U.S. GOVERNMENT PUBLISHING OFFICE

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EXAMINING FEDERAL EFFORTS TO ENSURE 

QUALITY OF CARE AND RESIDENT SAFETY 

IN NURSING HOMES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 6, 2018 

Serial No. 115–164 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

JEFF DUNCAN, South Carolina 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

GREGG HARPER, Mississippi 

Chairman 

H. MORGAN GRIFFITH, Virginia 

Vice Chairman 

JOE BARTON, Texas 

MICHAEL C. BURGESS, Texas 

SUSAN W. BROOKS, Indiana 

CHRIS COLLINS, New York 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GREG WALDEN, Oregon (ex officio) 

DIANA DEGETTE, Colorado 

Ranking Member 

JANICE D. SCHAKOWSKY, Illinois 

KATHY CASTOR, Florida 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

Page 

Hon. Gregg Harper, a Representative in Congress from the State of Mississippi, opening statement ................................................................................. 1 

Prepared statement .......................................................................................... 3 

Hon. Diana DeGette, a Representative in Congress from the state of Colorado, 

opening statement ................................................................................................ 4 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 5 

Prepared statement .......................................................................................... 7 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 8 

WITNESSES

Kate Goodrich, M.D., Director, Center for Clinical Standards and Quality, 

and Chief Medical Officer, Centers for Medicare & Medicaid Services ........... 10 

Prepared statement .......................................................................................... 13 

Ruth Ann Dorrill, Regional Inspector General, Office of Inspector General, 

U.S. Department of Health and Human Services ............................................. 29 

Prepared statement .......................................................................................... 31 

John Dicken, Director, Health Care, Government Accountability Office ............ 45 

Prepared statement .......................................................................................... 47 

SUBMITTED MATERIAL

Committee memorandum ........................................................................................ 86 

Report entitled, ‘‘‘They want docile’: How Nursing Homes in the United States 

Overmedicate People with Dementia,’’ Human Rights Watch, 2018 1

1 The information can be found at: https://docs.house.gov/meetings/IF/IF02/ 

20180906/108648/HHRG-115-IF02-20180906-SD003.pdf. 

(1) 

EXAMINING FEDERAL EFFORTS TO ENSURE 

QUALITY OF CARE AND RESIDENT SAFETY 

IN NURSING HOMES 

THURSDAY, SEPTEMBER 6, 2018 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:15 a.m., in room 

2322 Rayburn House Office Building, Hon. Gregg Harper (chairman of the subcommittee) presiding. 

Members present: Representatives Harper, Griffith, Burgess, 

Brooks, Walberg, Walters, Costello, Carter, Walden (ex officio), 

DeGette, Schakowsky, Castor, Clarke, Ruiz, and Pallone (ex officio). 

Also present: Representative Bilirakis. 

Staff present: Jennifer Barblan, Chief Counsel, Oversight and Investigations; Samantha Bopp, Staff Assistant; Lamar Echols, Counsel, Oversight and Investigations; Ali Fulling, Legislative Clerk, 

Oversight and Investigations, Digital Commerce and Consumer 

Protection; Christopher Santini, Counsel, Oversight and Investigations; Jennifer Sherman, Press Secretary; Julie Babayan, Minority 

Counsel; Jeff Carroll, Minority Staff Director; Tiffany Guarascio, 

Minority Deputy Staff Director and Chief Health Advisor; Chris 

Knauer, Minority Oversight Staff Director; Jourdan Lewis, Minority Staff Assistant and Policy Analyst; Kevin McAloon, Minority 

Professional Staff Member; and C.J. Young, Minority Press Secretary. 

OPENING STATEMENT OF HON. GREGG HARPER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSISSIPPI 

Mr. HARPER. We will call to order today’s subcommittee hearing, 

Oversight and Investigations, and our hearing today is on Examining Federal Efforts to Ensure Quality of Care and Resident Safety in Nursing Homes. I want to welcome each of our witnesses that 

are here today, and at this point I am going to recognize myself for 

our opening statement. 

So this a very important subject and the subcommittee continues 

to work in examining whether the Federal Government is meeting 

its obligations to ensure that residents in nursing homes across the 

country are free from abuse and receiving the quality of care that 

they deserve and respect. Protecting our most vulnerable citizens 

2 

is among the most fundamental responsibilities entrusted to the 

fFederal Government and it is also a responsibility that we as 

Americans all share. 

The Centers for Medicare and Medicaid Services, CMS, is the 

Federal agency tasked with ensuring nursing home residents are 

protected and well cared for, and CMS largely relies on the efforts 

of State survey agencies to verify that nursing homes are meeting 

Federal standards for quality and safety. 

