[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
THE NURSING HOME RESIDENT PROTECTION AMENDMENTS OF 1999
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
HEALTH AND ENVIRONMENT
of the
COMMITTEE ON COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
H.R. 540
__________
FEBRUARY 11, 1999
__________
Serial No. 106-1
__________
Printed for the use of the Committee on Commerce
U.S. GOVERNMENT PRINTING OFFICE
55-152CC WASHINGTON : 1999
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
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COMMITTEE ON COMMERCE
TOM BLILEY, Virginia, Chairman
W.J. ``BILLY'' TAUZIN, Louisiana JOHN D. DINGELL, Michigan
MICHAEL G. OXLEY, Ohio HENRY A. WAXMAN, California
MICHAEL BILIRAKIS, Florida EDWARD J. MARKEY, Massachusetts
JOE BARTON, Texas RALPH M. HALL, Texas
FRED UPTON, Michigan RICK BOUCHER, Virginia
CLIFF STEARNS, Florida EDOLPHUS TOWNS, New York
PAUL E. GILLMOR, Ohio FRANK PALLONE, Jr., New Jersey
Vice Chairman SHERROD BROWN, Ohio
JAMES C. GREENWOOD, Pennsylvania BART GORDON, Tennessee
CHRISTOPHER COX, California PETER DEUTSCH, Florida
NATHAN DEAL, Georgia BOBBY L. RUSH, Illinois
STEVE LARGENT, Oklahoma ANNA G. ESHOO, California
RICHARD BURR, North Carolina RON KLINK, Pennsylvania
BRIAN P. BILBRAY, California BART STUPAK, Michigan
ED WHITFIELD, Kentucky ELIOT L. ENGEL, New York
GREG GANSKE, Iowa THOMAS C. SAWYER, Ohio
CHARLIE NORWOOD, Georgia ALBERT R. WYNN, Maryland
TOM A. COBURN, Oklahoma GENE GREEN, Texas
RICK LAZIO, New York KAREN McCARTHY, Missouri
BARBARA CUBIN, Wyoming TED STRICKLAND, Ohio
JAMES E. ROGAN, California DIANA DeGETTE, Colorado
JOHN SHIMKUS, Illinois THOMAS M. BARRETT, Wisconsin
HEATHER WILSON, New Mexico BILL LUTHER, Minnesota
JOHN B. SHADEGG, Arizona LOIS CAPPS, California
CHARLES W. ``CHIP'' PICKERING,
Mississippi
VITO FOSSELLA, New York
ROY BLUNT, Missouri
ED BRYANT, Tennessee
ROBERT L. EHRLICH, Jr., Maryland
James E. Derderian, Chief of Staff
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Health and Environment
MICHAEL BILIRAKIS, Florida, Chairman
FRED UPTON, Michigan SHERROD BROWN, Ohio
CLIFF STEARNS, Florida HENRY A. WAXMAN, California
JAMES C. GREENWOOD, Pennsylvania FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia PETER DEUTSCH, Florida
RICHARD BURR, North Carolina BART STUPAK, Michigan
BRIAN P. BILBRAY, California GENE GREEN, Texas
ED WHITFIELD, Kentucky TED STRICKLAND, Ohio
GREG GANSKE, Iowa DIANA DeGETTE, Colorado
CHARLIE NORWOOD, Georgia THOMAS M. BARRETT, Wisconsin
TOM A. COBURN, Oklahoma LOIS CAPPS, California
Vice Chairman RALPH M. HALL, Texas
RICK LAZIO, New York EDOLPHUS TOWNS, New York
BARBARA CUBIN, Wyoming ANNA G. ESHOO, California
JOHN B. SHADEGG, Arizona JOHN D. DINGELL, Michigan,
CHARLES W. ``CHIP'' PICKERING, (Ex Officio)
Mississippi
ED BRYANT, Tennessee
TOM BLILEY, Virginia,
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Davis, Hon. Jim, a Representative in Congress from the State
of Florida................................................. 10
Grant, Robyn, Severns & Bennet............................... 49
Hash, Hon. Michael, Deputy Administrator, Health Care
Financing Administration................................... 17
Martin, James L., President, 60 Plus......................... 42
Mongiovi, Nelson, Tampa, Florida............................. 33
Schild, Kelley, Administrator, Floridean Nursing and
Rehabilitation Center, on behalf of the American Health
Care Association........................................... 45
Wegner, Nona Bear, Senior Vice President, The Seniors
Coalition.................................................. 39
Material submitted for the record by:
Hash, Hon. Michael, Deputy Administrator, Health Care
Financing Administration:
Letter dated February 25, 1999, to Representative Michael
Bilirakis, enclosing response for the record........... 57
Letter dated February 25, 1999, to Representative Tom
Coburn, enclosing response for the record.............. 59
Letter dated February 25, 1999, to Representative Sherrod
Brown, enclosing response for the record............... 60
Martin, James L., President, 60 Plus, letter dated February
24, 1999, enclosing response for the record................ 62
National Citizens' Coalition for Nursing Home Reform, letter
dated February 22, 1999, enclosing response for the record. 60
Wegner, Nona Bear, Senior Vice President, The Seniors
Coalition, letter dated March 16, 1999, enclosing response
for the record............................................. 62
(iii)
THE NURSING HOME RESIDENT PROTECTION AMENDMENTS OF 1999
----------
THURSDAY, FEBRUARY 11, 1999
House of Representatives,
Committee on Commerce,
Subcommittee on Health and Environment,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:40 p.m., in
room 2322, Rayburn House Office Building, Hon. Michael
Bilirakis (chairman) presiding.
Members present: Representatives Bilirakis, Stearns, Deal,
Bilbray, Whitfield, Coburn, Cubin, Shadegg, Bryant, Brown,
Pallone, Stupak, Barrett, Capps, Eshoo, and Dingell.
Staff present: Marc Wheat, majority counsel: Tom Giles,
majority counsel; and John Ford, minority counsel.
Mr. Bilirakis. I call to order this hearing on H.R. 540,
the Nursing Home Resident Protection Amendments of 1999.
The subcommittee's consideration of this legislation today
is an important step in protecting the health and dignity of
nursing home residents who rely on Medicaid to meet their long-
term care needs.
Last year, Congressman Jim Davis and I introduced a similar
bill in response to a heart-wrenching incident that occurred in
Tampa, Florida. In April 1998, a Tampa nursing home operated by
Vencor, Inc., attempted to evict over 50 Medicaid residents
under the guise of remodeling the facility. Thanks to the quick
and dedicated action of Nelson and Geri Mongiovi, a court
halted the evictions. Mr. Mongiovi's mother was one of the
Medicaid residents targeted for eviction.
At this time, on behalf of the committee, I'd like to
express my sympathy and condolences to Mr. and Mrs. Mongiovi on
the recent loss of that great woman, his mother.
Unfortunately, similar efforts have also been reported in
other States. To end this outrageous practice, our bill adopts
a simple and fair approach. It would extend protections against
eviction to all individuals who reside in a nursing home at the
time the facility chooses to withdraw from participation in
Medicaid. It would not force nursing homes to remain in the
Medicaid Program, and they may continue to decide which
residents are admitted to their facility in the future.
If a nursing home decides to voluntarily withdraw from the
Medicaid Program, our bill requires the facility to provide
clear and conspicuous notice to future residents that it does
not accept Medicaid payments. This protection will prevent
individuals from entering a facility with the expectation that
they can remain once they exhaust their personal assets.
H.R. 540 is not a remedy for the broader problems in our
Nation's long-term care system. However, it does address one
serious concern by ensuring that nursing home residents and
their families will not have to live with the fear of eviction.
Enactment of this legislation will remove that threat and
protect these vulnerable individuals.
I'm pleased we were able to draft a responsible bill that
enjoys the support of both seniors' advocates and the nursing
home industry. I particularly appreciate the work of my ranking
member, Mr. Brown, the full committee's ranking member, Mr.
Dingell, and their staff in developing this bipartisan
legislation. I also want to commend my Florida colleagues,
Congressman Jim Davis, and Senator Bob Graham, for their
leadership on this issue.
Finally, I want to thank all of our witnesses for taking
the time to share their views on H.R. 540 with us. Again, I
would like to extend a special welcome to Nelson and Geri
Mongiovi, who traveled from Tampa to join us today.
I'm hopeful that today's hearing will establish a solid
record of support for the bill and the momentum necessary to
enact it into law early this year.
I look forward to working on a bipartisan basis to secure
committee approval of the bill when the House returns from the
President's Day district work period.
The Chair would now recognize Mr. John Dingell, the ranking
member of the full committee. Mr. Dingell, do you have an
opening statement, sir?
Mr. Dingell. Mr. Chairman, you are most kind. Thank you.
First, let me commend you for this hearing and for your
leadership in developing the legislation before us today, the
Nursing Home Resident Protection Amendments of 1999. I
particularly want to note and commend the efforts of Mr. Davis
of Florida, who has done an outstanding job in providing
leadership in this matter, and also Senator Graham for his
leadership in the other body and for sponsoring a companion
piece of legislation.
I also want to thank all of my other colleagues on this
committee and elsewhere who have worked to ensure that nursing
homes can no longer evict residents who depend on Medicaid to
pay their bills as is prescribed in this legislation. Today's
hearing is a key step toward ending the outrageous practices of
some nursing home operators.
I want to thank you again for holding this hearing. I look
forward to working with you throughout the rest of the
legislative process.
The bill was drafted in response to a nursing home vendor
that began to selectively evict Medicaid residents from a Tampa
facility last April. The State of Florida, the Health Care
Financing Administration, the Senior Citizen Advocacy Committee
all responded and the facility agreed to halt this
discriminatory and evil practice. All Medicaid residents who
had been displaced were returned to the nursing home.
Federal legislation is needed today to ensure that all 1.6
million elderly and disabled nursing home residents across the
country are protected from similar egregious and outrageous
evictions in the future. Currently Medicare and Medicaid
nursing home residents are protected under the Omnibus Budget
Reconciliation Act of 1987 against inappropriate transfers and
evictions. Medicaid residents, however, are not protected from
eviction if a nursing home voluntarily withdraws from the
Medicaid Program.
Protections for Medicaid residents are essential because
two-thirds of the nursing home residents receive Medicaid
benefits. Many seniors who are not eligible for Medicaid when
they enter nursing homes will become eligible during their
residency. Medicare does not cover custodial care and only pays
for a number of limited days of skilled nursing care. So
oftentimes, seniors must pay their own bills. Nearly 90 percent
of the residents who begin their stay as private payers are
expected to exhaust their personal resources within 1 year. All
but the wealthiest seniors live with the possibility of
eviction from their nursing homes should the facility withdraw
from the Medicaid Program.
This bill will end the fear and uncertainty based on
payment status. All current nursing home residents, both those
who are Medicaid-eligible at present and those who become
eligible during their stay would be protected.
I am pleased that my colleagues and the majority of the
committee, and my colleagues on the minority have worked
together so well and that my colleagues in the majority have
shown that they can react so quickly to a legitimate need. I
hope are they similarly expeditious in enacting strong,
comprehensive protections for patients enrolled in managed care
organizations.
Mr. Chairman, I again commend you and I thank you.
[The prepared statement of Hon. John D. Dingell follows:]
Prepared Statement of Hon. John D. Dingell, a Representative in
Congress from the State of Michigan
Mr. Chairman, thank you for your leadership in developing the
legislation before us today, the Nursing Home Resident Protection
Amendments of 1999. I particularly want to note the efforts of Mr.
Davis, and I commend Senator Graham for his leadership in the other
body and for sponsoring a companion bill. I also want to thank my other
friends and colleagues who have given their time and support to this
matter.
This bill would ensure that nursing homes can no longer evict
residents who depend on Medicaid to pay their bills. Today's hearing is
a key step toward ending the outrageous practices of some nursing home
operators. I thank our subcommittee chairman for holding this hearing,
and I look forward to working with him throughout the rest of the
legislative process.
This bill was drafted in response to a nursing home vendor that
began selectively evicting Medicaid residents from a Tampa facility
last April. The State of Florida, the Health Care Financing
Administration, and the senior citizen advocacy community all
responded, and the facility agreed to halt this discriminatory
practice. All Medicaid residents who had been displaced were returned
to the nursing home.
Federal legislation is needed to ensure that all 1.6 million
elderly and disabled nursing home residents across the country are
protected from similarly egregious evictions in the future. Currently,
Medicare and Medicaid nursing home residents are protected under the
Omnibus Budget Reconciliation Act of 1987 against inappropriate
transfers and evictions. Medicaid residents, however, are not protected
from eviction if a nursing home voluntarily withdraws from the Medicaid
program.
Protections for Medicaid residents are essential because two-thirds
of all nursing home residents receive Medicaid benefits. Many seniors
who are not eligible for Medicaid when they enter a nursing home will
become eligible during their residency. Medicare does not cover
custodial care and only pays for a limited number of days of skilled
nursing care, so oftentimes seniors must pay their own bills. Nearly
90% of residents who begin their stay as private payers are expected to
exhaust their personal resources within one year. All but the
wealthiest seniors live with the possibility of eviction from their
nursing home should the facility withdraw from the Medicaid program.
This bill would end the fear and uncertainty of eviction based on
payment status. All current nursing home residents, both those who are
Medicaid-eligible at present and those who become eligible during their
stay, would be protected. If a facility voluntarily withdrew from the
Medicaid program, the facility would be required to continue to care
for all residents admitted to the home up until that date. Residents
who entered the home after the facility withdrew from the program would
be provided with clear and adequate notice explaining that the home
does not accept Medicaid. New residents would be able to prepare for
alternative arrangements should they became eligible for Medicaid in
the future.
I am pleased that my colleagues in the majority on this committee
have shown that they can move quickly to enact protections for nursing
home residents. I hope that they are similarly expeditious in enacting
strong, comprehensive protections for patients enrolled in managed care
organizations.
Mr. Bilirakis. I thank the gentleman so very much.
The Chair now recognizes the ranking member of the
subcommittee, Mr. Brown.
Mr. Brown. I'd like to thank Chairman Bilirakis for
scheduling today's hearing and commend my colleague, Jim Davis
of Florida, for introducing this important and timely
legislation that will be the focus of our discussion today.
H.R. 540, the Nursing Home Resident Protection Amendments
of 1999 closes a loophole in the Federal protections
established to ensure fair treatment of nursing home residents.
Under current law, Medicare and Medicaid nursing home residents
are protected from inappropriate evictions and transfers.
However, Medicaid and pre-Medicaid nursing home residents lose
this protection if a nursing home voluntarily withdraws from
the Medicaid Program.
This bill eliminates that exception and says that a nursing
home cannot retrospectively imply a change in policy in order
to selectively evict or transfer residents undercutting the
care they and their families have come to trust.
The tragic situation H.R. 540 would prohibit is not
theoretical, it's real. As Mr. Dingell and Mr. Bilirakis said,
last April a nursing home in Tampa began selectively evicting
Medicaid residents under the cover of its decision to stop
accepting reimbursement from Medicaid. Long-term care typically
means continuity, but not in this case. Fortunately, this
particular vendor listened to the many voices condemning its
actions and invited the evicted residents to return to the
facility.
While I am grateful to the advocates inside and outside of
government that helped bring about this reversal, notably Mr.
Davis and Mr. Bilirakis, the final outcome does not erase the
trauma that Medicare beneficiaries and their families
experienced. Unfortunately, what happened in Tampa may not be
an isolated case. Nursing homes in Florida and Indiana made the
headlines but we simply don't know how many other facilities
evicted or transferred Medicaid beneficiaries under
objectionable pretenses but managed to avoid the spotlight.
It's our job now to eliminate any gray area and preempt
future tragedies. There are 1.6 million elderly and disabled
nursing home residents in the United States. Over 1 million of
them, about 70 percent, are Medicaid beneficiaries, numerous
others are pre-Medicaid. That is, they are exhausting their
limited assets to finance their nursing home care and will
ultimately qualify for Medicaid coverage. With this bill, we
can assure that these individuals' nursing home will not use a
loophole in the law to abandon them.
I'm proud to be an original co-sponsor of H.R. 540. I'm
especially pleased the subcommittee was so quick to act on this
issue in keeping with its leading responsibility for health
care policy. I hope, Mr. Chairman, that this constructive,
bipartisan initiative is the first of many this year.
Mr. Bilirakis. I trust.
The gentlelady from Wyoming, Ms. Cubin, for an opening
statement.
Ms. Cubin. Mr. Chairman, I have a written opening statement
but I'll just submit it for the record.
[The prepared statement of Hon. Barbara Cubin follows:]
Prepared Statement of Hon. Barbara Cubin, a Representative in Congress
from the State of Wyoming
Like every member of this subcommittee, I am very concerned about
the quality of care afforded to our senior and disabled citizens. Very
often, these are some of the most vulnerable members of our society. We
must work to ensure that their rights are protected, while preserving
the rights of the nursing home owners.
As a general rule, I favor limiting the role of government in our
lives. However, I recognize there are areas where government must be
involved.
The events at the Rehabilitation and Healthcare Center of Tampa are
very disturbing to me. I am particularly concerned that Medicaid
recipients at the center were targeted for eviction. It is also
disturbing that these residents were not told the real reason they were
being removed from the center.
Before tackling this issue, it is vital to know all the facts. I
look forward to hearing your testimony today, and I appreciate the
unique perspective each of you will be able to add to this debate.
Mr. Bilirakis. Thank you.
Mr. Bilbray, do you have an opening statement?
Mr. Bilbray. Mr. Chairman, I'd just like to congratulate
you, the ranking member and the individuals who have drafted
this law.
I'd also like to personally thank you for being willing to
find answers in the west that may be applicable to the problems
that we find back here in the east, and most importantly,
admitting that it may have come from the west and may be a good
idea.
I think in all reality, I'd like to echo the ranking
member's statement that I hope this is a good example of the
type of bipartisan effort. We address a problem, we don't
demagogue it, we don't try to take political advantage; we just
try to serve the public and get the job done. I think this
piece of legislation does it.
It's not punitive against nursing homes. Let me just say, I
like it because it really is not punitive against nursing
homes; it just sends a clear signal to them where the
boundaries are of proper behavior in a civilized society and
makes it clear. I hope we see this not just move through this
committee but make it to the House, get to the Senate and see
the President's signature on it as soon as possible.
I yield, Mr. Chairman.
Mr. Bilirakis. Thank you.
Mr. Stupak, do you have an opening statement?
Mr. Stupak. Mr. Chairman, I just want to thank you and Mr.
Davis and others for bringing this bill forward. I'm an
original co-sponsor and we'll do what we can to get it passed.
Thanks again, Mr. Davis, for bringing it to our attention.
Mr. Bilirakis. Thank you.
Mr. Deal, do you have an opening statement?
Mr. Deal. Thank you, Mr. Chairman.
I appreciate your holding the hearing. I've read the
statements of the witnesses. I think it's an issue that needs
to be addressed and I will not have any further opening
statement.
Mr. Bilirakis. Thank you.
Mr. Pallone, do you have an opening statement?
Mr. Pallone. Mr. Chairman, let me submit my statement for
the record in full, if I could.
I just wanted to say again that I think the specific issue
at hand, protecting Medicaid and likely Medicaid nursing home
patients from being evicted from nursing homes, is one that
this Congress could readily fix by passing this bill.
Therefore, we should simply proceed to get it out of here and
pass it as quickly as possible.
I did want to say one thing. I know today we're not going
to get into other aspects of nursing home care but I wanted to
mention that there is a lot of discrimination confronting
Medicaid beneficiaries. I hope that, if not today, at some time
in the future, we can get into some of those other concerns.
Some States, for instance, have requirements governing the
number of Medicaid beds that homes must carry. My home State of
New Jersey just released a report, the first of its kind in the
State, which graded all nursing homes in the State based on the
number of standard violations they had, including discharges of
residents.
This type of thing or these approaches to look at some of
the problems with Medicaid placement and discrimination I think
need to be looked at more fully, if not today at some other
time.
I do want to congratulate Mr. Davis and the chairman for
introducing this bill and moving on it so quickly.
Mr. Bilirakis. I thank the gentleman.
Mr. Bryant, do you have an opening statement?
Mr. Bryant. Thank you, Mr. Chairman.
I, too, would like to thank Mr. Davis for bringing this
bill forward. I think Mr. Bilbray said what I would like to say
in terms of it not being punitive in nature and therefore, I
would associate myself with his remarks and yield back the
balance of my time.
Mr. Bilirakis. Thank you.
Mr. Barrett?
Mr. Barrett. Thank you, Mr. Chairman.
First, I'd like to thank you for holding the hearing on
this important bill and to thank Mr. Davis and the others for
introducing it.
Given the amount that individuals pay to live in a nursing
home, it's not shocking that at some point most individuals
will spend their assets down to the level where they are
eligible for Medicaid. It's simply wrong for a nursing home who
has readily accepted an individual paying and then seeing the
individual move to Medicaid to then force them out.
Whether the person initially goes into the nursing home as
a Medicaid patient or as a private pay patient and then
ultimately relies on Medicaid, I think it's incumbent upon us
to make sure that they're not throwing these people out on the
street.
Mr. Bilirakis. Certainly that's what we're intending to do
here.
Mr. Whitfield, do you have an opening statement?
Mr. Whitfield. Mr. Chairman, thank you very much.
All of us are looking forward to this hearing which will
certainly focus upon the needs of Medicaid patients as relates
to nursing home care. I notice we have eight witnesses, all of
whom have good stories to tell or bad stories to tell.
Also, I'm looking forward to the testimony of Mr. Hash,
particularly as it relates to steps that HCFA is taking to
provide information so that people can make educated choices
about nursing home care.
I want to commend you and Mr. Davis for bringing this
matter to our attention. I'll file my opening statement for the
record and look forward to the hearing.
Mr. Bilirakis. Thank you.
Mr. Shadegg?
Mr. Shadegg. Thank you, Mr. Chairman.
I simply want to commend you for holding this hearing
today. I will put my full opening statement in the record and
indicate my interest in hearing the testimony of the witnesses.
Mr. Bilirakis. Thank you.
Mr. Stearns?
Mr. Stearns. Thank you, Mr. Chairman.
I will make my opening statement a part of the record.
Mr. Bilirakis. Without objection, the opening statements of
all members of the subcommittee are made a part of the record.
[Additional statements received for the record follow:]
Prepared Statement of Hon. Tom Bliley, Chairman, Committee on Commerce
Thank you Mr. Chairman for holding this hearing today. I also want
to thank our colleagues, Congressman Jim Davis and Senator Bob Graham,
for joining us this afternoon.
It has been said that the character of a nation is best
demonstrated by how it cares for the most vulnerable of its population.
The legislation which Chairman Bilarakis and Mr. Davis have introduced
is about fairness to our nation's most vulnerable individuals.
Nursing homes that contract with Medicaid, and then discriminate
against patients based on the way in which their care is financed is
unacceptable. Seniors may select a facility because it accepts
Medicaid. It is unfair for a facility to offer itself as participating
in Medicaid, accept a resident who may be relying on future Medicaid
assistance, wait until after a resident settles into his or her new
surroundings, and then ask them to leave once their personal resources
are exhausted, and Medicaid starts paying their bills.
The evictions which spurred the need for this legislation are
disturbing. I hope this hearing will elucidate some of the
discriminatory practices nursing home residents are facing, and how
widespread the problem is. I look forward to hearing the perspective of
the Health Care Financing Administration on their role in curbing such
abuse, as well as comments from the other witnesses on the impact this
legislation will have on addressing the problem before us.
______
Prepared Statement of Hon. Diana DeGette, a Representative in Congress
from the State of Colorado
Thank you for holding this hearing today Mr. Chairman. As a
cosponsor of this legislation in both the 105th and 106th Congress, I
am pleased that we are protecting nursing home patients receive quality
care irrespective of their means of payment.
I was shocked to learn about the malevolent expulsion of a select
group of seniors from a nursing home facility simply because Medicaid
pays for their medical care. At a time when so many Americans in my
generation are making the difficult decision to place a parent in a
long term care facility, malicious acts like this are disturbing and
unacceptable.
