[Senate Hearing 110-398]
[From the U.S. Government Publishing Office]
S. Hrg. 110-398
NURSING HOME TRANSPARENCY AND IMPROVEMENT
=======================================================================
HEARING
before the
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
WASHINGTON, DC
__________
NOVEMBER 15, 2007
__________
Serial No. 110-17
Printed for the use of the Special Committee on Aging
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
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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
Debra Whitman, Staff Director
Catherine Finley, Ranking Member Staff Director
(ii)
?
C O N T E N T S
----------
Page
Opening Statement of Senator Herb Kohl........................... 1
Opening Statement of Senator Gordon H. Smith..................... 8
Opening Statement of Senator Larry Craig......................... 9
Opening Statement of Senator Robert Casey........................ 10
Opening Statement of Senator Ron Wyden........................... 12
Opening Statement of Senator Bill Nelson......................... 106
Panel I
Senator Charles Grassley, Ranking Member Senate Finance Committee 3
Panel II
Kerry Weems, Acting Administrator, Centers for Medicare and
Medicaid Services, U.S. Department of Health and Human
Services, Washington, DC....................................... 13
Panel III
David Zimmerman, professor, College of Engineering, University of
Wisconsin, and director, Center for Health Systems Research and
Analysis, Madison, WI.......................................... 37
Arvid Muller, director of Research, Service Employees
International Union, Washington, DC............................ 52
Steve Biondi, vice president of Extendicare, Milwaukee, WI; on
behalf of the American Health Care Association................. 61
Bonnie Zabel, administrator for Marquardt Memorial Manor, Inc.,
Watertown, WI; on behalf of the American Association of Homes
and Services for the Aging..................................... 73
Sarah Slocum, state long term care ombudsman, Office of Services
to the Aging, Lansing, MI...................................... 97
APPENDIX
Testimony submitted by Barbara Hengstebeck, advocate for nursing
home residents................................................. 115
Statement submitted by Stephen Guillard, executive vice president
and chief operating officer, ManorCare......................... 136
Statement submitted by AARP...................................... 143
(iii)
NURSING HOME TRANSPARENCY AND IMPROVEMENT
---------- --
THURSDAY, NOVEMBER 15, 2007
U.S. Senate,
Special Committee on Aging,
Washington, DC.
The Committee met, pursuant to notice, at 1:30 p.m., in
room G-50, Dirksen Senate Office Building, Hon. Herb Kohl
(chairman of the committee) presiding.
Present: Senators Kohl, Wyden, Lincoln, Nelson, Salazar,
Casey, Smith, and Craig.
OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN
The Chairman. We will get started right now. We are
awaiting our first witness, Senator Grassley, who will be here
momentarily. So we call this hearing to order. We welcome our
witnesses today.
In May this Committee held a hearing to examine the legacy
of the 1987 Nursing Home Reform Act. We heard from various
experts on how far nursing homes have come in the past 20
years. While our previous hearing was about looking back,
today's hearing is about moving forward and taking the next big
step in improving our nation's nursing homes.
To do so, we have been working--I have been with my
colleague, Senator Grassley, on our proposal to improve nursing
home quality by increasing transparency as well as
strengthening enforcement. We are very pleased to have Senator
Grassley here today to make a statement.
We believe that Americans should have access to as much
information about a nursing home as possible, including the
results of government inspections, the number of staff employed
at a home, as well as information about the home's ownership.
The government should ensure that consumers can obtain this
information in a clear, timely, and accurate manner so that
they can make the right decision about where to place a loved
one.
Our bill will strengthen the government system of
enforcement. Under the current system, nursing homes that are
not providing good care or even worse, are putting their
residents in harm's way, can escape penalty from the government
while they slip in and out of compliance with Federal
regulations. If course, that is not acceptable.
We need the threat of sanctions to mean something. Under
the bill that I am working on with Senator Grassley, they will
mean something. We also need to make sure that regulators are
able to intervene quickly in order to protect the safety of
residents.
Today we will also hear from CMS Acting Administrator Kerry
Weems. While working on our bill with CMS, we have discovered
that many of our goals are aligned. Administrator Weems will
testify shortly about the special focus facility program
created by CMS to deal with those nursing homes exhibiting a
consistent history of providing poor care to residents.
We will be asking him about a significant move toward
transparency that CMS is planning to undertake in the near
future. In fact, in just over 2 weeks, CMS will be disclosing
the names of the facilities taking part in this special focus
facility program.
I am pleased to say that CMS is beating us to the punch.
Disclosing this list is a provision in our forthcoming bill.
CMS does understand what we understand, that it is in
everyone's best interest to let consumers know which nursing
homes are repeatedly demonstrating deficiencies and violating
government standards. Those homes are obviously not doing their
jobs.
Often the only way to ensure the improvement of any entity
is to bring its failings to light. Senator Grassley feels that
way. CMS feels that way. I feel that way, too.
I do honestly believe that more nursing homes will come
back into compliance for good if they have the court of public
opinion and the power of market forces as encouragement. At the
same time, we acknowledge that our goal is not to close a home,
but to fix the home because that is often what is best for the
residents. As you will hear, the special focus facility program
is helping these facilities make the changes that are needed to
improve.
Our hearing today also features a third panel of
distinguished witnesses. In a rare stroke of good fortune,
three of them come to us from my own home state.
We will hear recommendations from national experts,
organized labor, and representatives of the nursing home
industry on the topics of transparency and enforcement. As
always, I find it very important to state that while we are
shining a light on poor performing homes, we believe that a
vast majority of nursing homes in our country are doing a good
job. Most homes provide exemplary care, the type of care that
you would be happy to have a member of your own family receive.
We will hear from one such home today, the Marquardt
Memorial Manor in Watertown, WI. I can personally vouch for
this home, as I have had the opportunity to visit it many
times.
So we thank everybody for being here today. We look forward
to working with you all. I look forward also to hearing from
the Ranking Member on this Committee, as well as Senator Craig.
But I would ask them to defer for just a few minutes because
Senator Grassley, whose statement we very much would like to
hear, has only a limited time to be with us today.
So, Senator Grassley, we recognize you.
STATEMENT OF SENATOR CHARLES GRASSLEY, RANKING MEMBER, SENATE
FINANCE COMMITTEE
Senator Grassley. I thank you and my colleagues who are
deferring to me. I thank you very much for not only that, but,
of course, your very important role as leaders on this
Committee.
First of all, thank Chairman Kohl for his holding this very
important hearing. When I had the privilege of serving as
Chairman of this Committee, many of our efforts were focused on
abuse and substandard care in America's nursing homes. I am
glad to see that under the leadership of Chairman Kohl this
critical issue remains at a top priority. I applaud the
Committee's efforts.
In America today there are nearly 1.7 million elderly and
disabled individuals in approximately 17,000 nursing homes.
This includes the men and women of the World War II generation.
Our duty to ensure that these Americans receive high-quality
care couldn't be higher.
But in addition to the people currently living in nursing
home facilities, another issue lies on the horizon. That is the
baby boom generation getting older. The number of Americans in
nursing homes will go up dramatically. Therefore, it is
critical that we confront the issue of safe and high-quality
nursing homes today to be ready for tomorrow.
As the Ranking Member of the Senate Finance Committee, I
have a special interest in nursing home care. The industry is
often the subject of both my investigative and legislative
work, and today I would share some thoughts with you.
I want to emphasize four areas: the problem of repeat
offender homes; the issue of fire safety; the need for greater
transparency in quality at these homes; and recent concern over
reports that the rise of private equity firm ownership of
nursing homes is resulting in poorer quality of care. In the
nursing home industry, the vast majority of homes provide
quality care on a consistent basis. They provide an invaluable
service to our older and disabled. We applaud them for that
service.
But as in many sectors, this industry is given a bad name
by a few bad apples that spoil the barrel. A critical tool in
confronting these bad actors is the sanctions that CMS can
place on homes for failure to meet certain standards of care.
Yet too often, nursing homes are able to yo-yo in and out of
compliance, temporarily correcting deficiencies and having the
sanctions rescinded, only then to fall back into noncompliance.
When sanctions are put in place, nursing homes currently
have the incentive to file appeal after appeal after appeal,
delaying the imposition of penalties and adding costs to the
taxpayers. A recent Government Accountability Office report
examined 63 nursing homes that had been identified as having
serious quality problems.
Of these, nearly half continued to cycle in and out of
compliance between years 2000 and 2005. Twenty-seven of the 63
homes were cited 69 times for deficiencies warranting immediate
sanctions. Yet in 15 of these cases sanctions were not even
imposed.
Eight of the homes reviewed cycled in and out of compliance
seven or more times each period. This is unacceptable.
But the real meaning of substandard care isn't about
numbers. It isn't about statistics. It is about real people-our
mothers, fathers, grandparents and loved ones. Every day there
are stories reported across the Nation about residents
suffering or even dying from preventable situations.
Imagine, just recently I read about a nursing home resident
in Florida who was taken to a hospital with bed sores, a
partially inserted catheter, an infected breathing tube, and
maggots in one of his eyes.
Each and every one of you will agree with me. This is
unacceptable. It is not humanitarian. It is an outrage.
The current system provides incentives to correct problems
only temporarily and allows homes to avoid regulatory
sanctions, while continuing to deliver substandard care to
residents. This system must be fixed.
In ongoing correspondence that I have had with Kerry Weems,
who is here and is Acting Administrator of CMS, and you will be
hearing from him, that agency has requested the statutory
authority to collect civil monetary penalties sooner and hold
them in escrow pending appeal. I think that is a good start.
Penalties should also be meaningful. Too often, they are
assessed at the lowest possible amount, if at all. Penalties
should be more than merely the cost of doing business. They
should be collected in a reasonable timeframe and should not be
rescinded so easily. These changes will help prod the industry
and particularly, the bad actors to get their act together or
get out of business.
Another pressing issue is that of fire safety. As we saw in
2003, this is an issue of life or death importance.
Sixteen people died in a nursing home fire in Hartford, CT,
and 15 died-in a home in Nashville in 2003. Neither home had
installed automatic sprinkler systems.
Despite the fact that a multiple-death fire has never
occurred in a sprinklered home, there are approximately 2,773
homes still without full sprinkle systems. Following these
terrible events, I requested the Government Accountability
Office to look into this matter and have held an ongoing
conversation with CMS on how we can better protect America's
nursing home residents from preventable fires.
In October 2006, CMS began to move in this direction and
expects to issue a final rule in the summer of 2008. This is
much-needed improvement that will surely save lives.
While a better penalty system and better fire safety will
do much to increase nursing home safety, we have also got to
give nursing home residents and their families better access to
information about these homes. To do that we obviously have to
have more transparency than we presently have.
The public does currently have access to some information
on nursing homes through the Web site Nursing Home Compare,
located on Medicare's Web site. Yet for all the valuable
information this Web site provides, it could be improved
through the inclusion of information on sanctions, as well as
an identification of the worst offending homes, often called
special focus facilities. By listing these homes and the
implemented enforcement action online, information the
government already has, you don't have to go out and get more
information. The public then would have better access to
nursing home information, and nursing homes would have an extra
incentive to meet quality standards.
The process of choosing a nursing home is a very important
and personal one for thousands of American families every year.
We owe it to them to give them complete information when they
are making a decision of where to put a loved one. Acting
Administrator Weems in a recent letter to me, gave his
assurance that CMS would begin posting some of this information
online. I thank him for his commitment and look forward to
seeing that carried out.
So for me, the key is to ensure that nursing homes provide
quality care to residents consistently day in and day out. If
they don't, the public should be aware of that fact. In this
area, as in others, a little sunshine will go a long way.
Finally, I want to touch on an issue that has garnered a
lot of attention lately, that of the purchase of nursing homes
by private equity groups. Recent news reports have highlighted
concerns over decreasing quality of care, decreasing staffing,
and decreased budgets at nursing homes purchased by private
equity groups. At one home, it is alleged that 15 residents
died in 3 years due to negligent care at a home purchased by
one of these groups.
In response to these concerns, Senator Baucus and I have
launched an inquiry into private equity firms and their
ownership of nursing homes. Last month, we sent letters to five
private equity firms asking for detailed information about
their purchases and impending purchases of nursing facilities.
In private equity ownership of nursing homes if that
ownership is, in fact, having the effect of decreasing
staffing, decreased budgets, and, in turn, decreased care, then
something must be done about it. I plan to continue my inquiry
and look forward to working with Senator Baucus to take
whatever measures are appropriate to address the issue.
Those four issues that are presented to you: ineffective
enforcement; nursing home fire safety; the need for greater
transparency; and concerns over private equity ownership affect
millions of vulnerable Americans. The U.S. Senate has a great
responsibility in addressing them.
Again, I thank Chairman Kohl and the members of this
Committee for holding this hearing and look forward to working
with you all on these matters. I also want to acknowledge the
efforts of the group that is entitled Advancing Excellence in
America's Nursing Homes. This group is a broad coalition of
organizations dedicated to improving the quality of care and
quality of life of nursing home residents.
Coalitions such as this are vital to our efforts. All of
us-and I mean private organizations. I mean families. I mean
residents. I mean caregivers, nursing home advocates, the
government, all of the above and maybe more that I haven't
mentioned, have a role to play in this important work if we
want to be successful in our efforts to continue improving
nursing home care.
Indeed, much work needs to be done. So, I thank you for
taking my testimony and wish you well. You are doing good work
in this area. Because where we were 10 years ago the job is
still not done. Thank you very much.
The Chairman. That was a great statement, Senator Grassley.
We appreciate your stopping by and making it. As a former
Chairman of the Committee, what you have to say is valued,
appreciated. We will take into consideration everything you
have said with the greatest seriousness.