However, reports issued by the Department of Health and 

Human Services Office of Inspector General and the Government 

Accountability Office, along with all too frequent press reports, detail horrible cases of abuse and neglect occurring in nursing homes 

raises questions as to whether CMS is fulfilling its obligations to 

residents. For example, in 2014, OIG found that based on its review of more than 650 medical records of Medicare beneficiaries 

that were receiving care in a nursing home, approximately onethird of residents experienced some type of harm during their stay. 

According to OIG, nearly 60 percent of this harm was either clearly 

preventable or likely preventable. 

Last year, reports emerged out of Florida of the deaths of at least 

a dozen residents of the Rehabilitation Center at Hollywood Hills 

after the facility’s air conditioning system failed in the immediate 

aftermath of Hurricane Irma. According to state regulators, temperatures at the facility reached nearly a hundred degrees and the 

facility deprived residents of timely medical care despite being located across the street from a fully functioning and functional hospital. 

CMS described the events at this nursing home as a complete 

management failure and terminated the facility from the Medicare 

and Medicaid programs noting that the conditions at the facility 

constituted an immediate jeopardy to residents’ health and safety. 

Previously, this facility’s owner entered into a settlement agreement with the Federal Government to resolve allegations he and 

his associates had paid kickbacks and performed medically unnecessary treatments to generate Medicare and Medicaid payments at 

another Florida healthcare facility in which he had an ownership 

interest. Despite this history and last year’s tragedy at that person’s rehabilitation center, we have learned that the facility’s 

owner continues to maintain an ownership interest in at least 11 

facilities participating in the Medicare and Medicaid programs. 

It can’t be emphasized enough that it should not take a tragedy 

like what we have seen at the Rehabilitation Center at Hollywood 

Hills to make CMS mindful or take action in response of conditions 

at nursing homes that threaten residents’ well-being. However, the 

committee’s oversight and reports issued by OIG and GAO suggest 

that this isn’t necessarily the case. 

Improving care for vulnerable populations including the care provided to nursing home residents has been identified by OIG as a 

top management challenge for over a decade. We want to know 

why this continues to be a top management challenge, what steps 

CMS is taking to improve efforts to enforce existing regulatory requirements, and how the agency is addressing any gaps in its oversight. 

3 

At the same time, we want to recognize the many, and I mean 

many, nursing homes that are providing their residents with high 

quality care. In advance of this hearing I checked in with Vanessa 

Henderson, Executive Director for the Mississippi Health Care Association, for an update on our facilities after Tropical Storm Gordon made landfall late last night on the Mississippi Gulf Coast. Ms. 

Henderson received reports every 2 hours throughout the night 

from 19 nursing homes in nine South Mississippi counties. There 

were no major issues. They were well prepared. 

When Hurricane Katrina devastated the Mississippi Gulf Coast, 

now 13 years ago, there was no fatality or major problem at a nursing home in Mississippi. And I am proud of these successes in my 

home State. What are the best practices being utilized at these facilities that if applied everywhere could yield positive outcomes for 

nursing home residents? 

I look forward to hearing from each member on our panel on 

ways we can improve our Federal oversight of nursing homes to ensure that CMS is protecting seniors from abuse and neglect in 

nursing homes and using its authority in a fair and efficient manner. I thank you for your testimony today and I now recognize the 

ranking member of the subcommittee from Colorado, Ms. DeGette, 

for 5 minutes. 

[The prepared statement of Mr. Harper follows:] 

PREPARED STATEMENT OF HON. GREGG HARPER

Good morning, today the Subcommittee continues its work examining whether the 

Federal Government is meeting its obligations to ensure that residents in nursing 

homes across the country are free from abuse and are receiving the quality of care 

they deserve. Protecting our most vulnerable citizens is among the most fundamental responsibilities entrusted to the Federal Government, and it is also a responsibility that we, as Americans, all share. 

The Centers for Medicare and Medicaid Services (CMS) is the Federal agency 

tasked with ensuring nursing home residents are protected and well-cared for, and 

CMS largely relies on the efforts of state survey agencies to verify that nursing 

homes are meeting Federal standards for quality and safety. However, reports 

issued by the Department of Health and Human Services’ Office of Inspector General (OIG) and the Government Accountability Office (GAO), along with all too frequent press reports that detail horrible cases of abuse and neglect occurring in nursing homes, raise questions as to whether CMS is fulfilling its obligations to residents. 

For example, in 2014 OIG found that, based on its review of more than 650 medical records of Medicare beneficiaries that were receiving care in a nursing home, 

approximately one-third of residents experienced some type of harm during their 

stay. According to OIG, nearly 60 percent of this harm was either clearly preventable or likely preventable. 