Perhaps what is most troubling is that the victims of these
expulsions were the most vulnerable residents at this facility. These
were the patients who had exhausted their personal resources paying for
nursing home care.
In Colorado 64% of the overall nursing home population are Medicaid
beneficiaries. Because of the expense involved in long-term care, many
seniors rely on Medicaid after other resources run out. It simply makes
sense that Congress protect nursing home residents on Medicaid from
this sort of discrimination.
I look forward to hearing from our panelists today. Congressman
Davis' legislation is a step in the right direction to protect patients
residing in nursing homes. It is critical that we ensure nursing home
residents are not constantly at risk of being thrown out on the street.
It is also vital that we make sure long-term care does not become a
two-tiered system where patients who can afford to pay get a higher
level of care than those who are forced to exhaust their personal
financial resources.
______
Prepared Statement of Hon. Anna G. Eshoo, a Representative in Congress
from the State of California
Thank you Mr. Chairman.
I'd like to start by thanking the sponsors of this very important
legislation--my colleague from Florida, Mr. Davis. Our distinguished
chairman, Mr. Bilirakis. And, of course, the distinguished Ranking
Member, Mr. Dingell.
For many of us here today, this legislation hits home.
Some of our parents are being cared for in nursing homes.
The thought that they might be kicked out of their homes because
they pay for their care with Medicaid rather than with private dollars
is abhorrent and offensive.
Our Nation's elders deserve better than that.
They deserve to live in healthy, secure environments.
They deserve to know that their nursing home will not abandon them
if it later chooses to opt out of the Medicaid program.
They deserve peace of mind.
Nursing homes, and the companies that own them, must be required to
honor the promises they make to their residents when they first entrust
their care to them.
So, again I thank the sponsors of the Nursing Home Resident
Protection Amendments and I look forward to hearing the testimony of
our speakers.
Mr. Bilirakis. For those of you who are new to this
process, the bells that you hear mean there is a vote on the
floor. So we're going to have to adjourn for just a few
minutes, run over to the floor, cast our votes. I understand it
is the last vote of the day so this should be the only
interruption we will have.
Then we will start with the first panel consisting of Mr.
Davis right after we return.
Thank you.
[Brief recess.]
Mr. Bilirakis. The first panel was to consist of Senator
Bob Graham of Florida and Mr. Jim Davis of Tampa, Florida. Mr.
Graham, I understand is not able to make it for obvious
reasons. I think he has a statement which, by unanimous
consent, will be made a part of the record.
[The prepared statement of Senator Bob Graham follows:]
Prepared Statement of Hon. Bob Graham, a U.S. Senator from the State of
Florida
Mr. Chairman: I would like to begin my remarks by thanking you for
convening this critical hearing and for inviting me to testify. I
commend you and Representative Davis for your leadership in solving the
dilemma of how we can best protect one of the most vulnerable
populations in society--senior citizens in nursing homes.
I would also like to take a moment to thank Nelson and Geri
Mongiovi for taking the time and effort to drive all the way from
Tampa, Florida to participate in today's hearing. The last few months
have been particularly difficult for the Mongiovi family, having lost
Nelson's wonderful mother, Adela, over the holidays last year. I know
that Adela would be proud of her son Nelson and his wife Geri for
having continued to push for legislation to protect all senior citizens
who find themselves vulnerable to unscrupulous practices by nursing
homes.
Let me recount briefly what has transpired to bring us to this
point today. On April 7, 1998, the Wall Street Journal ran a story
which documented several cases of patient dumping across the nation,
including cases involving seniors in Indiana and Florida. I'd like to
quote briefly from this story:
``On Monday, January 26, [1998], right after lunch, Betty Nelson
and dozens of other residents of Wildwood Health Care Center in
Indianapolis were brought into the activity room and told they were
being evicted. Rumors about an impending change had circulated at the
nursing home for weeks, but the news delivered on this wintry day
stunned the elderly patients as they stood at their walkers or sat in
their wheelchairs. The facility was ending its relationship with
Medicaid, the state-run health subsidy for the poor. Nearly 60 of its
150 residents would have to find new places to live.
``Most had worked all their lives, and many had started out paying
their own way at Wildwood, which had charged them $3,000 or more a
month. But eventually they had run through their savings and had turned
to Medicaid to help pay their bills.''
Mr. Chairman, imagine the shock that these residents felt--many
having saved all they could from years of hard work, having depleted
all of their savings at Wildwood, only to be told by the nursing home
to leave because the home decided not to take Medicaid anymore.
The most egregious case of patient dumping occurred in our own
State, Mr. Chairman, when a Tampa-based Vencor nursing home--
Rehabilitation and Healthcare Center--attempted to evict 52 Medicaid
beneficiaries, purportedly due to the need to remodel the facility. One
of those residents was 93 year old Adela Mongiovi.
At that time, it looked like Adela would have to spend her 61st
Mother's Day away from the assisted living facility she had called home
for the last four years. Nelson and Geri feared that they would have to
move Adela when officials at the Rehabilitation and Healthcare Center
of Tampa told them that Adela, who suffered from Alzheimer's disease,
would have to be relocated so that the nursing home could complete
renovations.
As the Mongiovis told me when I met with them and visited Adela
last April, the real story far exceeded their worst fears. The supposed
temporary relocation was actually a permanent eviction of all 52
residents whose housing and care were paid for by the Medicaid program.
The nursing home chain which owns the Tampa and Wildwood
facilities, Vencor, wanted to purge some of its nursing homes of
Medicaid residents, ostensibly to take more private insurance payers
and Medicare beneficiaries which pay more per resident.
While Medicaid payments to nursing homes certainly need to be
revised from time to time, playing Russian Roulette with elderly
patients' lives is hardly the way to send that message to Congress. And
while I am always willing to engage in discussions about the equity of
provider reimbursement rates, I and my colleagues are not willing to
allow nursing homes to dump patients indiscriminately.
While the Omnibus Budget Reconciliation Act of 1987 established
standards to protect federal beneficiaries from patient abuse, nothing
in current law protects Medicaid or ``spend-down'' residents from being
dumped by nursing homes. A resident who has spent her life savings on a
three year stay in a nursing home, for instance, is at the mercy of a
nursing home which decides to dump that patient based solely on the
fact that she becomes eligible for Medicaid.
The legislation that Representatives Davis and Bilirakis have
introduced, and I am introducing today with Senator Grassley of Iowa,
my good friend and colleague Senator Mack, and others, would rectify
this inequity in a narrowly-tailored fashion.
The bill would prohibit nursing homes which have already accepted a
Medicaid patient or a private pay patient from evicting or transferring
that beneficiary based on her payment status. Nursing homes would still
be permitted to decide which residents gain access to their facility;
however, they would not be permitted to dump these patients once
admitted.
Evictions of nursing home residents have a devastating effect on
the health and well-being of some of society's most vulnerable members.
A recent University of Southern California study indicated that those
who are uprooted from their homes undergo a phenomenon know as
``transfer trauma.'' For these seniors, the consequences are stark. The
death rate among such seniors is two to three times higher than that
for individuals who receive continuous care.
While the bill is limited in scope, it would protect the 68% of
nursing home residents who rely on Medicaid at some point during their
stay. Simply put, families must be assured that their parents and
grandparents will continue to receive quality nursing home care without
fear of inappropriate eviction.
We must remember that people exist behind these statistics. Adela
Mongiovi was not just a ``beneficiary.'' She was also a mother and
grandmother. To Ms. Mongiovi, the Rehabilitation and Health Care Center
of Tampa was not just an ``assisted living facility'' it was her home.
Mr. Chairman, thank you again for allowing me to testify. I hope to
work closely with you, Representative Davis, and the rest of our
colleagues to ensure swift passage of this bill, to provide security
and peace of mind for all of our nation's seniors and their families.
Mr. Bilirakis. Jim, why don't you come forward? We will set
the clock at 5 minutes.
STATEMENT OF HON. JIM DAVIS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF FLORIDA
Mr. Davis. Thank you, Mr. Chairman.
I also have some newspaper clippings I'd like to submit for
the record.
Mr. Bilirakis. Without objection.
Mr. Davis. Let me thank you again, Mr. Chairman, for being
an original co-sponsor of this important bill, and particularly
for pushing action on the bill so early in this 106th Congress.
I also want to single out Senator Graham who really was the
first of those of us elected here to act on this and bring it
to both my attention and your attention.
I think it's fair to say that what the bill represents, as
has been discussed already, is a fundamental belief that those
people who are forced to put their loved ones in nursing homes
are already under enough stress and anxiety and should not have
to worry further about the risk that their loved ones will be
evicted or transferred from that nursing home simply because
they've been forced to rely upon the Medicaid Program to pay
their bills.
As I think has been alluded to here, one very important
statistic that I have is that half of the people in nursing
homes today who rely upon the Medicaid Program entered that
nursing home paying out of their own pockets. For those of us
who have not had to go through this unfortunate experience of
worrying about someone in a nursing home, unfortunately, I
think for many of us it's just a matter of time.
As was alluded to earlier, there were 52 Medicaid residents
in a facility in Tampa who would have been evicted with just 30
days' notice if Mr. Nelson Mongiovi had not gone to court and
succeeded in getting an injunction against the evictions. I'd
like to recognize Mr. Mongiovi who is here with his wife Geri
in the front row. Mr. Mongiovi will testify later this
afternoon.
The explanation provided by the nursing home was that
remodeling was the reason for removing these folks. It was
later admitted by the nursing home and determined by the
Florida Agency for Health Care Administration that the reason
these folks were being evicted was simply because of their
status as Medicaid beneficiaries.
There is an enormous temptation on the part of these
nursing homes to put profits ahead of people. That temptation
is only increasing and this bill will put a stop to the
temptation that almost resulted in this terrible situation in
Florida.
There are over 40 co-sponsors of this bill. Many of the co-
sponsors are serving on this subcommittee and I thank you for
your support. There is strong Democratic and Republican support
for the bill. The bill is supported by many senior citizen
advocacy groups including the National Senior Citizens Law
Group, the AARP, and the National Citizens Coalition for
Nursing Home Reform, among others.
The nursing home industry through the American Health Care
Association is also supporting the bill to so.
This is truly a national issue. The information you've
admitted to the record, Mr. Chairman, reflects in Indiana,
California and Tennessee there have been similar incidents.
What Congressman Bilbray was alluding to earlier was that this
law is modeled after a California law that has had some of the
same success we can expect on the national level.
In 1987, when Congress set up national standards for
nursing home care, one of the things that was not included in
that bill was stopping the type of transfer or eviction that
will be prohibited by this bill. This bill will, in fact, close
a very important loophole.
Mr. Chairman, you and other members of the subcommittee,
have elaborated on the specifics of the bill. Under this
legislation, nursing homes can continue, if they choose, to
leave the Medicaid Program. Although if they choose to do so,
they will be forced to provide a clear and conspicuous notice
to residents that they will not be protected should they enter
that nursing home and later have to resort to Medicaid.
I want to close by thanking Mr. Mongiovi. He fought for his
mom who is now deceased. He fought for her fellow residents in
the nursing home and now he's fighting for nursing home
residents across the country and for those of us who some day
will probably have to rely upon a nursing home to care for
ourselves and for our loved ones. It's because he stood up,
because he fought and because his voice is now being heard here
that I'm hopeful we will take action and make this law of the
land this year.
Thank you, Mr. Chairman. I look forward to working with you
and members of the committee. I yield back the balance of my
time.
[The prepared statement of Hon. Jim Davis follows:]
Prepared Statement of Hon. Jim Davis, a Representative in Congress from
the State of Florida
Thank you, Mr. Chairman. Let me begin by thanking you for being an
original cosponsor of this important legislation and for pushing action
on this bill so early in the 106th Congress. I would also like to thank
Senator Graham for his commitment to this issue and trying to resolve
the problem of Medicaid residents being evicted from nursing homes.
I believe you share my belief that nursing home residents and their
families should not have to live with fear of eviction based on how
they pay their bills. I believe it is unfair and flat out wrong that
our most vulnerable and frail citizens, and their families, must worry
about being evicted from their nursing homes in favor of people who can
pay higher rates.
Our bill provides security for these patients and their families by
ensuring that they cannot be evicted from a nursing home in favor of
higher paying patients if the nursing home chooses to voluntarily
withdraw from the entire Medicaid program. Very simply, Mr. Speaker,
our bill will ensure that our nursing homes do not put profits above
patients' rights.
In April 1998, a Vencor nursing home in Tampa attempted to evict 52
Medicaid residents under the guise of emptying their facility for
remodeling. A judge halted the evictions and Vencor subsequently told
the residents they could stay. At this point, I would like to recognize
Nelson and Geri Mongiovi. We will hear from the Mongiovis later in this
hearing. However, I want to make sure that the Subcommittee is aware
that if it were not for this couple we would not be here today
discussing this legislation. Their commitment to helping their loved-
one, Nelson's mother, brought this issue to the forefront. Although
Adelaida Mongiovi passed away late last year, I know that she is proud
of her son and daughter-in-law for continuing to volunteer at her old
nursing home every day and for fighting to protect the rights of those
nursing home residents. I know that I am proud to be associated with
them.
Subsequent to the judge halting the evictions, an investigation by
the Florida agency in charge of Medicaid found that the evictions were
based solely on the fact that these residents relied on Medicaid to pay
their bills.
Senator Graham immediately recognized the severity of this problem
and the need to address these mass evictions from a federal level.
Shortly thereafter, Senator Graham and I began working to draft
legislation to correct this problem. As you will recall Mr. Chairman, I
then talked to you about the Tampa incident and asked you to join me in
an effort to resolve this problem in a bipartisan manner. I am pleased
that today we have 40 cosponsors, both Democrats and Republicans,
supporting H.R. 540, the Nursing Home Resident Protection Amendments of
1999.
In addition to the bipartisan support of this legislation, I am
pleased Mr. Chairman that our bill is supported by many senior citizen
advocacy groups, including the National Senior Citizens Law Center,
AARP, and the National Citizens' Coalition for Nursing Home Reform. The
nursing home industry, through the American Health Care Association,
has recognized the importance of preventing mass evictions of nursing
home residents and also supports our legislation.
I believe it is very important that Members of this Subcommittee
understand that this is not just a Florida problem. Rather it is a
national problem and deserves to be addressed by Congress. After the
incident at Rehabilitation and Healthcare Center of Tampa, we learned
that this was not an isolated incident. In fact, there are incidents of
evictions and improper transfers of Medicaid residents in nursing homes
in Indiana, California, Tennessee and other states. As a result of this
problem, California passed legislation prohibiting these mass evictions
by requiring nursing homes that withdraw from Medicaid to wait until
patients die or choose to leave the facility. The State of Tennessee
was challenged in federal court (Linton v. Commissioner, 4/22/90) and
the challengers were successful forcing the State to require that all
beds in any nursing home participating in the Medicaid program but
certify all beds as Medicaid beds. Mr. Chairman, I have copies of the
articles from the Tampa Tribune, as well as the Wall Street Journal
regarding ``patient dumping'', which I would ask be included as part of
the official hearing record.
While the Omnibus Budget Reconciliation Act of 1987 established
standards to protect federal beneficiaries from patient abuse, nothing
in current law protects Medicaid nursing home residents who rely on
Medicaid from eviction. For example, residents who spend their life
savings on a lengthy nursing home stay are at the mercy of a facility
which could later decide to dump them based solely on the fact that
they have become eligible for Medicaid.
Although it is not currently the case, there is a valid concern
that nursing homes will start voluntarily leaving the Medicaid program
in favor of higher paying private patients. We must address this matter
to prevent them from dumping Medicaid patients on the street in favor
of higher paying customers. I believe that our carefully crafted
legislation is a first step in solving this problem.
H.R. 540 is simple and fair. This bill prohibits nursing homes who
have already accepted a Medicaid patient or a private pay patient from
evicting or transferring that resident based on his or her payment
status. Nursing homes may continue to decide which residents are
admitted to their facility and could withdraw entirely from the
Medicaid program. However, they would not be permitted to dump these
residents once they are admitted.
I assure the Members of the Subcommittee that I do not oppose
nursing homes voluntarily leaving the Medicaid system. However, I do
believe that residents need some protection once they enter these
facilities. Many residents enter a facility as a private pay clients
with the expectation that they will be eligible for Medicaid when they
have depleted their personal assets in paying for the care they
receive. H.R. 540 addresses this problem. Our bill allows a nursing
home to voluntarily withdraw from the Medicaid program but requires
that all residents who were in the facility at the time of the
voluntary withdrawal are protected whether their bills are paid by
Medicaid or personal funds. In other words, if a patient enters a
nursing home with the expectation that they will be eligible for
Medicaid coverage in the future, they will, in fact, be protected
should the nursing home withdraw from Medicaid in the midst of their
``spend down'' of personal assets.
Another protection included in our bill is the advance notification
that the nursing home does not participate in the Medicaid program.
Under this provision, if a nursing home no longer participates in
Medicaid, it must provide a clear and conspicuous notice to future
residents that this nursing home does not participate in the Medicaid
program and that it does not accept Medicaid payments. Fortunately, I
have not yet had to deal with placing a loved one in a nursing home.
However, I can imagine what a trying and stressful time it must be.
This provision is intended to relieve some of the stress of the
situation. Under our bill, family members would be warned up-front that
if they are expecting their loved-one to receive help from Medicaid in
the future this is not the facility to place their family members in
because, as clearly stated by the facility, they do not and will not
accept Medicaid payments for services provided.
Families with loved ones in nursing homes are under enough stress.
We must assure families that their parents, grandparents and loved ones
will continue to receive quality nursing home care without the fear of
inappropriate eviction. H.R. 540 will do that.
Mr. Chairman, thank you again for your commitment to this issue. I
look forward to continuing to work with you to shepherd this bill
through the legislative process, and I hope that Members of this
Subcommittee who are not currently cosponsors of H.R. 540 will join us
in our efforts.
I yield back the balance of my time.
Mr. Bilirakis. Thank you, Jim.
I have here letters from AARP dated February 10, 1999 to
me, from the National Senior Citizens Law Center dated February
4, 1999, from the Department of Elder Affairs, State of
Florida, dated February 8, 1999, from the American Health Care
Association dated February 3, 1999, and from Vencor Inc. dated
February 9, 1999, all in support of the legislation, and I ask
unanimous consent that those be made a part of the record.
[The letters follow:]
AARP,
Washington, DC 20049,
February 10, 1999.
The Honorable Michael Bilirakis, Chairman
Subcommittee on Health and Environment
U.S. House of Representatives
2369 Rayburn House Office Building
Washington, DC 20515
Dear Mr. Chairman: AARP appreciates your leadership in sponsoring
H.R. 540, a bill that protects low-income nursing home residents from
discharge when a nursing home withdraws from the Medicaid program.
Across the country, some nursing home operators have been accused
of dumping Medicaid residents--among the most defenseless of all health
care patients. As with similar complaints about hospitals and
physicians, these violations can be serious threats to people's health
and safety. Yet, federal and state governments have been limited in
their oversight and enforcement capacities. H.R. 540 establishes clear
legal authority to prevent inappropriate discharges, even when a
nursing home withdraws from the Medicaid program. AARP believes that
this is an important and necessary step in protecting access to nursing
homes for our nation's most vulnerable citizens.
This legislation offers important protections because of the
documented problems that Medicaid patients face, especially people
seeking nursing home care. For years, there has been strong evidence
demonstrating that people who are eligible for Medicaid have a harder
time gaining entry to a nursing home than do private payers. In some
parts of the country, there is a shortage of nursing home beds. Under
such circumstances, only private-pay patients have real choice among
nursing homes. Medicaid patients are often forced to choose a home that
they would not have otherwise chosen, despite concerns about its
quality of care or location.
Under your proposed legislation, government survey, certification,
and enforcement authority would continue, even after the facility
withdraws from the Medicaid program, and the facility would be required
to continue to comply with it. The bill also protects prospective
residents by requiring oral and written notice that the nursing home
has withdrawn from the Medicaid program. Thus, the prospective nursing
home resident would be given notice that the home would be permitted to
transfer or discharge a new resident at such time as the resident is
unable to pay for care.
Access to quality nursing homes has been a long-standing and
serious concern for AARP. It is an issue that affects, in a real way,
our members and their families. The current patchwork system of long-
term care forces many Americans to spend down to pay for expensive
nursing home care. Therefore, it is unfair to penalize such older,
frail nursing home residents who must rely on Medicaid at a critical
time in their lives.
Thank you for the opportunity to share our views on this important
issue. If we can be of further assistance, please give me a call or
have your staff contact Maryanne Kennan of our Federal Affairs staff at
(202) 434-3772.
Sincerely,
Horace B. Deets.
______
National Senior Citizens Law Center,
Washington, DC 20005,
February 4, 1999.
Congressman Michael Bilirakis
2369 Rayburn House Office Building
Washington, DC 20515
Dear Congressman Bilirakis: Last spring, the Vencor Corporation
began to implement a policy of withdrawing its nursing facilities from
participation in the Medicaid program. The abrupt, involuntary transfer
of large numbers of Medicaid residents followed. Although Vencor
reversed its policy, in light of Congressional concern, state agency
action, and adverse publicity, the situation highlighted an issue in
need of an explicit federal legislative solution--the rights of
Medicaid residents to remain in their home when their nursing facility
voluntarily ceases to participate in the federal payment program.
I have read the draft bill that you will introduce to address this
issue. The bill protects residents who were admitted at a time when
their facility participated in Medicaid by prohibiting the facility
from involuntarily transferring them later when it decides to
discontinue its participation. As you know, many people in nursing
facilities begin their residency paying privately for their care and
choose the facility in part because of promises that they can stay when
they exhaust their private funds and become eligible for Medicaid. In
essence, your bill requires the facility to honor the promises it made
to these residents at the time of their admission. It continues to
allow facilities to withdraw from the Medicaid program, but any
withdrawal is prospective only. All current residents may remain in
their home.
This bill gives peace of mind to older people and their families by
affirming that their Medicaid-participating facility cannot abandon
them if it later voluntarily chooses to end its participation in
Medicaid.
The National Senior Citizens Law Center supports this legislation.
We look forward to working with your staff on this legislation and on
other bills to protect the rights and interests of nursing facility
residents and other older people. In particular, we suggest that you
consider legislation addressing a related issue of concern to Medicaid
beneficiaries and their families--nursing facilities' discriminatory
admissions practices.
Many facilities limit the extent of their participation in the
Medicaid program by certifying only a small number of beds for
Medicaid. As a consequence of their limited participation in the
Medicaid program, they discriminate against program beneficiaries by
denying them admission. In addition, residents who initially pay
privately for their care and later become eligible for Medicaid because
of the high cost of nursing facility care are also affected by limited
bed, or distinct part, certification. Once such residents become
impoverished and need to rely on Medicaid to help pay for their stay in
their facility, they are often told that ``no Medicaid beds are
available'' and that they must move. Facilities engage in other
practices that discriminate against people who need to rely on Medicaid
for their care. We would be happy to work with your staff in developing
legislative solutions to these concerns.
Thank you for your work on these important issues.
Sincerely,
Toby S. Edelman.
______
State of Florida,
Department of Elder Affairs,
February 8, 1999.
The Honorable Michael Bilirakis, M.C.
House of Representatives
Congress of the United States
2369 Rayburn House Office Building
Washington, DC 20515
Dear Congressman Bilirakis: I have reviewed your proposed ``Nursing
Home Resident Protection Amendments of 1999.'' I applaud and strongly
support your efforts to provide additional protection to elders. The
evidence is overwhelming that, without extraordinary preparatory
efforts that are hardly ever made, any move is harmful for the
preponderance of the frail elderly; the technical term is ``transfer
trauma.''
I am forwarding a copy of your proposed legislation to the Director
of the Agency for Health Care Administration (AHCA), Ruben King-Shaw
for his review. As you know, AHCA regulates nursing homes in Florida.
Again, thank you for your efforts on behalf of elders. If I can be
of any assistance, please let me know.
Committed to working together for older Floridians, I am . . .
Sincerely,
Geme G. Hernandez, D.P.A.
cc: Ruben King-Shaw
Agency for Health Care Administration, w/encls.
______
American Health Care Association,
Washington, DC,
February 3, 1999.
