount in determining the true quality. A
recent independent study showed that four out of five residents
and families indicated that they were satisfied with their
care, and they would actually rate that care as good or
excellent.
Each of us here today seek precisely the same objective,
which is to work to improve the quality of health care in our
Nation and, specifically, long-term care. To this end, we
applaud the legislation, the Long-Term Care Quality and
Modernization Act, which Senators Smith and Lincoln introduced
in the 109th Congress. We hope that such a bill that encourages
a culture of cooperation will be reintroduced.
In summary, Mr. Chairman, Members of the Committee, I have
been in long-term care for 30 years, and I can say to you that
the commitment to quality has never been higher than it is
today. From the CEOs of the major corporations to the
individuals that own single facilities, it is on everyone's
mind. Everyone is working toward it, and we are doing it, and
we are getting better every day.
Over 4,000 nursing homes today are participating in the
just-announced-in-September, ``Advancing Excellence in
America's Nursing Homes.'' From my perspective, I simply want
us to all continue to work together to take the platform that
OBRA 1987 gave us and help us get better every single day and
keep these systems and methods evolving so that we all get from
our nursing homes what we deserve.
Thank you.
[The prepared statement of Ms. Ousley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Ms. Ousley.
Ms. Christie.
STATEMENT OF MS. ORLENE CHRISTIE, DIRECTOR, LEGISLATIVE AND
STATUTORY COMPLIANCE OFFICE, MICHIGAN DEPARTMENT OF COMMUNITY
HEALTH, LANSING, MI
Ms. Christie. Thank you, Chairman Kohl and Members of the
Special Committee on Aging, for this opportunity today to
testify before you on the Michigan Workforce Background Check
Program. As you have stated before, my name is Orlene Christie,
and I oversee that program.
In 2004, Governor Granholm and the Michigan Department
director, Janet Olszewski, proposed strong requirements to
assure the health and safety of Michigan's citizens in long-
term care facilities. This project is a priority for the
Governor and for the Department Director.
Working cooperatively with the Michigan legislature, the
Office of Attorney General and the Centers for Medicaid and
Medicare Services, Michigan successfully implemented the
Workforce Background Check Program. Through a competitive
process, Michigan was also successful in securing a $3.5
million grant to create an effective statewide background check
system.
Through the passage of Public Acts 27 and 28 of 2006,
Michigan laws were enhanced and improved to require all
applicants for employment that would have direct access to our
most vulnerable population, the elderly and disabled, to
undergo a background check. Additionally, all employees who are
hired before the effective date of April 1, 2006, would need to
be fingerprinted within 24 months of the enacted laws.
Before the new laws were passed, only some employees in
nursing homes, county medical care facilities, homes for the
aged and adult foster care facilities were required to have
some kind of background check. Prior to 2006, the background
checks were less comprehensive and primarily included just a
name-based check of the Internet criminal history tool. The
FBI's fingerprint check was only required for employees
residing in Michigan for less than 3 years.
The previous law also did not require all employees with
direct access to residents in long-term care facilities to
undergo a background check. Further, for those persons who were
subject to a background check, there was no systematic process
across the multiple health and human services to conduct the
checks to disseminate findings or to follow through on results.
With Michigan's expansion of the laws, all individuals with
direct access to residents' personal information--that
information can be financial, medical records, treatment
information or any other identifying information--are now
required to be a part of Michigan's Workforce Background Check
program.
The scope of the checks was also enhanced to include
hospice, psychiatric hospitals, hospitals with swing beds, home
health and intermediate care facility/mental retardation.
Let me explain a little bit about how our program works.
Michigan created a Web-based application that integrates
the data bases for the available registries and provides a
convenient and effective mechanism for conducting criminal
history checks on employees. Independent contractors and those
granted clinical privileges in long-term care facilities, those
individuals are now covered under the new laws.
Further, the online Workforce Background Check System is
designed to eliminate unnecessary fingerprinting through a
screening process. As of April 1, 2007, almost 99,000
applicants have been screened through Michigan's Workforce
Background Check Program.
Of the 61,000 or so individuals that a background check was
prompted on, about 3,200 were deemed unemployable and excluded
from potential hiring pools due to information found on the
State lists that include the iChats, the Office of Inspector
General exclusion list, the nurse aid registry, the sex
offender registry, the offender tracking system, and the FBI
list.
The applicants that have been excluded from employment are
not the types of people that Michigan could ever afford to
hire. These people have contact with some of our most
vulnerable population. We have prevented hardened criminals
that otherwise would have access to these vulnerable
populations from employment.
As Michigan's demographic profile mirrors that of the
Nation, the offenses that disqualify individuals from
employment in long-term care under the new laws are expected to
all be similar across the United States.
Of the criminal history reports that were examined,
fraudulent activity and controlled substance violation
accounted for 25 percent of all disqualifying crimes.
Fraudulent activity, as we all know, includes such things as
embezzlement, identity theft and credit card fraud. This is
particularly alarming, given the projected increase in
financial abuse amongst the elderly.
Accessible to long-term care providers through a secure
I.D. and password, a provider is easily able to log on to the
Workforce Background Check System to conduct a check of a
potential employee. If no matches are found on the registries,
the applicant goes on to an independent vendor for a digital
life scan of their fingerprints. The prints are then submitted
to the Michigan State Police and then to the FBI.
If there is a hit on the State or national data base
search, a notice is sent to either the Michigan Department of
Community Health or our other agency, the Michigan Department
of Human Services, for their staff and our staff to analyze the
results of the criminal history.
Michigan has also implemented what we call a ramp-back
system, where Michigan State Police notifies the two agencies
that I have just talked about of a subsequent arrest and, in
turn, the agency notifies the employer. This way, we can assure
that, in real-time, as soon as a criminal history record is
updated--and that can include an arrest, a charge or a
conviction--the Department and the employer will know about it
and will be notified.
As I conclude, as a result of Michigan's Workforce
Background Check Program, the health and safety of Michigan's
vulnerable population is protected by ensuring that adequate
safeguards are in place for background screens of direct
service workers.