Senator Grassley. Thank you.
[The prepared statement of Senator Grassley follows:]
Prepared Statement of Senator Grassley
Good morning. I want to begin by thanking Chairman Kohl and
the members of the Senate Special Committee on Aging for
holding this important hearing. When I had the privilege of
serving as chairman of this committee, many of our efforts were
focused on abuse and substandard care in America's nursing
homes. I'm glad to see that under the leadership of Chairman
Kohl, this critical issue is remains a top priority and I
applaud the committee's efforts.
In America today, there are nearly 1.7 million elderly and
disabled individuals in approximately 17,000 nursing home
facilities. This includes the men and women of the world war
two generation--and our duty to ensure that they receive the
quality care they deserve couldn't be higher.
But in addition to the Americans currently living in
nursing home facilities, another issue lies on the horizon. As
the baby boom generation gets older, the number of Americans in
nursing home facilities is going to rise dramatically.
Therefore, it's critical that we confront the issue of safe and
high quality nursing home care today.
As the Ranking Member of the Senate Finance Committee, I
have a special interest in nursing home care. The industry is
often the subject of both my investigative and legislative
work, and today I'd like to share some of my thoughts. In
particular, I want to emphasize four area that are of concern
in the nursing home industry from my perspective: 1) the
problem of repeat offender homes, 2) the issue of fire safety,
3) the need for greater transparency in nursing home quality,
and 4) recent concern over reports that the rise of private
equity firm ownership of nursing homes is resulting in poorer
quality of care.
In the nursing home industry, the vast majority of homes
provide quality care on a consistent basis. They provide an
invaluable service to those who can no longer care for
themselves, and we applaud them for this service. But as in
many sectors--this industry is given a bad name by a few bad
apples that spoil the barrel. A critical tool in confronting
these bad actors are the sanctions CMS can place on homes for
failure to meet certain standards of care. Yet too often,
nursing homes are able to ``yo-yo'' in and out of compliance,
temporarily correcting deficiencies and having the sanctions
rescinded, only to fall back into noncompliance. When sanctions
are put in place, nursing homes currently have the incentive to
file appeal after appeal, delaying the imposition of penalties
and adding costs to the taxpayer. So for me the key is to
ensure that nursing homes provide quality care to residents
consistently--day in and day out--and if they don't, the public
should be aware of that fact.
A recent GAO report examined 63 nursing homes that had been
identified as having serious quality problems. Of these, nearly
half continued to cycle in and out of compliance between fiscal
years 2000 and 2005. Twenty seven of the 63 homes were cited 69
times for deficiencies warranting immediate sanctions, yet in
15 of these cases sanctions were not imposed. Eight of the
homes reviewed cycled in and out of compliance seven or more
times each period. This is unacceptable.
But the real meaning of substandard care isn't about
numbers and statistics--it's about real people--our mothers,
fathers, grandparents and other loved ones. Every day there are
stories reported across this nation about residents suffering
or even dying from preventable situations. Imagine, just
recently I read about a nursing home resident in Florida who
was taken to a hospital with bed sores, a partially inserted
catheter, an infected breathing tube, and maggots in one of his
eyes. Each and every one of you will agree with me--this is
unacceptable. It is an outrage.
The current system provides incentives to correct problems
only temporarily and allows homes to avoid regulatory sanctions
while continuing to deliver substandard care to residents. This
system must be fixed. In ongoing correspondence I've had with
Kerry Weems, the acting administrator of CMS, that agency has
requested the statutory authority to collect civil monetary
penalties sooner, to be held in escrow pending the decision on
appeal. I think this is a good start. Penalties should also be
meaningful--too often, they are assessed at the lowest possible
amount, if at all. Penalties should be more than merely the
cost of doing business; they should be collected in a
reasonable timeframe; and should not be rescinded so easily.
These changes will help prod the industry's bad actors to get
their act together or get out of the business.
Another pressing issue is that of fire safety, and as we
saw in 2003, this is an issue of life-or-death importance. That
year, 16 people died in a nursing home fire in Hartford,
Connecticut, and 15 died at a home in Nashville, Tennessee.
Neither home had installed automatic sprinkler systems. Despite
the fact that a multiple-death fire has never occurred in a
sprinklered home, there are approximately 2,773 homes still
without full sprinkle systems.
Following these terrible events, I requested that GAO look
into the matter, and have held an ongoing conversation with CMS
on how we can better protect America's nursing home residents
from preventable fires. In October 2006, CMS began to move in
this direction, and expects to issue a final rule in the summer
of 2008. This is a much needed improvement that will surely
save lives.
While a better penalty system and better fire safety will
do much to increase nursing home safety, we've also got to give
nursing home residents and their families better access to
information about these homes. And to do that you need more
transparency.
The public currently has access to some information on
nursing homes through the website ``Nursing Home Compare,''
located on Medicare's website. Yet for all the valuable
information this website provides, it could be improved through
the inclusion of information on sactions, as well as an
identification of the worst offending nursing homes, often
called ``Special Focus Facilities.'' By listing these homes and
the implemented enforcement actions online--information the
government already has--the public would have better access to
nursing home information and nursing homes would have an extra
incentive to meet quality standards.
The process of choosing a nursing home is a very important
and personal one for thousands of American families every
year--we owe it to them to give them complete information when
making this decision. Acting Administrator Weems, in a recent
letter to me, gave his assurance that CMS would begin posting
this information online. I thank him for his commitment and
look forward to seeing this carried out. In this area, as in
others, a little sunshine will go a long way.
Finally, I want to touch on an issue that has garnered a
lot of attention lately--that of the purchase of nursing homes
by private equity groups. Recent news reports have highlighted
concerns over decreasing quality of care, decreased staffing,
and decreased budgets at nursing homes purchased by private
equity groups. At one home, it is alleged that 15 residents
died in three years due to negligent care at a home purchased
by one of these groups.
In response to these concerns, Senator Baucus and I have
launched an inquiry into private equity firms and their
ownership of nursing homes. Last month, we sent letters to five
private firms asking for detailed information about their
purchases and impending purchases of nursing facilities. If
private equity ownership is in fact having the effect of
decreased staffing, decreased budgets, and, in turn, decreased
care, then something must be done about it. I plan to continue
my inquiry and look forward to working with Senator Baucus to
take whatever measures are appropriate in addressing this
issue.
Those four issues--ineffective enforcement mechanisms,
nursing home fire safety, the need for greater transparency,
and concerns over private equity ownership--affect millions of
vulnerable Americans and the United States Senate has a great
responsibility in addressing them. Again, I thank Chairman Kohl
and the members of this committee for holding this hearing, and
look forward to working with you all on these matters. I also
want to acknowledge the efforts of the group ``Advancing
Excellence in America's Nursing Homes.'' This group is a broad
coalition of organizations dedicated to improving the quality
of care and quality of life of nursing home residents.
Coalitions such as this are vital to our efforts. In closing,
all of us--and I mean private organizations, families,
residents, caregivers, nursing home advocates, and the
government--have a role to play in this important work if we
want to be successful in our efforts to continue improving
nursing home care. Indeed, much work remains to be done. Thank
you.
The Chairman. Thank you.
Now, I would like to turn to our Ranking Member, Senator
Smith, for his statement.
OPENING STATEMENT OF SENATOR GORDON H. SMITH, RANKING MEMBER
Senator Smith. Thank you, Mr. Chairman. I appreciate this
important hearing and this continuing discussion we are having
on nursing home quality.
These discussions are necessary to ensure that those in
need of long-term care get the quality care that they deserve.
The issue of nursing home quality and safety is of particular
interest to me and all members of this Committee. I thank our
panelists today for being here.
I, like Senator Kohl, appreciate Senator Grassley. As a
former Chair of this Committee and having served as both
Chairman and Ranking Member of the Senate Finance Committee,
the interest of our citizens in nursing homes has long been a
priority for him.
We know that the need for long-term care is expected to
grow significantly in the coming decades. Almost two-thirds of
the people currently receiving long-term care are over the age
65. This number is expected to double by 2030.
We also know that the population over age 85, those are the
ones most likely to need long-term services and supports. They
are expected to increase by more than 250 percent by the year
2040 from 4.3 million to 15.4 million.
Today, millions of Americans are receiving or are in need
of long-term care services and support. We don't have to wait
that long. It is already here.
Surprisingly, more than 40 percent of the persons receiving
long-term care are between the ages of 18 and 64. The past
decade has revealed a shift in the provision of long-term care.
A great example of this is in my home State of Oregon,
where much of the care is provided in community settings and in
recipients' homes. We also have seen that long-term care
providers are offering services that put the patient at the
center of care, encouraging inclusion of families in
decisionmaking, and giving more choices in the location of
care, such as community-based and home care settings.
As I have said in this Committee before, ensuring patient
safety is a responsibility that rests with no one party or
entity. It is shared by care providers, by Federal and State
governments, law enforcement agents, local agencies, and
community advocates. It is a responsibility that I and my
colleagues take very seriously.
We must all work together more collaboratively to curb the
incidence of elder abuse. We owe that to the millions of
seniors who have placed their trust in our nation's long-term
care system and to those who remain in their homes and in their
communities.
With the passage of the Elder Justice Act, this would be a
wonderful and much-needed step toward this goal. Apart from
improving communication and cooperation of enforcement
activities, there would be new stronger policies in place to
ensure that seniors receive the safest long-term care
possibily.
To that end, I have introduced the Long-Term Care Quality
and Modernization Act with Senator Blanche Lincoln. This bill
encourages a number of important improvements to nursing homes
and the long-term care system that aim to enhance the quality
and safety of care provided to our seniors. I look forward to
continuing to work with the many advocates, industry
representatives, and regulators here today to ultimately pass
this important legislation.
I would like to applaud the work that Senator Kohl has done
in this area as well, and especially in regard to helping
nursing homes and other facilities better identify potential
bad actors in the workforce and to ensure families are informed
of facility quality. It is essential that we find more
effective ways to help poor performing facilities operate at a
much higher level or to consider ways that they can be phased
out of the system. We cannot let the inappropriate actions of a
few continue to destroy the trust our nation's seniors have
placed in the long-term care system.
I am confident this fine panel of experts will be able to
provide a fresh light, some fresh insight into the work that is
being done at the Federal, State, and local levels to reduce
elder abuse and provide the safest, highest quality care that
is possible. Thank you.
The Chairman. Thank you, Senator Smith.
In order of arrival, we have Senator Craig first and then
Senator Casey.
Senator Craig.
OPENING STATEMENT OF SENATOR LARRY E. CRAIG
Senator Craig. Mr. Chairman, thank you very much. A special
thanks to you and our Ranking Member, Senator Smith.
Before Senator Grassley left the room, there were either
four former or currently serving chairmen. I think once you
have served on this Committee a time, your passion for its
mission never leaves you because we have always viewed our
aging community as one of our more vulnerable communities.
Thank you for the work you are doing and for the work Senator
Smith has done.
The challenge of nursing home improvement is a prime
example of the Aging Committee's importance of putting a
spotlight on issues that are of vital significance to our
senior population and their families. This Committee also plays
a valuable role in crafting solutions to challenges facing our
aging population.
During my tenure as Chairman of this Committee, I spent
some time examining long-term care and issues relating to the
well-being of our vulnerable seniors. While our aging
population is moving more toward home and community-based
services, as Senator Smith has mentioned, there still is going
to be a need for nursing home care.
Now, I look forward to the hearing and to our witnesses
today, and to all of your comments. Transparency is an
important factor in ensuring that our nursing homes are safe
places. It is important for families to have the necessary
background information when choosing a nursing home. Most
people are not going to choose a poor performing facility for
their loved ones.
So making inspection information readily available to the
public is also a great incentive for nursing homes to meet
their standards. Unfortunately, like all good ideas, the devil
is in the details.
CMS' nursing home compare is a great step for those who
want more information about nursing homes. However, more can be
done to make information on the Web site easier to understand
so that families know what the deficiencies that a facility
receives actually mean and how this actually impacts a senior
in these facilities.
Families who are looking for a nursing home are often
overwhelmed by this tremendous lifestyle change that is about
to hit their family. They do not have the time to become the
expert in nursing home oversight and inspection.
I also want to stress the importance of information on
nursing home compare being kept as up to date as possible. It
is unfair to both the nursing home provider and seniors when
only outdated information about the problem at a particular
facility is available online.
With that said, I look forward to our hearing today.
Mr. Chairman, it is an important one as legislation moves
forward on this issue. I thank you.
The Chairman. Thank you, Senator Craig.
Senator Casey.
OPENING STATEMENT OF SENATOR BOB CASEY
Senator Casey. Mr. Chairman, thank you very much for
chairing this hearing and for your work as the Chairman of our
Committee. This is an incredibly important hearing, for a lot
of reasons. I was going to tell some personal stories that I
think demonstrate to me how critical this hearing is and the
subject matter of the hearing.
I also want to thank Senator Grassley for his testimony. I
missed part of it, but I know his commitment and so many others
who are here.
This issue for me is probably more personal than most
because it affected both the work that I did before I got to
the Senate, as well as has had an impact on my own family
background. My work as a State official, the auditor general,
allowed us to audit the oversight by the Pennsylvania
Department of Health of nursing homes. We put out a report,
which was very critical. I hit that agency very hard in 1998.
That led to a lot of work down the road.
I don't want to spend a lot of time on that, but suffice it
to say that some of the problems that we will talk about today,
some of the questions that we will ask, some of the priorities
that we enunciate from this platform, but also at the witness
table, remind me of what we were doing in 1998 and 1999. So
there is still much work to be done.
But two personal insights, Mr. Chairman. One is a meeting I
had across the street from a nursing home. When we got into
this work pretty deeply, a lot of families were contacting us.