The Honorable Michael Bilirakis
United States House of Representatives
Washington, DC 20515
Dear Mike: I am writing to lend the support of the American Health
Care Association to H.R. 540 which you introduced with Congressman Jim
Davis. This legislation helps to ensure a secure environment for
residents of nursing facilities which withdraw from the Medicaid
program.
We know firsthand that a nursing facility is one's home, and we
strive to make sure residents are healthy and secure in their home. We
strongly support the clarifications your bill will provide to both
current and future nursing facility residents, and do not believe
residents should be discharged because of inadequacies in the Medicaid
program.
This bill addresses a troubling symptom of what could be a much
larger problem. The desire to end participation in the Medicaid program
is a result of the unwillingness of some states to adequately fund the
quality of care that residents expect and deserve. Thus, some providers
may opt out of the program to maintain a higher level of quality than
is possible when relying on inadequate Medicaid rates. Nursing home
residents should not be the victims of the inadequacies of their
state's Medi-caid program.
In 1996, the Congress voted to retain all standards for nursing
facilities. We support those standards. In 1997, Congress voted
separately to eliminate requirements that states pay for those
standards. These two issues are inextricably linked, and must be
considered together. We welcome the opportunity to have this debate as
Congress moves forward on this issue.
Again, we appreciate the chance to work with you to provide our
residents with quality care in a home-like setting that is safe and
secure. We also feel that it would be most effective when considered in
the context of the relationship between payment and quality and access
to care.
Finally, we greatly appreciate the inclusive manner in which this
legislation was crafted, and strengthened. When the views of consumers,
providers, and regulators are considered together, the result, as with
your bill, is intelligent public policy.
We look forward to working with you to further clarify Medicaid
policy and preserve our ability to provide the best care and security
for our residents.
Sincerely yours,
Bruce Yarwood,
Legislative Counsel.
______
Vencor, Inc.,
Louisville, Kentucky 40202,
February 9, 1999.
The Honorable Jim Davis
327 Cannon House Office Building
Washington, DC 20515-0911
The Honorable Bob Graham
SH-524 Hart Senate Office Building
Washington, DC 20510-0903
Dear Representative Davis and Senator Graham, This letter is to
express my support for the legislation you are sponsoring that
prohibits transfers or discharges of nursing home residents as a result
of a facility's voluntary withdrawal from participation in the Medicaid
program. The proposed bill would protect Medicaid residents' rights
during and after a nursing home's voluntary decertification from
Medicaid.
The legislation is needed because of differences in individual
state laws and regulations and the lack of specificity in federal law.
It achieves a proper balance between the rights of nursing home
residents who are Medicaid beneficiaries and the nursing home's
voluntary participation in the Medicaid program.
Litigation against Vencor constrains me from commenting on specific
allegations concerning events that happened at The Rehabilitation and
Healthcare Center of Tampa in 1998. For your information, however, all
claims between both the Health Care Financing Administration and the
Florida Agency for Health Care Administration and Vencor have been
settled. All of Vencor's Florida nursing homes continue to participate
in the Medicaid program.
I believe that the continued participation of nursing homes in
Medicaid is now less certain than it has ever been. The Balanced Budget
Act of 1997 changed Medicare nursing home reimbursement to a
prospective payment system and reduced Federal funding by 17%. Congress
had previously rescinded the Boren Amendment which required states to
set Medicaid rates at a level that was adequate to insure quality care.
The increase in managed care and these changes in the reimbursement
system have been driven by public policy. Their effect, however, has
been to threaten the historically higher Medicare reimbursement, which
enabled providers to remain financially viable and provide quality
care, even while receiving inadequate reimbursement for their Medicaid
residents. Bad public policy has been replaced by worse.
There is a crisis in the financing and delivery of long term care.
It will only worsen as baby boomers enter their elder years. The
solution is not to reduce reimbursement in order to keep Medicaid and
Medicare solvent. That approach is now affecting the viability of
providers and reducing accessibility for beneficiaries. Exiting the
Medicaid program through decertification is a legal but undesirable
option now facing long-term providers. This country needs the
leadership of its government to help solve this problem.
The legislation you are sponsoring does not address this financing
crisis. At best, it may ameliorate one of its potential consequences. I
urge you, however, to initiate a search for permanent solutions to this
most important problem. I extend to you the willing cooperation of my
company and its assistance in that effort.
Sincerely,
Edward L. Kuntz,
Chairman and CEO.
cc: The Honorable Michael Bilirakis
Mr. Bilirakis. Jim, I think what we have done working
together on a bipartisan basis with senior citizens'
organizations and the nursing home industry is an indication of
what can be done if people are willing to sit down with an open
mind to accomplish something. I'm very grateful to you for your
part in all this.
A question was raised earlier during the press conference
that we held regarding penalties. I just wondered if you have
any opinion. The legislation does not establish new penalties,
however, current law provides for them. The nursing home in
Tampa, as a matter of fact, was hit with pretty substantial
penalties by the State, as well as by the Federal Government.
Are those adequate; do you think we ought to take another look
at the penalty issue?
Mr. Davis. Mr. Chairman, I believe the bill contemplates
that HCFA would have the authority to develop a sufficiently
substantial penalty of a financial nature. As you pointed out
earlier, because the industry is so closely regulated by HCFA
already, I'm sure that would be of sufficient concern to these
nursing homes that it would deter them from engaging in this
type of misconduct in the future.
Mr. Bilirakis. Mr. Hash will be testifying right after you,
and we can ask him the same question and determine whether he
thinks it is adequate.
The Chair would recognize Mr. Pallone for any questions?
Mr. Pallone. I have none.
Mr. Bilirakis. Mr. Whitfield?
Mr. Whitfield. No questions.
Mr. Bilirakis. Mr. Barrett?
Mr. Barrett. Just out of curiosity, in the Tampa situation,
were there non-Medicaid patients that were also evicted?
Mr. Davis. Congressman Barrett, there were not. In fact,
when the third floor was opened up to move people, rooms were
being set aside for the private-paying patients, However, those
patients who were no longer private-pay and were Medicaid
beneficiaries were the ones, the only ones, that were being
asked to leave.
Mr. Barrett. Okay. That's the only question I had.
Thank you.
Mr. Bilirakis. Mr. Shadegg?
Mr. Shadegg. No questions.
Mr. Bilirakis. Ms. Capps, who is a new member of this
subcommittee and the full committee, more than welcome, and we
look forward to great things from you.
Ms. Capps. Thank you.
Mr. Bilirakis. Any questions of Mr. Davis, Ms. Capps?
Ms. Capps. Not at the moment.
Thank you.
Mr. Bilirakis. By the way, I know Ms. Capps has an opening
statement. The opening statement of all members of the
subcommittee are made a part of the record without objection.
Mr. Coburn?
Mr. Coburn. No, I have no questions.
Mr. Bilirakis. Jim, thanks so much for your contribution to
good health for our elders; thanks for being here today.
Mr. Davis. Thank you, sir.
Mr. Bilirakis. The second panel will consist of Mike Hash.
Mike is the Deputy Administrator of the Health Care Financing
Administration here in Washington. Mr. Hash also worked with us
on the Commerce Committee for many, many years.
Mike, I'm going to set this at 5 minutes, but feel free to
exceed that time.
STATEMENT OF HON. MICHAEL HASH, DEPUTY ADMINISTRATOR, HEALTH
CARE FINANCING ADMINISTRATION
Mr. Hash. Thank you, Mr. Chairman.
Congressmen Bilirakis, Brown and distinguished members of
the subcommittee, I want to thank you for inviting us here
today to discuss the need to improve protections for nursing
home residents.
We at the Health Care Financing Administration within the
Clinton Administration are working aggressively to improve the
oversight and quality of nursing home care. Preventing
inappropriate evictions of Medicaid residents is an essential
part of this effort.
There have been, as you know, Mr. Chairman, intolerable
situations in which Medicaid residents were transferred or
discharged on false grounds and without appropriate notice.
This creates serious disruptions in care, subjects residents to
transfer traumas and of course takes an untold toll on the
frail beneficiaries and their families that we are sworn to
protect.
Just today I learned--and this is not in my prepared
statement because it's so new--that we have a report from
Florida, actually from Brandon, Florida of a facility which has
apparently engaged in exactly the same kinds of practices that
were found last year in several facilities.
On the basis of a recommendation of the survey and
certification agency in Florida, we have put that institution
on a fast track termination if they do not correct the jeopardy
that they have created by inappropriately transferring Medicaid
patients out of the facility. We will continue to vigorously
enforce the existing rules.
I just wanted you to know this is not a problem that has
been solved. It is a problem that is continuing right today.
Mr. Bilirakis. This was in Bradenton?
Mr. Hash. Yes, sir. It's the Integrated Health Services in
Brandon, Florida.
Mr. Bilirakis. Oh, Brandon.
Mr. Hash. Brandon, Florida.
Both we and the States have tried to take swift and strong
action to make clear that we are very serious about protecting
Medicaid residents from inappropriate transfers and discharge,
but we need to do much more and we need your legislation to do
it.
We are taking steps with the authority that we have now. We
have recently issued new policy stating that a nursing facility
may, in fact, not decrease the portion of its facilities that
are available to Medicaid or Medicare residents but one time
during a calendar year. We are considering further regulatory
changes in the ability of facilities to change their complement
of Medicaid-certified beds.
However, without the legislation that you, Chairman
Bilirakis, and Congressman Davis, have introduced, we cannot
prevent the evictions of Medicaid patients if nursing homes
leave participation in Medicaid. America's nursing home
residents need this bill to be enacted into law and you have
the strong support of the Clinton Administration and our
agency. America's nursing home residents must not live in fear
that they will be evicted solely because they rely on Medicaid
to pay for their care. Nursing homes must not be allowed to
discriminate on the basis of source of payment in terms of
continued access to their facilities.
I know that our staff has provided technical assistance to
your staff and others in the drafting of this legislation. We
look forward to working with you to further ensure passage of
this bill and to make sure that we meet the goals of this
legislation. We may need, as I noted, to address further
protections of Medicaid residents when nursing homes decrease
the number of beds available. We look forward to working with
you on this and other issues as well.
My written testimony outlines the progress that we've made
in improving the oversight and quality of nursing home care.
Our reforms build on the progress that we've made since 1995
when the Clinton Administration issued and began enforcing the
toughest nursing home regulations ever. We are doing what we
can with the regulatory authority that we now have and we are
working to secure passage of some initiatives proposed by the
President in his budget to further protect nursing home
residents.
There is more we must do. The legislation that you and
Congressman Davis are introducing today is another critical
piece we need to protect nursing home residents.
We thank you for your hard work on this matter. We look
forward to working with you in all of our efforts to protect
nursing home residents.
I'd be happy to respond to any questions that you or other
members of the subcommittee may have.
[The prepared statement of Hon. Michael Hash follows:]
Prepared Statement of Hon. Michael Hash, Deputy Administrator, Health
Care Financing Administration
Chairman Bilirakis, Congressman Brown, distinguished committee
members, thank you for inviting us here today to discuss our efforts to
improve protections for nursing home residents. The Health Care
Financing Administration (HCFA) is aggressively working to improve the
oversight and quality of nursing home care. Preventing inappropriate
eviction of Medicaid residents is an essential part of this effort.
There have been intolerable situations in which facilities
transferred or discharged Medicaid residents on false grounds and
without appropriate notice. This creates serious disruptions in care
and untold emotional toll on frail beneficiaries we are sworn to
protect.
We have taken swift and strong action in these situations,
including the imposition of $10,000 per day of civil money penalties.
States have also taken swift and strong action. States and HCFA
together have made clear that we are very serious about protecting
Medicaid residents from inappropriate transfers and discharges. But we
need to do more, and we need legislation to do it.
Chairman Bilirakis, America's nursing home residents need the bill
you and Congressman Davis are introducing to be enacted into law. I am
proud to say that the Clinton Administration and my agency strongly
support your legislation. America's nursing home resident's must not
live in fear that they will be evicted solely because they rely on
Medicaid to pay for their care. We must enact this bill to prohibit
transfers or discharges of Medicaid residents when a nursing home
chooses to leave the Medicaid program. I know my staff has provided
technical assistance to your staff in drafting the legislation. We look
forward to working with you further to ensure passage and to ensure
that the goals of this legislation are met. We also may need to address
further protection of Medicaid residents when nursing homes decrease
the number of beds available to Medicaid residents, and we look forward
to working with you on that issue as well.
background
About 1.6 million elderly and disabled Americans receive care in
approximately 16,800 nursing homes across the United States. Through
the Medicare and Medicaid programs, the federal government provides
funding to the States to conduct on-site inspections of nursing homes
participating in Medicare and Medicaid and to recommend sanctions
against those homes that violate health and safety rules.
Medicaid nursing home participation is voluntary, and current law
allows nursing homes to determine and change the extent of their
participation. They can designate that only part of their facilities,
for example a certain number of beds or certain wings, are available to
Medicaid beneficiaries. If a nursing home wants to reduce the portion
of its facilities that are available to Medicaid patients, it must give
30 days notice of its intentions to both the State and the affected
residents. It also must ensure that any displaced residents
continuously receive all necessary care as they are moved to other
appropriate facilities.
using regulatory authority
We are taking steps to address problems created when facilities
curtail service to Medicaid residents with the authority we have now.
We recently issued new policy stating that a nursing home may decrease
the portion of its facilities that are available to Medicaid or
Medicare residents only once per year. We also are considering whether
further regulatory changes would help protect Medicare and Medicaid
residents. However, without the legislation Chairman Bilirakis and Rep.
Davis are proposing, we do not have authority to prevent evictions of
Medicaid patients if nursing homes leave the Medicaid program.
nursing home initiative progress
As I said, preventing inappropriate evictions is an essential
component of our broad initiative for improving the quality of nursing
home care and oversight. These reforms build on progress made since
1995, when we began enforcing the toughest nursing home regulations
ever. We have made solid progress since we announced our new initiative
last July. We have taken several steps to improve inspections by
States, who have the primary responsibility for conducting these on-
site inspections and recommending sanctions for care and safety
violations. We have:
issued new guidance to States to strengthen their nursing home
inspection systems;
made clear that States will lose federal funding if they fail
to adequately perform surveys and protect residents because we
can and will contract with other entities, if necessary, to
make sure those functions are performed properly;
established a new monitoring system to ensure that States
identify problems and impose appropriate sanctions;
formally reminded States that they must enforce sanctions for
serious violations and may not lift them until an on-site visit
verifies that problems are fixed;
required States to sanction facilities found guilty more than
once for violations that harm residents, with no option to
avoid penalties by correcting problems during a grace period;
required States to conduct more frequent inspections for
nursing homes with repeated serious violations while not
decreasing their inspections for other facilities;
required States to stagger surveys and conduct a set amount on
weekends, early mornings and evenings, when quality and safety
and staffing problems often occur;
instructed States to look at an entire chain's performance
when serious problems are identified in any facility that is
part of a chain, and begun developing further guidelines for
sanctioning facilities within problem chains;
begun developing new regulations to let States impose civil
money penalties for each serious incident and repeal current
rules that link penalties only to the number of days that a
facility was out of compliance with regulations;
begun developing new survey protocols to detect quality
problems in nursing homes using a systematic, data-driven
process, with initial changes to be implemented this year; and
secured, with strong support from Congress, a fiscal year 1999
budget with $171 million for survey and certification
activities, including $4 million earmarked for the new
initiative, and requested $60.1 million for fiscal year 2000 to
enable us and other HHS components to fully implement all
provisions of the Nursing Home Initiative. This includes $35
million for HCFA to strengthen State inspection and enforcement
efforts, $15.6 million in mandatory Medicaid money to
supplement State inspection and enforcement efforts, and $9.5
million to ensure adequate resources for timely judicial
hearings and court litigation.
We have taken additional steps to help consumers choose facilities,
help facilities improve care, and help our law enforcement partners
prosecute the most egregious cases. We have:
created and begun testing a new Internet site, Nursing Home
Compare, at www.medicare.gov, which will allow consumers to
compare survey results and safety records when choosing a
nursing home;
posted best practice guidelines at www.hcfa.gov/medicaid/siq/
siqhmpg.htm on how to care for residents at risk of weight loss
and dehydration;
begun planning national campaigns to educate residents,
families, nursing homes and the public at large about the risks
of malnutrition and dehydration, nursing home residents' rights
to quality care, and the prevention of resident abuse and
neglect;
begun a study on nursing home staffing that will consider the
potential costs and benefits of establishing minimum staffing
levels; and
worked with the Department of Justice to prosecute egregious
cases where residents have been harmed, and to improve referral
of egregious cases for potential prosecution.
Legislative Proposals
The Clinton Administration's fiscal year 2000 budget includes
proposals for:
requiring nursing homes to conduct criminal background checks
of prospective employees;
establishing a national registry of nursing-home workers who
have abused or neglected residents or misappropriated
residents' property; and
allowing more types of nursing-home workers with proper
training to help residents eat and drink during busy mealtimes.
The cost of conducting background checks and querying the national
registry will be financed through user fees. The Administration will
put forward additional proposals as needed for additional legislative
authority to further improve nursing home quality and safety.
conclusion
We are making solid progress in our efforts to improve the
oversight and quality of nursing home care, but there is more that we
must do. We are doing what we can with the regulatory authority we now
have. We are working to secure passage of the President's legislative
initiatives to further protect nursing home residents.
The legislation that Chairman Bilirakis and Congressman Davis are
introducing today to prevent inappropriate Medicaid evictions is
another crucial piece that we need to protect nursing home residents.
We thank you for your hard work on this matter. We look forward to
working with you to secure passage of your bill and the President's
proposals. And I am happy to answer your questions.
Mr. Bilirakis. Thank you, Mr. Administrator. It's good to
know that the Administration is solidly behind our legislation.
Certainly it's going to be very helpful in terms of expediting
its passage.
I'm amazed that with all the publicity regarding Vencor's
Tampa facility, that this is taking place in Brandon. There
were penalties applied to Vencor in Tampa.
Mr. Hash. Correct, both by the State and the Federal
Government.
Mr. Bilirakis. That really brings up the question again
that I raised earlier about penalties. Should we take another
look at those? Is this something HCFA can do without including
it in legislation? Are they onerous enough to at least keep
people from indiscriminantly doing something like this?
Mr. Hash. Yes, Mr. Chairman. We are looking at our
regulatory reach in this regard. In fact, we have a regulation
that's in the final stages that should be promulgated within
the next month or so. The regulation would allow us to levy
fines, not just for each day that a nursing facility might be
out of compliance with our requirements, but for each day and
for each instance of a violation. We can actually apply a fine,
a civil monetary penalty for each one of those instances under
this new reg. We can go up to $10,000 now per day. We can apply
that to per incidence and the multiples could be quite
substantial.
We hope to get that out and we think that would be an
enhanced tool to protect against these inappropriate actions.
Mr. Bilirakis. When something is as inappropriate as this,
we certainly are not talking about paperwork mistakes or
something of that nature?
Mr. Hash. As you know, Mr. Chairman, these are violations
that we would characterize as immediate jeopardy. That is to
say they pose an immediate threat to the health and well-being
or to the life of residents of nursing homes.
Mr. Bilirakis. Thank you.
Mr. Brown, would you like to inquire at this point?
Mr. Brown. Yes. Thank you, Mr. Chairman.
Mr. Hash, thank you for joining us again. You mentioned in
your testimony we may need to address further protection of
Medicaid residents when nursing homes reduce or decrease the
number of beds available to Medicaid residents. Is there
evidence that these reductions in the number of Medicaid beds
is occurring more frequently now than 2 years, 5 years or 10
years ago?
Mr. Hash. I'd be happy to try to get you some data to see
if we could actually display that. I don't have those figures
in front of me, but I think it's well known to us and to others
who look at the nursing home situation that often the pattern
can be the reduction of the number of beds that they wish to
have certified for the Medicaid Program as opposed to
completely exiting participation in the Medicaid Program.
We're looking at that scenario and would like to work with
you to look at that potential problem as well.
[The following was received for the record:]
Our data systems do not currently provide information on
the reduction of beds. We do know, however, that over the last
three years the average number of nursing facilities that
voluntarily withdrew from the Medicaid program is 58 per year:
59 Medicaid facilities withdrew in FY1996; 54 in FY1997; and 60
in FY1998.
Mr. Brown. You could not deal with that administratively
anymore than you could with this problem?
Mr. Hash. No. We don't have the authority in the law now to
prevent a nursing home from actually determining itself what
complement of its beds it wants to certify for the Medicaid
Program.
Mr. Brown. What precisely should we do? How would you write
a formula? What would you do?
Mr. Hash. I don't think we yet have the perfect answer to
this because obviously participation ultimately in the Medicaid
Program is a voluntary decision on the part of the nursing
facility. We certainly don't want to take a step that in any
way is likely to make access to needed nursing home care less
available.
On the other hand, I think we are concerned about the
potential for manipulation of the complement of beds which can
result in the relocation of patients just as much as the
complete withdrawal from the program. I think we would like to
try to explore possibilities for dealing with this problem and
working with you and Chairman Bilirakis to see if further
attention to this could not be provided in the legislation.
Mr. Brown. I can't speak for the chairman but I hope that
we can address that, not to the point of delaying this
legislation but I hope that you and all of us can work that
out.
Thank you.
Mr. Bilirakis. The chairman's opening statement will be
made a part of the record.
We have placed great emphasis on nursing home quality
standards in this committee over a period of time. Certainly we
emphasized that in the last Congress. You can sit back and
brainstorm all you want and you're just not going to cover
every conceivable problem that might arise.
If there's anything this committee can at least consider
that might be helpful to HCFA in terms of maybe you to do your
job better, don't hesitate to let us know.
Mr. Hash. Absolutely. We will do that.
Mr. Brown. I ask unanimous consent that Ms. Capps', Ms.
Eshoo's and other statements be admitted by unanimous consent.
Mr. Bilirakis. That's already been done a couple of times
but by all means.
Ms. Cubin to inquire?
Ms. Cubin. Thank you, Mr. Chairman.
I'm from Wyoming. There are 480,000 people spread over
100,000 square miles. We have nursing homes with 12 beds, 20
beds. I support the legislation that is in front of us, but
when you talk about doing something about reduction in the
number of beds when nursing homes have to reduce the number of
Medicaid patients in beds, when you have only 12 or 20
patients, you cannot spread out that cost.
I just implore you to take that into consideration. I think
my State is the most rural as far as medical care delivery or
health care delivery is concerned. I would offer our assistance
in any way.
I'm married to a physician and he says he's the only person
that lives in the State of Wyoming that doesn't have a
Congressman. The reason he doesn't have a Congressman is I will
not let him talk to me about HCFA regulation but I'm going to
talk to you about it. I would like to get some peace in my
life. Usually men say that, but you need to be there.
There are a couple of things that I want to ask you. I'm
going to go through them because they'll interrupt me if my
time runs out but they'll let you answer, so take notes.
Lots of constituents have gotten in touch with me about
this. One regulation we don't understand--I know this is about
nursing homes and I agree. One regulation we don't understand
is why do we require a 3-day hospital stay before a Medicaid
patient can be put in a nursing home? My husband is a primary
care physician and I can personally assure you from my
relationship with his office that costs us a lot more money
than it would ever save us.
Another thing is the drug test bundling where now they are
not allowed to order tests or have tests done that are not
being used to rule out a particular diagnosis. They can do a
blood screen of 15 tests which cost less than 2 single tests. I
think we all know that negative results tell the doctor
something.
Those were easy because you were shaking your head but
here's two I'm not sure. I think these are proposed regs that
are coming out now under which a physician has to provide a
physical exam for every Medicare patient every year and write
down not only what is wrong but what is not wrong? Those
examinations can be $100 if they are actually good examinations
and it has to be done whether the patient is healthy, has had
any health problems or not, or if the patient hasn't been sick
all year. I don't understand the benefit of that.
This is the last one--I know you'll be glad. The physicians
believe, whether it's true or not, I don't know, but I know the
physicians in Wyoming believe all across the State that due to
mistakes in coding, they can face criminal charges and
financial penalties as you talked about, $10,000 a day for each
incident.