While the vast majority of health care workers are
outstanding individuals--and I do want to make that point--who
do a wonderful job of caring for people in need, we are
extremely pleased that Michigan's Workforce Background Check
Program has stopped more than 3,000 people with criminal
histories from possibly preying on our most vulnerable
population.
By building an appeals process, we also have developed a
fair system for reviewing inaccurate criminal records or
convictions.
So, as you can see, Mr. Chairman, Michigan has been leading
the way in the area of employee background checks. As I
indicated before, this project is and has been and will
continue to be a priority for Governor Jennifer Granholm and
for the Michigan State director, Janet Olszewski.
We appreciate this opportunity to share this information
with you today and look forward to our continued cooperation on
this vital topic. Thank you.
[The prepared statement of Ms. Christie follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you. Thank you, Ms. Christie.
I would like to ask you, each member briefly, to comment on
Ms. Christie's background check program, and would you think
that is a high priority, in terms of having a national
background check program?
Ms. Harrington.
Ms. Harrington. Yes, I certainly agree. I think it is a
very important step forward, and I am very pleased to hear
about the Michigan program. I think Federal legislation is in
order. A number of States do have it, but there is half of the
States that don't.
The Chairman. Right.
Ms. Hedt.
Ms. Hedt. Yes, we think it is essential.
There are two kinds of abuse and neglect that residents
experience. One is from individuals who should not be working
in the field, and the other is from neglectful practices, for
not having enough staff or not caring for a resident
appropriately. This would help very much to handle that first
situation.
The Chairman. Ms. Ousley?
Ms. Ousley. Yes, we absolutely have had longstanding policy
with the American Healthcare Association that we support
background checks, and we are very supportive.
The Chairman. I would like to ask for your comments on
CMS's Nursing home Compare Web site. Many people find that it
is not clear how to use it. They don't find the information
they are looking for.
For example, you, Ms. Ousley, don't think that it should
have a list of sanctions. I guess that is your position, or
something like that.
Ms. Ousley. I agree that the sanctions should be there. It
is simply that we want to make sure that the data is accurate
when it goes up, that there are not mistakes.
The Chairman. Right, and listed for each nursing home the
level of staffing and things of that sort.
Is that Web site really important to the public? If so, how
can we improve it? Ms. Harrington?
Ms. Harrington. Yes, I think it is really important.
One of the most important aspects of that Web site is the
staffing information. Unfortunately, the data for the staffing
comes from the survey at the 2-week time period of the annual
survey, and it is not audited.
So what we would recommend is that all nursing homes be
required to report their detailed staffing data electronically
every quarter, and that that be put up on the Web site, and for
the full year, rather than just at the time of the survey.
The Chairman. OK.
Ms. Hedt.
Ms. Hedt. We think it is a very important Web site because
it is a sole source for consumers to go to to compare across
the country.
There are States that have Web sites that are more
consumer-friendly and that have more detailed information. I
can provide that to you later.
Years ago in my career, an administrator said to me, ``I
don't mind paying my civil monetary penalty, but please don't
put it in your newsletter that goes out to the public.'' I
think that a lot can be accomplished by making sure that the
public knows when facilities have provided poor care and the
sanctions that are applied.
The Chairman. Thank you.
Ms. Ousley.
Ms. Ousley. Yes, I think the Nursing Home Compare is
extremely important, and we are very supportive of it. As I
said earlier, we do want to make sure that that data is
accurate, that it is updated frequently.
I also want to say, from OBRA 1987's perspective, I am very
proud of the comprehensive assessment that nursing homes do on
each and every resident. It is the only sector of health care
in America where you can actually go on a Web site and you can
see outcomes of care that are occurring. I am proud of that,
and I am proud that CMS has it there.
It is difficult to read. It is complicated, and I know that
the average consumer has some problem with that. One of the
things that I do when I work with nursing home administrators,
I encourage them, when families come in to talk about admitting
a loved one to the nursing home, that they take the time to
explain to that consumer how to read and what it actually
means. I think that is very important. I think it is a very
important role that an administrator can play.
The Chairman. Thank you.
Ms. Christie.
Ms. Christie. I do believe that that information is vital.
I believe knowledge is key, and with that type of tool that
anyone can access, people can have a better understanding and a
better knowledge in terms of where their loved ones are being
sent and what kind of care they are getting.
The Chairman. Thank you.
Senator McCaskill.
Senator McCaskill. Thank you, Mr. Chairman.
One of the things that I think we struggle with in this
area is, first, the staffing levels and whether we need
mandatory staffing. I didn't know how many States have
mandatory staffing levels. I should know that, but I have not
been focused on the whole Country for very long. So, pardon my
ignorance as to how many States have it. But I think,
obviously, the staffing issue is paramount and very, very
important, and the nurse component of that, also.
The other thing that I think I mentioned previously is the
acuity level, and the vast differences there are between
various facilities in terms of what percent of their population
is ambulatory versus non-ambulatory. What is the acuity level
they are dealing with? All nursing home facilities are not
created equal, in terms of what type of population they are
dealing with on an ongoing basis.
I know that there has been discussion about this, and I
would certainly, for both Dr. Harrington and Ms. Hedt, what are
your feelings about--I think the cost containment centers, that
is a great way of getting at the issue, but I didn't hear an
acuity cost center in there.
It is much more expensive and requires much more staffing
to deal with the more seriously needy clients in long-term care
as opposed to those who aren't. What can we do at the Federal
level to begin to address reimbursement levels on the basis of
acuity, so that those homes that have the more aggressive
acuity patients maybe are not getting the same reimbursement as
those who won't take those more difficult clients.?
Ms. Harrington. Yes, I think that is a very good point,
that acuity needs to be taken into account when you estimate
staffing. In fact, the Medicare rates do take into account
acuity. It has all the different case mix levels when it
calculates the Medicare rates.
Senator McCaskill. The Medicare or Medicaid?