We know from the work in long-term care that this is an issue
that isn't just about older citizens in the twilight of their
lives. It is about the whole family.
Younger members of the family worry about where a loved one
is placed. They worry about the care. They worry about the
expertise and the professionalism that will be brought to bear
on their loved one.
So we set up a meeting with a woman whose husband was in a
nursing home. We wanted to meet her across the street first to
talk to her, and then we went for a visit. As soon as she sat
down across from me in--I think it was a deli or a coffee shop.
As soon as she sat down, I shook her hand. She looked at me.
Before she could talk, she started to cry.
Now, she wasn't crying because he was getting terrible
care. There was no crisis necessarily. But she was crying
because, like a lot of Americans, it is a traumatic decision,
as others have said today, to place a loved one in a nursing
home. Once they are there, you worry about them.
I think the basic worry that most people have, especially a
spouse or a close family member, is will that person get the
same kind of care in this facility, as good as it might be, as
they would get in the home or they would receive from a husband
or a wife or a family member. That is the principle worry that
people have.
Our obligation in the Senate is to do everything possible
to understand that fear and that worry and that sometimes the
failure to have the kind of peace of mind that people deserve
and to bring about policies that will do our best to meet that
obligation so that someone who makes that decision, a family
decision, can have that kind of peace of mind.
The second example in my own life is my father. He suffered
from an incurable disease in the later part of his life. He was
a big, tough, powerful person in his day. But at the end of his
life, he had no power. His mind was fine, but he had no power
to move.
So when he was in a long-term care setting, moving from
here to here, I mean, literally inches, he couldn't do on his
own. So he relied upon the skill and the expertise of long-term
care workers, nurses, nurses aids, the whole gamut of
expertise.
I learned a lot about that. He got great care. But I
remember distinctly being in the hospital one night when he was
getting very bad care from one particular nurse.
She just happened to be an agency nurse who was there
temporarily. She didn't know him, didn't know much about his
medications. She made a terrible error.
So, I had a glimpse, a fleeting glimpse into what bad care
can result in. Fortunately, he wasn't permanently impacted by
that poor care.
So all these personal and human memories come back when I
think about this issue. It is particularly disturbing in light
of this new phenomenon with regard to private equity firms
purchasing, acquiring long-term care facilities.
It is bad enough when the government is not doing its job
in terms of oversight. I saw that at the State level.
Fortunately, it is better today, at least in terms of what we
were identifying.
That was bad enough. But when you have the added problem of
private entities that stand to make a lot of money on the
initial purchase, but also stand to make a lot of money in the
long run, sometimes at the expense of good care, that makes the
problem all the worse.
I was just citing a report that I know from the back of the
room by the Service Employees International Union, ``Equity and
Inequity: How Private Equity Buyouts Hurt Nursing Home
Residents.'' What is in this report is not just disturbing to
me, it reminds me what I was working on almost a decade ago in
Pennsylvania. I am sure the same was true in a lot of other
states.
What is identified in this report is disturbing. It is
troubling, to say the least. It cries out for action by this
Committee, by the U.S. Senate, and, frankly, by the
administration. Frankly, the administration doesn't always need
a new law or a new regulation to move forward. The
administration should focus more acutely on this.
So we have a lot of work to do. This is a very personal
issue for a lot of Americans. I feel that obligation very
deeply.
I know, Mr. Chairman, you do, and the members of this
Committee. I look forward to the testimony today. Thank you.
The Chairman. Thank you, Senator Casey.
Senator Wyden.
OPENING STATEMENT OF SENATOR RON WYDEN
Senator Wyden. Thank you, Mr. Chairman. I want to commend
you and Senator Smith and so appreciate the bipartisan approach
that you all take to this issue.
I just make three points very quickly. First is something
is out of whack in this country when it is a lot easier to find
information about the quality of a washing machine than it is
to get information about the quality of long-term care
facilities. That is a fact.
All over this country you can easily get access to
information about home appliances and a variety of other retail
purchases you make. But you can't get information about the
essential health care services that are available.
I think that is why it is so good that you are going
forward in your leadership, Senator Kohl and Senator Smith.
Second, on this trend toward the large chains and private
equity firms getting into the field. I think it is worth noting
Senator Smith and I see it as we have a great many long-term
care facilities in our State that are essentially small, family
owned facilities. I think it is pretty clear that those kinds
of health care facilities do a lot more to make information
available to families, share information with respect to long-
term care choices than some of these big chains.
So this notion that you can't be straight with the public
and with the consumer and the families, as Senator Casey speaks
so eloquently about, that is not correct, No. 1. and No. 2, we
have some concrete examples of how to have more transparency in
long-term care.
That is particularly in a lot of our small towns where you
have family owned long-term care facilities. They are showing
how to get information out to families, work with families, and
make sure they know more about their choices.
One last point, Mr. Chairman. As you and I have talked
about, in the Healthy Americans Act, the legislation I have, we
now have 11 United States senators. It is the first bipartisan
universal coverage bill in more than 13 years here in the U.S.
Senate. We have a significant long-term care section in that
legislation, both on the public side and on the private side.
One of the reasons I think your hearings are so helpful,
Mr. Chairman, it is my intent to take the information that you
all get through the leadership in this Committee and to add to
that legislation some of what you have found about how to
promote transparency. Frankly, we have taken some baby steps in
the legislation to get more information out.
But as a result of your good work and these important
hearings, it is my intent to take the information that comes
out of these hearings on long-term care facilities and
transparency, take that information and put it into our
legislation. I think that is one additional way the Senate can
work in a bipartisan way to promote better long-term care
choices for our people.
Mr. Chairman, I thank you. I look forward to working with
you.
The Chairman. Thank you very much, Senator Wyden.
At this time, we will call Kerry Weems to make a statement
to us. Kerry Weems is the CMS Acting Administrator.
Mr. Weems was tapped in September 2007 to take over the
helm of the agency that administers Medicare and Medicaid, as
well as the State children's health insurance program, which
does provide health care services to more than 100 million
Americans. We are very pleased to have Administrator Weems here
today to provide us with an account of CMS initiatives to
enforce existing standards as well as to address the problem of
poor performing nursing homes to which we have referred already
today several times.
So, Mr. Weems, welcome, and thank you for coming. We would
be delighted to hear your statement.
STATEMENT OF KERRY WEEMS, ACTING ADMINISTRATOR, CENTER FOR
MEDICARE AND MEDICAID SERVICES, U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, WASHINGTON, DC
Mr. Weems. Mr. Chairman, good afternoon. Thank you for
holding this hearing. Senator Smith, other distinguished
members of the panel, it is my pleasure to be here today to
discuss the Centers for Medicare and Medicaid Services'
initiatives to promote and improve nursing home quality.
Roughly 1.5 million Americans reside in the nation's 16,400
nursing homes on any given day. More than 3 million rely on
services provided by a nursing home during any point in the
year. These individuals and an even larger number of their
family members and friends must be able to count on nursing
homes to provide reliable care and consistently high quality.
Charged with overseeing the Medicare and Medicaid programs,
whose enrolled populations comprise the vast majority of
nursing homes, CMS takes nursing home quality very seriously.
Our efforts in this area are broad, including initiatives to
enhance consumer awareness and transparency as well as rigorous
surveying and enforcement processes focused on safety and
quality.
As Acting Administrator of CMS, nursing home quality is a
professional priority, but also a personal cause. My mother-in-
law was a nursing home resident who suffered from Alzheimer's
disease and was bedridden. During the time that my nomination
to this position was under consideration in my household, my
wife, Jean, went to this nursing home to visit her mother and
noticed a large bruise over her mother's eye.
If this wasn't upsetting enough, the staff wasn't able to
tell her what happened. This is exactly the kind of situation
that CMS' safety and quality initiatives are intended to
prevent.
When Jean returned from the visit with her mother, she told
me that I could accept the nomination to be the next CMS
administrator, that if I was going to do that, I needed to make
quality nursing home care a priority. So advancing nursing home
quality is not only a condition of my employment, you see, it
is also the condition of a harmonious marriage.
Now, if I could bring your attention to the chart on
display-and you also have the materials in front of you-I am
prepared to lay out a set of milestones for further improvement
in nursing home care. We talk about accountability in
government. This is our plan.
The only caveat that I would add is as CMS administrator, I
am not the sole decisionmaker on these. These are our
aspirational goals. This is where we would like to find
ourselves over the next year.
Senator Grassley mentioned our participation in Advancing
Excellence in America's Nursing Homes campaign. That will
continue.
The next item. By December 1 of this year, we will post on
the CMS nursing home compare Web site the names of the special
focus facilities. I will discuss that in greater detail in a
moment.
In early 2008, we plan to expand the quality indicator
survey pilot to a sixth-State. The program is currently testing
ways to improve the traditional survey process in Florida,
Connecticut, Kansas, Louisiana and Ohio. We are seeing
promising results.
The survey employs methodological data analysis and
technology to better focus surveyors on probable areas of
concern. Data collected from a particular facility are used to
derive quality of care indicators, which can be then compared
to national norms that will help guide our surveyors'
assessments.
In spring of 2008 CMS hopes to issue a solicitation to
begin the process of inviting states and nursing homes to
participate in a value-based purchasing demonstration. The
program would adjust payment in a manner that recognizes the
quality improvement in nursing home quality, thus stepping up
incentives for high-quality care, which is, in the end, what we
care about, high-quality care.
In April CMS plans to co-sponsor a national symposium to
examine and support culture change in the nursing home
community. This culture change will move nursing homes to a
more person-centered approach, an environment that respects
individuals, and inspects nursing home quality at all levels,
staff management and ownership. Some of this is very simple
things such as teaching the aids to knock on the door before
they enter, to ask simple permissions, to move the care to a
very patient-centered form of care.
CMS is working on the final evaluation of a 3-year pilot
demonstrating the comprehensive system of criminal and other
background checks for prospective new hires.
I know this is a particular concern of yours, Mr. Chairman.
Our goal is to issue this final report in May 2008. In June
we expect to report on the progress of an ongoing national
campaign to reduce the incidents of pressure ulcers in nursing
homes and reduce the use of restraints. In that same month we
hope to issue guidance to surveyors on infection control and
nutrition in nursing homes. These new guidelines will be the
latest of an ongoing set of CMS efforts to improve consistency
and effectiveness of the survey process.
Senator Grassley mentioned a final CMS regulation on fire
safety protection, which would require all nursing homes to be
fully sprinkled by a defined phase-in period. It is currently
expected to be released in August 2008.
Also, in August, a new CMS contract for quality improvement
organizations will take effect. CMS hopes to build into that a
3-year agenda for the QIOs to begin working with nursing homes
who have poor quality, including the special focus facilities.
In September 2008, CMS will issue a report describing
feasible methodologies for improving the accuracy of staffing
information submitted by nursing homes for posting on the CMS
nursing home compare site. Finally, CMS has stated on the
record previously before this Committee-Senator Grassley
mentioned that as well-that we would envision supporting
legislative efforts to permit the collection and escrow of
deposit for civil monetary penalties as soon as the penalties
are imposed. Our expectation is that such legislation might be
reasonably enacted by the Congress by 2008.
I will now turn to a particular CMS effort that I
understand is of interest to the Committee, the special focus
facility initiative. Facilities we target for special focus
consistently provide poor quality care. Yet oftentimes they
pass isolated surveys by just fixing the number of problems to
enable them to satisfy the survey. They then fail the next
survey, often for many problems that they had ostensibly fixed.
Of course, this in and out or yo-yo compliance does not
address the homes' underlying systematic problems. The special
focus facility program is designed to put an end to fluctuating
compliance. Once a facility is placed on the special focus
program, CMS applies a progressive enforcement until the
nursing home takes one of three paths: graduates from the
program because it has made significant long-lasting
improvements; is terminated from participation in the Medicare
or Medicaid programs; or is given more time because we see
potential for improvement such as the sale of the nursing home
to a new owner with a better track record of providing quality
care.
We are finding that the special focus initiative really
works. Here is one example.
A nursing home in rural South Carolina was a special focus
nursing home that failed to improve during its first 18 months
after selection. As a result, in April 2007 CMS issued a
Medicare notice of termination to the facility. We were
prepared to see the 132 residents located to another facility
that provided better care. We all know the trauma that that
brings with it.
At that point, however, the nursing home operators
evidenced a willingness to implement serious reforms with clear
potential to transform their quality of care. CMS agreed to
extend the termination date on the condition that the nursing
home would enter into a legally binding agreement to adopt
specific quality focus programs. We required a root cause
analysis of their underlying system of care deficiencies, which
was conducted by a QIO selected by CMS but paid for by the
nursing home.
We required an action plan based on the root cause analysis
and also an $850,000 escrow deposit to finance the needed
reforms. Our interventions were successful. The nursing home
passed its subsequent survey, was purchased by another owner,
and is now on track to graduate from the special focus
facility. The nursing home operator is now seeking to replicate
this approach in the other nursing homes that it operates.
In closing, I would stress that CMS' quality and safety
assurance mandates extend to every nursing home in the Nation,
large, small, public or private. Regardless of setting or
ownership, quality care for Medicare and Medicaid beneficiaries
is of utmost importance to CMS.
To that end, I hope the milestones I have shared with you
demonstrate our tireless work to quality at CMS. Thank you. I
would be pleased to answer any questions you might have.
The Chairman. Thank you, Mr. Weems. The special focus
facility program-you have, I understand, compiled the list of
facilities that will likely appear on that program?
Mr. Weems. We currently have 62 facilities, the names of
which we will be prepared to put on the Web site on or before
December the 1st.
The Chairman. That interim period is for what reason?