Wyoming is different. It's like a different country but I
want to tell you they're squeaky clean there. We don't have the
kind of problems fortunately that have been brought in front of
this committee before. I just really wish that rural health
care providers could get some special attention because they
have a special situation and our folks really deserve special
care. I know you agree with that.
Sorry, Mr. Chairman.
Mr. Bilirakis. Not at all.
Mr. Hash. Yes, ma'am. I'd be happy to address each of those
issues. Also, I'd like to say some of these are issues that we
should talk about in more depth and I'd be happy to come at
your convenience and discuss these in greater depth.
Let me just say with regard to the 3-day hospital stay
requirement, I believe that is a statutory requirement, so it's
not something that we have discretion over in terms of the
operation of our program.
Mr. Bilirakis. Should it continue to be?
Mr. Hash. I'd be willing to take a look at it to see if, in
fact, it's causing unnecessary hospitalizations in order to
qualify and see what the evidence shows. I don't have a quick
answer as to whether we should continue it or not.
Mr. Coburn. Would the gentlelady yield? I'm amazed you
don't know the answer to that quite frankly. If we have a
statutory requirement that says, and I know that's the law
throughout the land, that a Medicaid patient, regardless of
their admitting diagnosis, has to stay in the hospital 3 days
before they can be transferred back to the nursing home and you
all don't know whether that's an effective law or not since
you're paying the cost of the hospitalization, one, most often,
and two, writing the regulations that surround that, I'm
surprised you don't know the answer to that. Have you all not
looked at that?
Mr. Hash. We may have looked at it and I may not be aware
of it but I would intend that whatever evidence we have, we
should share with you and we should take a look at it. I
appreciate that.
Mr. Bilirakis. The gentlelady's time has expired. Do you
want answers now, Barbara, or possibly maybe the two of you can
get together?
Ms. Cubin. Mr. Chairman, if you're not interested in my
questions, I'll get together with Mr. Hash.
Mr. Bilirakis. Oh, I'm very interested. I hear the same
questions from providers in my district, so it's not just
Wyoming.
Ms. Cubin. I know that and I don't want to hold up the
committee. I'll have my staff get in touch with your office and
work out a time to meet.
Thank you so much.
Mr. Hash. I'd be happy to do that.
Mr. Bilirakis. Let's have those in writing for the record.
Can we do that?
Mr. Hash. I'd be glad to.
[The following was received for the record:]
The Medicare statute only allows payment for items and
services that are medically necessary to diagnose or treat an
illness, injury or malformed body part. Consistent with this
rule, for clinical laboratory tests, the statute provides
coverage only for diagnostic tests--that is, tests used to help
diagnose or monitor a specific medical condition. Tests used to
help rule out a particular condition would be covered as
diagnostic tests if the patient has symptoms that would
reasonably warrant testing for that diagnosis.
However, absent any sign or symptom that would suggest a
test is reasonably related to a particular medical condition,
it would generally be considered a screening (rather than
diagnostic) test. The Medicare statute does not allow payment
for procedures (including lab tests) that are performed for
purely screening purposes (with a few exceptions, such as Pap
tests, that are explicitly authorized by the law).
Laboratories often run certain tests (including blood
tests) on automated equipment that perform the tests as part of
a larger group of tests. The lab may then bill for the entire
``bundled'' group of tests, including some that Medicare is
prohibited from paying for by law. These would include tests
that are merely screening tests (performed without any relevant
sign or symptom that would warrant the test), and diagnostic
tests that are not medically necessary for this patient.
Prior to March 1996, Medicare policy did allow payment for
all tests in an automated profile if any one test in the group
was medically necessary. This was necessary because older lab
equipment would only produce results for certain tests if the
test was performed as part of a larger group. However, the
testing equipment generally in use today allows specific tests
to be performed either with or without the larger group. Thus,
Medicare has revised its policy to more consistently reflect
its statutory authority. Since March 1996, Medicare pays only
for those tests that are medically necessary and are not
routine screening tests, regardless of whether they are
performed individually or as a group.
We do not require physicians to provide a yearly physical
exam to all Medicare patients. In the Medicare+Choice interim
final rule that was published in June 1998, we stated that
plans must have the information required for effective and
continuous patient care and quality review, which includes an
assessment of each enrollee's health care needs within 90 days
of enrollment. Based on comments we received, we revised this
requirement in a February 17, 1999 Federal Register regulation
to state that a Medicare+Choice organization must make a
``best-effort'' attempt to conduct an initial assessment within
90 days of enrollment. We have also clarified that
Medicare+Choice organizations have the flexibility to choose
the form of the assessment, e.g., phone call, questionnaire,
home visit, or physical examination.
For honest coding errors, physicians would only have to
repay any overpayment results from the error and our
contractors would work with the physician to prevent any
further honest errors. The Health Insurance Portability and
Accountability Act of 1996 (HIPAA) does allow use of the False
Claims Act to prosecute fraudulent providers. However, there
must be a clear pattern or practice of submitting claims based
on codes they know or should know will result in more payment
than is appropriate.
If physicians or their staffs do make billing errors, we do
want to find those errors, preferably before we make payment.
We are significantly increasing our efforts to screen claims
before they are paid, review them afterwards, and audit
providers with billing patterns that are out of the ordinary.
We are using increasingly sophisticated claims analysis
software to search out unusual billing patterns that suggest
where we need to take a closer look. Our efforts are not
intended to harass physicians. We know that most physicians are
honest and conscientious. But we must protect taxpayers who
demand that we promote quality care, and have zero tolerance
for waste, fraud and abuse.
If we find errors after we make payment, we do want the
money returned. However, we are not interested in prosecuting
anyone for honest mistakes, and we are not going to refer
physicians to the Inspector General for occasional errors.
Before making any referrals, we have to believe there is
fraudulent intent.
Mr. Bilirakis. I think it would be a good idea because
they're pertinent. They are not directly related to the subject
of today's hearing, but I've already told the gentlelady I
don't think anybody would object to her line of questioning.
Mr. Bilirakis. Mr. Barrett?
Mr. Barrett. I have no questions but I want to thank you,
Mr. Hash, for all the help you have given us in Wisconsin.
Mr. Hash. Thank you very much.
Mr. Bilirakis. Thank you, Mr. Barrett.
Mr. Whitfield?
Mr. Whitfield. Thank you, Mr. Chairman.
I'm actually glad that Ms. Cubin raised some of these
issues. As a matter of fact, I'd heard a lot of those questions
asked of me frequently. I hope the Chair might even consider
having a hearing sometime where we can just ask some questions
like this because HCFA is such an ominous source of regulations
out there and there's all sorts of decisions being made. I
think anyone in Congress recognizes when they go home, doctors,
administrators, nurses, everyone is asking questions about
regulations. I hope that is something maybe the chairman would
consider.
Mr. Bilirakis. I appreciate the gentleman making that
point. I've always felt that quite often we don't have the
opportunity to go into depth on issues, so perhaps we could get
together informally with HCFA for a roundtable discussion.
Mr. Whitfield. I think that would be useful.
Mr. Bilirakis. I think many of you know I favor that sort
of approach.
Mr. Whitfield. On the issue at hand, I notice in the
testimony of the administrator of the Florida Nursing and
Rehabilitation Center--since I'm not sure how you pronounce the
last name, I'm not going to say it--but in her testimony she
said under current laws, nursing facilities are prohibited from
discharging any resident unless they have secured an alternate
living arrangement. Evidently under the facts of Mr. Mongiovi
and his family, there was not an alternate living arrangement
made at the time they were discharged. Would the nursing home
have been in violation of current law?
Mr. Hash. I believe it is and was and it was actually fined
as a result of that.
Mr. Whitfield. So the fine was for violation of the
existing law.
This is more of a generic issue regarding nursing homes, do
you have any opinion at all on the repeal of the Boren
Amendment which was done a couple of Congresses ago?
Mr. Hash. I think in some respects, the jury is a little
bit out on the impact of it. Obviously what the Congress did
was to replace the Boren Amendment with a requirement for
States to have a public process, to have notice and comment
from the public about the establishment of their payment rates
for nursing homes, for hospitals, for that matter, and the
notion was that having to do this and to actually present the
methodology and the justification for the payment rates would
provide a forum in which all interested parties could have an
opportunity to debate and discuss the appropriateness and
adequacy of the rates.
Whether in fact that's proving to be the case or not, I
think it's still early in the experience with this to actually
make a judgment on it.
Mr. Whitfield. You, in your testimony, said that you all
were looking at further regulations affecting nursing homes
that might change the percentage of beds devoted to Medicaid
and you've not finalized that, but you don't think that you're
going to move away from voluntary decisions?
Mr. Hash. No. We would not have the authority to force or
cause a facility to come into the program or to stay in if they
wanted to exit. It's a voluntary decision on the part of the
nursing facility.
Mr. Whitfield. In Florida, what is the entity that has the
survey and certification authority?
Mr. Hash. I believe it's the Agency for Health Care
Financing in the State of Florida. I believe that's the correct
name of it.
Mr. Whitfield. Mr. Chairman, I have no further questions.
Mr. Bilirakis. I thank the gentleman.
Ms. Capps, to inquire?
Ms. Capps. Thank you. I appreciate being here. I commend
our chairman and this committee for introducing this very
important legislation this early in this Congress and support
your efforts in doing so.
I appreciate the testimony that's been given today. I
realize I'm in the presence of an expert witness and I support
the suggestion that we have an informal discussion and briefing
on HCFA. I will be in attendance if possible because this is an
area that I have many questions regarding and like the others,
there are many issues in our Congressional districts on HCFA
topics, not all of which relate to this subject.
Just reading the briefing given to us on this whole issue,
I'm astounded by the percentage of residents in nursing homes
who spend down and become Medicaid eligible in 13 weeks, 63
percent and in 52 weeks, 87 percent. It makes me think about
this population and the challenge that nursing homes face in
providing good care and meeting their costs and all of these
issues.
I'm wondering in which direction this percentage is going.
Are there waiting lists? I know when patients are transferred
many times they're transferred away from their families and
that's a particular issue at stake in some of this.
I'd be happy to defer this but since I have a couple of
minutes, maybe you would address some of these that pertain to
our topic today?
Mr. Hash. I think if there are waiting lists or shortages
of beds for nursing facilities, they are isolated. It's not a
systemic problem. There are about 17,000 nursing facilities in
the country, so I think there's an adequate complement.
There may be periodic issues about shortages of beds in a
particular community, particularly in rural areas which I think
is where it is most acute, as it is in most health care
facilities. I think in general, our view is we don't have any
evidence that access to nursing facilities is a systemic
problem.
We would also welcome the opportunity to have an informal
discussion and think it would be a useful opportunity to
explain and communicate more completely some of the issues that
you've heard about and other members of the subcommittee have
been confronted with.
Ms. Capps. Thank you very much.
Mr. Bilirakis. I thank the gentlelady.
Mr. Coburn?
Mr. Coburn. I've got 5 minutes and I'm going to try to
sneak all this in.
For everybody here who doesn't know, would you give a quick
synopsis of the current requirements on Medicaid transfer out
in nursing homes so everybody will know what the standard is?
Mr. Hash. My understanding is a nursing home must give the
resident a 30-day notice and must assure they have made
arrangements for the transfer to an appropriate facility and
that during the pendency of that transfer, all appropriate care
and services are provided.
Mr. Coburn. And that sounds real reasonable. I think
everyone would agree with that.
Do you have significant knowledge of the actions that
happened in Florida happening in many other States?
Mr. Hash. We have incident reports that I personally don't
know that I could recite all the details but certainly can
furnish them to you.
Mr. Coburn. Let me go back and ask the question. What
percentage of the Medicaid beds that are certified in the
United States have experienced this kind of problem?
Mr. Hash. I'll be happy to get that answer for you. I don't
have that statistic.
[The following was received for the record:]
Our data systems are not currently capable of providing
this data. In an informal survey, HCFA staff polled 47 States
Ombudsmen in 1997. Fifteen cited transfer and discharge
violations as highly problematic.
Mr. Coburn. If, in fact, this becomes law, what new steps
does HCFA propose to put in place, new regulations that would
have prevented what happened in Florida?
Mr. Hash. I think we already have, as I said in my
statement, the strongest nursing home enforcement regulations
that have ever been on the record and that we have been taking
steps, particularly since last July, to strengthen our
enforcement procedures both in terms of our own regional office
oversight and more particularly working with the State survey
and certification agencies to very significantly change the
approach they're taking, the protocol for the surveys, the
extent to which they consistently apply penalties.
Mr. Coburn. I understand that, but what new steps, given
you have a new law, would you have?
Mr. Hash. If this became the law, then the issue there
would be part of the survey or complaint process, either way,
could come to our attention that a facility had in fact not
provided proper notice that is required in this bill to new
residents, that they had not protected adequately the remaining
Medicaid-eligible residents who were still there and under this
bill would be guaranteed the opportunity to stay there. Part of
that guarantee is until the last Medicaid-eligible individual
is discharged from that facility, they are under all of the
full obligations of the conditions of participation that apply
to all nursing home facilities and we would enforce them
through the survey process.
Mr. Coburn. But they are under that obligation today?
Mr. Hash. But this would be a new set of obligations with
regard to a nursing facility that is withdrawing from
participation in the Medicaid Program.
[The following was received for the record:]
H.R. 540 would allow us to protect residents in the case of
a facility's voluntary withdrawal from the Medicaid program.
Residents would be assured that they can stay in their facility
and that the facility would continue to be subject to the
Medicaid conditions of participation even though the facility
has terminated their Medicaid agreement. HCFA was able to
address the situation that happened in Florida prior to H.R.
540. The Vencor situation clearly violated existing law, and we
were able to take swift action. The strong enforcement response
in this situation sends a clear message to other providers
across the nation that this behavior is unacceptable.
Mr. Coburn. Let me ask you another question. How many
nursing facilities voluntarily withdrew from the Medicaid
system last year?
Mr. Hash. I also do not have that answer for you but I'll
be glad to get it for you.
[The following was received for the record:]
Our data indicates that over the last three years the
average number of nursing facilities that voluntarily withdrew
from the Medicaid program is 58 per year: 59 Medicaid
facilities withdrew in FY1996; 54 in FY1997; and 60 in FY1998.
Coburn. I'm extremely concerned, Mr. Chairman. I see here a
problem that the law already applies to, that we have
demonstrated that we have fined, that we have the ability to
control, and we don't have the data to know, one, how big the
problem is; two, the number of people who have actually
withdrawn. We don't even know, we don't have any testimony to
tell us that and we're going to pass a new law without the
knowledge of knowing how big the problem is, the severity or
the frequency of the problem all because it's a feel-good law.
I'm not against doing the things to protect seniors but I'm
extremely concerned at how we're going through this without any
knowledge. HCFA's job is to give us that information. Today we
have before us the person responsible for that. I know the kind
of problems you have at HCFA and I'm extremely sympathetic with
the constraints that have been placed on you by both budget and
demand but I don't think we should even think about passing a
bill until we know the extent of the problem, the number of
firms that have actually chosen to voluntarily--there are many
that get out but it's because we ran them out, because they
didn't comply.
Before we pass a law to pile another set of regulations on
nursing homes which is going to limit their ability to have
dollars to care for patients and it's going to increase the
dollars they're going to put out in terms of compliance with
paperwork, we ought to know those things.
I would yield back.
Mr. Bilirakis. I don't disagree with the gentleman in terms
of wanting to get some of those answers from HCFA. God knows
they ought to have those answers and I'm sure they do, it's
just that you don't have them readily available.
Of course the hearing is not over and the next panel will
share with us a number of instances where this has taken place,
so this is not an isolated incidence.
Mr. Hash. Mr. Chairman, I can assure you that we will
respond to Mr. Coburn's questions and we will get the data to
you for the record.
Mr. Bilirakis. Sooner than later because in the interest of
getting this on a fast track?
Mr. Hash. Yes, sir. I would just say that I think from our
perspective, anytime a vulnerable, frail individual is treated
improperly and in violation of the Federal laws and State laws,
in many respects, even if it's only one, we should take action
against them.
Mr. Coburn. But you have.
Mr. Hash. We don't have the authority that this
legislation----
Mr. Coburn. My point is in the instance of the case that's
brought before us, the history is you all did take action. They
have been fined, they have been penalized. We did do it. The
system worked. Correct?
Mr. Hash. Correct, but there are obviously circumstances
that this bill addresses where nursing home patients could be
subjected to transfers that they do not want, are not in their
best interests.
Mr. Coburn. Absolutely, and don't get me wrong, I'm not
against that. I'm just saying every time we lay a dollar,
compliance dollar on a caregiver today, it's not coming out of
the caregiver's pocket, it's coming out of the patient's
provision. We need to remember that. Greed conquers all
technologic difficulty. The one that's going to benefit in that
is going to be the person that's in control of the money. So if
we spend a dollar on compliance, that's a dollar that's not
going to that patient.
Mr. Bilirakis. Mr. Hash, in earlier comments, I believe you
alluded to the fact you didn't want to do anything that was
going to make even less availability of nursing homes available
to the elderly, so you take all that into consideration.
Mr. Hash. That's correct.
Mr. Bilirakis. In the case at hand, the family had to go to
court in order to get an injunction to keep them from evicting
those individuals.
The gentlelady from California has been very patient this
afternoon. Ms. Eshoo?
Ms. Eshoo. Thank you, Mr. Chairman. My gratitude to you and
to my wonderful colleague, Jim Davis, who is here today. I'm
sorry I missed your testimony introducing this bill.
This is directed to my colleague, Mr. Coburn. I always
thought that hearings were exactly for bringing up the
questions, to answer the very questions we're posing. I don't
remember a hearing that I've been in where every single
question that was posed of the witnesses, that they had the
complete answer with them, but they do submit things to us.
Many times they follow up, as Congresswoman Cubin suggested,
that they come to her office. So that's what this hearing is
about today and I appreciate what you've put forward, Mr. Hash.
I don't know whether the rest of my colleagues on this
important subcommittee have read the most recent HHS news press
release but it's something we have dealt with in this
subcommittee. We very often don't focus on good news.
That is, the Inspector General issued a report relative to
an issue that we've dealt with, fraud, abuse and waste in the
system. Obviously, we still have a ways to go to eliminate what
I just mentioned in terms of improper Medicare payments, but
there's been a 45-percent reduction in improper payments in
just 2 years. So I salute the agency and everyone that is a
part of doing that because I was one of the people originally
that really climbed on some of the statistics that we had. So I
salute you and thank you. I'm not here to scold you today.
About the legislation, the legislation prohibits
discharging a patient because he or she is on Medicaid. Can you
outline or give us any idea what we're doing today that would
prevent discriminatory admissions practices and if you know or
have anything you can share with us about whether that even
takes place?
Mr. Hash. Yes, there have been cases of inappropriate
discrimination in the admission of patients to nursing
facilities based on source of payment. When those allegations
are made to us or evidence comes to us, we and the States go
out to validate that and if there is a validated complaint of
that kind, we can take action against the facility.
Ms. Eshoo. But do you think there is a nexus between it
happening at the front end, and if we prevent more of that,
then it wouldn't happen at the other end?
Mr. Hash. I think there is potentially a connection here.
There is no question about that. Obviously this legislation is
not designed to address the front end piece.
Ms. Eshoo. That's what prompted me to ask the question.
Mr. Hash. From what I know, there have been cases that we
have pursued where there has been discrimination based on a
source of payment. The admissions policy cannot discriminate in
a Medicaid-certified facility on the basis of source of
payment.
[The following was received for the record:]
With regard to discriminatory admission practices as they relate to
Medicaid, the situation is actually a bit more complex than my earlier
statements at the hearing indicate. I was incorrect to say that we
investigate allegations of discrimination on the basis of source of
payment for admissions to Medicaid certified facilities. We do have
some significant Federal protections for current and prospective
Medicare and Medicaid beneficiaries in nursing home admissions and
continued stays. However, there is no simple, absolute Federal
prohibition on discriminating against Medicaid beneficiaries in nursing
home admissions. Indeed, a facility may admit a private pay person in
preference to a current Medicaid beneficiary. The protections in our
regulations prohibit a nursing home from:
--requiring residents or potential residents to waive their rights to
Medicare or Medicaid;
--requiring oral or written assurances that residents or potential
residents are not eligible for, or will not apply for, Medicare
or Medicaid benefits;
--requiring a third party guarantee of payment to the facility as a
condition of admission, expedited admission, or continued stay
(although an individual who has legal access to a resident's
income or resources available to pay for facility care may be
required to sign a contract to do so, without incurring
personal financial liability);
--charging, soliciting, accepting, or receiving any gift, money,
donation, or other consideration, in addition to any amount
otherwise required to be paid under the Medicaid State plan, as
a precondition of admission, expedited admission, or continued
stay by a Medicaid beneficiary (except that the nursing home
may charge a Medicaid resident for items and services that
resident requested and received that are not covered by
Medicaid nursing home payments, so long as the facility gave
proper notice of the availability and cost of the services and
does not condition admission or continued stay on requesting
and receiving the additional services; and the nursing home may
solicit, accept and receive a charitable, religious, or
philanthropic contribution from an organization or person
unrelated to a Medicaid-eligible resident or potential resident
to the extent that the contribution is not related to
admission, expedited, admission, or continued stay of a
Medicaid eligible resident).
Moreover, States or political subdivisions may apply stricter
standards, under State or local laws, to prohibit discrimination
against individuals entitled to Medicaid.
Ms. Eshoo. How many nursing homes are there in the country?
Mr. Hash. There are about 16,800.
Ms. Eshoo. Of that, how many participate in Medicaid?
Mr. Hash. I think virtually all of them are Medicaid-
certified.
Ms. Eshoo. Do you think the issue with which the bill deals
can be characterized as widespread or somewhat contained? The
reason I ask that question is that anytime we read a story
about something that's related to a nursing home and it's
negative, we always think, there but for the grace of God, go
I. None of us want to go to one. We want to be taken care of at
home.
I think we also know, and I've been around these issues
even before I came to the House, that there are some bad
characters, there are some really bad players in any given
industry. That's why I asked the question, because I think what
we do needs to be a signal to the bad apples.
God knows we need all the good operators in this country.
The population continues to age and we're trying to deal with
social security and what we do to address the babyboomers. God
knows we need more and more good operators and safe places for
the care of people in this country.
Maybe you can tell us something about that statistic, the
number of bad players? If we have to introduce one solid bill,
which I think this is a pretty good bill, to go after the bad
players, do you think professionally this will cure what we're
trying to affect?
Mr. Hash. I do believe this legislation will provide
protection in those instances where a facility has Medicaid
patients and decides for whatever reason that in the future
they don't want to participate. There is protection in this
bill that is very important to that circumstance.
With respect to how widespread the problem is, I think Mr.
Coburn makes a good point that we need to take a look at what
the evidence shows. I think most of us are aware that what
brought this to light very vividly last year was one particular
nursing home chain seemed to be taking actions like this in a
number of different places--in Indiana, in Florida, et cetera--
so that at least there is a recent spate of this.
I think it would be unfair to say this is a systemic
problem across all nursing facilities because I don't believe
that it is but I do think this is an important protection in
the instances where homes decided that they, for whatever
reason, don't want to continue to participate in Medicaid.
Those people who are there and who came there relying on a
commitment that this facility would continue to keep them and
serve them, that those people will be protected by this
legislation.
Ms. Eshoo. Thank you, Mr. Chairman, for the time and for
caring about this issue and to you and Mr. Davis for
introducing the legislation. I think it's a great service to
the people in this country and we should move on it.
Mr. Bilirakis. I thank the gentlelady.
The instance that you referred to which has just come to
your attention in Brandon, was that the same nursing home chain
or a different one?
Mr. Hash. No.
Mr. Bilirakis. So it was a different nursing home chain?
Mr. Hash. A different nursing home chain. It's the
Integrated Health Services.
Mr. Bilirakis. Anything further?
Mr. Coburn. Mr. Chairman, I just want to make a unanimous
consent request that we do have our questions returned in
writing and specifically the number of cases that occurred like
this that HCFA is aware of, the number of nursing homes that
withdrew from Medicaid last year voluntarily, and also, as that
relates to the percentage.
