Testimony Before the United States Senate  
 Committee on Finance 
 
 
 
 
Promoting Elder Justice: A Call for Reform  
 
Testimony of: 
 
Megan H. Tinker 
Senior Advisor for Legal Affairs 
Office of Counsel to the Inspector General 
Office of Inspector General  
U.S. Department of Health and Human Services 
 
 
 
 
July 23, 2019 
10:15 a.m. 
Location: Room 215, Dirksen Senate Office Building 
  Testimony of: 
Megan H. Tinker 
Senior Advisor for Legal Affairs 
Office of Inspector General, U.S. Department of Health and Human Services 
 
Good morning, Chairman Grassley, Ranking Member Wyden, and other distinguished 
Members of the Committee.  Thank you for the opportunity to appear before you today to 
discuss the important topic of quality of care and safety of our Nations Medicare and 
Medicaid beneficiaries. 
 
Office of Inspector General (OIG) work has revealed widespread problems in providing safe, 
high-quality care to Medicare and Medicaid beneficiaries in many settings and ongoing 
failures to identify, report, and correct incidents of abuse and neglect when they occur.  This 
morning, I will discuss our recent work focusing on abuse and neglect of Medicare 
beneficiaries, State Survey Agency response to nursing home deficiencies and complaints, 
and enforcement actions to address misconduct and grossly substandard care.   
 
The three key take-a-ways from my testimony are:  
 
  First, CMS, States, and providers should use data to ensure potential abuse and 
neglect is being identified. 
 
  Second, CMS, States, and providers must ensure potential abuse and neglect is 
reported to enable oversight and prevention. 
 
  Third, States must ensure deficiencies are corrected.   
 
BACKGROUND 
 
Approximately 1.4 million Medicare beneficiaries received care in skilled nursing facilities 
(SNFs) in 2016.  Federal expenditures on nursing home care exceed $70 billion annually, 
including in 2017 $43 billion for Medicaid long-term care and $28 billion for Medicare post-
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  acute and other skilled care.  Most facilities providing these types of care are certified to 
serve as both nursing homes and SNFs.  SNFs provide skilled nursing care and rehabilitation 
services for residents who require such care because of injury, disability, or illness, typically 
following a hospital stay.   
 
Ensuring that nursing homes meet Federal requirements for quality and safety is a shared 
Federal and State responsibility.  State Survey Agencies (Survey Agencies) must conduct 
surveys (inspections) of nursing homes at least every 15 months to certify their compliance 
with these requirements.  The Centers for Medicare & Medicaid Services (CMS) provides 
guidance regarding the survey process in its State Operations Manual (SOM) and Interpretive 
Guidelines.  When Survey Agencies identify deficiencies during their surveys, nursing 
homes must submit correction plans, and Survey Agencies must verify that the facility 
corrected its deficiencies.   
 
In addition, Survey Agencies must review all nursing home complaint allegations.  A 
complaint survey can be conducted to investigate an allegation of noncompliance with 
Federal participation requirements, such as a nursing home providing improper care or 
treatment to a beneficiary.  Where the Survey Agency finds evidence of abuse or neglect it 
must make a referral to local law enforcement, the Medicaid Fraud Control Unit (MFCU) if 
appropriate, and the applicable licensure authority.  CMS may also take enforcement actions 
to address nursing home deficiencies, including imposing civil monetary penalties or 
terminating the nursing home from Medicare and Medicaid. 
 
ABUSE AND NEGLECT 
 
Beneficiary safety and quality of care is a top priority for OIG, and we believe these goals 
can be better achieved through the effective harnessing of available data.  The problems 
highlighted today are mirrored in other areas OIG has examined.  For example, OIGs work 
on critical incident reporting at group homes showed that group home providers failed to 
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  report many critical incidents to the appropriate State agencies.1  These critical incidents 
included death, physical/sexual assault, serious injuries, and missing persons.  In addition, we 
released two reports earlier this month focused on hospice care.2  OIG found that from 2012 
through 2016, the majority of U.S. hospices that participated in Medicare had one or more 
deficiencies in the quality of care they provided to their patients.  These deficienciesmuch 
like the deficiencies highlighted elsewhere in my testimonyhave a human cost on 
vulnerable beneficiaries and are subject to CMS oversight and enforcement action. 
 
As we reported in an August 2017 Early Alert,3 OIG reviewed hospital emergency room 
records from 2015 and 2016 for SNF residents whose injuries may have been the result of 
potential abuse or neglect in the SNF.  We found 134 incidents of potential abuse or neglect 
across 33 States.  For 28 percent of these incidents, we could not determine whether nursing 
home or hospital staff contacted local law enforcement despite State mandatory reporting 
laws requiring medical staff to do so.  This Early Alert informed CMS that it had inadequate 
procedures to ensure that incidents of potential abuse and neglect at SNFs are properly 
identified and reported.  
 