Mr. Weems. Senator, we want to make sure that we have
notified the facilities and the facilities have had an
opportunity to talk to their staff, talk to the residents, talk
to the family of the residents so they understand the nature of
the action being taken. One of the things that we want to make
sure that we do is make clear the three possible paths, that by
being in a special focus facility it is possible to improve.
But termination is also possible. We don't want to induce panic
among the residents or among the staff.
The Chairman. In terms of improving the quality of these
facilities, are you optimistic that this kind of a program will
be serious enough to really make a marked difference in a
relatively short period of time? Because of the nature of the
sanctions and the awareness that children will have about their
parents being in a facility that is not performing up to
standard, are you optimistic that this over a reasonable period
of time will result in a marked improvement as well as a big-
time reduction in the number of facilities on this program?
Mr. Weems. Well, Senator, it certainly will produce a
result for those facilities that are in the program. They are
going to go down one of those three paths that we have
mentioned. Also disclosing these facilities and giving people a
good understanding about what they mean, I think, also provides
the right kind of incentives to improve quality system-wide.
The Chairman. Thank you.
Senator Smith.
Senator Smith. Mr. Chairman, thank you.
Mr. Kerry, thank you for being here.
Mr. Weems. Good to see you, sir.
Senator Smith. I recognize that this is probably your last
appearance before this Committee for the balance of this year.
With the chairman's indulgence, I need to ask you to answer a
couple of questions about two topics that we have had hearings
on in this Committee, in no way to take away from the
importance of the questions being asked or this topic. But they
affect seniors, and they affect people in nursing homes.
I need some answers from CMS that I fear I am not getting.
It first relates to the 1-800-Medicare call centers.
Mr. Weems. Yes, sir.
Senator Smith. In anticipation of your appearance here
today, I had my staff make 15 calls to these centers this past
week. They asked very basic questions that should have a
quality control so that there are very easy and accurate
answers given.
Like what is the difference between Medicare Part D and
Medicare Advantage. Pretty basic. What are the enrollment
periods for these plans? Pretty important. Can a beneficiary
switch plans after enrollment if they aren't satisfied with
their plan? They were given false information repeatedly.
Under what circumstances is the late enrollment penalty
assessed? Again, very divergent kinds of answers.
I guess my point in raising this is I think you need some
quality control at 1-800-Medicare. I am hoping that you can
tell me what you are going to do about it.
Mr. Weems. Well, Senator, I certainly will look into it.
Those are basic questions that----
Senator Smith. Ought to have real scripted answers.
Mr. Weems. We audit answers given. We do have quality
control processes in place. Obviously if you and your staff are
getting these kinds of answers, those aren't adequate. So let
me try to make them so.
Senator Smith. There were 15 calls in the past week, and
the answers were all over the board. They were often
inaccurate.
Mr. Weems. Well, that is not acceptable, Senator.
Senator Smith. Second, another hearing we had was on the
validity of genetic testing. Here is a Wall Street Journal
article last week talking about genetic testing. Is there a
heart attack in your future? Genetic tests promise to map your
personal health risks. But some question usefulness.
CMS has spent 6 years trying to write guidelines for this.
They have just abandoned it. This field is proliferating.
It's usefulness is clearly in question. So I would like to
know what you will do since CMS is apparently walking away from
a felt need--I mean, an obvious need if the Wall Street Journal
is questioning it and other publications as well--what CMS is
going to do to re-pick up the ball and try to put forward some
guidelines so that the questions as to validity can be assured.
Because a lot of seniors are getting this stuff, often scaring
them to death and often without any medical validity at all.
Mr. Weems. Well, Senator, first of all, this was brought to
my attention just before this hearing so I will respond in
writing and with clarity as to what our plans are. The FDA, of
course, has responsibility for the initial approval of such
tests. Then CMS would work with them under the Clinical
Laboratory Improvements Act. But exactly what actions we have
taken in the past and our current trajectory I will provide you
in writing.
Senator Smith. Well, I appreciate it. It is a national
issue. It is a legitimate concern of this Committee and I think
many of the Senators on this panel.
I don't think we are meeting our public responsibility if
this field is growing. Whether it is snake oil or not, it is
attracting a lot of money.
I am not saying it is, but I am saying it may be. To make
sure it isn't, there ought to be some Federal standard at which
people can have confidence that it is being met so that people
aren't just being scammed.
Thank you, Mr. Chairman.
The Chairman. Thank you so much.
Senator Craig, then Senator Casey, then Senator Wyden, and
then Senator Salazar.
Senator Craig. Mr. Chairman, again thank you.
Mr. Weems, thank you for being with us. Your testimony is
appreciated.
In my opening comments I talked about information and its
value. How much of the information on nursing home compare is-I
should say much of it-is vague about what deficiencies actually
mean for the patient. At least that is certainly my
interpretation of it. Are there any initiatives underway to
make the language easier for the average individual to read and
actually understand what the practical affects of the
information are on the patient?
Mr. Weems. The Web site itself has been run through several
focus groups to make sure that that information is more
understandable. We work with focus groups to continue to
improve to try and make it as understandable as possible.
There is a lot of information on the Web site. For each
quality indicator that there is given, there is an explanation
of what that means. We do strive to make it as user-friendly as
possible.
Senator Craig. Do you have any idea how many people utilize
nursing home compare?
Mr. Weems. Senator, we measure it in page reads. Last year
we had about 12 million page reads, which is a significant
number. Actually, up until the Part D program, it was our most
visited Web site.
Senator Craig. That is good. What kind of outreach have you
done or are you continuing to do as it relates to making more
people aware of nursing home compare?
Mr. Weems. Well, we work with a number of partners at the
local level as somebody is being essentially moved into a
nursing home so that they know that that potential exists. We
push it at the-you know, through our national site. There are
also education efforts that go with physicians and discharge
nurses who can help in education efforts.
Senator Craig. In your testimony you talked about
improvements in a nursing home in South Carolina that was about
to be shut down. Could some of these tough measures that were
implemented in that situation, such as a root cause analysis of
the problem at the facility, been tried earlier in the process
when the facility was failing?
Mr. Weems. Senator, the method that we take with the
special focus facilities is progressive enforcement. So when
they first enter, we begin with some enforcement efforts. Those
enforcement efforts get more progressive as the facility fails
to improve.
This ``last chance'' systems change that we announced
really is sort of the end of the road. Either the facility is
going to improve, or they are going to be terminated.
The thing about the special focus facilities and this sort
of ``last chance'' program is it is highly resource-intensive.
So working out individual agreements with the nursing home the
way that that one was worked out is very, very resource-
intensive. So we try and spread our resources through
progressive enforcement.
Senator Craig. OK. Thank you very much, Mr. Weems.
Mr. Weems. Certainly.
Senator Craig. Mr. Chairman, thank you.
The Chairman. Thank you, Senator Craig.
Senator Casey.
Senator Casey. Thank you, Mr. Chairman.
Mr. Weems, we appreciate your testimony, but, of course,
even more so your service. It is important work you are doing.
I appreciate you sharing your own personal story.
I have a couple of questions that center on staffing. But I
wanted to first of all talk about the issue that a number of us
have mentioned and I think is on the minds of a lot of people
because of the public coverage of this, the New York Times. I
cited the SEIU report.
Mr. Chairman, I guess I would ask unanimous consent that
this SEIU report, ``Equity and Inequity: How Private Equity
Buyouts Hurt Nursing Home Residents,'' be made part of the
record of the hearing.
The Chairman. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T1836.001
[GRAPHIC] [TIFF OMITTED] T1836.002
[GRAPHIC] [TIFF OMITTED] T1836.003
Senator Casey. Just, I guess, on two levels. One is how you
would compare what you set forth in your testimony where you
say that, starting on page five under the heading of nursing
home ownership-and then on page six, you say, ``CMS has
developed a new system called the provider enrollment chain and
ownership system, known by the acronym PECOS. This new system
is designed to track and maintain information regarding
entities that own 5 percent or more of a nursing home to ensure
only eligible providers and suppliers are enrolled and maintain
enrollment in the Medicare program.'' Then it goes on from
there. Your testimony talks about the function of this
application process, gathering information about the provider,
whether that provider meets State licensing qualifications,
where it practices or renders its services, the identity of the
owner, going on from there.
The concern that I think a lot of us have is that this
initiative, your initiative might be just getting up and
running. That is one concern I have. I would like to have you
address that.
Second, whether or not the concerns that have been
expressed already about the impact of this kind of ownership,
whether those concerns about the ownership and how it has led
to some really questionable ownership practices that lead to a
diminution in the quality of care. So if you could just do a
comparison here. Then if you can amplify that in a written
record after the hearing, we would appreciate that as part of
the record.
Mr. Weems. I would be happy to do that, Senator. The system
that you mentioned, the PECOS system, is gathering information
about ownership and fractional ownership of nursing homes. That
data base right now is about 60 percent complete. We continue
to gather that information.
Once complete, we will be able to perform the kinds of
analysis that you allude to as to whether or not type of
ownership affects quality of care. But we are not in a position
to reach that conclusion just yet, sir.
Senator Casey. I would ask you as you are developing this
system to keep in mind these reports. I am just reading from
the summary of the SEIU report. But here is what it says in
part talking about two different chains.
I quote--this is from the executive summary. ``We see
increases in the number of resident care deficiencies along
with a trend toward restructuring that, in effect, No. 1,
limits liability; No. 2, minimizes tax responsibilities; and
No. 3, makes it difficult for the public,'' as Senator Wyden
was alluding to, ``to determine how effectively Medicare and
Medicaid dollars are spent and the care that is a part of
that.''
I would ask you to take a look at this report and other
reports that are on the public record and compare that to how
you are gathering this information. I think that is going to be
critically important.
I would also want to ask you about--one idea that has been
floated is to have a surety bond requirement that is
proportional to the number of beds in the facility. Do you
consider that kind of requirement or anything else-any other
hurdles or hoops through which a firm, an entity or a person
has to go through before they would be allowed to make that
kind of a purchase?
Mr. Weems. Let me begin with the comment on the first part.
First of all, CMS has the ability to enforce civil monetary
penalties, to not provide reimbursement for new admissions or
to terminate somebody from the program, regardless of how they
are owned. So that kind of ownership we still have the ability
to enforce good quality in those areas.
So we will need to see if ownership affects quality. We
have not reached that conclusion yet. But nonetheless, we
believe that we still have the ability to take actions against
bad quality.
Senator Casey. I am out of time. But just a quick answer to
the question on a surety bond.
Mr. Weems. With respect to surety bonds, we are looking at
it. We think our survey techniques, especially a survey that
happens when a sale happens, are probably sufficient. We do
worry about surety bonds in this and other arenas where they
might limit access.
Senator Casey. Thank you.
The Chairman. Thank you, Senator Casey.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Mr. Weems, one, let me thank you for that kind note about
the Wyden twins. It was gracious of you to acknowledge their
arrival. Let me pick up just on one last question on the very
good points that Senator Casey was making.
The issue with the change, of course, is about hidden
ownership.
Mr. Weems. Yes.
Senator Wyden. I am not clear. Can the government now
identify all the nursing homes throughout the country owned by
one corporate entity?
Mr. Weems. Probably not is the answer. We know nursing
homes by the provider agreement that we have with them,
especially as there is fractional ownership we have difficulty
telling that. The PECOS system that Senator Casey alluded to
that we are building will give us the ability to determine who
owns a facility down to the fraction of 5 percent.
Senator Wyden. So it is not possible to have the
information today, but essentially information about hidden
ownership is going to be made available and brought to light
under your project essentially down to these small fractions?
Mr. Weems. Yes, sir.
Senator Wyden. When will that be available?
Mr. Weems. At our current pace, that would be 2009 to have
a completely populated database.
Senator Wyden. OK. One question with respect to the
information that is being made available to consumers. We have
been trying to go through some of that. I am looking at a page
involving a facility in Illinois, Hillcrest Home. There is a
long section that has involved a variety of things.
I am looking at a category called vertical openings
deficiencies. This says something about exit doors and the
like. Have you all brought together consumers and families to
have them involved in looking at whether this kind of
information is useful to them?
Mr. Weems. We have brought together focus groups in that
regard. We still need to improve the way that that information
is useful. We need to, first of all, make sure that the
information that we are providing is useful in making a
decision. Then second, we need to make sure that it is
understandable.
But I would also tell the panel that there really is no
substitution for visiting a nursing home when making that
decision, that it is absolutely critical that a visit occur. On
the CMS Web site you can get actually a fairly simple checklist
of when you go to a nursing home what you should look for that
might help ask the right questions in that visit.
Senator Wyden. Let me ask just one last question. Again, it
sort of speaks to the way decisions get made in the real world.
A lot of older adults and their families have to make quick
decisions about nursing home placement typically while you have
a senior in the hospital. At that point, the discharge planner
plays a very important role with respect to getting out
information about the quality of facilities. What are you all
doing to get the discharge planners involved in this quality
area?
Mr. Weems. We work with the discharge planners to make sure
that they are aware of the choices in the area. But we also
want to make sure that the families are involved in that
decision as well.
Senator Wyden. It just seems to me that if the families are
going to get timely information-and I share your view about how
important they are-it is the discharge planner who, in a lot of
instances-is going to lay that information out. In other words,
in a typical instance, you are not going to have a family in a
position to run to a Web site and crank up their laptop and
look at the information.
They are going to ask that discharge planner to help them
with the choices. I hope you all will be more aggressive in
reaching out to them because I think that, in the real world,
is the way a lot of these decisions get made. I look forward to
working with you and also on the Finance Committee as well.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Wyden.
Senator Salazar.
Senator Salazar. Thank you very much, Chairman Kohl. Hello?