Mr. Hash. Of total facilities?
Mr. Coburn. We really need to know how big of a problem
this is. I believe this happened; I don't doubt that; and it's
horrendous that they would try to do this. The point is, how
big is it and are we going to hit an ant with an atomic bomb
and is it something we need to do given the cost of compliance
today? I just want to make sure we get our answers.
Mr. Bilirakis. Of course there may be additional questions,
and you're willing to respond to all those in writing within a
very reasonable period of time?
Mr. Hash. Yes, sir, Mr. Chairman.
Mr. Bilirakis. Thank you very much for taking the time to
come.
Mr. Hash. Thank you, Mr. Chairman.
Mr. Bilirakis. The next panel will consist of: Mr. Nelson
Mongiovi of Tampa, Florida; Ms. Nona Wegner, Senior Vice
President of The Seniors Coalition located here in Fairfax,
Virginia; Mr. James L. Martin, President of the 60 Plus
organization located in Arlington, Virginia; Ms. Robyn Grant of
Severns & Bennett of Indianapolis, Indiana; and Ms. Kelley
Schild, Administrator of the Floridean Nursing and
Rehabilitation Center located in Miami, Florida.
Ladies and gentlemen, your written statement is a part of
the record. I'm going to put the clock on 5 minutes. I would
hope that you would stay as close to that as you can. You're
welcome to read your statement but by complementing it orally,
you might be able to get across more information.
Having said all that, Mr. Mongiovi, why don't we start with
you, sir?
STATEMENT OF NELSON MONGIOVI, TAMPA, FLORIDA
Mr. Mongiovi. Distinguished panel, committee members, I'm
proud to be here today and thank you for inviting me.
My name is Nelson Mongiovi.
Last April, 10 months ago, my mother was one of 53 nursing
home residents that Vencor tried to evict from their facility
in Tampa, Florida. Evictions of Medicaid residents occurred in
13 homes in 9 separate States with a corporate plan underway to
withdraw an additional homes from the Medicaid Program. After
10 residents had already been evicted from the facility in
Tampa, an immediate injunction was served to stop all further
evictions in order to prevent irreparable damage to the
residents.
There are 1.6 million nursing home residents in our Nation
at risk of eviction unless legislation to prevent this is
approved. Senator Bob Graham, Congressman Jim Davis, and
Congressman Michael Bilirakis joined us in our fight to ensure
that this dumping would never occur again.
A $5 million renovation had taken place from the end of
1996 and was completed at the end of 1997. During this period,
residents were accommodated on all other floors in the
facility. After renovations were completed, all residents had
returned to their original setting and began another period of
readjustment.
It was a necessity to visit this facility on a daily basis
to ensure that my mother was clean, fed, turned and taken care
of on a daily basis. When my wife went to the facility on March
30, 1998, she heard from another caregiver that the facility
was going to undergo yet another renovation and everyone on the
fourth floor would be moved. This caregiver was offered a room
on the third floor for her daughter, a private-pay resident,
and she was going to be moved the next morning.
My wife immediately went to the third floor and discovered
46 empty beds were available, including the room directly
beneath my mother's room. She immediately went to the
administrator's office to see if this move was just a rumor and
was told the fourth residents would be moved out of this
facility. My wife asked if my mother could be moved to the
available third floor room because the floor plan was identical
to her room and we did not want to traumatize her again.
The administrator said a team from corporate had been sent
to handle these moves. We met with the team member the next day
and she informed us my mother would definitely be moved out of
this facility. We realized the private-pay residents had been
moved to the third floor and only Medicaid residents were being
evicted.
Residents and their families were in a panic when the
official notice was received stating the safety of individuals
in the facility is endangered by the residents being here. The
injunction forced the return of the ten residents who had been
moved and prevented further evictions. When someone is moved
into a nursing facility, it becomes their home; it's not just a
building to warehouse people until they die. Medicaid dumping
must not be allowed in our Nation. Our loved ones need a place
to live their final years with dignity if they need total care.
Medicaid residents must be protected and not subjected to
physical and emotional harm, irreparable damage and even death
if evictions are allowed to continue.
Out of the 53 original Medicaid residents, only 33 remain
today; 16 have died. My mother died in November 1998 but we
continue this effort because nursing home residents and their
families must be protected and must never have to endure the
suffering we have gone through. I am here on behalf of every
nursing home resident in our Nation and we respectfully request
your unanimous support in making this bill a law.
Thank you very much.
[The prepared statement of Nelson Mongiovi follows:]
Prepared Statement of Nelson Mongiovi
Rehabilitation and Healthcare Center of Tampa
Chronology of Events
RE: Resident--Adelaida Mongiovi
Date of Birth--3-16-05
AGE: 93
November 7, 1996--Letter mailed to all residents of the
Rehabilitation and Healthcare Center of Tampa indicating that the
Facility would undergo ``major renovation beginning 12-2-96,''
``Construction is scheduled to last approximately one (1) year,'' and
``We will be asking residents to relocate to other rooms.'' In
addition, they said in this letter that we would have a ``new and
beautiful home to return to.''
February 1, 1997--Letter mailed to all residents of the
Rehabilitation and Healthcare Center of Tampa thanking everyone for
their patience during the ongoing renovation. (Note: The major
renovation was completed at the end of 1997.)
March 30, 1998--Letter mailed to all residents on the 4th floor of
the rehabilitation and Healthcare Center of Tampa indicating that they
would be remodeling the 4th floor and the short hall of 3rd floor and
stating, ``We need to discuss placement options outside of this
facility,'' additionally stating, ``but we will assist you in finding
alternate placement.''
March 30, 1998--Statement in Notice of Transfer or discharge ``The
safety of individuals in the facility is endangered by the resident's
being here.''
Monday--March 30,1988--5:30 p.m.
1. I (Geri Mongiovi) went to the nursing home, Rehabilitation and
Healthcare Center of Tampa to check on my mother-in-law, Adelaida
Mongiovi (Room 416). When I was leaving, I was asked by another
resident's mother if my mother-in-law was also being moved to 3rd
floor. She said that she had been contacted by the Facility and told
that her daughter's move was going to take place the next day. I
questioned her about the reason she had been given for this move. She
was told that it was for upgrading the wall paper and carpet
installation. Also, because her daughter was a ``Private Pay''
resident, she would be moved to the 3rd floor. She was told that all of
the 4th floor residents would be moved.
This caregiver was extremely upset and could not understand why the
move was occurring, since family members had just returned to the 4th
floor after the extensive Five Million Dollar ($5,000,000) remodeling
job. She indicated she had just finished redecorating her daughter's
room and that her daughter was finally relieved to be back in her own
room. She told me that she did not want her daughter to be moved to
another room in this Facility again. During the extensive remodeling,
which encompassed approximately one year, the residents had been
accommodated on other floors in the Facility.
2. I immediately went to the 3rd floor to determine how many rooms
were vacant. I was in a panic about having to displace my mother-in-law
again. I discovered that the room directly under my mother-in-law's
room was vacant (Room 316). 1 was slightly relieved and hoped that she
could be moved to that room. All of the 4th floor residents were going
to be required to leave the floor. Since there were empty beds on the
3rd floor, I felt that if I spoke up immediately, before any of the
moves took place, I would have an opportunity to move my mother-in-law
to that floor.
I was extremely upset about what was occurring and fearful of what
my husband's reaction would be if his mother were moved again. The
uncertainty of where we would place her if it became necessary to move
her to another nursing home led me to panic. If this occurred, it would
be impossible for me to visit her daily, as I have done for almost four
years.
3. As I left the Facility, I saw the Administrator, Marie
Panapolis, and asked her if I could speak with her about the remodeling
and the possibility of having to move the residents again. I wanted to
determine if this was just a rumor or if this was really going to take
place. We sat in her office and she confirmed that this re-renovation
was going to take place and that the 4th floor residents would have to
be moved. Ms. Panapolis would be leaving her position as Administrator
of this facility on April 17, 1998. I then asked Ms. Panapolis if my
mother-in-law could be moved to Room 316 as this room was vacant and
because it was located directly under the room which she now occupied.
The room on the 3rd floor (Room 3l6) was exactly like my mother-in-
law's room. If she would be able to occupy this room, she would not be
as traumatized by another move. I reminded her that I came to the
Facility every day to see my mother-in-law, that my husband was able to
walk to this Facility since no automobile was available for him when I
worked, we live five blocks away, and that I work just a few blocks
away. Ms. Panapolis said she was not involved in the relocation
decisions and that Vencor had sent a Team down to assist with this
matter. When I asked her who in the Vencor Team was making these
decisions, she told me ``Amanda Clark is making the decisions about who
will be moved to 3rd floor.'' I then asked if Amanda Clark was in the
Facility and if I could meet with her regarding moving my mother-in-law
to the 3rd floor. She knocked on the door across from her office and
returned to tell me that Amanda Clark was in a meeting at the time. I
asked her if she would relay my concern about not being able to visit
the Facility daily and the fear that my mother-in-law would not survive
yet another relocation. Additionally, I asked her if she could inform
me immediately the following day whether or not we could move my
mother-in-law to Room 316.
Upon arriving home this evening and telling my husband about the
series of events that had taken place, he became extremely upset. I
tried to calm his fears, telling him that Ms. Panapolis had assured me
she was going to talk with Amanda Clark when the meeting was over and
she would give me an answer tomorrow regarding the possibility of
moving his mother to 3rd floor. I was also well aware that, along with
Room 316, there were other openings on the 3rd floor.
Tuesday--March 31
1. While at work, I began to get an uncomfortable feeling that more
was going on at this Facility than I was aware of. The fact that a
``Vencor Team has been sent down to assist us'' and the statement that,
``Corporate will be making these decisions'' really began to worry me.
Instead of going directly to the Facility from work as I sometimes do,
I called Nelson and told him to be ready so I could pick him up and we
could go to the nursing home together.
2. When Nelson and I arrived at the Facility, we immediately went
to the 3rd floor and, much to our surprise, noticed that the three
``Private Pay'' Residents who had been on the 4th floor yesterday had
been relocated to the 3rd floor on this date (one moved to Room 316 and
two moved to Room 323). The fourth ``Private Pay'' Resident that had
been offered the opportunity to relocate to the 3rd floor had decided
that she was going to leave this Facility. Nelson and I walked up and
down the hall trying to determine which rooms still had beds available.
Three residents remained in rooms in the short hall, on the 3rd floor.
3. Nelson and I asked if Amanda Clark was available to speak to us.
She made herself available and we asked if Ms. Panapolis had relayed
our concerns to her. She indicated that she had spoken with her. We
told Ms. Clark that we wanted to know if we would be able to move
Adelaida Mongiovi to the 3rd floor, because we had seen available beds.
She stated that this would not be possible and said that Mrs. Mongiovi
``would be required to move out of the Facility.'' She mentioned that
she would be happy to assist us in finding another facility. We asked
her ``who in Vencor can we speak with regarding the decisions that are
being made'' and she replied, ``Corporate is making the decisions.'' We
then inquired about whom we could contact at the Corporate level
regarding the decisions which were being made. We also asked her ``If
there are still remaining beds on the 3rd floor, why would we not be
able to move Adelaida Mongiovi?'' She reiterated, ``Corporate is making
the decisions.'' We were also told that the beds which remained on the
3rd floor were going to be held for ``Insurance Patients and hospitals
which had contracts with Vencor.''
At this point, it became evident to us that the ``Private Pay''
Residents were being moved to the 3rd floor while the ``Medicaid''
Residents were being farmed out to other facilities. Becoming extremely
angry as we realized what was happening and trying to get some clear
answers, we asked Amanda Clark if she could give us the names of
Corporate personnel that would be able to answer our questions. She
said that she had no available names, but would attempt to get answers
for us.
The following questions were posed to Amanda Clark:
1. Why had only the ``Private Pay'' Residents from the 4th floor been
offered the opportunity to move to the 3rd floor?
2. Why were only the ``Medicaid'' residents on the 4th floor going to
be relocated to other facilities?
3. Was there any possibility that we would be able to move Adelaida
Mongiovi to the 3rd floor until this re-renovation was
completed?
4. If we did have to move out of this Facility, would the Resident be
able to return when the re-renovation was completed?
5. What type of re-remodeling would they be conducting in the facility
after a five million dollar ($5,000,000) renovation had just
been completed and the residents had recently been returned to
the 4th floor?
6. Is this facility going to go private and, if so, was this the reason
they were re-wallpapering the newly wallpapered walls with
``upgraded wallpaper?''
7. We asked if she could advise us as to how to contact the President
of Vencor or the Corporate personnel making these decisions so
we would be able to call someone directly to discuss our
concerns? TO EACH AND EVERY ONE OF OUR QUESTIONS, AMANDA
CLARK'S ANSWER WAS, ``I DON'T KNOW, CORPORATE IS MAKING THE
DECISIONS,'' HOWEVER, I WILL TRY TO GET SOME ANSWERS FOR YOU.
Amanda Clark informed us that Vencor was based in Louisville,
Kentucky, and she said she had no telephone numbers available
for us to contact the Corporate personnel making these
decisions. She did report that she would relay our concerns to
them and attempt to get answers to our questions. She indicated
that we would not be able to contact Vencor Corporate Personnel
directly regarding these concerns, but again reiterated that
``The Team is here to help you in any way we can.'' She also
told us that she would be happy to assist us in ``finding a new
home.'' We left at that time, extremely angry and frustrated,
indicating to her that we would see her on the following day.
Ms. Clark informed us that we would be receiving a letter
``very shortly.'' This letter had also been mailed to all 4th
floor Residents who were on Medicaid.
Wednesday--April I
After arriving at work, I began feeling more and more uncomfortable
about what Nelson and I felt was occurring. Our fear was that if we did
not take immediate action, there would be no nursing home availability
in Tampa because we were one of fifty-three Residents who were being
discarded and knew the panic that would arise after these letters were
mailed.
After a short time at work, I asked if I could take the rest of the
day off because I had some critical issues to attend to immediately.
Nelson and I were well aware of the quality of nursing homes in this
area, the lack of availability for new residents and the inconvenience
of so many locations with some being a great distance from our home. We
had, upon my mother-in-law's initial entry into the nursing home,
visited almost every existing facility in Tampa. At this time, we knew
we had to relocate, but experienced a feeling of impending doom
regarding the possibility of ever being able to return. I left work and
Nelson and I went immediately to the nursing home closest to this
Facility, Tampa Health Care Center, 2916 Habana Way, Tampa, Florida. We
spoke with a woman in admissions and told her about our situation. She
said that Rehabilitation and Healthcare Center of Tampa had already
contacted her and had sent her ``Face Sheets'' on some residents they
would like to move. We discussed my mother-in-law's situation with her
and, at that time, she indicated to us that there was only one
available bed for a female resident. We asked if she could obtain the
Face Sheet on my mother-in-law and determine if she could take this
bed. We had decided at this point that since we had to make a move,
this was the closest nursing home and we would just have to adjust
until my mother-in-law was possibly given the opportunity to return to
the Rehabilitation and Healthcare Center of Tampa.
From that nursing home, we went to The Home Association, 1203 22nd
Avenue, Tampa, Florida, to see if they had any available beds. Again,
we were told they needed to evaluate her to see if they would be able
to accept her. They said this would be done on Friday.
We then went to the Rehabilitation and Healthcare Center of Tampa
to see if Ms. Clark had gotten any answers for us. She said she did not
know what criteria had been used for moving patients and still did not
know whether or not we would be able to return. Nelson and I again went
to the 3rd floor to see if the remaining available beds had been filled
and were astonished to see that openings still remained.
Thursday--April 2
In the morning, Nelson visited as many nursing homes as possible
while I was at work. The same story was repeated over and over, we have
no beds available at this time.
In the meantime, many of the other families had received their
letters and panic had set in. As we have become friends with so many
families on this floor, as so many families are unable to communicate
in English along with so many being unable to understand what was
occurring, in general, we all banded together in an effort to get some
answers. Many had called all of the numbers listed on the discharge
letter, attempting to get some answers about what was happening. They
questioned whether Vencor could really remove all the 4th floor
``Medicaid'' Residents, did we have any rights, and whether anything
could be done about the situation. We had so many family members
contacting us that we decided at that time that we would try to get
some more answers.
The Home Association made a visit to the Facility to evaluate my
mother-in-law and decided that they would accept her in their nursing
home. Within one hour after the evaluator left Rehabilitation and
Healthcare Center, the Home Association was contacted by Amanda Clark
to see if my mother-in-law could be transferred immediately. The Home
Association told them that the room had not even been cleaned and that
she understood we had thirty days to accomplish this discharge. The
Home Association called me immediately to tell me what had happened and
asked what the big rush was.
At 5:00 p.m., Nelson picked me up from work and we again went to
see Marie Panapolis. As soon as Amanda Clark saw us in her office, she
approached us saying ``I see you already found a place'' and wanted to
know when the arrangements for transfer would be made. Nelson told her
that he would let her know.
By now, we had received our letter. This letter stated ``The safety
of individuals in the facility is endangered by the resident's being
here.'' We stated this was definitely not true and were told by Marie
Panapolis that Alice Adler, Agency for Healthcare Administration had
decided on the wording that was to be used in the Notice of Transfer or
Discharge and that this discharge of patients had been approved by the
state.
We then asked her if any decision had been made about whether or
not the 4th floor Residents that would be moved from this Facility
would be able to return when the re-remodeling was completed. She told
us at that time that Vencor had now said, when this remodeling was
completed, depending upon availability of beds in the Facility and by
priority, the displaced residents might be allowed to return. We asked
her what priority method would be used to allow returns and she said
they were trying to determine whether it would be the age of resident
versus the years the resident had resided in the Facility before
displacement, but that this determination had not yet been made. This
verbal decision was made after numerous calls had been made to all of
the telephone numbers on the Notice of Transfer or Discharge form. When
we left the Facility, Nelson and I continued to visit as many other
nursing homes as we could visit in one day. Upon returning home that
evening, we agreed that a verbal statement from Vencor saying that we
might be able to return if there were available beds was as useless as
the paper it was written on. We wanted it in writing.
Friday--April 3
Nelson and I went to the Facility approximately 9:00 a.m. and met
with Marie Panapolis. I had scribbled down some ideas for a possible
letter to be written by Vencor to the residents if, in fact, they were
really going to allow us to return. We also told her that verbal
promises meant nothing to us and we needed this in writing. She read my
rough draft and said she would be meeting with Vencor personnel and
would try to have an answer for me by the next Friday, April 10, 1998,
as to whether or not they would put this in writing.
The Agency for Healthcare Administration, the State Long Term Care
Ombudsman, the DD Advocacy Center for Persons with Disabilities, Inc.,
and the MI Advocacy Center for Persons with Disabilities, Inc., had all
been called by the 4th floor Residents and/or their family members,
with additional calls having been made to Bay Area Legal Services and
different attorneys. The universal answer given by all resources were:
IF THE STATE APPROVED IT, THEN THERE IS NOTHING THAT CAN BE DONE ABOUT
IT, OR WE WILL CHECK INTO THE MATTER FOR YOU. Nelson and I then decided
that we really needed to leave no stone unturned to determine what our
rights were. We then remembered an article, ``Nursing Homes often
violate law'' which we had read a while back describing ``Medicaid
Dumping.'' This article depicted the many different tactics by which
this is accomplished. We wondered whether this was what was happening
to all of the 4th floor ``Medicaid'' residents so we decided at this
time to go to the newspapers and television stations hoping that we
might expose their actions.
Saturday, April 4, 1998/Sunday, April 5, 1998/Monday, April 6, 1998
Nelson and I visited sixteen nursing homes in the area, from 8:00
a.m. to 10:30 p.m. during the course of these three days.
Tuesday--April 7,1998
The Tampa Tribune printed the story of the plight of the 4th floor
``Medicaid'' Residents who were being evicted from their home and,
coincidentally, the Wall Street Journal printed a story on this same
date regarding ``Vencor'' and ``Medicaid Dumping''.
Nelson went to the Facility and saw many residents being moved out
so rapidly that no one knew what was going on. The Residents were
crying hysterically, not knowing what was happening or where they were
going. Within two days, ten residents had been evicted from this
Facility. The Residents' family members were also devastated, wondering
how they would be able to see their loved ones if moved to other
facilities. Many of these family members depended on rides every day as
they did not drive, some walked to see their loved ones and still
others were only able to navigate the familiar streets without having
to drive on major thoroughfares. There was utter chaos at the Facility
at this time with everyone, residents and family members, trying to
determine what, if anything, would we be able to do.
Realizing that our loved one, along with our fellow residents,
would be subjected to physical and emotional harm, irreparable damage,
and even the possibility of death if these moves would continue to take
place, Nelson immediately contacted the Law Firm of Wilkes and McHugh.
Bennie Lazzara, Esquire, from this Law Firm, accompanied Nelson to the
Courthouse to file a Petition for Temporary Injunction which was
granted immediately. This prevented any additional removals of
residents from this Facility pending resolution of this matter by the
Court.
Mr. Bilirakis. Thank you very much, sir.
Ms. Wegner?
STATEMENT OF NONA BEAR WEGNER, SENIOR VICE PRESIDENT, THE
SENIORS COALITION
Ms. Wegner. Thank you, very much.
I'm Nona Bear Wegner, Senior Vice President of The Seniors
Coalition, a non-partisan, nonprofit advocacy organization
representing approximately 3 million older Americans and their
families. It is a pleasure for us to have the opportunity to
testify today in support of the Nursing Home Resident
Protection Amendments of 1999, which Mr. Bilirakis and Mr.
Davis have put together. We thank them for their leadership on
this issue and for the work the subcommittee does to protect
the health of older Americans.
The nursing home industry provides an invaluable service to
the most frail and vulnerable in our society, as well as being
an enormous relief to family members who trust nursing home
operators to care for their families in their absence. It's
essential that we have conditions which allow private
enterprise to operate nursing homes and to encourage investors
to invest in nursing homes so that these facilities will
continue to grow and develop in proportion to the aging of our
society.
At the same time, we must offer protections to families
from being suddenly and unfairly denied access to care. Finding
the right balance between protecting the rights of operators
and investors and protecting the rights of patients and their
families is a very difficult process and the fact there is a
strong bipartisan support for this bill, and the fact there are
consumer and operator groups in support today is a testament to
the painstaking manner in which this bill has been crafted.
There are three points I'd like to make about H.R. 540.
First and foremost, the most basic premise of our free market
society rests on the fact that consumers must have accurate
information. The aspect of full disclosure in this bill is
critical in order for marketplace forces to work.
Second, it is a fact of life that Medicaid currently pays--
estimates say as much as 70, others say as much as 40 percent--
of all care. We in no way condone the outrageous activities
that led to Mr. Mongiovi and other families undergoing the
things they experienced and therefore, the writing of this
bill, but we must face the simple fact that when any operator
is asked to provide care for half or more of their population
at a reimbursement rate which does not allow them to meet their
costs, they are going to look for an alternative. That is the
real crux of this issue.
Third, as I have said, and most importantly, nursing home
residents and their families cannot be faced with being turned
away without notice and without alternatives. That is
intolerable.
Clearly then, the kinds of practices and safeguards
outlined in this bill must be enacted in law. It recognizes the
realities of the industry while at the same time building on
the safeguards that are needed.
There is one more point I really feel I have to make. Far
too many Americans are not prepared to face the cost of long-
term care. Neither the Medicaid budgets of all 50 States or the
entire Federal Treasury are going to be able to absorb the
impact of that cost. Industry projections say that in 30 years,
the number of nursing home patients will double, but the total
outlay for nursing home costs will quadruple reaching $330
billion. This only looked at the economic impact of that cost.
What about the cost of human pride and dignity of people who
have spent their entire lives building a country and building a
family and accumulating assets only to find their only
alternative for caring for themselves or their spouse, parent
or other loved one, is to turn to Medicaid.
We have arguably the best system of health care delivery in
the world. Long-term care is a part of that, but the advances
that we have enjoyed have outstripped our ability to pay for
them and there are not mechanisms in place. Just consider the
fact that the fastest growing segment of our population is the
age group of 85 and above. When the mechanisms in place today
were developed, we never foresaw that kind of dynamics. They
were developed in the 1940's, 1950's and 1960's and we have
jerry-rigged them to bring them to the future.