Ms. Harrington. Medicare. Then, about half of the States
have acuity built into the State rate.
The problem is that, once these rates are given out, set
for each facility, then the nursing home is allowed to spend
the money the way they want. So they don't have to spend it on
the staffing to address the acuity that they were given the
right for. So that is the flaw.
Senator McCaskill. In the States that have acuity built
into their reimbursement rates--we certainly don't in Missouri.
For those that do have acuity in their reimbursement rates, are
those audited? If so, how?
Ms. Harrington. Yes, the States that have case mix
reimbursement usually do have some auditing procedures. They
may need to be more extensive.
Senator McCaskill. Because my fear would be that they would
come in with a high acuity, and then it would be a very--then,
for whatever reason, either by circumstances or by planning,
that that acuity level would drop, and that the reimbursement
rate would remain high, or vice versa. How do we get at that?
Ms. Harrington. Well, most States only set their rates once
a year, so they don't necessarily adjust during the year. They
probably figure it averages out.
Senator McCaskill. Missouri went, I think, a decade without
resetting its rates, so I would like the idea that rates would
be readjusted on an annual basis. How many States adjust on an
annual basis?
Ms. Harrington. I actually don't know right now.
Senator McCaskill. Wow. That would be great.
Ms. Harrington. Most States do have a rate increase on an
annual basis, but the rate increase is more tied to how much
money the legislature feels they have that year for the cost-
of-living increases, rather than looking at the acuity.
But the problem is that most States don't have very good
mechanisms for auditing, so the money is not necessarily spent
on what it is intended for. This is what I am raising as the
key issue.
Ms. Hedt. From our perspective, the minimum staffing
standard is just that, it is a minimum standard, and that would
need to be adjusted for increased acuity of the residents that
are there.
We are absolutely mindful of the need for financial
resources to care for people, depending on the level of care
that they need, but we strongly believe that funding has to be
spent close to the resident as opposed to corporate profits or
high salaries of the executives.
We need to make sure that the workforce has health care
benefits, an adequate living wage, as well as appropriate
supervision and is a part of that planning for individualized
resident directed care.
Senator McCaskill. I am trying to pick the ones I want,
because it is hard for me to narrow it down in a short period
of time of all the things I would like to talk about.
I would like to talk more about the background check, and I
think there is absolutely no excuse that background checks are
so difficult across this country right now, with the technology
we now have available to us.
I know that in Missouri we had several audit findings on
background checks. Frankly, there was this huge backlog of
background checks, and it was because we had put into place a
new carry-and-conceal weapon law, and so they were trying to
decide which checks were more important, the people who wanted
to carry a weapon all the time or the people who were caring
for elderly or the mentally ill in our State. It was really a
huge public policy issue and problem.
But in terms of the surveys, I think that the Web site is
great, where consumers can potentially compare nursing homes on
a number of different bases in terms of making a decision. I
understand the need for the data to be accurate.
The problem I have with those is that so much of it is
based on the annual survey. Where I come from, it is pretty
hard not to know when your annual survey is going to be. I am
not sure that the information we get from annual surveys is
what we need it to be. There is no question that there have
been incidents that where facilities have staffed up for the
annual survey, and staffed back down when annual survey was
over.
I would like the reaction of the panelists as to the
potential of mandating the annual survey on a spot basis, so
that no one knows when the annual survey is going to occur,
that the folks that are doing the annual survey show up at the
facility unannounced and without any kind of prediction as to
when they are going to be there.
We found the problem was so bad at one point in Missouri
that not only were the annual surveys predictable, every survey
was predictable. I mean, every check, whether it was a follow-
up, everybody knew always when the State was coming. We weren't
getting a realistic look at what true care on the ground was
because of the predictability of the survey time.
So if you all would address that in terms of the
predictability of the annual survey and the lack of an accurate
glimpse of what the standard of care really is in that home.
Because everyone spiffs up, polishes up, paints, gets everybody
there just to prepare for the annual survey.
Ms. Harrington. Absolutely, I agree. They need more
frequent surveys. We think they need at least an annual survey
at a minimum. But part of the problem is the resources that the
agencies have. They don't even have enough resources to do
their complaint investigations, in many cases.
So I think that increasing the Federal resources so that
they could have more frequent surveys, especially of these
poor-performing facilities, would make an enormous difference.
Senator McCaskill. Should we require that they be
surprised?
Ms. Harrington. Yes, absolutely.
Ms. Hedt. That is part of what should be happening now. In
reality, it isn't happening. But residents tell us, and family
members, that the more surveys that take place at night, the
more surveys that take place on the weekend, the better picture
they are----
Senator McCaskill. Right. That was one of our findings,
that there was never an investigation that occurred in the dark
of night. Now, this has been several years ago. I think they
have begun doing that now. I think they have improved on that
in Missouri.
Ms. Hedt. Yes, there is a required percentage, a minimum
goal that the State should be doing at night and on weekends.
That being said, we want to make sure that all facilities
are surveyed on a consistent basis so that it is not more than
a year when a facility receives a survey. Partly, that is why
facilities know they are going to get a survey now, because it
is every 9 to 15 months, and so we know it is going to happen.
It is not necessarily that they are being told.
The key to it is that facilities should always be prepared
for a survey, and be meeting those basic nursing home reform
law requirements all the time.
Senator McCaskill. I get that, that if you have to do it
once a year, everybody kind of knows when it is going to be.
But to me, it seems like the value we get out of maybe a
facility having a survey in January and then being surprised by
having another survey in June would more than overcome in terms
of the kind of inoculating effect that would have on the whole
industry, would more than overcome the fact that maybe one
wasn't going to get one except once every 18 months.
You see what I am saying? The lack of predictability
overall I think would have such a positive impact that it would
make up for the fact that maybe everyone wasn't getting in
right around the 12- or 13-month mark.
Ms. Ousley. Well, both Alice and I spoke to the issue of
quality improvement and quality management in facilities. Quite
honestly, if a facility has a well-functioning quality
management program that takes into consideration the entire
operations and all of the requirements, it makes no difference.