Thank you very much, Chairman Kohl.
I have to leave to go preside, but I wanted to just make a
quick statement. First of all, I would ask unanimous consent
that my full statement be made a part of the record.
The Chairman. Without objection.
Senator Salazar. Let me also say, Chairman Kohl and Senator
Smith and the members of this Committee, I think that for all
of us there is no doubt that we have been through the
experiences of both the joys and the heartaches and the
realities of nursing homes with loved ones as we have visited
these places. I know I have often been in those places in my
State of Colorado.
At the end of the day, what concerns us, what concerns me,
what concerns all of us is that the consumer of the service at
the nursing home is getting the best quality care possible.
Certainly, during my days as attorney general there were times
when we had to prosecute those who were in charge of nursing
homes because of the abatament which had occurred in those
nursing homes with patients where we actually had to go in in
several occasions and file criminal charges against nursing
homes.
We hope that that is, in fact, the exception and not the
rule and that indeed the enforcement powers of both the Federal
Government shared with State Government as well as the self-
regulation that occurs with some parts of the nursing home
industry results in the desired end, the desired end being that
our loved ones, our elderly population in this Nation are taken
care of in these facilities.
So I very much appreciate the fact that you decided to hold
a hearing on this very important issue. I do believe that in a
major way, just like the issues of Social Security and Medicare
will continue to be huge issues for us here in Washington, here
in the Congress, that the aspect that deals with nursing homes
and long-term care will continue to be a huge issue. I
appreciate your interest and your leadership on this issue.
I will make just a comment about the private equity issue
and the ownership matter, which has been discussed already, I
am sure, in this Committee. I think Mr. Weems can respond to
some of the questions from other members of the panel.
You know, it is an issue that has been raised with
legitimate concerns. I do think that we need to take a look at
it from the point of view that in the context of trying to
create wealth within a private equity firm that we are not
somehow displacing the quality of service that ought to be
provided to seniors who are being served in these homes. So I
think it is a very important inquiry that has been raised here.
So I thank you very much, Chairman Kohl. I look forward to
working with you on this issue.
The Chairman. Thank you very much, Senator Salazar.
Before we let you go, Mr. Weems, I would like to ask
Senator Lincoln if she would like to say a word or two to CMS
Director Weems, make a statement, ask a couple of questions,
whatever you wish.
Senator Lincoln. Thank you, Senator Casey.
I don't, Mr. Chairman. I just want to thank you so much. I
think this is such a critical issue. As always, you have come
right to the mark in terms of bringing us to the awareness and
bringing up the appropriate individuals in here for us to visit
with.
We appreciate you, Mr. Weems. Thank you.
The Chairman. Mr. Weems, we thank you very much for being
here with us today. I had the opportunity to visit with you
myself. I am very impressed with you as a person of great
capability and ambition and focus.
Obviously you know I am particularly interested in your
special facilities program. I agree with you that making it
transparent and bringing a bright light to shine on those
relatively few, very few facilities who are not getting the job
done will do an awful lot to eliminate the problem or vastly
reduce the problem, if not to eliminate it.
My sense is that it is pretty difficult for a facility to
continue to function if it is on this list. I think you feel
the same way. So, that having this list and being, as I am sure
you will be, very judicious in its use, will tend to vastly
improve the performance of those facilities that are on the
very lowest end of our nursing homes.
So, you know, I think that is really important. I
appreciate your responsiveness to this issue. I wish you well.
I am sure we will be dealing with each other frequently. Thank
you for being with us.
Mr. Weems. Thank you for your comments, sir.
[The prepared statement of Mr. Weems follows:]
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The Chairman. I will call our third and final panel. Our
first witness will be professor David Zimmerman, who is a
distinguished professor of health systems engineering. He is
also the head of the Long-Term Care Institute at the University
of Wisconsin, Madison.
In this capacity, Dr. Zimmerman leads pioneering work to
improve nursing homes that operate under corporate integrity
agreements with the HHS Office of Inspector General. Dr.
Zimmerman has worked with more than 900 nursing homes to
improve the care that they provide.
Next we will hear from Arvid Muller, who is the assistant
director of research for the Service Employees International
Union. For the last 14 years, Mr. Muller has conducted much of
the analytic work underpinning SEIU's positions on nursing home
ownership, reimbursement, and quality issues.
Next we will hear from Steve Biondi, who is vice president
for clinical services at Extendicare Health Services in
Milwaukee. Mr. Biondi is a registered nurse, licensed nursing
home administrator, and has been certified by CMS as a nursing
home surveyor.
He co-chairs the American Health Care Associations Survey
and Regulatory Committee. He also serves on the quality
improvement Committee, which seeks to advance quality
improvements in the use of evidence-based practices.
The fourth witness will be Bonnie Zabel, also a registered
nurse and a nursing home administrator for the last 15 years.
Ms. Zabel runs an exemplary operation at the Marquardt Memorial
Manor facility in Watertown, WI. She is also a member of an
advisory group sponsored by the Wisconsin Association of Homes
and Services for the Aging charged with developing training
materials for facilities throughout the State of Wisconsin.
Our final witness will be Sarah Slocum. For the past four
years, Ms. Slocum has served as Michigan's long-term care
ombudsman. She is the lead advocate on behalf of residents
living in licensed long-term care facilities. As the State
ombudsman, Ms. Slocum oversees a network of paid staff and
volunteers working in every region of Michigan to improve the
quality of life and the quality of care for that State's most
vulnerable citizens.
So we welcome you all here today.
Mr. Zimmerman, we will start with you.
STATEMENT OF DAVID ZIMMERMAN, PROFESSOR AND ACADEMIC DIRECTOR
OF THE COLLEGE OF ENGINEERING, UNIVERSITY OF WISCONSIN,
MADISON, WI
Mr. Zimmerman. Thank you very much, Mr. Chairman and the
other members of the Committee. My name is David Zimmerman. As
the Chairman has said, I am a professor of health systems
engineering and the director of a research center at the
University of Wisconsin, Madison. I am also the president of a
nonprofit organization that was created to assist in the
monitoring of quality of nursing home care in organizations
with Corporate Integrity Agreements with the DHHS Office of the
Inspector General. I have been conducting research in nursing
home quality of care and performance measurement for 25 years.
Our researchers developed the original set of quality
indicators used by all 17,000 nursing homes and 50 State survey
agencies. More recently, the Long Term Care Institute has been
involved in 13 monitoring engagements with national and
regional corporations under OIG corporate integrity agreements
covering more than 1,000 nursing homes and 100,000 nursing home
residents.
Our researchers and monitors have conducted visits to more
than 900 nursing homes in the past 6 years. We have observed or
participated in more than 100 quality improvement meetings,
including more than 30 such sessions at the corporate level of
organizations. I have spoken to at least 15 corporate boards or
board committees and met with individual board members about
quality of care issues.
These activities have given us important insights into the
world of nursing home quality assurance, and they provide the
background for my remarks this afternoon.
There has been increasing attention focused on the quality
of nursing home care, most recently because of the rise in the
number of ownership transactions between nursing home
corporations, and the tendency for these transactions to
involve a transfer of ownership from a public corporation to
entities commonly referred to as private equity firms. At the
heart of this debate and scrutiny over this particular
phenomenon, I believe that the single most important issue that
we need to face, and soon, is the issue of transparency.
I have five suggestions for how we should proceed with
respect to progress on that problem. My first suggestion is
that there should complete transparency on full ownership of
every nursing home, including both the operating entity and the
landlord.
The Federal Government, which spends billions of dollars on
nursing home care every year, should have the right to know the
complete ownership structure of every nursing home
participating in the Medicare and Medicaid program no matter
which or what type of entity owns them.
The complete ownership structure of all entities involved
in the provision and administration of resident care should be
fully reported to CMS as a matter and a condition of
participation in the Medicare and Medicaid program.
The ownership reporting responsibility should be that of
the provider organization. That is, it should not be the
function or the responsibility of the Federal Government to
ferret out the information on who owns what and which entity is
providing what part of the care to residents.
The principle of transparency should apply no matter what
level of complexity in the labyrinth of organizational
structures exists. In fact, the more complex the web, the
greater the need for the more detailed transparency that I am
calling for. The greater the complexity, the more reasonable it
is that those who have created the complexity should have the
responsibility for explaining it in very detailed terms to the
Federal Government.
My second suggestion is that staffing information for every
nursing home should be reported in a standardized format to the
Federal Government. In other words, there should be
transparency on the staffing in nursing homes so the purchaser
of care can know the labor resources that are being devoted to
this task. Nursing home care is what we call a high-touch
industry. The labor resources need to be known.
This information should be based on payroll data, which
exists in accessible form for virtually every nursing home in
this country. The technological means exist to achieve this
goal. We have been in enough nursing homes that I can make that
statement with absolute confidence.
Reasonable people representing all stakeholders can make
sound decisions about how to structure the definitions into a
common taxonomy for the purpose of reporting. Acuity-based
staffing in this industry, frankly, is far more crowed about
than practiced; but to the extent that it is necessary to make
adjustments for acuity of residents, this can be done.
My third suggestion is that there needs to be greater
ability to expand the scope of observation and analysis from
individual facilities to nursing home corporations and
networks. In many situations, it is the corporate entity's
policies and procedures that govern the system of resident care
in the facility. In some cases, these corporate policies and
procedures are not adequate to provide proper governance to the
delivery of that care. Yet in many other cases, the problem at
the facility and resident care levels is that reasonable
corporate policies and procedures are not being executed
consistently across facilities in their own networks. A
stronger focus on this level of management would be a very
efficient way to improve care systematically across an
organization, as opposed to one facility at a time.
Yet currently there is virtually no way that a State
regulatory agency can expand its scope across State lines. CMS
does have greater authority to expand the scope to a more
systematic examination of multi-facility networks, even to some
extent across State lines, but much more could be done to
utilize the available information in an aggregated fashion to
focus on regional and even national nursing home networks.
Our center produces monthly reports on survey deficiencies
comparing the largest national corporations and provides them
to the OIG and to each specific corporation that is covered by
a corporate integrity agreement. I have provided de-identified
examples of these types of reports with this testimony.
We provide similar information on the MDS quality
indicators and quality measures to the same parties on a
quarterly basis. This information can and should be provided on
all national and regional corporations on a routine basis.
My fourth suggestion is that there needs to be greater use
of intermediate corrective measures, as several speakers have
talked about earlier. There have been calls for broader and
more innovative ways to incentivize, exhort, and pressure
providers into taking better and more systematic corrective
actions to improve care and sustain that higher care level.
Care problems need to be identified earlier and addressed in
meaningful ways more promptly and with more ingenuity and
commitment.
There needs to be increased scrutiny on providers at both
the facility and corporate network level who have not
demonstrated the ability to adequately self-identify a problem
and fix it and then keep it fixed.
One measure that has demonstrated success in both process
and outcomes is the use of monitors to provide additional
scrutiny on the care provided in problematic facilities, as
well as the systems put in place to correctly identify problems
and sustain that fix, including systems that actually have
their origin in the corporation itself as opposed to just the
facility.
Our previously mentioned work with several national
corporations has provided a number of insights into barriers to
and facilitators of quality improvement efforts. Monitoring can
correctly place the focus on the systems of care that need to
be implemented consistently across every facility, every shift,
and every bedside. It is the systems more than it is the
leaders that, in fact, really deliver good quality care.
Providers sometimes place too much reliance on finding
leaders and then do not provide those individuals with the kind
of support they need to be able to do their jobs. When there is
a failure of care, there leaders are the ones who typically are
the scapegoats. I call that concept the ``awesome goat''
phenomenon.
The monitoring process can also promote and expand the
concept of transparency described earlier. Facilities and
organizations that have demonstrated problems in providing
quality care should be the focus of additional scruting with
the transparency that monitors can provide to determine the
providers capability to improve their systems.
My final solution is that I think we absolutely have to
increase the focus on the landlord as well as the licensed
operator in nursing homes. Currently, the entity owning the
actual physical asset of the nursing home, what is typically
referred to as the bricks and mortar, has virtually no
responsibility or accountability for the adequacy of the care
provided at that facility. Yet we have seen cases, many of them
in our monitoring work, in which actions or inactions of the
landlord have had deleterious and sometimes direct effects on
the quality of care in the facility.
There are sometimes restrictive clauses in the lease
agreements that effectively prohibit the licensed operator from
making needed upgrades or renovations consistent with evidence-
based care practices. Other restrictive lease practices might
make the implementation of physical or structural changes so
onerous financially that it becomes prohibitive for the
licensed operator to even consider such changes, especially
under some of the new lease agreements that we see. Frankly,
those lease agreements in some cases are the most important
single document in the practice of care in the facility and
create major constraints on the ability to adequately deliver
care.
Holding the landlord to the identical certification and
licensing requirements as the operator may not be feasible. But
consideration should be given to making sure that these lease
provisions are transparent, along with other aspects of
ownership, and we should find a way to ensure that if lease
agreements stand in the way of corrective actions there is a
way to deal with these situations.
All the solutions that I have proposed have to do, in some
way, with increasing the transparency of information about who
provides care and who owns whatever entity or entities
responsible for the decisions pertaining to that care.
Transparency is essential to the continued delivery of nursing
home care through existing private and public markets.
With full transparency, of ownership so we know who is and
should be accountable, and transparency on staffing, so we will
know who is providing care, we can examine the outcomes as they
are produced through the survey process and resident level
status measures. Facilities and organizations demonstrating
their ability to deliver adequate care can continue on with
this critical task, and with our appreciation. Facilities and
organizations that have demonstrated an inability to deliver
adequate care should expect to see additional scrutiny and even
greater transparency requirements, including outside monitors
to assure that they can earn our trust to provide care and
protect the health and safety of our most vulnerable
population. Thank you very much.