Therefore, the assumptions and rationales for current
reimbursement strategies were not created with current dynamics
in mind and we need to rethink them and find solutions that are
based on both the demographic and economic realities of the
21st Century.
The current system must be modified to empower individuals
to plan for and provide for their own long-term care.
Government must create a public policy environment that
encourages Americans to protect themselves and the private
sector has to step up to the plate not only with affordable
long-term care insurance but with other products that will also
allow for the protection of assets and the protection of
consumers.
Thank you very much.
[The prepared statement of Nona Bear Wegner follows:]
Prepared Statement of Nona Bear Wegner, Senior Vice President, The
Seniors Coalition
Good afternoon. My name is Nona Bear Wegner and I am Senior Vice
President of The Seniors Coalition. The Seniors Coalition is a non-
partisan, non-profit advocacy organization representing older Americans
and their families. On behalf of the more than 3,000,000 members and
supporters of the Seniors Coalition, I thank you for the opportunity to
offer our remarks before the Health and Environment Subcommittee. I
have come to testify in support of H.R. 540 which has been introduced
by Mr. Bilirakis and Mr. Davis. I would like to take this opportunity
to thank both of you for your leadership on this issue, and for the
continuing work of this Subcommittee in helping to protect the health
of older Americans.
I would, for just a moment, also like to offer thanks to the
ranking minority member of this Subcommittee, Representative Henry
Waxman, a cosponsor of this bill, for the leadership he has provided on
this matter and in making safe, effective low-cost generic medicines
available in the marketplace. They have been lifesavers both medically
and financially for so many of our members, and indeed all Americans.
The nursing home industry is a vital element in the continuum of
care available to Americans of all ages, particularly the elderly. It
provides an invaluable service to the most frail and vulnerable, as
well as enormous relief to the families who trust nursing home
operators to care for their family members. Consequently, it is
essential that we have conditions that both encourage private operators
to make the investment necessary to operate these vital facilities and,
at the same time, protect the patients and their families from being
suddenly and unfairly denied continued access to such care. Finding and
striking the right balance between the rights of operators and their
investors and the rights of consumers and their families is a difficult
process. The fact that such a wide array of consumer and operator
associations are supporting this bill is a tribute to the careful,
painstaking manner in which Congressmen Davis and Bilirakis have
labored to craft this measure.
Now let me return to the legislation under consideration here
today. H.R. 540 would prohibit transfers or discharges of residents in
nursing homes when the operator voluntarily withdraws from the Medicaid
program. Additionally, it provides for disclosures--in writing--to
clients and prospects concerning the intentions of operators in regard
to Medicaid participation. Let me address several aspects of this
package.
First, consumers must have adequate information to make informed
decisions. The most basic premise of our free market economy rests on
this simple fact.
Second, it is unfortunately a fact of life that the nursing home
industry operates in a marketplace environment in which Medicaid is
responsible for more than 40% of all financing. Naturally, private
operators will respond or not respond according to the adequacy of
government compensation rates. When Vencor or any other operator's
asked to provide both care and medical support to its patients at a
cost significantly above the reimbursement rate, we should not be
surprised that eventually it and other operators will look for
alternative--and more adequate compensation.
Third, nursing home residents and their families cannot be faced
with being turned away without notice, warning, or alternative. That is
intolerable.
Clearly, it is essential that the kinds of practices and safeguards
outlined in the Bilirakis-Davis proposal be enacted into law. This bill
recognizes the realities of this fragile and volatile industry, while
building in safeguards against unfairness by establishing a threshold
of full-disclosure. Through this, nursing home residents and their
families will receive the information necessary to carry out the
difficult planning and decisions which must be made in caring for
elderly parents and friends.
A feature contained in the legislation proposed last year called
for a five-year study to assess the impact of this law and of
reimbursement rates on Medicaid participation by and consumer access to
nursing homes. My initial reaction was that this was too long a period
of time. I know that the current version of this legislation has
deferred that study in light of another on-going study which will be
reported to the Congress. I believe it is essential that this on-going
study be comprehensive enough to answer all of the questions
surrounding industry trends, and the impact of full-disclosure and
reimbursement rates on the availability of Medicaid beds for elderly
residents in nursing homes. I would not want any provision of this law
to delay that study, but I think it is important that all the questions
anticipated in last year's five year study provision be answered.
Except for that one caveat, I believe the present form of the
legislation constitutes a reasonable measure providing necessary
information, full disclosure, and consumer protection. I am especially
glad to see that it does so without plunging into the trap of counter-
productive over-regulation and burdensome micro-management by
bureaucratic fiat we so often see and experience.
Finally, it must be said that the anguish of the families who are
faced with situations like those in Tampa are perhaps the tip of the
iceberg, for their plight is symptomatic of a far greater problem. In
fact, it is a symptom which points to a reality we are only just now
beginning to face: Far too many Americans are not prepared to face the
cost of long term care, and neither the Medicaid budgets of the 50
states nor the federal treasury can continue to absorb the impact of
such costs. Industry projections suggest that in just 30 years, the
number of nursing home residents will double. This dramatic increase in
the number of patients combined with the increased costs of providing
services suggest that total expenditures for nursing home care will
quadruple--reaching $330 billion. Moreover, this looks only at the
economic reality of the aging of our society, not the human cost. What
of the dignity of proud Americans who, after spending a lifetime
building our country and providing for their families, find they must
turn to Medicaid to provide for their loved ones or themselves?
The American system of health care delivery, including our network
of long-term care, may well have no equal in the world. But it is also
true that our advances in medical care for both chronic and acute
illness have expanded explosively, and in many cases are beyond the
adequacy of mechanisms available to pay for this care. Just consider
that the fastest growing segment of our population is the cohort age 85
and above, and by some estimates the number in this age group will
triple in the next thirty years. The assumptions and rationales for
current reimbursement strategies were not created with this dynamic in
mind. We must rethink our assumptions--and find new solutions to the
problem, solutions that take into account the demographic and economic
realities of the 21st century.
Just as the Bipartisan Commission on the Future of Medicare is
looking at ways to save Medicare and make it responsive to the needs of
seniors in the next century, we need a new solution for solving the
problem of financing long-term care. In the latter half of the 20th
century we have relied upon public-private sector partnerships that
have evolved over time. The staggering number of those who will need
long term care and the equally staggering costs of such care means
that, under current economic realities, fewer and fewer individuals
will be able to foot the bill privately. Nor is there enough money
available in federal and state budgets to pay the cost of long-term
care over the next thirty years.
The current system must be modified to empower individuals to
address, plan for, and provide for their own long-term care. It is a
task that can be done through a new public private partnership.
Government must create public policy which encourages Americans to
protect themselves against the costs of nursing home care. Similarly
the private sector must step up to the plate with a variety of products
which will provide this protection for the consumer. In short, there
must be new and better tax incentives for the purchase of long term
care insurance and similar products if we are to avoid disaster.
We urge this Subcommittee and this Congress to move beyond finite
aspects of the problem and to utilize tax credits and other measures to
encourage today's ``middle-agers'' and ``Generation Xers'' to acquire
the necessary financial and insurance instruments to provide for their
own long term-care.
Thank you.
Mr. Bilirakis. Thank you very much, Ms. Wegner.
Mr. Martin?
STATEMENT OF JAMES L. MARTIN, PRESIDENT, 60 PLUS
Mr. Martin. Thank you.
Good afternoon. I'm Jim Martin, President of the 60 Plus
Association and I enthusiastically endorse what Ms. Wegner has
just said.
Thank you, Mr. Chairman, for holding this important
hearing. I bring greetings from a colleague of yours, former
Congressman Roger Zion of Indiana, who is the 60 Plus
Association's honorary chairman. Congressman Zion has asked
that a news article from his hometown paper, the Evansville
Courier Press, be made a part of this record. The article
highlights another nursing home problem.
Mr. Bilirakis. Without objection.
[The article follows:]
[Tuesday, February 2, 1999--Evansville Courier & Press]
Legislators Call Treatment in Nursing Home Case ``Inhumane''
By Roberta Heiman, Courier & Press Staff Writer
To force William Lockard or any other elderly person to leave a
nursing home, after having required them to sell their own home,
``would be inhumane,'' say Evansville's four state representatives.
The legislators Monday asked Gov. Frank O'Bannon to review how his
administration is enforcing Medicaid continuing-eligibility rules in
nursing homes and to consider other alternatives.
Their action came in response to the dilemma of 86-year-old Lockard
and his wife, Pauline, 82.
The Lockards, married for more than 65 years, have both been
patients at Pine Haven Nursing Home in Evansville for two years. She is
blind and bedfast. He has heart problems and early stages of dementia,
but Medicaid reviewers add he doesn't need nursing home care anymore
and must leave.
But he has no home to return to, because under state Medicaid rules
a couple has to deplete their resources to only $2,250--including their
home and life's savings--to pay the nursing home bills themselves
before Medicaid will help.
``We have several concerns about the state's actions and state
policy in this situation,'' State Reps. Jonathan Weinzapfel, Dennis
Avery, Vaneta Becker and Brian Hasler said in a letter to O'Bannon.
``. . . As you are aware, one must impoverish oneself to become
eligible for Medicaid assistance for nursing home care,'' the
legislators wrote. ``Once that happens, does the state not have an
obligation to continue providing Medicaid assistance for that person to
remain in a nursing home even though their medical condition may
improve?
``Once impoverished, such a person would have nowhere to go if they
did not have a supportive family. Such action would be inhumane,'' they
concluded.
They said they hope Medicaid's ruling on Lockard will be reversed
by an administrative law judge who conducted a hearing Friday on the
family's appeal. The judge's ruling will come later.
In addition, the legislators asked O'Bannon to find out if Medicaid
reviewers were following the guidelines he called for more than a year
ago--to consider socioeconomic factors, not just medical factors, when
determining eligibility for continued nursing home care.
Elder-law attorneys and Medicaid officials said the Lockard case is
unusual, because it isn't common that both a husband and wife would
have to enter a nursing home at the same time.
But when it does happen to elderly Hoosier couples, they said,
Indiana forces them to deplete their assets to only $2,250--spending
all they've worked for and saved over the years--before Medicaid will
help pay the nursing home bill.
And if one of the couple improves in health a few years later and
has to leave the nursing home, he or she has no home to go back to and
no resources to start over with.
``The rules obviously need to be changed,'' said attorney John
Buthod, a member of the Evansville Bar Association's elder law
committee,
Buthod said in most cases only one of the spouses has to enter a
nursing home, and state law allows for protecting the other spouse
against impoverishment.
But when both spouses have to enter a long-term care facility, or
when the person is single and has no spouse, the law doesn't provide
for protecting or sheltering most of their assets, he said.
``The law is trying to achieve some sort of balance--to make sure
people are provided for but protect taxpayers from an undue burden,''
Buthod added. ``But a lot of work needs to be done. It's not a very
good system yet.''
The state no longer places a lien on a couple's home when just one
enters a nursing home, said Cindy Stampler, state Medicaid eligibility
manager.
But the rules are different when both spumes need nursing home
care, or when there is no spouse and a single person enters a nursing
home, she said.
Stampler said it's possible for a couple or individual in good
health to transfer their assets to their children at least three years
before they might have to enter a nursing home.
But Buthod said that's not advisable. ``That isn't really
protecting their assets,'' he said. ``It would not only rely on the
good will of the kids, but would subject the home to potential
creditors of the children. It's not generally a good idea.''
He said one allowable step is to buy a prepaid funeral plan, which
Medicaid doesn't count against the asset limits.
Indiana's assets limits of $1,500 for an individual and $2,250 for
a couple are among the lowest in the country and haven't been increased
for at least 15 years, Stampler said.
Regulations vary from state to state.
Most states allow at least $3,000 for a couple, and some allow
more. But Buthod said none are really adequate to provide for a
situation like the Lockards.
In their letter to O'Bannon, the legislators said part of the
problem is Indiana's limited program of room-and-board assistance and
other alternatives to nursing home care.
Mr. Martin. On behalf of 60 Plus, I appreciate this
opportunity to testify and while I have a formal statement, Mr.
Chairman, I would like to make a personal observation.
I came to Washington, D.C. as a young reporter way back in
1962 for a group of newspapers, including the Tampa Tribune,
which I was pleased to learn uncovered this nursing home
scandal. I started reporting on Congress back then when John
Kennedy was in the White House and yes, I covered that tragic
moment in our history, his assassination; Neil Armstrong's walk
on the moon; and Strom Thurmond was still a Democrat, he was
even South Carolina's junior Senator. My point being that while
others here today have touched on the details of this nursing
home scandal--and my official testimony does likewise--I would
like to make an observation from the perspective of 37 years
working on and around Capitol Hill.
I've seen a lot of pitched political battles, perhaps none
more contentious than the one which is hopefully ending as we
meet here today. I believe that Congress has a window of
opportunity, as has been expressed by the chairman and others,
with this type of legislative initiative, H.R. 540, to start a
bipartisan process, as the new Speaker has said, to work for
the common good.
Clearly Democrats such as Jim Davis of Florida, Senator Bob
Graham, and you, Mr. Chairman, a Republican, all of Florida and
many of the other bipartisan co-sponsors are showing what
working together can produce.
As Mr. Mongiovi has said, nursing homes become just that,
homes. They are not a hospital room nor a hotel room. They are
home to these patients. California and Tennessee have adopted a
similar proposal: attrition, not eviction, should be the rule
so indigent patients do not suffer relocation trauma. In short,
if you take 'em, keep 'em.
60 Plus is a national, nonpartisan seniors group with half
a million seniors, 30,000 in Florida, including my favorite
senior, my mom who is in her 80's, lives in Okeechobee and she
still works part-time.
60 Plus publishes a Congressional scorecard of key votes
which is the basis of our Guardian of Senior Rights Award that
is given to Democrats and Republicans alike. H.R. 540 is a
shining example of the type of legislation that 60 Plus will
consider for its scorecard. Kudos to Congress and we urge its
immediate passage.
Thank you.
[The prepared statement of James L. Martin follows:]
Prepared Statement of James L. Martin, President, 60 Plus Association
Mr. Chairman and Members of the Subcommittee, I am pleased to be
here today to testify in support of H.R. 540, the Nursing Home Resident
Protection Amendments of 1999. I bring greetings from the 60 Plus
Association Honorary Chairman, former Congressman Roger Zion, a member
of this body from Indiana for eight years, 1967-1975, who is unable to
attend today's hearing.
60 Plus is a six-year old national, nonpartisan senior citizens
advocacy group with half a million members nationwide, an average of
1,000 per Congressional District. We pursue efforts to give them a
greater voice in their destiny and the spending of their money.
60 Plus publishes a Congressional Scorecard based on key votes
affecting seniors. The scorecard is the basis for our ``Guardian of
Seniors'' Rights Award'' given each session to Members of Congress,
Democrats and Republicans alike, who are ``senior friendly.'' This
proposal, H.R. 540, with strong bipartisan support, is the type of
proposal which 60 Plus strongly supports and urges that it be reported
out of committee and voted on by Congress. It is the type of
legislation which we will consider including as a key vote for our next
scorecard.
I note that Chairman Bilirakis has been a recipient of our highest
honor, the ``Guardian of Seniors' Rights Award'', in previous
Congresses and it is this type of legislative initiative that endears
the Chairman to senior citizens. Martin/Page 2
While 60 Plus seeks a reduction of federal government controls and
less regulation, we recognize that there are certain abuses which
require some new legislation and/or regulations to protect our senior
citizens. One instance is the current situation with nursing homes and
the abuse of Medicaid patients.
We are dealing with a vulnerable population. Seniors may reside in
these homes for many years and they begin to identify the nursing home
as part of their own community. This is becoming more of an issue as a
greater number and percentage of that population lives on into their
80's and 90's and beyond. I know I was alarmed to read and hear of
nursing homes and nursing home chains taking the action of evicting
seniors from nursing homes. Though reimbursement may be lower for
Medicaid patients, we need to preserve their rights. Even with the
lower reimbursement, it is still beneficial for nursing homes to
provide assistance to these patients, rather than to have empty beds.
This legislation protects Medicaid patients and it also protects
the property rights of nursing home owners. As I understand it, it does
not require any nursing homes to accept Medicaid patients. However,
once a nursing home does accept Medicaid patients, it would protect
those patients from being evicted by these nursing homes or
transferring that resident. We don't want ``granny'' or ``grandpa''
arbitrarily sent away or evicted from a nursing home for no legitimate
reason.
We must halt this discrimination against Medicaid patients. We must
not allow nursing homes to empty their beds of Medicaid patients. This
bill is fair to the owners and the chains running nursing homes in that
if they decide not to accept Medicaid patients, such nursing homes can
follow a procedure to terminate voluntarily their participation in the
Medicaid program. New residents then must be notified of such a policy
and that they might be transferred or discharged at some later date.
I want to thank you again, Mr. Chairman and members of this
subcommittee, for inviting me to testify before you on this important
legislation. In closing, in accordance with the Truth in Testimony
regulations, I am pleased to announce that we neither accept nor
solicit federal funds or federal grants for the 60 Plus budget. 60 Plus
depends 100% on voluntary donations from its supporters.
Mr. Bilirakis. Thank you very much, Mr. Martin.
Ms. Schild?
STATEMENT OF KELLEY SCHILD, ADMINISTRATOR, FLORIDEAN NURSING
AND REHABILITATION CENTER, ON BEHALF OF THE AMERICAN HEALTH
CARE ASSOCIATION
Ms. Schild. Hello, Chairman Bilirakis. Good afternoon,
members of the subcommittee.
My name is Kelley Schild and I am the Administrator of a
nursing home in Miami named Floridean. I operate a small,
independently owned, family run nursing facility that cares for
60 residents. I am here on behalf of the American Health Care
Association to give you our perspective on H.R. 540 introduced
by Congressman Davis and Senator Graham, called the Nursing
Home Resident Protection Amendments of 1999.
When I heard the plight of the residents that were
discharged from the nursing home in the Tampa area, I was sad
and angry. Let me state at the outset that we do not condone
the action taken by the nursing home and are gratified to hear
that all the discharged residents were readmitted. They paid
fines to the State and Federal Government and made changes in
their company to prevent this from happening again.
As providers of care, I make it my life's work to provide
an environment that is safe and happy and secure for my
residents. We know better than anyone else that our facility is
really their home. In fact, under current nursing home law,
facilities are prohibited from discharging residents for any
reason unless secure and alternate living arrangements have
been provided.
We are a critical part of our Nation's social safety net.
It is our responsibility to make sure they are cared for and we
do that well. I will state up front that we firmly support your
legislation. I commend your leadership and foresight in
addressing the issue in a straightforward and inclusive manner.
It is important to note though that this discussion must
look deeply enough beyond the emotional arguments and
litigation to find the root cause of why we are sitting here
today. In my view, most caregivers know it's illegal to
discharge a resident just because they spend down and become
Medicaid-eligible. Your legislation lays out a policy and
process which is clear and provides both providers and
residents when a discharge may occur. Importantly, it also sets
up a process by which new residents are notified of a
facility's decertification and providers can still withdraw
from participation in Medicaid if they must. In many cases, the
reasons to decertify are compelling. Let me explain.
It runs counter to everything we do day in and day out to
think someone would transfer a resident against their best
interests. So the question is, why does it happen? The answer
lies in the Medicaid system itself, its requirements and its
policies.
If you really want to help nursing home residents, we need
to fix Medicaid today. Let me lay out two brutal facts about
Medicaid in Florida. One, Medicaid reimbursed does not cover
the full cost for caring for Medicaid residents in over 80
percent of Florida's nursing homes. Two, 68 percent or over 2
out of 3 nursing home residents rely on Medicaid to pay for
their care. This is true, but rather than talk about Medicaid
programs and policies, I would prefer to talk about the people
involved and the effect it has on their lives. I'd like to talk
to you about my residents and our struggle to provide them with
high quality care.
Let me tell you about Mary. She's going to be 95 in July
and she's one of my favorite residents. My father and her son
flew together for many years. She came to our facility
approximately 2 years ago when her family could no longer care
for her because of advanced Parkinson's. Her disease causes her
difficulty in speaking and especially in swallowing. She needs
to see a speech therapist to help her. She needs help at
mealtimes, bathing, toileting and wheeling around the home and
in virtually everything she does. Medicaid inadequacies limit
the time we can give to her, to have her face there every day.
She also has muscle contractures which are painful. She
needs a nursing rehab assistant to exercise her arms and legs
so these contractures don't develop.
Mary loves to interact with me and my staff but we need to
take time to sit and talk to her because she has difficulty
getting her thoughts into words. She's alert and enjoys
communicating. She cannot participate in any other activities.
Unfortunately, the State of Florida pays my facility $87 a
day for Medicaid patients. Mary's care costs us $133 per day,
so while I'm blessed to have Mary with me and would never dream
of discharging her, my family business loses $45.95 every day
because that's what Medicaid dictates. So it goes with 68
percent of the residents nationwide who rely on Medicaid to pay
for their care.
How do nursing facilities stay in business when Medicaid
does not cover the cost of the care? Fortunately, my facility
has a balance between Medicaid and private-pay residents.
Because of that balance, I'm able to provide quality care to
all of my residents regardless of their pay source, but other
facilities face a crisis. If they have 80 to 90 percent
Medicaid, those residents may be very sick and have high, acute
needs. Medicaid is not paying for the kind of care these
residents need. They can't economize by spending less on food,
they cannot cut back on staff, they cannot diminish the quality
of care provided. These facilities are in a Catch-22. Their
facilities are filled with Medicaid residents, they can't
afford to subsidize their care and they can't afford to go
without them. This bill, H.R. 540, will set up the process by
which facilities which need to decertify from Medicaid can do
so without either discharging current residents or being
perpetually stuck in Medicaid due to the constant stream of
residents spending down to eligibility.
While I firmly believe that Congress must do much more in
the area of Medicaid reform and long-term care planning for the
babyboomers, this legislation eases a difficult situation and
protects residents from involuntary discharge.
Thank you for your consideration.
[The prepared statement of Kelley Schild follows:]
Prepared Statement of Kelley Schild, Administrator, Floridean Nursing
and Rehabilitation Center on Behalf of the American Health Care
Association
Hello Chairman Bilirakis, good afternoon members of the
subcommittee, my name is Kelley Schild, and I am the administrator of
the Floridean Nursing and Rehabilitation Center in Miami. I operate a
small, 60-bed home which is the last independently-owned, family run,
nursing facility in Miami. I am here on behalf of the American Health
Care Association, to give you our perspective on H.R. 540, introduced
by Congressman Davis, and Senator Graham called the Nursing Home
Resident Protection Amendments of 1999.
When I heard of the plight of the residents who were discharged
from the nursing home in the Tampa area, I was shocked. Let me state at
the outset that we do not condone the action that was taken by the
nursing home, and we were gratified to hear that they had invited all
the discharged residents back, paid fines to the state and federal
government, and made changes in their company to prevent this from
happening again.
As providers of care, we make it our life's work to provide an
environment that is healthy, happy, and secure for our residents. We
know better than anyone that our facility really is their ``home'', and
we do everything in our power to make sure that those we care for are
secure that the home we provide will be there for them. In fact, under
current law nursing facilities are prohibited from discharging any
resident unless they have secured an alternate living arrangement. We
are a critical part of our nation's social safety net, it is our
responsibility to make sure they are all cared for, and we do that
well.
I'll state up front that we firmly support your legislation, I
commend your leadership and foresight in addressing the issue in a
straightforward, and inclusive manner. It is important to note though,
that this discussion must look deeply enough beyond the emotional
arguments, and litigation, to find the root cause of why we are sitting
here today.
In my view, most caregivers know it is illegal to discharge a
resident just because they spend down their assets and hence become
Medicaid eligible. However, your legislation lays out a policy and
process which is clear to both providers and residents as to when a
discharge may occur. Importantly, it also sets up a process by which
new residents are notified of a facility's decertification, and
providers can still withdraw from participation in the Medicaid program
if they must. And in many cases, the reasons to decertify are
compelling. Let me explain.