Abuse and Neglect Involving SNFs and Emergency Room Visits 
In a June 2019 report,4 we assessed the prevalence and reporting of incidents of potential 
abuse or neglect of Medicare beneficiaries residing in SNFs who had a hospital emergency 
room Medicare claim in calendar year (CY) 2016.  We determined that one in five of these 
high-risk claims were the result of potential abuse or neglect. 
                                                           
1 OIG, Connecticut Did Not Comply With Federal and State Requirements for Critical Incidents Involving 
Developmentally Disabled Medicaid Beneficiaries (A-01-14-00002), May 2016; OIG, Massachusetts Did Not 
Comply With Federal and State Requirements for Critical Incidents Involving Developmentally Disabled 
Medicaid Beneficiaries (A-01-14-00008), July 2016; OIG, Maine Did Not Comply With Federal and State 
Requirements for Critical Incidents Involving Medicaid Beneficiaries With Developmental Disabilities (A-01-
16-00001), August 2017; Alaska Did Not Fully Comply With Federal and State Requirements for Reporting and 
Monitoring Critical Incidents Involving Medicaid Beneficiaries With Developmental Disabilities (A-09-17-
020016), June 2019. 
2 OIG, Hospice Deficiencies Pose Risks to Medicare Beneficiaries (OEI-02-17-00020), July 2019; Safeguards 
Must Be Strengthened To Protect Medicare Hospice Beneficiaries From Harm (OEI-02-17-00021), July 2019. 
3 OIG, Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures to Ensure That 
Incidents of Potential Abuse or Neglect at SNFs Are Identified and Reported in Accordance With Applicable 
Requirements (A-01-17-00504), August 2017. 
4 OIG, Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and 
Investigated (A-01-16-00509), June 2019. 
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Example: A 72-year-old Medicare beneficiary with a history of throat cancer, recent 
throat surgery, and a nasogastric tube in place was transported to an emergency 
room (ER) and was diagnosed with aspiration pneumonia.  The beneficiarys wife 
stated that her husbands nasogastric tube had not been suctioned well, and he was 
not given all of his scheduled tube feeds.  In addition, records indicated that the 
beneficiary was given a meal tray with liquids despite a strict nothing by mouth 
order, putting the patient at risk for aspiration. The combination of the injuries 
suffered and the allegations made by the beneficiarys family gave reasonable cause 
to suspect potential neglect of this beneficiary. 
 
A SNF must ensure that all incidents involving alleged abuse and neglect are reported 
immediately to the administrator of the facility and to the Survey Agency.  We determined 
that SNFs failed to report an estimated 6,608 instances of potential abuse or neglect (as 
identified in high-risk hospital ER Medicare claims) to the Survey Agencies in 2016. 
 
Because of this failure to report, Survey Agencies could not review, prioritize, or conduct 
immediate onsite investigations, if necessary, to determine whether abuse, neglect, or other 
violations had occurred.  Lastly, we determined that CMS does not require all incidents of 
potential abuse or neglect and related referrals made to law enforcement to be recorded and 
tracked in their complaint and incident tracking system. 
 
Using Medicare Claim Data to Identify Potential Abuse and Neglect 
In a June 2019 report,5 we demonstrated that Medicare claims can be used to identify 
incidents of potential abuse or neglect, regardless of where the beneficiary resides.  Further, 
our work showed that many of these incidents were not reported to law enforcement as 
required.  Medicare claims data identified more than 30,000 incidents of potential abuse 
or neglect.  In our review, we identified Medicare claims in all States that contained 
diagnosis codes indicating the treatment of injuries potentially caused by abuse or neglect of 
Medicare beneficiaries from January 1, 2015, through June 30, 2017.   
 
                                                           
5 OIG, CMS Could Use Medicare Data to Identify Instances of Potential Abuse or Neglect (A-01-17-00513), 
issued May 2019. 
 
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Source: Appendix F, CMS Could Use Medicare Data to Identify Instances of Potential Abuse or Neglect (A-01-
17-00513) 
 
All of the diagnosis codes were assigned by the health professional who treated the Medicare 
beneficiaries.  Most of the actual incidents that caused harm occurred in settings other than 
medical facilities.  Only 10 percent were associated with incidents where the injuries 
occurred in a medical facility, like a nursing home.  Healthcare workers were the likely 
perpetrators of incidents of potential abuse or neglect in about 7 percent of the claims.    
 
Approximately 90 percent of the medical records identified by this analysis contained 
evidence of potential abuse or neglect.  This evidence included, but was not limited to, 
witness statements and photographs.  We estimated that 30,754 claims were supported by 
medical records that contained evidence of potential abuse or neglect.   
 