It should never make any difference when a facility is
surveyed.
Again, I go back to the comprehensive assessment that OBRA
1987 brought, and the survey methodology around outcomes. That
is to be an overtime evaluation, that when a surveyor comes in,
they are to look at: What did this patient look like the day
they came to this facility, and what do they look like now? Did
facility practice help them get a lot better, or has facility
practice made them not get well or actually decline?
If you do that correctly and look at the outcomes, it
really doesn't matter. If everyone feels more comfortable with
a more frequent survey, more power to it.
I do want to speak to an issue that Dr. Farris said, and
that was the new quality indicator survey process that is being
piloted now by CMS. This would be a way that, actually, this
software can be made available also to nursing home providers,
and they can use it as part of their quality management
program.
Have an ongoing assessment at all times so that, when
something starts to go a little bit wrong, you can get that
fixed quickly, and you understand that the regulations are not
for surveyors. They are for making sure that we give good
patient care every single day.
Ms. Christie. Senator, while I am not the most appropriate
person to answer your specific question, I do know that those
conversations are being held at levels higher than myself, and
I will be more than happy to go back and get the information
that you are requiring.
Senator McCaskill. OK.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCaskill. Your
contributions have been really good to this hearing because of
your background, your experience, and the questions that you
have asked.
We would like to thank the second panel. You have been
outstanding and made real contributions in our ongoing efforts
to improve the quality of care in nursing homes across this
country.
I would note that what you had to say and your testimony
was relevant enough so that I would note that our first two
panelists stuck around, which is not always true at hearings.
So we thank you for staying around, and we thank you for
your contributions.
We thank you all for being here, and this hearing is
closed.
[Whereupon, at 12:05 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Senator Gordon Smith
I want to thank Senator Kohl for holding this important
hearing today. The issue of nursing home quality and safety has
long been an issue of particular interest for me and I thank
the panelists for being here today. The essential work that
they do whether it is monitoring or evaluating care, providing
care or advocating for nursing home residents, supplies the
framework that helps so many of our elderly family members age
with dignity.
We are here to look at the Nursing Home Reform Act, also
called OBRA '87. This Act was created more 20 years ago to
ensure quality care for the now more than 1.7 million nursing
home residents in America. By signing this bill into law,
President Reagan, along with Congress, indicated that the
Federal government has responsibility to ensure the health and
safety of nursing home residents. It is a responsibility that I
take very seriously, as I know my colleagues do.
We are a nation that is living longer than ever before.
With the baby boomers, we will see an exploding elderly
population. This surge will only compound any safety or quality
issues currently in the system. That is why I look forward to
continuing to work with the advocacy community, nursing home
care providers and the Centers for Medicare and Medicaid
Services (CMS) to ensure the capacity and quality standards
meet our current needs and adequately anticipate the needs of
the future.
I believe that all stakeholders must work collaboratively
to solve problems within the system. In fact, I am currently
working with Senator Lincoln to reintroduce the ``Long-Term
Care Quality and Modernization Act,'' that we first proposed in
the 109th Congress. This bill encourages improvements to
nursing homes and the long-term care system generally. I look
forward to continuing to work with many of the advocates, care
providers, and regulators here today to continue to improve and
to ultimately pass this legislation.
Some good news is that nursing home quality has improved
since 1987. The GAO has reported in their March 2007 study that
the number of serious deficiencies in the four states they
examined has decreased between 2000 and 2005. I understand that
national data shows a similar downward trend. This is to be
applauded. However, we must not rest on our laurels. With about
22 percent of nursing homes still out of compliance with
Federal standards--more improvement are necessary.
The past two decades have revealed a true culture shift
occurring within the world of long-term care, including
services that put the patient at the center of care, encourage
inclusion of families in decision-making and giving more
choices in the location of the care, such as community-based
and in-home care.
In fact, my home state of Oregon is a leader in helping
elderly and dependent persons remain in their homes as they age
and/or require more hands on care. The vast majority of
Americans want to retain their independence and remain in their
homes. Because of this culture change, they are able to do that
now more than ever. Federal programs and funding should
continue to move in this direction.
However, while our elderly are being given more choices in
their care, we know that there will always be a section of the
population that is too frail, too dependent upon services, to
remain in their homes and communities. Nursing homes become the
option that can most suit their needs. Nursing home residents
are some of the most vulnerable people in our nation. Some have
families that can help monitor their care, but many do not.
These people depend upon the care providers and the regulators
to ensure they are receiving the services they need.
Some of the reports that we will discuss today, including
the most recent by the Government Accountability Office (GAO),
point out the bad actors within the nursing home industry.
Today we must look at these actors and determine what we can do
to either help them perform at a much higher level and with
consistency, or look at ways they can phased out of the system.
We must also look at how the closing of these facilities would
affect the patients they serve and communities in which they
are located.
I am confident that our panel of experts will help to
answer these questions. I want to thank all of our witnesses
for being here today and for their tireless work to improve
quality of care for all who reside in our nation's nursing
homes.
------
Responses to Senator Smith Questions from Kathryn G. Allen, GAO
Question. GAO identified in its 2005 report on nursing home
enforcement that CMS's efforts have been further hampered by an
expanded workload due to increased oversight and initiatives
that compete for staff and financial resources. The latest GAO
report identifies that we are still not succeeding in removing
the worst offenders from the system. How could CMS refocus its
energy on oversight tasks and initiatives to target the real
underperformers?
Answer. In our March 2007 report, we recommended two
actions, among others, the Centers for Medicare & Medicaid
Services (CMS) could take to provide more effective oversight
of poorly performing nursing homes.\1\ First, we recommended
that CMS strengthen the criteria for terminating homes with a
history of serious, repeated noncompliance by limiting the
extension of termination dates, increasing the use of
discretionary terminations, and exploring alternative
thresholds for termination, such as the cumulative number of
days that they are out of compliance with federal quality
requirements. Second, we recommended that CMS consider further
expanding the Special Focus Facility program which still fails
to include many homes with a history of repeatedly harming
residents.\2\ In commenting on a draft of that report, CMS also
agreed to collect additional information on complaints for
which data are not reported in federal data systems, which will
help CMS to better identify and deal with consistently poorly
performing homes.