Last year, reports emerged out of Florida of the deaths of at least a dozen residents of the Rehabilitation Center at Hollywood Hills after the facility’s air conditioning system failed in the immediate aftermath of Hurricane Irma. According to 

state regulators, temperatures at the facility reached nearly 100 degrees and the facility deprived residents of timely medical care despite being located across the 

street from a fully-functional hospital. CMS described the events at this nursing 

home as a ‘‘complete management failure’’ and terminated the facility from the 

Medicare and Medicaid programs, noting the conditions at the facility constituted 

an immediate jeopardy to residents’ health and safety. 

Previously, the facility’s owner entered into a settlement agreement with the federal government to resolve allegations he and his associates paid kickbacks and performed medically unnecessary treatments to generate Medicare and Medicaid payments at another Florida health care facility in which he had an ownership interest. 

Despite this history, and last year’s tragedy at the Rehabilitation Center, we have 

learned that the facility’s owner continues to maintain an ownership interest in at 

least 11 facilities participating in the Medicare and Medicaid programs. 

4 

It can’t be emphasized enough that it should not take a tragedy like what was 

seen at the Rehabilitation Center at Hollywood Hills to make CMS mindful, or take 

action in response, of conditions at nursing homes that threaten residents’ wellbeing. However, the Committee’s oversight, and reports issued by OIG and GAO, 

suggest that this isn’t necessarily the case. Improving care for vulnerable populations, including the care provided to nursing home residents, has been identified 

by OIG as a top management challenge for over a decade. We want to know why 

this continues to be a top management challenge, what steps CMS is taking to improve efforts to enforce existing regulatory requirements, and how the agency is addressing any gaps in its oversight. 

We also want to recognize the many nursing homes that are providing their residents with high quality care. In advance of this hearing, I checked in with Vanessa 

Henderson, Executive Director for the Mississippi Health Care Association, for an 

update on our facilities after Tropical Storm Gordon made landfall late last night 

on the Mississippi Gulf Coast. 

Ms. Henderson received reports every two hours throughout the night from 19 

nursing homes in 9 south Mississippi counties. There were no major issues. When 

Hurricane Katrina devastated the Mississippi Gulf Coast 13 years ago there was no 

fatality or major problem at a nursing home in Mississippi. I am proud of these successes in my home state. What are the best practices being utilized at these facilities that if applied elsewhere could yield positive outcomes for nursing home residents? 

I look forward to hearing from each member of our panel on ways we can improve 

our Federal oversight of nursing homes to ensure that CMS is protecting seniors 

from abuse and neglect in nursing homes and using its authorities in a fair and effective manner. I thank you for your testimony today and now recognize the Ranking Member of the Subcommittee from Colorado, Ms. DeGette, for 5 minutes. 

OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Ms. DEGETTE. Thank you so much, Mr. Chairman. I guess as 

proof that this subcommittee often, most often, works in a bipartisan way, my opening statement is pretty much exactly the same 

opening statement you just made down to the example of the Hollywood Hills tragedy after Hurricane Irma when 14 people died. So 

I am going to submit my written statement for the record, I just 

want to make a couple of observations. 

The first one is some of us have been on this subcommittee for 

many, many years and those of you who have been here you know 

that for all of these years we have struggled to address the issue 

of quality care at nursing homes. Both the IG at HHS and also the 

GAO have consistently raised issues over the years about how the 

States and CMS oversee the nursing home industry and every so 

often we have a real tragedy like this Hollywood Hills tragedy. 

But then, you have got to wonder how many more facilities are 

like this and what are we doing to make a permanent effort. It just 

seems like we haven’t turned the corner to get where we need to 

be in providing effective oversight in this sector of care. For example, just today, the Inspector General in written testimony mentions a statistic that I find really troubling. Fully one-third of 

Medicare residents in a skilled nursing home experienced harm 

from the care that they received and half of those cases were actually preventable. 

So we do this over and over again, but yet, one-third of Medicare 

residents have experienced harm. Now the IG has made recommendations for how to improve these issues. CMS needs to articulate to us today what concrete steps the agency is making to 

improve this. I also want to know what progress CMS is making 

5 

on implementing the updated health and safety regulations that 

were finalized in 2016 after a lengthy rulemaking process. 

It took years and a lot of public feedback, but in 2016 CMS did 

update the federal nursing home regulations to improve planning 

for resident care, training for staff, and protections against abuse, 

among other issues. But now as CMS is implementing these new 

rules, the agency has taken a series of actions that have led consumer groups, state attorneys general, and others to question 

whether CMS is doing enough to strengthen and enforce federal 

standards. 