It runs counter to everything we do, day in, and day out, to think
that someone would transfer a resident against their best interests. So
the question is, why does it happen? The answer lies in the Medicaid
system itself, its requirements and its policies. If you really want to
protect nursing home residents, you must fix Medicaid now.
Let me lay out two brutal facts about Medicaid in Florida. Number
one: Medicaid reimbursement does not cover the cost of caring for the
Medicaid residents in over 80% of Florida's nursing homes. Number two:
68% (over two out of every three) nursing home residents rely on
Medicaid to pay for all of their care. This is true, but rather than
talk about government programs, I'd prefer to talk about the people
involved, and the effect on their lives. I'd like to talk to you about
my residents, and the struggle to provide them high quality care.
Indulge me briefly, and let me tell you about Mary. She is turning
95 years old this year, and is one of my favorite residents. She's a
friend of my family, and I feel lucky to have her with me. Mary's son
was a pilot, and he and my father flew together and were good friends.
A few years ago, Mary's advanced Parkinson's disease became too much
for her family, and she came to Floridean Nursing and Rehab Center. Her
disease causes great difficulty for her in speaking, and especially
swallowing. She needs to see a speech pathologist frequently, and has
trouble at meal time. But the things she needs most are for us to give
her our time and TLC. This is true at meal time, bathing, toileting,
wheeling her around the home, and in virtually anything else she does.
Medicaid inadequacies limit the time we can give to her, and I have to
face that everyday.
She also has muscle contracture, which is painful and makes her
daily activities very difficult. She needs range of motion therapy two
times a day to help her contracture.
Mary loves to interact with me, my staff, and the other residents.
She's very alert and tries hard to communicate. She asks to be wheeled
to the activities room and, though she can't participate, she just
likes to watch her friends as they do the activities we plan. You
should see her face light up when her great-grandchildren come to
visit. I feel lucky to have Mary with us in so many ways.
Unfortunately, the state of Florida has a flat rate for all
Medicaid residents of $94.38 per day. This is the price that they are
willing to spend for Mary's care regardless of her needs. On the other
hand, being as efficient and prudent as I can afford to be, the cost of
providing care for Mary is $133.00 per day. So, while I am blessed to
have Mary with me, and would never dream of discharging her, my family
business will lose $38.62 every day because that's what Medicaid
dictates. So it goes with 68% of nursing home residents nationwide who
rely on Medicaid to pay for their care. Despite the fact that the
Federal Government pays for over 60% of Medicaid program costs through
the state match, you have removed yourselves completely from
responsibility in the area of payment adequacy. This, in my opinion, is
at the heart of the problem.
How do nursing facilities stay in business when Medicaid does not
cover costs on 80% of its beneficiaries, you may ask? Well, I am
fortunate. My facility has only 50% Medicaid residents, about 2% are
paid by Medicare, 4% are paid through VA or private insurance, and the
other 45% are spending their life savings in the cruel requirement that
they become impoverished before they can receive underfunded government
long term health care through Medicaid. In brutal honesty, I cost-shift
to make it work for everyone. Unfortunately, with half of my residents
on Medicaid, and another 45% spending down, the effect of cost shifting
is that they go broke faster and qualify for Medicaid sooner. This is a
terrible way to treat our elderly during what are supposed to be their
``golden years''.
Now, a facility less fortunate than mine may have as many as 80%-
90% Medicaid residents, and those residents may be very sick and have
high acute care needs. With some residents, the medication costs alone
exceed $94.38 per day. This facility will not be able to shift costs,
and may be on the verge of bankruptcy. What is this facility to do?
Should they provide less care and incur bad ratings and with $10,000
per day fines levied through the annual HCFA inspections, or face
millions of dollars in jury awards from the rampant litigation in
Florida? Should they try to economize by spending less on food? heat?
staff? The answer is No. This facility has no choice. In order to
provide quality care to tier residents, they must get out of the
Medicaid program. They must take residents with other payor sources
that actually do cover the cost of care. Medicare is adequate unless
the resident is very sick, but it only covers 21 days fully. Private
insurance pays adequately, but only 3% of people are covered, and most
of the others are spending their lifesavings, eventually surrendering
their dignity and independence as they become destitute enough to
qualify for Medicaid.
So you can see that a facility in Florida which cannot cost shift
must get out of the Medicaid program. Unfortunately, providers are in a
``catch 22''. With 68% of all nursing home residents on Medicaid,
decertification is not an option for most facilities due to the
difficulty of filling the empty beds that would result. Those that can
cost shift some may only be able to provide minimal staff time and
therapies to those that need them. When you repealed the Boren
amendment in 1997, you took away the requirement that payment through
Medicaid be adequate to meet costs. This has steepened the grade of a
very slippery slope for providers.
This bill, H.R. 540, will set up a process by which facilities
which need to decertify from Medicaid can do so, without either
discharging current residents, or being perpetually stuck in Medicaid
due to the constant stream of residents spending down to eligibility.
While I firmly believe that Congress must do much more in the area
of Medicaid reform, and long term planning for the care of the baby
boomers, this legislation makes a difficult situation more navigable,
and protects residents from any involuntary discharge. Thank you for
your concern and consideration.
Mr. Bilirakis. Thank you very much, Ms. Schild.
Ms. Grant?
STATEMENT OF ROBYN GRANT, SEVERNS & BENNET
Ms. Grant. My name is Robyn Grant and I'm here today as an
advocate representing the National Citizens Coalition for
Nursing Home Reform known as NCCNHR. NCCNHR is a nonprofit
organization of consumers, residents and their advocates who
define and achieve quality for residents in long-term care
facilities.
For 8 years, I served as the Indiana State long-term care
ombudsman and am currently a resident advocate for an elder law
firm in Indiana.
I want to thank the committee members for holding this
important hearing. NCCNHR strongly supports H.R. 540. This
proposed legislation is urgently needed to ensure that
residents on Medicaid are not arbitrarily evicted by providers
who wish to convert to private pay status.
As has been noted here already today, many residents start
off a nursing home stay by paying privately. However, with the
high cost of nursing home care, they quickly exhaust their
resources and have no choice but to rely on Medicaid. I would
add that nursing homes often attract potential residents
precisely because they participate in the Medicaid Program. In
fact, many facilities assure private-pay individuals that they
can remain even after they become Medicaid-eligible.
No one forces a facility to participate in Medicaid. It
does so voluntarily. Medicaid-certified facilities cannot be
allowed to simply abandon their Medicaid beneficiaries if they
decide to withdraw from the Medicaid Program. H.R. 540 would
protect residents in the facility who are or will become
dependent on Medicaid for their care.
While there are laws that regulate transfer and discharge,
as you have heard, there is nothing that requires a facility to
continue to care for its current Medicaid residents or
residents who shortly will come to be on Medicaid when it
withdraws from the Medicaid Program.
I'd like to share with you what residents experience when
those adequate protections don't exist. Beginning in January
1998, residents on Medicaid at Wildwood Health Care, a Vencor
facility in Indianapolis, Indiana, were told they were being
transferred to other nursing homes solely because they were
Medicaid recipients.
I was the State ombudsman at the time and had the
opportunity to speak with several residents and their families.
These residents told me that they were devastated when they
learned they had to leave. They said that residents throughout
the entire facility were crying inconsolably at the news. They
were all extremely upset and distressed. Many residents had
lived at Wildwood for several years and explained to me they
had established important friendships with other residents and
strong relationships with staff. They told me the nursing home
was like a family and indeed, for some, it was their only
family.
One resident's daughter eloquently summarized this in a
letter she wrote to Vencor. She states, ``You have destroyed
lives and emotions and torn apart families. Yes, many of these
people, though not blood-related, considered their companions
and friends as family. Your facility was their home. Physical
and emotional health was gravely endangered by the insensitive
actions of Vencor.''
The residents I talked to also recounted how embarrassed
and humiliated they felt at being evicted because they couldn't
pay privately. Their self-esteem was badly affected by being
singled out in such a public way for something they could not
help.
Once this eviction process was set in motion, it moved
forward inexorably. It was only as a result in Indiana of
outspoken residents and family members, the work of United
Senior Action, which is a citizens advocacy organization and a
NCCNHR member group, and attention from the media that Vencor
reversed its policy, but not until all but 7 out of 60 Medicaid
residents had relocated.
The effects of forced eviction on Medicaid residents are
long lasting. Wildwood residents continue to suffer even after
the evictions were stopped. Months after they were relocated,
residents were still upset and distressed. The effects are also
far-reaching and insidious. I recently just this month spoke
with a daughter whose mother is in a different Vencor nursing
home in Indiana. She told me that she's afraid now to raise any
concerns at all about her mother's care because her mother is
on Medicaid and she's fearful that complaining in any way could
lead to eviction.
While the efforts of residents, families and strong
citizens' advocacy groups, combined with media coverage ended
in a consumer victory that time around, it was certainly too
late for Wildwood residents. Moreover, nursing home residents
are too frail, too vulnerable and the impact on them is too
devastating to rely on such an ad hoc approach to adequately
protect them. H.R. 540 would add much needed protection for
residents who depend on Medicaid for all or part of their care.
There are other ways, as noted here, in which residents on
Medicaid are discriminated against and we also believe those
issues need to be addressed, but H.R. 540 is an important step
in fighting Medicaid discrimination. Passing this bill is
critical to guaranteeing that nursing home residents don't
become disposable pawns in corporate gains to maximize profit.
On behalf of NCCNHR, thank you once again for the
opportunity to make these remarks in support of H.R. 540.
[The prepared statement of Robyn Grant follows:]
Prepared Statement of Robyn Grant on Behalf of the National Citizens'
Coalition for Nursing Home Reform
My name is Robyn Grant and I am here today as an advocate
representing the National Citizens' Coalition for Nursing Home Reform
known as NCCNHR. NCCNHR is a non-profit organization of consumers--
residents and their advocates--who define and achieve quality for
residents in long term care facilities. The National Long Term care
Ombudsman Resource Center, funded by the Administration on Aging, is a
NCCNHR program.
I am currently the manager of Resident Advocacy Services for
Severns and Bennett, an elder law firm in Indianapolis, Indiana. In
that capacity I work to educate and empower family members to advocate
for good care for loved ones in nursing homes. Prior to assuming this
position, I served as the Indiana State Long-Term Care Ombudsman for 8
years and as president of the National Association of State Long Term
Care Ombudsman Programs for two years. The Long-Term Care Ombudsman
Program is a federally mandated advocacy program that represents the
interests of residents of long-term care facilities.
I want to thank the committee members for holding this hearing.
NCCNHR strongly supports H.R. 540 which would prohibit nursing homes
that accept Medicaid reimbursement from transferring or discharging
residents solely because they are Medicaid beneficiaries.
The Need for H.R. 540--The Nursing Home Resident Protection Amendments
1999
The proposed legislation in front of you today is urgently needed
to ensure that residents on Medicaid are not arbitrarily and
capriciously evicted by providers who wish to convert to private pay
status. It allows nursing homes to withdraw from the Medicaid program,
while allowing Medicaid beneficiaries to remain in their home.
Today it is estimated that more than 60% of the residents in our
nation's nursing homes receive assistance from the Medicaid program.
Many residents start off a nursing home stay by paying privately.
However, with the average annual cost of nursing home care between
$40,000-$50,000, most people cannot continue such payments for very
long. They quickly exhaust their resources and have no choice but to
rely on Medicaid.
Nursing homes often attract potential residents precisely because
they participate in the Medicaid program. In fact, many facilities
assure private pay individuals that they can remain even after they
have become Medicaid eligible.
No one forces a facility to participate in Medicaid. It does so
voluntarily. Medicaid-certified facilities cannot be allowed to simply
abandon their Medicaid beneficiaries if they decide to withdraw from
the Medicaid program. This bill would protect residents in the facility
who are or will become dependent on Medicaid for their care.
The Devastation Experienced by Residents Evicted From Their Homes
I'd like to share with you what residents experience when nursing
facilities are allowed to evict residents simply because they are on
Medicaid. Beginning in January 1997 residents on Medicaid at Wildwood
Healthcare, a Vencor facility in Indianapolis, Indiana, were singled
out and told that they were being transferred to other nursing homes
solely because they were Medicaid recipients. I was the State Long-Term
Care Ombudsman at that time and had the opportunity to speak with
several of those residents and their families.
These residents told me that they were devastated when they learned
they had to leave. They were extremely upset and distressed. One family
member told me her mother was thrown into a deep depression upon being
informed she could no longer live at Wildwood. The residents I talked
with said that everywhere they looked, they saw other residents crying
inconsolably at the news. The people, many of whom had lived there for
several years, explained to me that this facility had become their
home. As we all do in our homes, they had put down roots. They had
established important friendships with other residents in the facility
and strong relationships with staff. They told me that the nursing home
was like a family. Indeed, for some, it was their only family. Being
forced to move destroyed their family. One daughter of a resident
eloquently summarized this in a letter she wrote to Vencor. She writes:
You have destroyed lives and emotions and torn apart families.
Yes, many of these people though not blood related, considered
their companions and friends as family. Your facility was their
home. Physical and emotional health was gravely endangered by
the insensitive actions of Vencor.
The residents I talked to recounted how embarrassed and humiliated
they felt at being evicted solely because they couldn't pay privately.
They reported to me that they had never in their entire lives been
thrown out of any place. They were mortified. Their self-esteem was
badly affected by being targeted in such a public way for something
they could not help.
The effect on residents was magnified by the atrocious and
deplorable way the transfers were handled by the administration at
Wildwood. Once this eviction process was set in motion, it moved
forward inexorably. Outcries from residents and families did little
good. Complaints to the state survey agency were of no help. In fact,
that agency stated that deciding not to keep residents on Medicaid was
a business decision which the facility had every right to make. It was
only as a result of outspoken residents and family members, the work of
United Senior Action, a citizens' advocacy organization in Indiana
which is a NCCNHR member group, and attention from the media that
Vencor reversed its policy and agreed to stop the Medicaid evictions.
The residents who were forced to move continued to suffer even
after the evictions were stopped. I visited several of these residents
months after they were relocated. They were still upset and distressed,
and some began to cry during our conversations. They had clearly left
an important part of their lives at Wildwood. On a poignant note, they
told me they missed the gazebo that they had worked so hard to pay for
in the other facility. As active members of the resident council they
had themselves raised the money to build an outdoor gazebo at Wildwood.
The gazebo that they had so loved and of which they were so proud
served as a sad and lonely reminder of all that they had to leave
behind and could never recapture.
The effects of forced eviction of residents on Medicaid also are
far-reaching and insidious. I recently spoke with a daughter whose
mother is in a different Vencor nursing home in Indiana. The daughter
told me that she is afraid to raise any concerns about her mother's
care because her mother is on Medicaid and she is fearful that
complaining in any way could lead to eviction.
Public Outrage Stopped the Spread of Corporate Insensitivity
While the efforts of residents, families, and a strong citizens
advocacy group, combined with media coverage, ended in a consumer
victory that time, it was certainly too late for many Wildwood
residents. Moreover, nursing home residents are too frail, too
vulnerable and the impact on them is too devastating to rely on such an
ad hoc approach to protect them.
Once again I thank you on behalf of NCCNHR for the opportunity to
make these remarks in support of HR 540, which would add much needed
protection for residents who depend on Medicaid for all or part of
their care.
Other Corporate Discriminatory Practices Faced by Medicaid
Beneficiaries
Unfortunately, being involuntarily transferred from their home is
just one of numerous discriminatory practices that Medicaid eligible
residents face. Often it is difficult for a resident on Medicaid to
gain admission to a nursing home or to remain in a home because the
facility has chosen to limit the number of Medicaid beds available. In
other instances, facilities assess the finances of potential residents
and will only admit them if they have enough money to pay privately for
a certain period of time. These are just a few examples of the
discrimination that advocates hear about daily from residents and their
families. NCCNHR, which has witnessed these issues for over twenty
years, stands ready to help the members of this committee and staff
identify and address these and other problems that Medicaid
beneficiaries encounter.
We applaud both the House and the Senate for their work on the
Nursing Home Resident Protection Amendment. Medicaid eligible nursing
home residents must not have to live their lives in fear of being
evicted solely because they can't pay or continue to pay privately.
Passing this bill is the only way to guarantee that nursing home
residents do not become disposable pawns in corporate games to maximize
profits.
Thank you for the opportunity to talk with you today about this
important issue.
Mr. Bilirakis. Thank you very much, Ms. Grant.
Mr. Mongiovi, was your mother a private-pay resident at any
time during her stay at the Vencor nursing home?
Mr. Mongiovi. No, sir. She entered as a Medicaid resident.
Mr. Bilirakis. She entered as a Medicaid patient.
Mr. Mongiovi. Four years prior to her eviction notice.
Mr. Bilirakis. Are you familiar with friends of your mom,
other residents there who had been prior private-payers? Mr.
Davis and others have noted that a large majority of patients
start off as private-pay and then spend down to become
Medicaid-eligible?
Mr. Mongiovi. If you enter as a private-pay resident,
$40,000 to $50,000 a year, it doesn't take very long for your
finances to be exhausted and you are going to be a Medicaid
recipient sooner or later. So they use your assets or your
private insurance well. Once they use it, they dump you for
higher-paying beds. That's cruel, unjust, criminal in nature
and should not be allowed.
Mr. Bilirakis. Ms. Wegner, your testimony indicates that
providing tax incentives to encourage people to purchase
private insurance is one of the key ways of trying to fix the
problems that Ms. Schild and others have mentioned regarding
inadequate reimbursements?
Ms. Wegner. Yes, Mr. Chairman. It's certainly not the only
one and I'm not here to say that I have all the answers. But as
you know, in a number of States, there are some partnership
arrangements which have been tried in which there is an
incentive to purchase long-term care insurance and in some
cases, it's a dollar-for-dollar exchange in terms of the amount
the insurance pays and assets that can be protected.
As is often the case, when there is an opportunity in the
marketplace for creative solutions, they do arise and certainly
with the aging of our society and the number of people who will
live well into their 80's and 90's, the incidence of chronic
illness is going to arise and the incidence of nursing home
need is going to rise. There just will not be enough tax
dollars to cover it, so we have to look for private solutions
too.
Mr. Bilirakis. I'm not sure whether Mr. Coburn will get
into this in more detail or not, but he has great interest in
that proposed solution. I'll let him speak for himself.
Ms. Schild, you've told us that low payment levels are the
root of the problem and you expressed it quite well, I might
add.
By the way, I would like to place in the record the fact
that Congressman Jim Davis has stayed throughout this entire
hearing. I think that is really very good of you to do that,
Jim. We all appreciate that.
Mr. Davis. You bet.
Mr. Bilirakis. How many facilities does the American Health
Care Association represent?
Ms. Schild. Mr. Chairman, 11,000.
Mr. Bilirakis. You state in your written testimony that
Florida has a flat rate for all Medicaid residents. Aren't
payment rates facility-specific and not uniform across the
State?
Ms. Schild. Correct. It's a flat rate for each facility. It
is facility-specific but a flat rate for each facility.
Mr. Bilirakis. Do you feel that the Federal Government
should propose or mandate a uniform rate across States. How
would you try to solve that problem?
Ms. Schild. I don't honestly believe that we can solve that
problem today and with the parties here I would be more than
willing to work with the committee to look at the global
problem, as has been the case with Medicare and Social Security
because we know the babyboomers are coming and it's going to be
a larger problem.
Mr. Bilirakis. I guess my time is up.
Mr. Brown?
Mr. Brown. Mr. Martin and Ms. Wegner, I'm not particularly
familiar with your organizations. I saw your membership numbers
and all. Where does your funding come from, if I could ask each
of you?
Ms. Wegner. Our organization was begun in the late 1980's
from a grassroots movement to repeal the Medicare catastrophic
insurance tax. Over 97 percent of our funding comes from
contributions of our members.
Mr. Brown. Small amounts?
Ms. Wegner. Yes, $10 or $15.
Mr. Brown. Mr. Martin?
Mr. Martin. In fact, in my official testimony, I point out
under the truth and testimony provisions that we neither seek
nor accept Federal grants but we are 100 percent funded by
voluntary donations.
Mr. Brown. Is most of that from small membership dues?
Mr. Martin. Yes, 99.9 percent exactly. We have about a $15
average from people that believe in what we're trying to do
here. As I said before, we neither accept nor solicit Federal
funds.
Ms. Wegner. That is true, Mr. Brown of my organization as
well.
Mr. Brown. Ms. Grant and especially Mr. Mongiovi, thank you
for sharing your particularly difficult stories with us. That
was very helpful.
Ms. Schild, you talked about $87-a-day reimbursement and
obviously nursing home-Medicaid rates have been lower over the
last few years, have continually been reduced. How have nursing
homes in Florida responded to that? How have they been able to
continue to operate with lower rates?
Ms. Schild. I can give you the specifics about my facility
and as I said in my testimony, I make sure there is a balance
between the private-pay patients and the Medicaid patients.
Mr. Brown. You have a much higher percentage of private-pay
than the average nursing home, correct?
Ms. Schild. I have a much higher percentage of private-pay,
about 45 percent private-pay, while we have about 50 percent
Medicaid.
Mr. Brown. How do you imagine that others have done it that
don't have that mix? Is there a compromise in quality to do it?
Ms. Schild. Congressman, honestly, I do not know how a
facility that is 80-90 percent Medicaid can provide the quality
of care that the residents deserve. I honestly do not.
Mr. Brown. If the rates at $87 a day, as they squeeze those
nursing homes and make it more and more difficult and the
reasons to withdraw from Medicaid seem so compelling, why have
not more nursing homes withdrawn from Medicaid?
Ms. Schild. Again, I cannot answer that. In my area in
Miami, only one nursing home that I know of does not
participate in Medicaid. As I said, it is almost a Catch-22
because a lot of facilities do rely on Medicaid for private-pay
residents that spend down so that they don't have to be
discharged.
Mr. Brown. How are you able to keep your proportion closer
to 50-50, the private pay-Medicaid, much closer than the
national average? How have you been able to do that?
Ms. Schild. We are a facility that's been in the community
for 55 years and it's been run by my family for that length of
time. Therefore, referrals come from within the community,
friends, family and that is the pool I suppose that we draw a
higher percentage of private-pay residents from.
Mr. Brown. Do you actively recruit private-pay patients
more than Medicaid patients?
Ms. Schild. We currently have a waiting list and private-
pay residents are on the waiting list as well as Medicaid
residents. We do not really recruit. We're known in the
community and residents seeks us out because of the quality of
care provided.
Mr. Brown. Is the waiting list chronological when you
select from it?
Ms. Schild. When I make decisions to admit residents, it's
based on the care that they need, the staffing we have at the
time and Medicaid and private does factor into that to be quite
honest.
Mr. Brown. So you can keep the percentage about where it
is?
Ms. Schild. Correct.
Mr. Brown. You are a for-profit operation?
Ms. Schild. Yes, we're a corporation.
Mr. Brown. Is there any chance that as some nursing home
operators watch what Jim Davis is doing and see this bill is
going through this process with a reasonable good chance of
becoming law in the next few weeks or months, as fast as
anything can ever move here, is there any chance that some
nursing homes would leave the Medicaid Program between now and
the time this bill goes into effect? Are we creating some
incentive to accelerate that movement out temporarily before
this bill becomes law?
Ms. Schild. Congressman, I don't think I can answer that. I
know it wouldn't be the case in my facility.
Mr. Bilirakis. Mr. Coburn.
Mr. Coburn. Ms. Schild, I just want to clarify. Your answer
to the gentleman from Ohio, the implication was that your
Medicaid rates have gone down. Is that correct?
Ms. Schild. My Medicaid rate has gone down?
Mr. Coburn. Yes, your reimbursement under Medicaid has gone
down over the last few years. Is that correct?
Ms. Schild. No, it has not.
Mr. Coburn. I think we need to correct that for the record
because in fact, the rates probably have gone up somewhat, is
that not true?
Ms. Schild. Correct, yes.
Mr. Coburn. The implication in the question being that we
have cut Medicaid. In fact, I think most Medicaid
reimbursements for most nursing home beds have gone up. I think
we need to be aware of that. It is still far too low to provide
for adequate care but they have not gone down.