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\1\ GAO, Nursing Homes: Efforts to Strengthen Federal Enforcement
Have Not Deterred Some Homes from Repeatedly Harming Residents, GAO-07-
241 (Washington, D.C.: Mar. 26, 2007).
\2\ Special Focus Facilities are subject to two standard surveys
each year rather than annually and may be terminated from participation
in the Medicare and Medicaid program if they do not show significant
improvement within 18 months. In December 2004, CMS expanded the
program from about 100 homes to about 135 homes.
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In addition, a GAO report issued after the Committee's May
2, 2007, hearing recommended that CMS take two actions to
ensure that available resources are better targeted to the
nursing homes and quality-of-care areas most in need of
improvement.\3\ First, we recommended that CMS further increase
the number of low-performing nursing homes that Quality
Improvement Organizations (QIO) assist intensively.\4\ Second,
we recommended that CMS direct QIOs to focus intensive
assistance on those quality-of-care areas on which homes need
the most improvement.
---------------------------------------------------------------------------
\3\ GAO, Nursing Homes: Federal Actions Needed to Improve Targeting
and Evaluation of Assistance by Quality Improvement Organizations, GAO-
07-373 (Washington, D.C.: May 29, 2007).
\4\ CMS contracts with QIOs to work with providers such as
hospitals and nursing homes to improve the quality of care provided to
Medicare beneficiaries in each state, the District of Columbia, and the
territories.
---------------------------------------------------------------------------
Question. As a Commissioner with the National Commission
for Long Term Quality Care, I have heard stories of good actors
being punished for precisely the innovation we want them to
encourage. For instance, I was told of a facility that is well
known for treating pressure sores. Because of their innovation,
they receive patients from other facilities who have persistent
pressure sores. However, when they are evaluated, the number of
patients with pressure sores is then counted against them. Have
you heard of stories like this and what do you recommend can be
done to encourage innovation and good actors?
Answer. As you indicated, some nursing homes specialize in
wound care, such as treating pressure sores. The nursing home
quality-of-care requirement pertaining to pressure sores
focuses on the care a nursing home is providing a resident with
a pressure sore. It specifically states that a nursing home
must ensure that a resident who enters a home without pressure
sores does not develop any unless the individual's clinical
condition demonstrates that they were unavoidable and a
resident who has pressure sores receives necessary treatment
and services to promote healing, prevent infection, and prevent
new sores.\5\ As such, a nursing home should not be cited for a
deficiency in quality of care simply because residents have
pressure sores. A deficiency in quality of care does exist,
however, if the nursing home is providing inadequate treatment
to residents with pressure sores.
---------------------------------------------------------------------------
\5\ CMS, State Operations Manual, Appendix PP--Guidance to
Surveyors for Long Term Care Facilities, 483.25(c).
---------------------------------------------------------------------------
Question. While I want to ensure quality care for patients
in nursing facilities, I am concerned that if we close
facilities that are consistently underperforming that we may
cause more harm to patients. I am concerned that if a facility
in a rural or very low income area is closed that patients will
be at risk of not receiving care at all in those areas or being
relocated away from their families and support networks. In
your studies, where are most of the poor performing facilities,
and if they are in rural and low-income areas, do you think
that there is a real risk of a negative impact on resident
care?
Answer. We have not reported on geographic distribution of
all poorly performing nursing homes. In our March 2007 report,
we assessed whether there were alternative placements for
several poorly performing homes in our sample from four states
and found that there were alternative homes in the vicinity. As
I testified before this Committee on May 2, we acknowledge that
terminating a nursing home from participation in Medicare and
Medicaid can cause concerns about relocating residents to
another home, including the adverse effect known as transfer
trauma; however, we believe that such concerns must be balanced
against the actual harm to residents as a resulting from poor
quality care if they continue to reside in a perpetually poorly
performing home.
Question. One issue that I have heard discussed concerning
the survey process is that surveyors may not report on some
deficiencies because they consider the penalties too onerous
for the facilities. Is this an issue that you have studied and
have you heard surveyors mention any concerns to this affect?
Answer. We have not reported on this issue. In commenting
on a draft of our March 2007 report, however, CMS expressed
concern about whether its policy of immediate sanctions for
homes with serious deficiencies on consecutive surveys actually
discouraged the citation of serious deficiencies. We are
currently examining the understatement of serious deficiencies
during state surveys, a study requested by Senators Kohl and
Grassley. As part of our work for this study, we are planning a
Web-based survey of state surveyors concerning the factors that
may influence the deficiencies they cite.
------
Responses to Senator Smith questions from Randy Farris, CMS
Sanction Effectiveness?
The Government Accountability Office (GAO) has identified
that while CMS has attempted to improve both the collection and
deterrent effect of civil money penalties (CMPs) that serious
problems still exist that call into question the CMPs'
effectiveness. CMS even commented in GAO's recent report that
providers view CMPs as the ``cost of doing business'' and are
tantamount to a ''slap on the wrist''.
Question. In addition to improvements to the actual policy,
what is CMS doing to assess the enforcement capability of this
particular sanction in light of these comments?
Answer. CMS' examination of our enforcement effectiveness
in the area of Civil Money Penalties (CMPs) has been primarily
along 2 tracks:
1) potential refinements to CMP maximum amounts, and
2) refinements to the decisionmaking process on imposing
the CMPs.
Our recent pilot and evaluation of the CMP Analytic Tool
addresses the latter track. The imposition of a CMP is an
optional remedy under the Nursing Home Reform Legislation
promulgated in 1987. We have issued the CMP Analytic Tool. The
Tool includes a scope and severity framework for CMS Regional
Offices to monitor enforcement actions, communicate with
States, address outliers that significantly depart from the
norm, and improve national consistency.