[The prepared statement of Professor Zimmerman follows:]
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The Chairman. Thank you very much, Professor Zimmerman.
Mr. Muller I would like to request that you all hold your
statements to the 5 minutes when the red button appears.
Mr. Muller. OK.
The Chairman. Go ahead.
STATEMENT OF ARVID MULLER, DIRECTOR OF RESEARCH, SERVICE
EMPLOYEES INTERNATIONAL UNION, WASHINGTON, DC
Mr. Muller. Chairman Kohl and other distinguished members
of the Committee, thank you for giving me the opportunity to
appear before you today. I am the assistant director of
research for SEIU, which represents almost 1 million health
care workers, including more than 150,000 nursing home workers.
SEIU appreciates Chairman Kohl's commitment to improving
the quality of care in nursing homes. We also want to
acknowledge Senator Grassley's long-time leadership on these
issues. We look forward to continuing our work with both
senators on this issue.
Twenty years after Congress passed landmark nursing home
reform legislation, SEIU remains concerned that there are
serious problems with quality of care across the industry. We
fear the current enforcement system is simply not working. It
is also difficult for families and residents to get the
information they need because the industry still lacks
transparency.
SEIU analyzed OSCAR deficiency data from CMS. It is
unfortunate that any way you cut the data the analysis shows
that nursing homes have far too many quality problems. In fact,
our research indicates care appears to be getting even worse.
In our analysis we do not include life safety code
violations, nor do we include complaint violations. So the
total number of problems found by State inspectors in any given
year was actually worse than our numbers indicate.
By compiling all the deficiencies from annual inspections
for the years 2004 through 2006, we were able to determine if
the number of violations per inspection increased or decreased
from year to year. Unfortunately the trends we found were quite
disturbing. Overall the number of violations per inspection
increased each year for a total increase of 13.8 percent from
2004 to 2006.
The next analysis we did was to look at the severity of the
violations. Violations of resident care, otherwise known as
deficiencies, have four levels of severity: deficiencies with
potential for minimal harm, deficiencies with potential for
actual harm, deficiencies that cause actual harm, and finally,
the most serious deficiencies, those that cause immediate
jeopardy.
When we looked at the same data sets and broke down the
violations by severity, we found that while the least serious
violations decreased during this time, the more serious
violations increased. Violations that had only potential for
minimal harm decreased from 2004 to 2006 by almost 10 percent.
However, violations that had potential for actual harm
increased by 17.8 percent. Violations that were found to have
caused actual harm increased by an even greater 19.5 percent.
Since the average number of violations per facility is
between six and seven during this period, we also looked to see
whether there was an increase in the number of facilities that
had significantly more violations. For this analysis, we looked
at all the facilities that had 10 or more violations during a
single inspection in any given year.
We discovered an increase in the number of facilities that
got cited by State inspectors for at least 10 violations from
20.9 percent in 2004 to 26 percent in 2006. This means that
more than one out of every four facilities inspected in 2006
had 10 or more violations of minimum Federal resident care
standards.
In addition, as has been mentioned here today, a new breed
of nursing home operator, private equity, has entered the
nursing home markets;. and for the companies we analyzed, this
had a clearly negative effect on care.
Private equity firms take on a lot of debt, have ownership
structures that are particularly complex and a business model
that is based on buying and selling businesses within a
relatively short period of time. This private equity model
lacks transparency and accountability and may be exacerbating
the care problems we find in the overall industry.
In our analysis of deficiency data, we released a new
report today in which we compared the number of violations per
inspection from just before they got bought by private equity
to their most recent inspection. In the case of the private
equity buyout of Mariner Health Care in December 2004, we found
that since the buyout the total number of Mariner Home
violations increased by 29.4 percent, more than double the
increase of the non-Mariner facilities in those same states.
Moreover, actual harm violations for the Mariner Home
increased by an incredible 66.7 percent, while the other homes
in these states saw an increase of just 1.5 percent. During
their most recent inspections, over 43 percent of Mariner
facilities were cited by State inspectors for 10 or more
violations compared to only 25 percent before the sale.
Most importantly, we must remember that each of these
statistics reflect a fragile nursing home resident whose needs
are not met or who is or who could be injured because of the
nursing home's poor performance. We owe it to our seniors to do
better.
The bottom line is that reform is needed to improve
transparency and enforcement throughout the industry. CMS must
improve the efficiency of the enforcement system in ways that
will catch the homes that need to make improvements. They need
to do so earlier in the process than many do now before fragile
nursing home residents are injured. Furthermore, given the
increase in the number of homes cited for 10 or more
violations, it is imperative to focus more attention on homes
that are chronic poor performers.
We are encouraged that the Chairman and Senator Grassley
are considering legislation to address these concerns, and we
urge you to consider the following policy changes: increase the
transparency and accountability of corporate ownership, require
full disclosure to the CMS of all affiliated entities with a
direct or indirect financial interest in the facility and their
parent company, amend the provider agreement to require that
providers deposit assets in a bond, require CMS to certify the
provider agreements annually, and, require CMS to post
enforcement actions against facilities.
In order to promote improved staffing, we urge you to
require CMS to collect electronically submitted data from
facility payroll records and temporary agency contracts on a
quarterly basis. We would ask you to require that information
on cost reports for Medicare be reported based on five cost
centers: direct care nursing services, other direct care
services, indirect care, capital costs, and administrative
costs. Finally, we ask that you require CMS to conduct audits
of nursing staff data reports and cost reports at least every 3
years.
Taxpayers trust that Medicare and Medicaid dollars will go
toward providing seniors and the disabled with the quality care
they deserve. I thank you for inviting me here today to testify
about SEIU's concerns about the quality of care in nursing
homes today.
The Chairman. Thank you, Mr. Muller.
[The prepared statement of Mr. Muller follows:]
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Mr. Biondi.
STATEMENT OF STEVE BIONDI, VICE PRESIDENT OF EXTENDICARE,
MILWAUKEE, WI; ON BEHALF OF THE AMERICAN HEALTH CARE
ASSOCIATION
Mr. Biondi. Thank you, Chairman Kohl and members of the
Committee. I am pleased to be here representing the American
Health Care Association and the nursing home profession. My
name is Steve Biondi. I have been an ombudsman, a State
regulator of health care, a health facility operator, and a
consumer who has had a family member cared for in a nursing
home. By profession I am a licensed nursing home administrator
and a registered nurse and have worked in acute care, long-term
care, and home care.
First I want to thank you, Chairman Kohl, for your
leadership in this important Committee and for introducing the
Patient Safety and Abuse Prevention Act, which the AHCA
supports. I also want to acknowledge Senator Grassley's
longstanding commitment to issues of aging and the millions of
Americans our profession cares for each and every day. I also
commend the other members of this Committee, especially
Senators Smith, Lincoln, and Collins who have put forth some of
the most important regulatory reform concepts of the past 20
years.
Their Long-Term Care Quality and Modernization Act takes an
important step toward broadening the culture of cooperation
among long-term care stakeholders and benefits the patients and
families we all serve. My comments build on testimony of my
colleague, Mary Ousley offered to this Committee about the
refinements of OBRA 1987 that are still needed to support the
vision of patient-centered care.
What was undeniable 20 years ago, is undeniable today and
will be undeniable 20 years from now is the unbreakable link
between stable funding and quality and the critical need for
well-qualified staff who deliver quality care each and every
day. We are proud of the progress we have made and the
transparency we have around improving quality.
Our latest initiative is advancing excellence in America's
nursing homes. It is a voluntary program co-founded by the
American Health Care Association and a coalition of providers,
caregivers, researchers, government agencies, workers, and
consumers. Advancing excellence focuses on specific measurable
clinical quality and organizational goals. The resources for
providers include best practices and are all evidence-based.
Perhaps the most unique feature of this campaign is how it
encourages greater partnership among the stakeholders, both
nationally and at the State level to improve care and services.
Our profession is also focusing on consumer satisfaction.
Consumers, including patients and families, are being asked how
they judge our services and whether they would recommend them
to a friend.
A very high percentage are truly pleased. Providers use
these independent satisfaction surveys to improve the patient
quality, quality of care and quality of life. My own company
uses these consumer feedback mechanisms to make changes within
our facility operations.
These kinds of focused efforts have improved quality and
clinical outcomes. CMS OSCAR data shows a positive trend in the
quality measures posting on nursing home compare with
improvements in key areas for short-term and long-term stay
patients and residents in pain, restraints and pressure ulcers.
I think it is important to expand the concept of
transparency beyond just facilities to include the survey and
enforcement process itself. We have been working with CMS for
more than a year with some success trying to better understand
its special focus facility program. We still need clarity
around the formula that CMS uses to identify those facilities
and the successful strategies that more than 60 facilities thus
far have used to achieve sustained compliance.
Clearly, all of us share a commitment to quality.
Transparency around this program would improve regulatory
compliance and reduce the number of poor performing facilities.
From our perspective the quality improvement organizations
are a valuable external resource for all facilities, even those
that are already doing well in terms of quality. The
commonwealth fund study looking at residents' quality of life
found that QIOs work with nursing homes ``a sound investment
for health care dollars.''
However, when we look at internal resources, our greatest
challenge is attracting, training, and retaining quality long-
term care staff. Today we have nearly 100,000 vacant nursing
positions. We could use your help in addressing the critical
shortage of nurses, which is driven as well by the nurse
educator shortage.
For the consumer, AHCA has an easy to understand Web site
to educate consumers about long-term care. Since beneficiaries
generally look to CMS for guidance in this arena, we have a
number of recommendations on improving nursing home compare in
my written testimony. The main point we want to make is that
nursing home compare does not currently give consumers
understandable information that they can use in truly choosing
a nursing home.
Last, as we look at our survey and enforcement system, what
most people haven't considered is how the survey process
impacts caregivers and nursing homes. The system focuses solely
on operational shortcomings with rare positive acknowledgement
for the quality of services provided. It is important that we
begin to recognize our most valuable resource, the human
capital that work within our facilities and within our
profession.
We personally appreciate your focus on long-term care,
Senator Kohl. AHCA looks forward to working with this Committee
toward our mutual interest of continuing the progress we are
making in improving nursing home quality. Thank you.
[The prepared statement of Mr. Biondi follows:]
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The Chairman. We thank you, Mr. Biondi.
Ms. Zabel.
STATEMENT OF BONNIE ZABEL, ADMINISTRATOR FOR MARQUARDT MEMORIAL
MANOR, INC., WATERTOWN, WI; ON BEHALF OF THE AMERICAN
ASSOCIATION OF HOME SERVICES FOR THE AGING
Ms. Zabel. Thank you. My name is Bonnie Zabel. I am pleased
to be here representing Marquardt Memorial Manor in Watertown,
WI and the American Association of Homes and Services for the
Aging. I am grateful for this opportunity to fulfill my
personal desire to tell you from my heart what I feel is needed
for quality long-term care. This is based upon my 20 plus years
in long-term care.
True quality of care has to include all providers at all
levels of service from acute care to long-term care to assisted
care in the home setting. We all need to provide the same
quality.
Consistency in care is especially important at the time of
admission to the nursing home. Currently hospital discharge
decisions are made with little if any family input or time to
visit or check out a nursing home. Consumers often are stressed
and don't know that they can challenge the hospital's decision.
Often they have neither the time nor the knowledge to make
a good decision. No one says, ``When I grow up, I want to live
in the home,'' and decides in advance where they want to go.
People are in crisis when the decision must be made.
I recently experienced such a crisis with my own father. He
had a joint infection in his knee which required urgent surgery
and I.V. antibiotics. He hasn't gotten out of bed in his first
24 hours in the hospital, even though there were orders to do
so. He happens to be 86 years old.
I informed them that he couldn't urinate without standing.
They put a catheter into his bladder three times that first 24
hours. He urinated blood for 2 days after that.
On his first post-op day, the discharge planner came in and
told us that he needed to go to a nursing home the next day
because he wasn't walking well enough. I told her that he
wasn't going to a nursing home the next day. Her response was
she would be back at 8 a.m. the next day and, yes, he would be
going to a nursing home.
The next day his drain was out, his dressing changed, he
was dressed and ready to go home. Her response, ``What a
difference a day can make.''
In reality if I were not a nurse and administrator, my
father most likely would have been discharged to a nursing
home. I could challenge the hospital decision in a way that
most consumers cannot. Discharge planners too often take the
path of least resistance, which is calling a facility and
getting the resident admitted within an hour or two.
Marquardt Manor was actually reprimanded by our local
hospital for wanting to assess a resident prior to admission
and requiring doctor orders the afternoon before admission so
we could be sure that the resident's needs could be met. Their
rationale, given by a physician and the vice president of
patient services, was, ``People get infections and die and
there are multiple medication errors that can kill in
hospitals. We need to get them out as soon as possible.''
How should the hospital discharge and nursing home
admissions system work? We make sure that our staff knows about
the resident and family and their needs prior to admission. All
supplies and equipment are available.
For the past 10 years, all of our residents have had
private rooms with private baths. A one-day admission process
improves quality and allows the family to personalize the room.
This is not an additional cost to Medicare. Poor transitions
have cost, too.
Families are in crisis when they hear that admission to a
nursing home is needed. If they have time to choose, they don't
know what to look for. Nursing home compare is written in
industry language and only tells consumers about problems in
facilities, not about what to look for in quality.
For example, the site tells you if the home has a separate
dementia unit, but the availability of dementia units doesn't
necessarily mean that the residents receive specialized care.
Questions need to be asked.