Providers frequently failed to alert law enforcement to incidents of potential abuse or 
neglect.  Approximately 27 percent of claims were not reported to law enforcement by 
mandatory reporters even though all States require certain individuals to report suspected 
abuse, neglect, or exploitation of vulnerable adults. 
 
Section 1150B of the Act and the Federal Conditions of Participation (CoPs) contained in 
CFR Title 42 for long-term-care facilities, such as nursing homes and SNFs, include 
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  reporting requirements for incidents of suspected abuse or neglect.  For these facilities, 
covered individuals are required to report any reasonable suspicion of a crime, such as 
certain instances of abuse, neglect, or exploitation.  The CoPs for hospitals require that 
hospitals follow State laws for mandatory reporting.  Group homes and assisted-living 
facilities are covered by State regulations regarding the reporting of potential abuse or 
neglect, and their employees are generally covered by State laws for mandatory reporting. 
 
A GUIDE FOR USING DIAGNOSIS CODES IN HEALTH INSURANCE CLAIMS TO 
HELP IDENTIFY UNREPORTED ABUSE OR NEGLECT 
 
We believe that data forms the bedrock of oversight and ensures transparency and 
accountability.  Data is an important means of ensuring the identification, reporting, and 
correction of incidents of abuse and neglect.  Today we are releasing A Resource Guide for 
Using Diagnosis Codes in Health Insurance Claims To Help Identify Unreported Abuse or 
Neglect, (guide) which explains our approach to using claims data to identify incidents of 
potential abuse or neglect of vulnerable populations.  The guide synthesizes the 
methodologies that OIG developed in our extensive work on identifying unreported critical 
incidents, particularly those involving potential abuse or neglect. 
 
The guide includes a flow chart showing key decision points in the process and the detailed 
lessons that OIG has learned using this approach.  We encourage CMS, States, providers 
and other public and private sector entities to use this guide to develop a process 
tailored to their specific circumstances and apply it to any vulnerable population they 
deem appropriate.  The sources of data could include Medicaid Management Information 
System claims data, private payor insurance claims data, or similar data sets.  Analyzing the 
data can help identify individual incidents of unreported abuse or neglect, and patterns and 
trends of abuse or neglect involving specific providers, beneficiaries, or patients who may 
require immediate intervention to protect their health, safety and rights.  The guide also 
provides technical information, such as examples of medical diagnosis codes, to assist CMS, 
States, providers and others with analyzing claims data to help combat abuse and neglect. 
   
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  CORRECTION OF DEFICIENCIES AT NURSING HOMES  
 
State Survey Agencies perform surveys to determine whether nursing homes6 meet the 
Federal Conditions of Participation.  From 2015 to 2018, OIG completed audits of nine 
States and issued a consolidated report to CMS regarding whether the Survey Agency took 
appropriate steps to verify that nursing facilities had corrected identified deficiencies.7  We 
found that seven States failed to verify or maintain sufficient evidence that they had 
verified nursing homes correction of deficiencies as required by Federal rules.  
Specifically, for 47 percent of the sampled deficiencies (326 of the 700), these Survey 
Agencies did not obtain or maintain evidence of nursing homes correction of deficiencies.  
If Survey Agencies certify that nursing homes are in substantial compliance without properly 
verifying the correction of deficiencies and maintaining sufficient documentation to support 
the verification of deficiency correction, the health and safety of nursing home residents may 
be at risk. 
 
In addition, OIG recently issued a data brief8 that analyzed nursing home deficiencies 
identified by State Survey Agencies across the nation.  Overall, we found that the number of 
deficiencies slightly increased from CYs 2013 through 2016, then slightly decreased in CY 
2017.  Also, the overall average number of deficiencies identified by standard and complaint 
surveys slightly increased from CYs 2013 through 2017, which would suggest that Survey 
Agencies identified more deficiencies per survey in CY 2017 than they did in CY 2013.  
However, approximately 31 percent of nursing homes had a repeat deficiency, i.e., a 
deficiency type that was cited at least five times in separate surveys.  Further, at least half 
of these nursing homes experienced an incident of a more serious deficiency, including 
incidents of substandard quality of care, actual harm, and immediate jeopardy to residents.  
The results of our data analysis raise questions as to whether the quality of care and services 
provided to nursing home residents improved during our review period. 
                                                           
6 Nursing homes can have both Medicare and Medicaid beneficiaries residing in them. 
7 OIG, CMS Guidance to State Survey Agencies on Verifying Correction of Deficiencies Needs To Be Improved 
To Help Ensure the Health and Safety of Nursing Home Residents (A-09-18-02000), February 2019. 
8 OIG, Trends in Deficiencies at Nursing Homes Show That Improvements Are Needed To Ensure the Health 
and Safety of Residents (A-09-18-02010), April 2019. 
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OIG INVESTIGATIONS AND ENFORCEMENT: MISCONDUCT AND SUBSTANDARD 
CARE 
 
OIG investigates potential criminal and civil violations and pursues administrative actions to 
hold accountable those who victimize residents of nursing homes.  Allegations involving 
patient harm remain a top OIG enforcement priority.  For example, following Hurricanes 
Irma and Maria, the OIG and other Federal and State agencies undertook an investigation to 
review potential quality of care issues involving Medicare and Medicaid patients residing at 
long term care facilities.  During the initial phase of this initiative, OIG along with other 
Federal and State authorities, visited more than 800 homes throughout Puerto Rico.   
 