To improve national consistency for this remedy, CMS'
guidance also includes a scope and severity framework for CMS
to (a) monitor enforcement actions, (b) facilitate
communication with States, and (c) address outliers that
significantly depart from the norm.
We expect the guidance and the CMP Analytic Tool to
mitigate the extent to which civil money penalties tend to
cluster at the lower end of the allowable range, particularly
for nursing homes with repeated, serious quality of care
deficiencies.
With regard to the argument that CMPs may simply be viewed
as a ``cost of doing business'' (and may therefore be
ineffective as a motivator to improve or as a deterrent to
quality lapses), we are examining additional enforcement
techniques that apply a combination of sanctions rather than so
much reliance on just one type of sanction. An example is a
combination of CMP and denial of payment for new admissions.
While we believe CMPs do indeed function as a motivator,
attention-driver, and deterrent for most nursing homes, we are
concerned that CMPs may lose much of their effectiveness for
those providers with the lowest levels of compliance. An
important initiative for testing and tracking the effectiveness
of multivariate enforcement action is our Special Focus
Facility initiative that focuses on those nursing homes with
the most deficiencies. CMS' 2007 Nursing Home Action Plan
describes these and other initiatives. The Action Plan may be
found at http://www.cms.hhs.gov/CertificationandCompliance/12--
NHs.asp#TopOfPage
Is a Statutory Fix in Order?
One of the bigger problems with CMPs is the delay in
receipt of payment because of the statutory requirement that
requires exhaustion of all administrative appeals before
collection of the CMP. This makes the deterrent effect of the
final all that more attenuated. GAO has recommended that CMS
consider the provision on CMPs in the Surface Mining and
Reclamation Act of 1977, which requires that the mining
operator either pay in full the fine or place the proposed
amount in an escrow within 30 days that is held until the
resolution of an appeal.
Question. Has CMS considered the effectiveness of a pre-
appeal payment or escrow account option? Would that offer a
greater deterrent effect that fits within the spirit of the
CMPs?
Answer. We do not currently have the authority under the
Social Security Act to collect CMPs prior to the appeals
hearing and determination. We agree that collecting CMPs during
the period of an appeal likely would have a greater deterrent
effect.
The Federal/State Disconnect
In the most recent GAO report on nursing home enforcement,
one of the findings that struck me was the level of disconnect
between CMS here in Washington and the regional offices and
state agencies that are tasked with implementing that statutes
and guidelines regarding the nursing home industry.
Question. From your perspective as a CMS Regional
Administrator, can you comment on this discrepancy and offer a
few ideas on how this can be remedied so that everyone can get
on the same page and work towards more uniform enforcement and
oversight?
Answer. In a large program of national scope, we seek to
ensure all agencies are aligned through major efforts such as:
(a) a very detailed State Operations Manual (SOM) that
specifies the manner in which statutes and regulations are to
be applied,
(b) 40-60 publicly available Survey & Certification letters
each year to communicate consistent approaches to surveys and
clarification of important policy issues,
(c) extensive training programs to orient both State and
federal surveyors (especially new surveyors),
(d) weekly conference calls between survey and
certification central office leadership and leadership in the
CMS regional offices.
We also bring CMS (both central and regional offices) and
States together to identify and develop strategies for
improving communication and consistency. Annually, CMS hosts a
Leadership Summit that brings together State survey agency
leadership as well as management representatives from all ten
CMS regional offices. CMS Regional Offices bring States
together on a regular basis and conduct monitoring visits. The
CMS also participates in the annual Association of Health
Facility Survey Agencies (AHFSA) conference. AHFSA is the
association made up a State survey agencies throughout the
country.
As described previously, CMS also publishes an annual
Action Plan which serves as a blueprint for initiatives CMS
will undertake. The CMS 2007 Nursing Home Action Plan provides
several initiatives that:
Improve how nursing home surveyors interpret
specific nursing home requirements. We have revised surveyor
guidance for selected regulatory requirements that relate to
quality of care through an interactive process with nationally
recognized experts and stakeholders;
Develop a national surveyor training tool for use
in training regional and State surveyors;
Refine State Performance Standards to ensure
uniform monitoring of State performance;
Expand training opportunities for surveyors to
better equip them by increasing the number of available
courses, adding more geographic sites for training and by
adding web based training; and
Develop a triage policy to guide States in
determining whether a discretionary Denial of Payments for New
Admissions is imposed or a termination date is set earlier than
the time periods required by law.
CMS recognizes the need for assertive leadership and
actions to ensure all the principal enforcers are steadfast in
application and uniform in execution of remedies imposed. We
welcome the interest and support of Congress in all of these
efforts.
------
Responses to Senator Smith questions from Charlene Harrington, UCSF
Staffing Issues are Budget Issues
Question. I understand that you have participated in the
drafting of several recommendations to the Administration on
ways to increase staffing levels, while making the fiscal
impact less onerous.
Can you share a few of the most feasible recommendations
with the Committee, including the timeframe for implementation
and any administrative needs or changes such recommendations
would require?
Answer. As noted in my testimony, a study by Abt Associates
for CMS (2001) reported that a minimum of 4.1 hours per
resident day were needed to prevent harm to residents with long
stays (90 days or more) in nursing homes. Of this total, .75 RN
hours per resident day, .55 LVN hours per resident day, and 2.8
NA hours per resident day were reported to be needed to protect
residents. The report was clear that residents in homes without
adequate nurse staffing levels faced substantial harm and
jeopardy. In order to meet the total 4.1 hours per resident
day, 97% of homes would need to add some additional nursing
staff. Based on this report and a strong body of research
evidence, there is a clear need to increase the minimum
staffing standards for nursing homes.
One way to increase staffing is to increase state Medicaid
reimbursement rates. My latest study shows that Medicaid
reimbursement rates would need to be increased by $90 per
resident per day in order to encourage nursing homes to
voluntarily increase staffing levels. At this point, many
states are struggling with budget deficits and financial
problems so they are unlikely to be willing to raise rates this
high.