How does staffing differ from regular units? How many hours
of activities are provided beyond the regular units? How long
will my mother stay on this unit, until the end of her life,
only while ambulatory, only while continent?
Wisconsin's consumer information report does a much better
job of explaining the survey results for consumers. But it,
too, is limited by its focus on deficiencies and compliance.
However, the CIR also reports on nurse staffing and retention,
which is a very good piece of information.
Consumers should be looking for places that provide person-
directed care. But nursing home compare doesn't give you the
tools to do this or even say that this is an important element
of quality.
Person-directed care is a philosophy, not a building
design, animals, plants or buffet dining. It is about
individuals as people, people who are someone's mother, father,
brother, sister or spouse, people who were teachers, butchers,
farmers, factory workers, business people. Their lives made a
difference in America, and they deserve to be treated with
dignity, caring, and respect.
Finally, I would like to emphasize the importance of
adequate funding, especially for Medicaid. Funding has declined
and continues to decline. There was no Medicaid Title 19
increase in Wisconsin this year, zero. My facility loses $65
per day per Title 19 resident. Sixty-five to 70 percent of my
residents are on Title 19.
Facilities are limiting Title 19 admissions or eliminating
them altogether. I fear the return of the ``poor farm'' of the
1950's. Not funding Title 19 will certainly get us there.
Without adequate financing there cannot be quality. We are
a service industry that requires good staff. I identified that
20 years ago.
I have been proactive and innovative in creating programs
to attain and maintain good staff. Adequate wages and benefits
are a necessity. High standards for performance and adequate
training, equipment, and supplies run a close second. That does
not mean an increase in the time of training. It means adequate
training.
Consistent, caring hands-on managers cannot be overlooked.
Eight years ago I created a gratitude attitude program in my
facility. It has made a big difference in staff quality and
retention. Our workers compensation costs are minimal due to
adequate training, equipment, and oversight. Our staff
retention surpasses most. Our customer relations and
satisfaction are excellent.
We need your help to change our current system of educating
consumers. Consumers need adequate time to make decisions and
good information to base those decisions upon. The system
already has lots of regulations and the means to enforce them.
It is time to focus on getting the word out on quality.
I thank you for this opportunity of a lifetime.
[The prepared statement of Ms. Zabel follows:]
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The Chairman. Thank you, Ms. Zabel.
Ms. Slocum.
STATEMENT OF SARAH SLOCUM, STATE LONG TERM CARE OMBUDSMAN,
OFFICE OF SERVICES TO THE AGING, LANSING, MI
Ms. Slocum. Thank you, Senator Kohl, Senator Smith, and
members of the Committee. I deeply appreciate this important
hearing that you are holding today. Chairman Kohl, the National
Association of State Ombudsman Programs particularly wants to
thank you for your years of work on behalf of nursing home
residents.
Twenty years after the passage of OBRA we see too many
instances of poor quality care and continuing poor performance
by certain providers. Given the vulnerability of residents, we
must ensure the public has access to meaningful information
about ownership, enforcement actions, financial solvency, and
staffing in all nursing facilities.
On ownership, Congress should require CMS to publish
information on the nursing home compare Web site that shows
ownership linkages. It should publish information about
ownership also of other services such as pharmacy, laundry, and
food services. Owners should be required to submit audit
results and financial data to demonstrate fiscal solvency of
all commonly owned entities.
Why is ownership important? Here is one example. During
2005, two nursing facilities in Michigan burned. One resulted
in two resident deaths and partial facility evacuation during
the Easter holiday. The other resulted in two resident deaths
and 60 residents sent to the hospital along with a complete
evacuation in mid-December.
There was no overt connection between these two facilities
such as the same name. It took considerable effort by the
ombudsmen to learn of their common management company. Neither
facility had provided specific training and drills to ensure
that staff knew how and when to use fire extinguishers and fire
doors. Had a connection been apparent, regulators could have
required a review of emergency procedures in all facilities
operated by this management group prior to these terrible
events.
Enforcement-all enforcement actions--should be published by
facility name on the nursing home compare web site. Actions
such as denial of payment for new admissions, civil money
penalties, directed plans of correction, mandatory temporary
management, monitors, terminations, and special focus
facilities should all be clearly listed on the Web site. Plain
English explanations of these terms must be included.
Residents of facilities, their loved ones, and the
community at large should be notified of enforcement action.
For too many residents and families, the termination action is
their first notification of the facility's problem. Information
on enforcement actions would help individuals make informed
decisions in choosing a nursing home and would give residents
and families information about areas that require vigilance in
their home.
The complete text of the survey results, the 2567 form,
should be published on nursing home compare. The descriptive
text found in these reports helps consumers get a better idea
of what violations are cited and what is needed to correct
these problems.
Another essential tool for residents, families, and friends
is a standard complaint form. This type of form helps people by
prompting them to identify and include all basic information
needed to investigate a complaint. Survey and complaint units
must also continue to provide for telephone complaints where
staff assists consumers in reducing the complaint to writing.
On civil money penalties, Federal CMP funds should be
collected without any discount for non-appealed violations. If
the CMP is not correct or is too harsh and the facility appeals
the decision, the appeal process will deal with any reductions
or deletions that are merited. Federal CMP funds should be
returned to the State survey and certification agency for,
first, increased staffing for survey teams and ombudsmen
programs; second, funding to carry out financial viability
audits and reports; and, third, financial restitution to any
individual resident who has suffered harm.
Staffing: Staffing shortages continue to plague residents
and staff at many nursing facilities. A recent revisit survey
at a Michigan facility resulted in a citation for pressure
sores. In the narrative for the citation, there is an interview
with a certified nursing assistant who had not turned a
resident as stated in his care plan. The CNA said, ``I have 14
residents to care for, and 11 residents are total care. It is
very hard to turn people every 2 hours because sometimes we
just can't.'' One resident at this facility was admitted in
December 2006 with no pressure ulcers. By February 2007, he had
a pressure ulcer on his left heel. By September 2007, he had a
maggot infestation and infection that required surgery on his
stage four pressure sore and removal of part of his heel.
Congress should enact safe and clearly enforceable staffing
requirements to ensure no other residents suffer this fate. The
amount and type of nursing staff, RNs, LPNs and CNAs serving
residents in each nursing facility should be posted on nursing
home compare. Substantiated complaints about staffing levels
should also be listed.
Ombudsman access to information: All information about
ownership, enforcement actions, civil money penalties,
staffing, and special focus status must be shared immediately
by State agencies with long-term care ombudsmen. Ombudsmen
serve as a source of counseling and information for consumers
and their families as they consider long-term care options.
When ombudsmen know about sanctions and facility status, they
can increase visits to safeguard residents, and they can help
consumers through the trauma should there be a closure.
Ombudsmen should be consulted in the development of lists
of potential and actual special focus facilities. Data from the
ombudsman program about complaints and issues at facilities
would add a consumer perspective to the decisionmaking process.
There are very serious effects on residents of the
enforcement actions taken. For years ombudsmen in many states
have expressed a need for CMS to hold poorly performing
facilities accountable, to consistently use strong enforcement
action when violations exist, and to enforce all requirements
for quality of care and quality of life. At the same time,
ombudsmen have expressed great concern over the harm suffered
by residents when these same enforcement actions bring about
decertification and closure.
The special focus facilities program has brought these
competing concerns into sharp relief as chronically poor
performing facilities receive additional scrutiny in a
shortened enforcement cycle. On average, five Michigan
facilities, slightly more than one percent of our nursing home
supply, close each year.
During fiscal year 2007, 445 nursing facility residents
were forced to move from their homes because of these closures.
We must take resident welfare very seriously and consider that
at every point in the enforcement process.
Some recommendations about enforcement and closure that I
would like to make in closing here. State survey and
certification agencies must always take control of the
relocation of residents. Voluntary closures result in chaos and
in lack of resident choice too many times.
Specific timelines for each closure must be established by
CMS and the State survey agency. Timelines may vary depending
on the number of residents, the availability of acceptable
options, and the risk of harm to residents who remain at the
facility.
Medicare and Medicaid payments should not be limited to 30
days after the termination date. Thirty days is often not
adequate to choose a better facility or transition to home and
community-based services. A 30-day timeline pushes residents to
move to far away homes or to substandard facilities.
Every day I hear from consumers who are thirsty for
reliable and understandable information. The National
Association of State Ombudsmen Programs stands ready to provide
information on resident experiences and how information can be
made accessible, transparent, and meaningful to consumers.
We are grateful for your determined efforts to inform, to
protect, and to empower each long-term care resident. Thank
you.
[The prepared statement of Ms. Slocum follows:]
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The Chairman. Thank you, Ms. Slocum.
I would like to call now up Senator Bill Nelson who has not
had an opportunity to speak yet.
We would be delighted to recognize you, Senator Nelson.
OPENING STATEMENT OF SENATOR BILL NELSON
Senator Nelson. Thank you, Mr. Chairman.
Thank all of you for your participation on what is an
increasingly going to be an aspect of American life. Naturally
you would expect from my State of Florida that we see a greater
proportion of nursing homes per 1,000 of population. That is
the good fortune that we have in Florida of having so many
people decide to spend their twilight years in Florida, the
land called paradise.
Now, I want to ask you, Mr. Muller. You have come up with
this study here. It is about-well, it is entitled, ``How
Private Equity Buyouts Hurt Nursing Home Resident.'' I am
curious what are the unique concerns with private equity owned
chains? Why single out them as your concern with nursing homes?
Mr. Muller. As I think I mentioned in my testimony, the
private equity model sort of has a couple of things that are
relatively unique about it, specifically that they take on a
lot of debt. They need to make money quickly in order to sell
the nursing home assets again quickly.
While it is true that all nursing homes need to do better,
as our research and the New York Times article have pointed
out, things seem to get even worse when private equity takes
over. As I mentioned in the testimony, with Mariner Homes,
actual harm deficiencies increased by 66.7 percent versus 1.5
percent for the overall industry.
We think Congress must take action to improve transparency
and accountability enforcement for all nursing homes. But
regulations must also keep up with industry trends. Private
equity is one of those new trends that requires new regulation.
Senator Nelson. So what is it about private equity? Would
you state that again?
Mr. Muller. Sure.
Senator Nelson. Without reading it.
Mr. Muller. OK.
Senator Nelson. I want you to just tell me.
Mr. Muller. I think as I said before, with private equity
what makes it different from other type of ownership situations
is that private equity when they buy a nursing home company
takes on a lot of debt. Right? They create a maze of operating
structures. They need to make money very quickly because they
have a relatively short time horizon in which to get in and get
out. Right?
We are concerned that those business imperatives are
incompatible with providing quality care, given what we have
seen at Mariner. Right? Which is a company that was bought by a
private equity firm. The number of increases in violations we
saw there compared to the violations in peer group homes in
those states.
Senator Nelson. How many private equity firms-let me put
the question the other way. How many nursing homes are owned by
private equity firms?
Mr. Muller. That is a very good question and one to which I
don't know the answer. I think it is very hard to figure that
out in part given the maze of ownership and structures, the way
private equity sets themselves up. It is very hard to figure
that out.
I would certainly not want to contradict the gentleman from
CMS who spoke earlier who said he doesn't know. So, I don't
think we know, either.
Senator Nelson. Carlyle, a private equity firm, as you
point out in this document, has announced its intention to buy
Manor Care. What are your concerns about this?
Mr. Muller. Well, Manor Care is one of the largest nursing
home----
Senator Nelson. I don't want you to read your answer. I
want you to talk your answer to me.
Mr. Muller. OK. Manor Care is one of the largest nursing
home companies in the country. So, that is a cause for concern
right there. Second, when we have looked at the history of
Manor Care violations over the last three inspection cycles,
their care deficiencies have increased by about 23 percent
compared to about 14.5 percent for the other homes in the
states they operate.
We are concerned, given the history of private equity and
the trends we have seen in other companies, that the care at
Manor Care will get worse with Carlyle Group coming in.
Senator Nelson. Now, the other side says something
different. In a recent Washington Post article, Manor Care's
general counsel was quoted as saying that they will continue to
control all their assets and it will be a transparent company.
But in your review of the applications that Carlyle filed, can
you tell us does that appear to be true?
Mr. Muller. What we saw in the public filing was that there
was a separation of the operating company from the property
company and different layers of ownership set up between the
ultimate parent corporation and the operating company, that is,
the nursing home, the licensee.
Senator Nelson. Down in my State, the Florida Agency for
Health Care Administration recommends that our State expand its
definition of controlling interest to include all subsidiary
operations. It recommends that this information be kept current
with an online reporting mechanism and, of course, be available
to the public. Do you think these recommendations are enough to
make sure that we know of the transparent ownership of nursing
homes?
Mr. Muller. I have not had a chance to read those
recommendations, so I wouldn't want to categorize them as being
enough or not. But they certainly seem like a step in the right
direction.
Senator Nelson. What would you say would be additional
things that we must require to make sure that we have
transparency?
Mr. Muller. I think some of the things I mentioned in my
testimony about requiring surety bonds to make sure that the
assets of the entire company are available in case the Federal
Government, State regulators or other parties need some form of
redress.
Senator Nelson. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Nelson.
Senator Casey.
Senator Casey. Thank you very much, Mr. Chairman.
I wanted to thank all the witnesses for your testimony and
the obvious expertise that you bring to these issues. Most of
the focus that I wanted to bring to the discussion centers on
staffing. Many of you have not just a lot of experience with
this issue, but a whole list of recommendations, many of which
could be the subject of many more hearings and certainly the
subject of legislation.
But it has been my experience in State Government looking
at this fairly closely as a public official that often in many
places, many facilities it kind of begins and ends with
staffing. You can make determinations very quickly about the
quality of care based upon staffing.