Example: The investigation revealed that the owner of one of the facilities physically 
and verbally abused an 85-year-old female Medicaid beneficiary residing at her 
long-term-care facility.  The owner verbally insulted the resident and punched her 
and hit her with a broomstick.  The owner also negligently caused other patients 
residing at the facility to develop malnutrition and scabies.  For patient safety, all 
residents were removed and transferred to other long-term-care facilities.  The owner 
pleaded guilty to all five charges against her and was sentenced to 8 years of 
imprisonment to be served in home detention. 
 
In other instances, facility-wide or chain-wide grossly substandard care has resulted in harm 
to patients.  Such cases may result in False Claims Act resolutions or administrative actions, 
such as exclusion from participation in Federal healthcare programs.  Patient neglect is a 
recurring issue in False Claims Act cases.  Allegations in these cases have included 
avoidable pressure ulcers; overmedication, which may lead to falls and fractures; 
failure to follow physicians orders; and failure to provide a habitable living 
environment, with concerns including mold and roof leaks.  In resolving False Claims 
Act cases, OIG may enter into quality of care corporate integrity agreements (CIAs) with 
nursing homes or chains that require actions to improve quality of care and safety.  OIG is 
currently monitoring quality of care CIAs covering more than 200 nursing homes.  OIG also 
collaborates closely with the 52 State Medicaid Fraud Control Units (MFCUs) that often 
have primary responsibility for enforcement of cases of abuse and neglect in health facilities, 
including nursing homes, as well as assisted living facilities. 
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ADDITIONAL CORRECTIVE ACTION IS NEEDED 
 
To help ensure the health and safety of Medicare and Medicaid beneficiaries, the reports that 
I have referenced in this testimony, as well as numerous other OIG reports related to quality 
of care and nursing homes, have recommended that CMS take specific actions to improve 
this area of the program.  A complete listing of significant unimplemented OIG 
recommendations as well as CMSs response to those recommendations can be found in our 
Solutions to Reduce Fraud, Waste, and Abuse in HHS Programs: Top Recommendations.  
The following is a list of some of our recommendations related to my testimony today:  
 
  CMS should compile a list of diagnosis codes that indicate potential abuse or neglect, 
conduct periodic data extracts, and inform States that the data are available to help the 
States ensure compliance with their mandatory reporting laws. 
  CMS should take action (e.g., provide training, clarify guidance) to ensure that 
incidents of potential abuse or neglect of Medicare beneficiaries residing in SNFs are 
identified and reported. 
  CMS should assess the sufficiency of existing Federal requirements to report 
suspected abuse and neglect of Medicare beneficiaries, regardless of where services 
are provided, and strengthen those requirements or seek additional legislative 
authorities if appropriate. 
  CMS should improve its guidance to State Agencies on verifying nursing homes 
correction of deficiencies and maintaining documentation to support verification. 
 
CONCLUSION 
 
CMS and law enforcement cannot adequately protect victims of abuse and neglect from harm 
if they do not first know the harm is occurring.  Failing to leverage the data available 
represents a lost opportunity for CMS and public and patient safety organizations to identify 
and pursue legal, administrative, and other appropriate remedies to ensure the safety, health, 
and rights of Medicare and Medicaid beneficiaries. 
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HHS, CMS, and OIG are committed to the health and safety of beneficiaries.  Despite this 
shared commitment, the data and findings that we are presenting today are extremely 
troubling and should cause all of us to redouble our efforts to protect the most vulnerable of 
our beneficiaries from these disturbing incidents.  We need to use all the tools at our disposal 
to effectively address the issues of abuse and neglect highlighted in my testimony.  We 
believe that Medicare and Medicaid data is a critical tool and that CMS can do a better job of 
analyzing and sharing that data so that States can promote better health and safety outcomes 
and manage their programs more effectively.  We created the guide that we are releasing 
today to support CMS, States, providers, and others in their efforts to curtail this ongoing 
problem of abuse and neglect of our most vulnerable beneficiaries.   
 
Thank you for your ongoing leadership in this area and for affording OIG the opportunity to 
appear before you today. 
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