A more effective approach is to have the federal government
and/or state governments increase the minimum requirements for
registered nurses, licensed nurses (RNs and licensed practical
nurses), and total nursing staff. Florida has increased is
total nursing requirement to 3.9 hours per resident day and
increased its Medicaid nursing home payment rate to cover this
increase in staffing. Other states might be willing to increase
the total nursing requirements if the federal government would
give the state some financial incentive to do so. Certainly the
federal government could take an important step forward by
embracing higher staffing standards and encouraging states to
raise their standards.
Federal legislation could be used to increase its minimum
licenses staffing standards to the level recommended in the Abt
study (1.3 hours per resident per day) including a requirement
for 24 hours registered nurse staffing in nursing homes. The
question is whether reimbursement rates would need to be
increased to meet this higher standard. Certainly the current
Medicare reimbursement rates appear to be adequate to cover the
Abt standards without a rate increase (based on GAO and MedPac
reports). Medicaid reimbursement may need to be raised to meet
the higher standard. Congress could ask each state to determine
whether Medicaid rate increases would be needed and could pay
for half or more of these costs in its Medicaid cost sharing
arrangements.
Question. In your testimony, you recommended that CMS
utilize the sanctions of receivership and temporary management
procedures relating to facilities with repeated poor
performance. Is there a proven track record of success with
this type or reorganization and if so, do you have any data on
how a change of ownership effects the quality of care in an
underperforming facility?
Answer. Since temporary management is already an option
under OBRA 1987, some states have used temporary management and
receiverships procedures with poor performing facilities.
California, in particular, has used this approach a number of
times until facilities were sold, closed or brought back into
compliance. These approaches have proven effective and yet
states have often been reluctant to use them because of the
amount of time and resources required to implement this
approach. If the federal government were to assume the full
costs for temporary management, states would be more likely to
use this option.
The success of the procedure depends upon either forcing an
owner to come into compliance or attracting a reputable, high
quality owner to purchase a facility. States need to be careful
to review the credentials of potential buyers to make certain
they have a good reputation for high quality of care before
they approve an ownership change to ensure that the change will
be an improvement over the poor performing facility.
Question. Is there a danger that we are setting up new
management too fail since the fines and sanctions from the
previous poor performing management would carry over to the new
management?
Answer. The state and federal survey agencies could levy
the fines and sanctions on the poor performing facility but
forgive these fines and sanctions if the facility obtains a new
owner. Generally, the issue of previous fines and sanctions are
something that are negotiated as a part of the purchase price
paid by a new owner.
Question. Your testimony discussed the potential positive
impact of applying cost centers to nursing facility funding as
a way to ensure that certain operations, especially staffing,
are properly funded. Is there a concern that this kind of
oversight could negatively affect a nursing home's flexibility
in caring for its residents? Could the formula be too
restrictive and not account for different operating plans?
Answer. This approach of establishing cost centers would
prevent facilities from taking funds allocated for staffing,
therapy and direct care to use for capital improvements,
administration, and profits. Certainly accountability is a
critical factor in the use of public funds. The Centers for
Medicare and Medicaid Services would need to develop a clear
procedure for allocating funds for the different established
cost centers and for oversight. The debate would then focus on
the amount of funds allocated to the different cost centers.
Some nursing homes are making excessive profits by reducing
direct care to residents and this clearly should be
unacceptable.
------
Responses to Senator Smith Questions from Alice Hedt
Question. Fire Safety. How would you recommend CMS and
nursing facilities proceed with making fire safety improvements
that will be effective but not cost prohibitive?
Answer. Senator Smith, NCCNHR appreciates the opportunity
to address an issue that has been especially troubling to
nursing home consumers and to the Senate Special Committee on
Aging for more than 30 years: Fire safety. NCCNHR and its
members are very concerned about the serious deficiencies in
fire safety regulation and enforcement revealed in a GAO
report, a USA Today investigation, and two tragic multiple-
death fires in Connecticut and Tennessee--because we know from
experience that public regulation and effective enforcement
prevent deaths.
Progress in fire safety regulation has dramatically
improved the protection of nursing home residents from fire
injuries and death in the years since Medicare and Medicaid
were enacted. Two years before the aging committee published
its 1975 paper, ``The Continuing Chronicle of Nursing Home
Fires,'' 51 people had been killed in multiple-death nursing
home fires, an increase from 31 the year before. Today,
however, multiple-death nursing home fires on this scale occur
less frequently because federal and state regulation have
improved safety--particularly in newer facilities, where
federal law now requires automatic sprinklers, and in states
that require automatic sprinkler systems in all nursing homes.
Unfortunately, the tragic deaths of 31 residents in Nashville
and Hartford in 2003 remind us that residents are still
unnecessarily at risk of dying in a fire in several thousand
Medicare and Medicaid-certified facilities that are not
required to have automatic sprinklers. Their deaths are a
reminder that fire safety is part of the unfinished business of
the Nursing Home Reform Act.
According to CMS estimates, there are about 3,700 nursing
homes in the United States that do not have sprinklers or that
are only partially sprinklered. NCCNHR supports prompt
implementation of CMS's proposal of October 27, 2006, to
require all nursing homes to be fully equipped with automatic
sprinklers. Our comments on the proposed regulations which were
endorsed by 66 national, state and local organizations--are
attached.
NCCNHR has supported legislation to provide low-cost loans
or grants to nursing homes that need financial assistance to
install sprinklers. However, we do not believe that costs
should deter the federal government from implementing this
basic safety requirement that is already decades overdue. We
urge you to consider the following:
The costs are not unreasonable for an industry
that annually receives $73 billion in Medicare and Medicaid
funds (almost $50 billion of it from the federal government) to
provide care for people who are among the most vulnerable to
injury or death in case of fire. CMS estimates that it would
cost an average-size or small-size nursing home 0.8 to 1.2
percent of its revenues over a five-year period to become fully
sprinklered. Only 821 nursing homes do not have any sprinklered
areas, according to CMS estimates, that would require
installation of sprinklers throughout the building(s).