I guess I would ask you to first of all outline-maybe I
will start with you, Ms. Slocum, just to-and some of this is by
way of reiteration of your testimony--but what you think is not
happening now with regard to Federal initiatives, first of all,
with regard to improving staffing in terms of the quality of
the staff and second, with regard to what CMS is not doing in
terms of providing information to consumers, to families before
they make a determination about where to place a loved one.
Because I will tell you, listening to CMS talk about the
information they are providing, I think it is a heck of a lot
better than it was 10 years ago.
But what you and others have outlined here today is we have
still got a long, long, long way to go to provide the kind of
information that people need and especially in the context of
staffing. I guess I want you to comment on both what CMS needs
to be doing better, but also what the Federal Government needs
to do to ensure that we have quality staff.
Ms. Slocum. OK. Thank you for that question. First of all,
I would say I-and I believe my ombudsman colleagues will
applaud CMS continuing to add to and improve all of the data
that is on nursing home compare.
Posting staffing data by particular job types and license
types will actually help consumers have a more specific idea of
how a particular facility is staffed. Using payroll data that
facilities have to submit would also make it more specific.
So CMS is taking some steps. The ombudsmen will continue to
comment to them and provide input about how we think that would
be most useful to consumers. Part of the issue between State
staffing requirements and Federal requirements--for example, in
my State, we have staffing ratios and requirements that were
enacted in 1978. They are extremely low.
It only requires 2.25 hours per day per resident of direct
nursing time. That includes essentially everyone except the
director of nursing--the CNAs, the LPNs and the RNs in the
building. So that has become in Michigan essentially a
meaningless staffing requirement. I have only in my four years,
I think, seen one facility, which was in the process of
closing, fall below that level.
The Federal requirements, despite all the great language
and requirements that are in the OBRA 1987 law and the
subsequent regulations, there is not a specific enforceable
staffing level required. There have been well-respected studies
that show just the average nursing facility needs to staff at
about 4.1 hours of direct care per resident per day just in
order to meet basic needs. That is the average resident mix,
not particularly a super-high acuity population in a facility.
In Michigan, we are running-I believe the current number is
3.8 hours per resident per day on average. So obviously some
facilities are below that, and some are staffing above that.
But given that we have some data and studies about what is
actually needed to provide adequate care, it seems like it is
time, I think, to revisit some of the requirements and that
Congress certainly could take an active role in looking at how
to and what is a reasonable staffing requirement that is
measurable so that we can know do all the facilities meet the
requirement or not.
Senator Casey. I want to ask you-I know I am a little low
on time, but I wanted to ask others. But the focus really that
I am trying to bring to this is the question of what can the
Federal Government do in a strategic way, not just in terms of
setting. As you said, various states do this with regard to the
hours of care. That is obviously very important.
But what can the Federal Government do to better prepare
that person who is the staffer? We heard stories all the time
in Pennsylvania. They would train 10 people for a couple of
weeks, and they would retain two. This whole recruitment and
retention crisis is so central.
Ms. Zabel, if you wanted to comment on that.
Ms. Zabel. I would love to. The only way that we can get
good staff and keep good staff is to treat them like human
beings. That means that we have to develop programs within our
organizations. We have to pay them decent wages.
The starting wage in my facility right now is $13.95, which
is probably the highest in Wisconsin. Believe it or not, we are
in a rural wage scale as far as-a rural wage area as far as the
Medicare program, which lost my facility over $100,000 a year.
But I believe that the 3.8 hours is probably pretty high. That
is not around the average.
In our State of Wisconsin, 2.8 hours are the amount of
hours that our funding--Title 19 reimburses us that. So if you
would make it 4.1, most of our facilities who run a high Title
19 census would not be able to survive. You certainly need to
keep that in mind.
We have plenty of regulations and enforcement. But we have
to look at enabling facilities to treat people well, provide
adequate equipment, adequate supplies. CNAs shouldn't have to
hide diapers in their ceiling for their favorite residents
because the supply comes the first of the month and if it is
gone by the 28th of the month, sorry, you can't have
disposable, good diapers. We have to look at that sort of
thing.
In Wisconsin, our reimbursement situation sets ceilings.
There is a ceiling for administration, ceiling for direct care,
ceiling for the supplementary care. Most of the facilities in
Wisconsin exceed that ceiling as far as reimbursement. My
facility is way over the top on that. But we still manage to
survive.
We have to look at that. We can't have facilities that are
just trying to meet that ceiling, the minimum amount of
investment. We have to invest in these people. It doesn't
require more regulation. It requires us to really be looking at
how is the money being spent.
Indeed, our State association provides a financial report
that tells you where your facility is in each of those areas
compared to the national, compared to the State average,
comparing for-profit, not-for-profit and governmental. That
information is available. Perhaps that should be made available
to the consumer.
But you have to remember the consumer is not involved in
the admission process. It is the discharge planners. That has
to change at that level, please.
Senator Casey. I may want to come back to it. I know I am
well over time.
Thank you, Mr. Chairman.
The Chairman. Members of the panel, in the range of all the
problems that we are discussing here today, how many of them go
back to financing and adequate financing in order to do the
job? How much of it is basic competence of the people that are
involved?
Who would like to take a crack? Is financing inadequate,
financing of the nursing home industry the biggest problem we
have?
Or what would you say, Ms. Zabel?
Ms. Zabel. That is part of the problem. But I think as
management----
The Chairman. Management?
Ms. Zabel. That comes from management, whether it be from a
corporate level or an individual facility level. You set the
tone for what is going to happen in your facility. You have to
be hands on management, not living in an ivory tower. You have
to know what is happening in your building. You have to be
available to the people that work in your building. You have to
support them.
They have a life outside of your facility. That means that
they can't just be giving in their work life. We have to
support their home life as well and understand their needs. You
can do that without really a very large investment in capital.
I have seen it happen from the day that I started 20 years
ago. One of the things that you need to do is enforce your
disciplinary policy. If you say she should be getting a
warning, but I am not going to give it to her because we really
need her to be here because we are short staffed today, then
the good employees pack up and leave.
Why should I stay here when I work so hard, and all these
other people do a mediocre job and they are still here? So you
have to start at the basic founding of what is the mission of
the organization and how can you care for these people. You
establish that before you look at the money.
The Chairman. Good management and proper financing?
Ms. Zabel. Correct.
The Chairman. Good management starts with the person at the
top.
Ms. Zabel. Yes.
The Chairman. It is you.
Ms. Zabel. Well, it could be higher than me, but it is my
ability to be a good manager----
The Chairman. At your facility that is you.
Ms. Zabel. Yes, it is.
The Chairman. Anybody else?
Yes, Ms. Slocum?
Ms. Slocum. I agree with much of what Ms. Zabel has said.
She has made some excellent points about staff need to be
treated in a humane way so that they can treat residents in a
humane way. I would say financing is certainly an area we need
to look at. You can't have quality care without reasonable
financing. But reasonable financing does not guarantee quality.
We have seen in Michigan because of large turnover rates in
some of the issues that Ms. Zabel is bringing up, a lot of
money, millions, over $100 million a year is one estimate,
wasted on staff turnover. So there is money in the system, but
we need to take a very careful look at how it is being spent,
the oversight of that money, and making sure that the best
system practices are in place so that it is well-used and we do
actually achieve quality.
The Chairman. As an ombudsman, how much of an impact do you
think this list that is going to be published by CMS on
December 1st in terms of really highlighting those poorest
performing facilities? Will that have a big impact on the
industry in terms of lifting up the standards, at least at the
bottom?
Ms. Slocum. I think it will be an excellent piece of
information for consumers to have. I hope very much that it is
viewed by the provider community as a very strong reason to
make sure that nobody falls below that bottom line into the
lowest rung and ends up on that list. I think it is an
important step.
The Chairman. Anybody else want to comment?
Mr. Biondi.
Mr. Biondi. Senator, if I could offer a few comments. I
talked in my oral testimony about the survey process. One of
the components that I think is important in our arena is when
you think about what staff spends a lot of their day doing is
difficult, difficult work. I think Ms. Zabel has made very
excellent comments regarding many of the things I would have
said in terms of treating people right.
We have got to find a way to reward and praise people, both
in the survey process and find the good things that people are
doing. Most people strive to do good things. Yet our survey
process really doesn't identify any of that.
We all have to collectively every day find ways to make
people feel proud about what they are doing, pay them decent
wages, make sure we are getting paid in the Medicaid system for
what we are doing. Clearly, from a staffing perspective, I have
looked at it many a times where I think we have even been over-
staffed or under-staffed in some of our facilities. Sometimes
either way can cause a problem with delivering good quality
care and services.
It really is dependent on the physical plant, the size of
the facility, the way it is laid out, the type of residents you
have there, and how stable that staff is, how educated, how
trained they, whether they know the residents, know how to do
the job correctly. There is a delicate balance, and we have to
strive to find that delicate balance.
The Chairman. Thank you.
Mr. Biondi. Thank you.
The Chairman. Anybody else want to make comment before I
pass it on to Senator Casey for his last question or two?
Anybody else?
Professor Zimmerman.
Mr. Zimmerman. I think that it certainly is the case that
we have states in which the Medicaid payment rate is probably
not adequate to sustain a reasonable amount of care with a
reasonable staff component. I also think that there are places
in which the amount of each dollar of revenue that is spent on
resident care varies substantially. That is, resident care
relative to either a lease payment or some other form of a
capital grab.
I think we have to be very attuned to how much of the
expenses at a particular facility are retained at that facility
and are used for facility improvements and facility care. That
is not to say that any work is incapable of a system that gives
sufficient money to the facility to do its job.
But I think we have to be very careful to make sure that
the Federal Government, which deserves to know because it pays
so much of the bill-how much of the expense sheet is going to
resident care. That is a reasonable thing to know.
If somebody is more efficient and can get the job done more
efficiently, that should be rewarded as well. But there are
certain reasonable, intuitively compelling staff levels that
are so low one would say you can't deliver care with this
amount of staff. You have to have a greater staff component.
So that is why I am calling for transparency. It is
reasonable to know what amount of staff is being used to
provide care in a facility. That is not an unreasonable thing
to know and to be reported.
The Chairman. Thank you.
Senator Casey.
Senator Casey. Thank you.
I wanted to follow up, Professor Zimmerman, on your
testimony as compared to what Mr. Weems presented. I asked him
about the provider enrollment chain and ownership system,
PECOS. Your testimony focused on the broad question of
transparency.
Then you had, I guess, five-was it five-solutions. How
would you compare what is in place now with regard to
transparency as it relates to CMS, what CMS is doing or
promising to do? How do you compare that with what you are
recommending?
Mr. Zimmerman. I think that as I understand the PECOS
system-and I have not looked at it in detail-I think it has a
lot of the elements that I think are going to be necessary in
terms of ownership information. I think in some cases
restricting it to only 5 percent may end up to be problematic
because sometimes it is not the proportion of the ownership,
but the way it is structured which may end up being the
problem.
That is a segue into another point, which is that this
issue of the landlord, as opposed to the operator, is something
that we really have to investigate more and have more
transparency about. I was deeply troubled by some of the
statements made by individuals quoted in the New York Times
article about the fact that, rather cavalierly, they were
saying that the landlord simply has no responsibility.
Indeed, there are many cases in which the lease
restrictions will provide major constraints for an operator who
is the licensee to be able to make the changes sometimes that
are going to be required by the State in order to fix things
that come out of a survey. So I think that there are really
issues around the landlord and operator arrangement that are
going to be necessary.
Frankly, I think we are starting to see some lease
agreements that are so detailed and so constraining that they
may end up putting major restraints on the ability of the
operator to run the facility. Operators, frankly, can be
replaced in days. That is a problem.
The operator is the licensee. So I think that actually the
PECOS system starts the job, but what needs to happen is that
they will need to go beyond that to be able to really ferret
out who is it that is actually making decisions to control the
care or direct the care in the facility. I think that is
possible to do.
The OIG does it in the corporate integrity agreements. They
basically say we want to know every part of this structure and
who is making these decisions. I am not suggesting that we have
to investigate it to that level of detail.
This should be based on permitting the people who are
delivering decent care on the basis of the outcomes to continue
doing so, as I said in my testimony. It is when they start to
have problems that there should be the increased scrutiny
immediately, that means that they will have to start answering
questions about whether or not there may be some siphoning off
of finances from the facility. The purchaser of care has the
right to know that.
Senator Casey. I know we are short on time. I would just
ask you to consider an assignment, if you don't mind, for the
record.
Mr. Zimmerman. Thank you very much. I am very good at
giving them.
Senator Casey. I know it would help me, and I am sure it
would help others if you could take a closer look at the so-
called PECOS system as compared to the recommendations you
make, kind of a side-by-side and see where you think the holes
are. I don't want to sell it too short, but I am troubled by
the fact that they could summarize it in a couple of lines and
your testimony is more detailed than that.
That is probably not a fair way to assess it. But I think a
more exhaustive look at it would help us.
Mr. Zimmerman. It is likely that it probably will need at
least some tweaking, given the increasing complexity of some of
these Byzantine corporate structures.
Senator Casey. I have got lots more questions, but I know
we have to go.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Casey.
I would like to thank all the members of the panel that
have journeyed here today to be with us to give us your
expertise, your advice, your counsel. We, as you can tell, are
determined to upgrade, along with you, the quality of
performance of our nursing homes across the country. You have
made a big contribution to that today.
I think we certainly should expect to see some measurable
improvement in our nursing home operation across the United
States in the months and in the year or two to come. So we
thank you for your contributions. With that, the hearing is
closed.
[Whereupon, at 3:53 p.m., the Committee was adjourned.]
A P P E N D I X
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