Mr. Mongiovi, I have a lot of sons and daughters who have
their parents in nursing homes. One of the things that really
bothers me about what you said is still a real issue.
Oftentimes my friends on the other side of the aisle have been
better at attacking that issue than we have.
You said in your statement, not in your printed statement,
but you said in your statement today that your wife would have
to go there daily to make sure she got the care she needed. Is
it true you said that?
Mr. Mongiovi. That is correct.
Mr. Coburn. Was there not anywhere else that you all could
find for your mother that you didn't have to do that to make
sure she got the care?
Mr. Mongiovi. No, sir. My wife and I visited personally 16
nursing homes in 3 days, nonstop, from 8 a.m. to 10 p.m., and
there was not one better facility that we would have put my
mother in. The one that we chose, the atrocities occurred.
Mr. Coburn. But it's your opinion that had you not been
there to provide supplemental care, she would not have had
adequate care?
Mr. Mongiovi. That is correct.
Mr. Coburn. I just want to make the statement for this
committee, that is a real problem. As a physician who used to
go to a number of nursing homes, and I don't any longer now
that I'm in Congress, I saw that every day. The far greater
problem that we have than this one is that problem. We should
have a hearing on the inadequacy of the care that is now being
given in some, not all, but in some nursing homes. Part of this
is economic. As Ms. Schild said, she doesn't know how they do
it. The way they do it is by limiting care, rationing care.
My contention is the more the Government gets into that,
the more care will be rationed and the less care there will be.
Unless we put marketplace incentives for people to buy long-
term care insurance and to create their own future and not
penalize them where they end up being in a position where they
have to depend on a government program for substandard care
because there really is a difference. If you have the means,
then you can get better care. If you're on Medicaid, many times
you don't get care that compares.
Mr. Mongiovi. I agree with you fully, sir, but we have no
control on how much care we are going to need.
Mr. Coburn. Right, but the point is if we change the system
to where we design the marketplace to help us determine that
and to provide an incentive to let market drive that, rather
than the Government and regulations drive that, we may in fact
see that we can offer better care, higher quality to more
people in the future. That's my point.
We've had testimony here today, in fact, Ms. Schild makes a
conscious decision if she wants to eat, that she's going to put
people in her nursing home that are private-pay because the mix
she's required to do that, if she wants to make a profit, she's
going to have to do that. If she wants to keep a salary for her
family and her business, she's going to have to do that.
What that means is that somebody that doesn't have private-
pay isn't going to get into her nursing home which means there
is a dual standard of care if she's a high quality, well though
of nursing home. So why shouldn't everybody have the potential
to determine that themselves through their own private plan.
The Government should create an incentive so that kind of long-
term care would have provided your mother the choice to go
wherever she wanted.
Mr. Mongiovi. Your issue is well taken but we are speaking
of a problem that has not been addressed by this country and it
needs to be looked at. But that is a different subject matter
than why we're here today.
I think the protection issue is essential to address
immediately because we cannot afford to dismiss it. I for one
would not want to play Russian roulette with the people out
there right now.
Mr. Coburn. But we've had the testimony from HCFA that in
fact the nursing home that ejected or attempted to eject all
those in association with your mother was violating the Federal
law.
Mr. Mongiovi. Yes, they were.
Mr. Coburn. You had to go to court to stop that.
Mr. Mongiovi. Exactly.
Mr. Coburn. That says two things to me. It says, the State
of Florida failed in its supervision actions for the nursing
home industry, one and two, so did HCFA.
Mr. Mongiovi. Are you not addressing the major reason why
this occurred, because it is still occurring and as we speak,
the laws are still being broken because no matter what you just
said, they are still going to break the law unless there is
enough protection out there to say don't do it because you're
not going to get away with it.
Mr. Coburn. So it's your opinion that the only way to stop
what happened to your mother is this piece of legislation?
Mr. Mongiovi. That is correct.
Mr. Coburn. That is the only way to stop it?
Mr. Mongiovi. That is correct.
Mr. Coburn. Thank you.
Mr. Bilirakis. I thank the gentleman.
Your coming here today and supporting this legislation as
strongly as you all do is obviously going to make quite a
difference. Ms. Wegner and Mr. Martin represent organizations
that are conservative, but they still feel there is a need for
Government involvement. We need to spend more time with many of
you in order to learn more. The idea Ms. Wegner mentioned, the
tax incentive, should be considered along with other ways to
attack the problem. Thank you so very much for coming.
There probably will be questions offered to you in writing
from members of the committee and we would appreciate your
responding to those as quickly as you can.
The hearing is adjourned.
[Whereupon, at 4:50 p.m., the subcommittee was adjourned,
to reconvene subject to the call of the Chair.]
[Additional material submitted for the record follows:]
Department of Health & Human Services
Health Care Financing Administration
February 25, 1999
Representative Michael Bilirakis
Chairman
Commerce Subcommittee on Health and the Environment
2125 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Bilirakis: Thank you for the opportunity to testify
before the House Commerce Subcommittee on Health and the Environment on
nursing home evictions and H.R. 540. As discussed during the hearing, I
am responding in writing to questions you raised regarding nursing home
evictions and other HCFA programs.
Question 1. How will H.R. 540 complement HCFA's efforts in
safeguarding nursing home residents?
Answer 1. If passed, H.R. 540 would complement HCFA's efforts by
strengthening our existing rules to ensure Medicaid residents can
continue to stay in their nursing facility. HCFA has been working
within the existing statutory authority on safeguarding nursing home
residents from unnecessary transfers. We have released a program
memorandum on the frequency by which nursing facilities can change the
number of Medicaid beds in their facility. These safeguards compliment
H.R. 540 by protecting beneficiaries from unnecessary transfers in the
cases of where a facility frequently reduces the number of beds
available to Medicaid beneficiaries without actually closing the
facility over the course of a year. H.R. 540 addresses the similar
issue when the facility decides to withdraw from participation in
Medicaid.
HCFA released a program memorandum to our Regional Administrators
on January 25, 1999 stating that nursing home providers that
participate in Medicaid or Medicare by designating a limited portion of
their beds for these program beneficiaries may only change their extent
of participation once per cost reporting year. Before we issued this
guidance, many States had noted that some providers changed their
designated beds for Medicare and Medicaid on a weekly or even daily
basis. In some cases, this see-sawing back and forth was used as
grounds to evict Medicaid residents and make way for more lucrative
clients, or to be rid of selected residents.
HCFA's once-per-year policy gives more protection against
discharges based on frequent reductions in the extent of a facility's
participation. However, the policy is not a complete solution. Under
current law, the facility may still choose to downsize participation or
to withdraw from Medicaid entirely. In the case of Vencor, the company
announced its intent to have a portion of its facilities withdraw from
Medicaid entirely in the Wall Street Journal article that precipitated
the public's awareness of this problem. If Vencor had proceeded to
withdraw legally rather than using illegal means to evict its
residents, HCFA would not have been able to protect their current
Medicaid residents from being transferred to other facilities.
Question 2. How do nursing homes adjust their participation in
Medicaid for their facilities, and why would they do so?
Answer 2. Under HCFA policy, once a year nursing facilities are
allowed to designate a specific number of beds to be Medicaid-only.
Facilities must request the change in writing and identify its current
configuration and the proposed configuration 120-days in advance of its
cost reporting year. Some nursing facilities cite Medicaid payment
rates that are lower than either private pay or Medicare rates to
explain their decisions to reduce participation.
Question 3. H.R. 540 is a measured response to a significant
problem in the nursing home sector. According to the written testimony
of some of the witnesses on panel three, some nursing homes are opting
out of Medicaid because the payment levels may be lower than the costs
incurred by the nursing home. Do you agree that reducing provider costs
would help increase the number of Medicaid beds?
Answer 3. Reducing provider costs would not necessarily increase
the availability of Medicaid beds. We also do not believe there is any
shortage of beds right now. And, States are required to conduct an open
process for the development of Medicaid payment rates. Public input
should ensure that payment rates are adequate.
Question 4. Which of the new initiatives that the Administration
proposes would help reduce provider costs?
Answer 4. None of our proposals in FY2000 are expected to reduce
provider costs, rather, these proposals are designed to improve the
overall quality of care and quality of life provided in nursing homes.
The initiatives in nursing home care include legislative proposals for
requiring a mandatory criminal background check of all nursing home
employees, and a national abuse registry, and allowing more nursing
home staff to help residents eat and drink during busy mealtimes.
Question 5/6. What purpose is served by the HCFA policy that ``a
nursing home may decrease the portion of its facilities that are
available to Medicaid or Medicare residents only once per year''? When
did this regulation go through a notice and comment period? If it has
not gone through a notice and comment period, by what legal authority
was this new regulation imposed?
Answer 5/6. This once-per-year restriction is a policy included in
HCFA's manual instructions to States. It does not appear in the Social
Security Act or the corresponding regulations. This change in policy
did not go through a notice or a comment period. The legal authority
for this policy, like many of the technical aspects of the nursing home
program, stems from the Secretary's general administrative authority.
HCFA has two manuals that provide policy guidance in the area of
nursing facilities--the Provider Reimbursement Manual (PRM) and the
State Operations Manual (SOM). The PRM is used by providers and the SOM
is used by State survey agencies. The policy in the two manuals
differed. This one per year restriction was included in the PRM, but
not the SOM.
After hearing evidence that the flexibility in the SOM was being
abused, we decided to rectify the conflict between HCFA policies by
reaffirming the once-per-year restriction in the PRM. A program
memorandum was released on January 25, 1999 to clarify this policy for
the HCFA regional offices. We plan to change the SOM instructions to
conform with this policy. The once-per-year policy provides an
opportunity for providers to change extent of participation as
necessary, but guards against excessive fluctuations and undue
disruption to residents.
Question 7. If HCFA will allow nursing homes only one opportunity a
year to adjust their ratio of Medicaid or Medicare beds to those that
are privately funded, will that result in more or fewer beds available
to Medicaid or Medicare patients?
Answer 7. We do not believe that limiting facilities' changes in
extent of participation to once per year will have any net effect on
the availability of Medicare or Medicaid beds. More importantly, this
policy reduces the substantial health and safety risks that are
associated with the transfer of frail elderly and disabled
beneficiaries.
Question 8. In your written testimony, you state that HCFA has
taken swift and strong actions against facilities who have discharged
Medicaid residents on false grounds and without appropriate notice. In
how many instances have you imposed civil money penalties on
facilities? How much have you collected? Where does the money go? Is
this an effective enforcement tool.9
Answer 8. In the Vencor situation, HCFA imposed civil money
penalties (CMPs) on both the Tampa, Florida, and Savannah, Georgia
facilities. HCFA imposed and collected $100,000 from the Tampa
facility. The Savannah nursing home case is under appeal.
From July 1, 1997 to June 30, 1998, we imposed CNOs on 469 nursing
homes. During FY 1998 we imposed $9,762,742 in civil money penalties
and collected $7,520,638 of these. Our current database does not
distinguish between Craws assigned specifically for transfer/discharge
violations and those assigned for other types of deficiencies.
After collection, CMPs are split into Medicare and Medicaid
portions, depending on the ratio of Medicare to Medicaid residents in
the fined facility. In accordance with Section 1919(h)(2)(A)(ii) of the
Social Security Act, the Medicaid monies are put back into the State's
Medicaid program, to ``be applied to the protection of the health or
property of residents of nursing facilities . . . including payment for
the costs of relocation of residents to other facilities, maintenance
of operation of a facility pending correction of deficiencies or
closure, and reimbursement of residents for personal funds lost.''
Medicare monies, consistent with Section 1128(A)(f)(3) of the Act, are
deposited as miscellaneous receipts of the U.S. Treasury.
CMPs are among the most important tools we have for bringing
facilities into compliance and protecting vulnerable nursing home
residents.
During the hearing, you and other Committee Members mentioned an
interest in meeting with HCFA staff to discuss a variety of health
related issues. Carleen Talley of our Office of Legislation will be
contacting your Committee staff to coordinate a roundtable discussion
for Subcommittee Members and their staff in the near future. Thank you
for your interest in our programs.
If you have any additional questions, please contact me.
Sincerely,
Michael M. Hash
Deputy Administrator
______
Department of Health & Human Services
Health Care Financing Administration
February 25, 1999
The Honorable Tom Coburn
429 Cannon House Office Building
Washington, DC 20515
Dear Congressman Coburn: I am responding to your questions raised
during the House Commerce Subcommittee on Health and the Environment
hearing on ``H.R. 540, the Nursing Home ResidentProtection Amendments
of 1999.''
Question 1. What percent of Medicaid beds experience eviction (or
Vencor situation) in the U.S.?
Answer 1. Our data systems are not currently capable of providing
this data. In an informal survey, HCFA staff polled 47 States Ombudsmen
in 1997. Fifteen cited transfer and discharge violations as highly
problematic.
Question 2. If H.R. 540 becomes law, what does HCFA propose that
would prevent the situation as seen in Florida from happening again?
Answer 2. H.R. 540 would allow us to protect residents in the case
of a facility's voluntary withdrawal from the Medicaid program.
Residents would be assured that they can stay in their facility and
that the facility would continue to be subject to the Medicaid
conditions of participation, even though the facility has terminated
its Medicaid agreement.
HCFA was able to address the situation that happened in Florida
prior to H.R. 540. The Vencor situation clearly violated existing law,
and we were able to take swift action. The strong enforcement response
in this situation sends a clear message to other providers across the
nation that this behavior is unacceptable.
Question 3. How many nursing homes voluntarily withdrew from the
Medicaid program last year?
Answer 3. Our data indicates that over the last three years the
average number of nursing facilities that voluntarily withdrew from the
Medicaid program is 58 per year: 59 Medicaid facilities withdrew in
FY1996; 54 in FY1997; and 60 in FY1998.
During the hearing, you also mentioned an interest in meeting with
HCFA staff to discuss a variety of health related issues. Our Office of
Legislation will be contacting the Chairman to coordinate a roundtable
discussion for the Subcommittee Members and their staff in the near
future. Thank you for your interest in our programs.
If you have any additional questions, please contact me.
Sincerely,
Michael M. Hash
Deputy Administrator
______
Department of Health & Human Services
Health Care Financing Administration
February 25, 1999
The Honorable Sherrod Brown
328 Cannon House Office Building
Washington, DC 20515
Dear Congressman Brown: I am responding to your question raised
during the House Commerce Subcommittee on Health and the Environment
hearing on ``H.R. 540, the Nursing Home Resident Protection Amendments
of 1999.''
Question 1. Requested data on whether the reducing of Medicaid beds
is occurring more now than in the past.
Answer 1. Our data systems do not currently provide information on
the reduction of beds. We do know, however, that over the last three
years the average number of nursing facilities that voluntarily
withdrew from the Medicaid program is 58 per year: 59 Medicaid
facilities withdrew in FY1996; 54 in FY1997; and 60 in FY1998.
During the hearing, you and other Committee Members mentioned an
interest in meeting with HCFA staff to discuss a variety of health
related issues. Carleen Talley of our Office of Legislation will be
contacting the Chairman and your Committee staff to coordinate a
roundtable discussion for Subcommittee Members and their staff in the
near future. Thank you for your interest in our programs.
If you have any additional questions, please contact me.
Sincerely,
Michael M. Hash
Deputy Administrator
______
National Citizens' Coalition for Nursing Home
Reform
Washington, DC
February 22, 1999
Chairman Michael Bilirakis
Subcommittee on Health and Environment
Room 2125, Rayburn House Office Building
Washington, D.C. 20414-6115
Dear Chairman Bilirakis: The National Citizens' Coalition for
Nursing Home Reform (NCCNHR) thanks the Committee members and staff for
the opportunity to have Robyn Grant testify in support of H.R. 540, the
Nursing Home Resident Protection Amendments of 1999. The information
from those who testified and additional facts elicited as a result of
the members' questions allowed many viewpoints on the bipartisan bill.
The two follow-up questions from your office are another opportunity to
provide the consumer perspective on issues related to H.R. 540.
NCCNHR's response to the two questions follows.
Question 1. How do nursing homes adjust their participation in
Medicaid for their facilities, and why would they do so?
Response. Our information is based on the experiences shared with
the NCCNHR by residents, family members, advocates and ombudsmen. In a
number of states, facilities have the option of certifying and
decertifying their beds at will. They can do so in order to accept or
deny access to residents on Medicaid as it meets their own financial
and caregiving needs. They would do so because when a Medicaid bed is
available they are obligated to keep a resident who spends down to
Medicaid eligibility. However, if they have no Medicaid bed, then they
can transfer or discharge the person who has exhausted his/her funds
and fill the bed with a person who pays privately or one whose care is
paid for by the higher paying Medicare program.
From a consumer perspective requiring dual certification of all
beds in the Medicare and Medicaid programs would diminish access
problems experienced by those whose care is paid for by Medicaid. Only
two states have dual certification of all facilities: Rhode Island and
Alaska of facilities. None of the states, however, require dual
certification of all the beds.
An historical perspective illustrates the precarious status of
residents once they become dependent on Medicaid for all or part of
their care. In Linton v. Tennessee Commissioner of Health & Environment
(M.D. Term. April 20, 1990), the court found that the facility had
violated Medicare law by denying the resident services under Medicaid.
The court also said that the facility denied the resident her civil
rights under Title VI of the Civil Rights Act, since minorities
disproportionately use Medicaid to pay for care. The Linton case found
that the Health Care Financing Administration, when it approved state
plans, consistently required all beds to be certified, and states did
not have the authority to approve a facility's request for
certification of fewer than all the certifiable beds.
The Final, Final Regulations of 1991 changed the definition of
``nursing facility'' to ``the entity that participates.'' HCFA
explained that change in definition allowed residents to have the full
protection of the law on transfers by calling a change from a Medicare
distinct part to a Medicaid distinct part an inter-facility (not an
intra-facility which has less protections) transfer. The effect has
been to allow facilities to change bed designations at will, denying
access to residents dependent on Medicaid for all or part of their
care. HCFA testified that such changes are only allowed once a year,
although NCCNHR has not seen an official copy of this new policy.
Question 2. Both The Seniors Coalition and the 60 Plus witnesses
were asked how they were funded at the hearing, but your organization
was not. How is the National Citizens' Coalition for Nursing Home
Reform, the group on whose behalf you testified funded? Does the
organization solicit or receive funding from governments at the local,
state, and federal level?
Response. The National Citizens' Coalition for Nursing Home Reform
signed the required form detailing the government grants we receive. It
was attached to the testimony as suggested in the written directions
for the hearing. NCCNHR received $250,000 from the Administration on
Aging in 1997 through March of 1998 and received $290,000 from the
Administration on Aging in 1998. This grant ends on March 31, 1999.
NCCNHR receives no grants from local or state governments.
Other monies come from donations, memberships, sales of
publications and subscriptions, and small grants from private
foundations.
Please contact me if you have additional questions.
Sincerely,
Sarah Greene Burger
Executive Director
______
The 60 Plus Association,
February 24, 1999.
The Honorable Michael Bilirakis
Chairman, Subcommittee on Health and Environment
Committee on Commerce
U.S. House of Representatives
2125 Rayburn HOB
Washington, D.C. 20515
Dear Chairman Bilirakis: I am responding to your request to answer
two questions in your letter of February 12, 1999 regarding my
testimony on H.R. 450, the Nursing Home Resident Protection Amendments
of 1999.
Question 1. According to the letter of endorsement from AARP, H.R.
540 ``offers important protections because of the documented problems
that Medicaid patients face . . .'' It is not often that your
organization agrees with AARP. Why do you agree on the support of H.R.
540?
Answer. Rather than agreeing with AARP, we believe this is a case
of the AARP agreeing with Chairman Bilirakis and the 60 Plus
Association. The abuse cited in the nursing homes situation with
Medicaid patient is a real problem and the solution does not require a
change or expansion of the Medicaid program or an increase or decrease
in funding. It is a loophole in the law which has allowed certain
unintended consequences occur to senior citizens on Medicaid, e.g.
discrimination against seniors in nursing homes on Medicaid. The
proposed legislation seeks to correct this situation as a matter of
fairness and equity. In this sense both the 60 Plus Association and
AARP see this as a protection for seniors through a correction in the
present law regarding Medicaid, rather than a new or expanded program.
Question 2. On what other areas do you find common group with AARP?
On what matters do you differ?
Answer. Both 60 Plus and the AARP have testified on the same panel
before a House Subcommittee investigating telemarketing fraud, with
seniors often times the victims, with both groups calling for a
crackdown. Both AARP and 60 Plus favor a discussion of the current
problems with Social Security, though 60 Plus was the first to call for
such a discussion. We favor a privatization or personalization of
Social Security while AARP has been at least ambivalent in that
direction. Overall, AARP favors an expansion of federal government
programs while the 60 Plus Association favors less government, less
regulations, more tax relief, and greater emphasis on the free market
system to solve problems in our society. The AARP supported the Clinton
budget which hiked taxes on middle class Social Security recipients (50
percent to 85 percent) while 60 Plus Association opposed it. In fact,
we favor repeal of this tax hike. 60 Plus Association favors the repeal
of the federal estate or ``death'' tax while AARP opposes this reform.
Sincerely,
James L. Martin,
President.
______
The Seniors Coalition,
March 16, 1999.
Congressman Michael Bilirakis
Chairman, Subcommittee on Health and Environment
Committee on Commerce
U.S. House of Representatives
Room 2125 RHOB
Washington, DC 20515-6115
Dear Mr. Chairman: On behalf of the three million members and
supporters of The Seniors Coalition, I wish to thank you for inviting
us to participate in the hearing on H.R. 540 and for allowing me to
amplify our remarks through the questions you provided.
Again, thank you for your leadership on this and so many other
issues. We look forward to working with you and your staff throughout
this session.
Sincerely,
Nona Bear Wegner,
Senior Vice President.
responses to questions
Question 1. According to the letter of endorsement from AARP, H.R.
540 ``offers important protections because of the documented problems
that Medicaid patients face . . .'' It is not often that your
organization agrees with AARP. Why do you agree on the support of H.R.
540?
Answer. There are a variety of issues on which all seniors groups
can agree. Protecting the welfare of older Americans is both bi-
partisan and non-partisan. The problems addressed by the Nursing Home
Protection Amendments fit this description. Under no circumstances
should nursing home residents and their families be subjected to
misleading and unfair treatment.
The Seniors Coalition believes firmly that a free market system can
help solve problems facing the body politic. However, the market system
only works if accurate information is available to consumers,
information upon which they can base their planning and decisions.
Additionally, all supporters of capitalism look to government and the
courts to prevent and punish fraud and deception.
The legislation introduced by Congressman Davis and co-sponsored by
Chairman Bilirakis and so many other members of this Subcommittee in no
way does harm to the private sector. In fact it buttresses the sound,
fair, and efficient operation of the private sector by making certain
that consumers receive full and timely information and disclosure of
essential facts about nursing home care and operation so consumers can
carry out sensible planning and make fully informed decisions. Any
operators who do not want to operate within this equitable ethical
framework can make choices that take their operations to other
activities, but not by misleading current and future nursing home
residents and their families.
Question 2. On what other areas do you find common ground with
AARP. On what matters do you differ?
Answer. In many cases, AARP and The Seniors Coalition may both
agree that a problem exists--whether that be quality of care in
Medicare, adequate benefits for retirees, or prevention of crime
against older Americans or any number of a host of other important
issues facing seniors and their families. Where we often disagree is
how these problems can best be solved. AARP often seems to advocate for
a greater role for government in solving these societal ills, while The
Seniors Coalition believes decreasing the involvement of government in
the daily lives of Americans of all ages is a better approach.
For example, we also believe the government has made promises to
our older Americans in both the Social Security and the Medicare
programs which amount to contractual commitments. To accomplish this,
we believe that the future requires bringing free market options and
solutions to bear on these problems without compromising the benefits
that existing recipients are receiving. However, simply pumping more
money into old ways of doing things will only stave off but not
eliminate impending crisis and bankruptcy in both Social Security and
Medicare. Therefore, we want to use free market approaches and
mechanisms to empower consumers and harness the innovative energies of
the private sector to find solutions in both of these programs.