The nursing home industry is profitable and can
afford to meet essential safety requirements. After 16
residents died in a National HealthCare nursing home in
Nashville in 2003, the corporation announced that it would
install sprinklers in all of its facilities that did not have
them. In the third quarter that year, the company's earnings
increased by more than 23 percent over the same period the year
before (not accounting for losses from the fire), and it has
continued to show substantial gains in net income. In May 2007,
National HealthCare reported increased quarterly earnings
almost 30 percent higher than the same quarter in 2006.
Poor care is always costly. In addition to the
loss of life, nursing home fires increase medical expenses, the
burden on firefighting departments, and liability costs, and
they result in substantial property damage and loss. They may
also leave shortages of Medicare and Medicaid beds in a
community.
Sprinkler installation is not a problem in many states--
nursing homes simply have to have them to obtain a license to
do business. All nursing homes in Oregon and a dozen other
states are fully sprinklered, according to the American Health
Care Association, and six other states have at least 95 percent
of their facilities fully sprinklered. Several states are in
the process of implementing automatic sprinkler requirements
for all their long-term care facilities, including, in some
cases, assisted living and personal care homes.
Thank you again for the opportunity to address this issue.
NCCNHR urges you to support prompt implementation of CMS
regulations to require automatic sprinkler systems in all
nursing homes that receive federal funding.
------
Responses to Senator Smith Questions from Mary Ousley, AHCA
Question. Will More Regulation Help?
Answer. More guidance is unlikely to help and actually
could result in more confusion. AHCA believes that joint
training for surveyors and providers is key to ensuring there
is uniform interpretation of CMS' guidance. While nothing can
guarantee each surveyor and each provider will interpret CMS
guidelines in the same way every time, presenting the
information simultaneously and allowing for both questions and
discussion is more likely to ensure that surveyors and
providers share a mutual understanding of what is necessary for
a facility to be in compliance with the regulations.
In fact, Section 101 of, The Long Term Care Quality and
Modernization Act (S. 1980), directs the Secretary of Health
and Human Services to conduct a 5-state, 2-year demonstration
program to establish a process for joint training and education
of surveyors and providers as changes to regulations,
guidelines and policy are implemented. Following the
demonstration, the Secretary would be required to report to
Congress on the program's results, including the program's
impact on the rate and type of deficiencies that nursing homes
participating in the demonstration compare to a state's other
facilities (not participating in the demo). S. 1980 is
sponsored by three members of the Senate Special Committee on
Aging--Blanche Lincoln (D-AR), Gordon Smith (R-OR) and Susan
Collins (R-ME).
Question. Foreign Nurse Recruitment
Answer. There is no simple policy to ensure that increasing
the number of available nurses would directly benefit long term
care. Still, eliminating artificial caps on work visas for
foreign-born nurses would improve the current nurse shortage
facing all health care providers, including long term care. A
2002 AHCA study examining staff vacancy rates in our nation's
nursing homes found approximately 52,000 Certified Nursing
Assistants (CNAs)--those who provide 80% of direct patient
care--are needed now just to meet existing demand for care.
AHCA's study also estimated an additional 13,900 Registered
Nurse (RN) and 25,100 Licensed Practical Nurse (LPN) positions
remain vacant in nursing homes across the country. The shortage
of available employment-based visas for nurses, primarily from
India and the Philippines, severely limits the ability of
nursing home providers to fill those vacancies.
Another challenge long term care providers face, especially
skilled nursing facilities, is competing for a limited number
of nurses. More than 80% of nursing home residents rely on
either the Medicare or Medicaid funding to pay for the care and
services they need, so long term care providers depend upon
regular and systematic cost of living increases (e.g., annual
market basket update to SNF Medicare funding) in order to
compete with other care settings that often can afford to pay
higher wages to recruit and retrain skilled caregivers. Without
adequate and stable funding--and recognition by states to
provide Medicaid reimbursement that at least covers the cost of
care for SNF residents--SNFs are unlikely to be able to afford
to offer a more competitive wage to both foreign and domestic
nurses in long term care.
Responses to Senator Smith Questions from Orlene Christie
Staff and Resident Background Check
Question. Michigan, along with six other states, is
participating in the initial pilot program on background checks
for employees that work in long term care positions (except for
adult foster care). I understand from my staff that the initial
response to the program is very positive, and that Michigan is
becoming a leader in this area.
Answer. Our program does not include adult foster care.
Question. Recognizing the program is still in its early
stages, can you provide any insight into how long term
implementation of a background check program will contribute to
better quality of care and greater security for those in
residential or other forms of long term care?
Answer. The criminal history record is a tool that can be
used to identify those individuals with a propensity for
criminal behavior and our laws prevent them from working in
long-term care facilities. Greater security results from
reduced opportunity and access to vulnerable adults. Over time,
the long-term care workforce will be comprised of individuals
with either no history of relevant crimes or a history that
shows no offenses after the effective date of the laws. The
background check program shines a light on the behavior of
caregivers and elevates the status of vulnerable adults in our
society. The very existence of the program sends a clear
message that we will not tolerate abuse, neglect or
exploitation by caregivers.
Question. Does the background check program screening
include offenses committed outside the state or jurisdiction
initiating the search?
Answer. Our program includes a national fingerprint-based
criminal history search.
Question. What happens if there are records of abuse from
prior employment that did not rise to the level of a criminal
offense?
Answer. Our law prohibits employers from hiring,
contracting with or granting clinical privileges to an
individual who has been the subject of a substantiated finding
of abuse or neglect or misappropriation of property by a state
or federal agency pursuant to an investigation conducted in
accordance with 42 USC 1395i-3 or 1396r. A search of the
Michigan Nurse Aide Registry and the OIG exclusion database is
done as part of the screening process.
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