Here is a couple of examples: Last year CMS announced that it 

had imposed a moratorium on the enforcement of many of these 

regulations. In other words the agency is restraining itself from 

using some of its most effective enforcement tools against those 

who violate those new rules designed to protect vulnerable nursing 

home residents. 

I must say CMS has to commit itself to implementing and enforcing its own regulations. That sounds kind of like a ridiculous thing 

to say but it is true, because as I said the core issue is here that 

frail and vulnerable people are harmed when nursing homes fail to 

meet our standards. And I don’t think any of us wants to wait until 

the next natural disaster or other disaster exposes some kind of a 

deficiency that kills dozens of people. 

I want to thank the witnesses for being here today. I want to 

thank the Inspector General and the GAO for your body of oversight of work on nursing homes, and I hope that we won’t be back 

here again next year or in 5 years to talk about how more people 

have died. Thanks, and I yield back. 

Mr. HARPER. The gentlewoman yields back. 

The chair will now recognize the gentleman from Oregon, the 

chairman of the full committee, Mr. Walden, for 5 minutes. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. Thank you very much, Mr. Chairman. Thanks for 

holding this hearing on this topic that is very important to all of 

us across the country. 

I think it is important to put it all in context as well. According 

to information released by the Centers for Medicare and Medicaid 

Services, more than three million individuals rely on services provided by nursing homes at some point during every year. And on 

any given day, 1.4 million Americans reside in more than 15,000 

nursing homes across our country and the overwhelming majority 

of these nursing homes provide high quality, lifesaving care to their 

residents. We know that too. 

I have heard from many seniors and their families in my district 

about how they or their loved ones are receiving excellent, aroundthe-clock care at their nursing homes and they go above and beyond. One provider I spoke with recently has a facility down in 

Redding, California. And when the fires were threatening Redding 

he chartered buses, had them on the ready with 200 seats, made 

arrangements, and all of this was happening very, very quickly to 

be able to move patients, residents to a facility many miles away 

in Klamath Falls, Oregon, if need be. As it turned out he didn’t 

6 

have to do that evacuation, but they were ready. Unfortunately, 

this doesn’t appear to be the case in all nursing homes. 

We all know the discussion that has occurred around what happened at the Rehabilitation Center at Hollywood Hills, Florida, run 

by Dr. Jack Michel. That tragedy that occurred at that facility during Hurricane Irma was the result of inexcusable management or 

mismanagement and it resulted in needless loss of life. 

While many facilities in Florida had the right procedures in place 

and handled the hurricanes well, we need to make sure our Federal oversight efforts are effective in detecting low quality, unsafe 

nursing homes while being mindful to not impose excessive regulatory burdens that in some cases don’t help but cost a lot of money 

and tie up resources. So I think we need to look at that as well, 

what is working and what is not, to get to the underlying problems 

we have identified in the OIG and others have. 

As Chairman Harper described, CMS is the Federal agency responsible for ensuring the safety and quality of care provided to 

Medicare and Medicaid beneficiaries in nursing homes. CMS enters 

into these agreements with the states providing that state agencies 

will inspect nursing homes on CMS’ behalf to determine whether 

the facilities are meeting Federal requirements. 

And so this is done by the states. However, CMS may not always 

be effectively overseeing that work that these agencies do on behalf 

of the federal government. Over the last decade or so, the Department of Health and Human Services Office of Inspector General 

and Government Accountability Office have both issued reports indicating CMS could improve its oversight of nursing homes. 

For example, HHS OIG has examined whether States properly 

verify that deficiencies identified during nursing home inspections 

are corrected. In some instances, such as my State of Oregon, HHS 

OIG found the State properly verified that facilities corrected deficiencies after they were identified and during inspections. 

Several of the reports on this topic, however, HHS OIG has 

found that state agencies elsewhere did not meet that standard of 

proper oversight. For example, a report issued this May estimated 

that in 2016 Nebraska failed to properly verify that deficiencies at 

nursing homes identified during state inspections were corrected 92 

percent of the time. CMS needs to ensure that all state survey 

agencies are adequately conducting the survey process on their behalf. 

We are looking forward to hearing what CMS is doing to improve 

its oversight of the survey process. We also look forward to hearing 

from GAO about their work and recommendations, especially their 

recommendations relating to CMS’ oversight of state survey agencies. So the focus of today’s hearing is to learn more about what 

CMS is doing to maintain consistency across the country and guarantee that all States are effectively surveying nursing homes on 

their behalf to ensure compliance with existing Federal requirements. 

We also want to know what we can do to help in these efforts. 

So it is important that CMS effectively enforce existing requirements for nursing homes to protect and promote safety, especially 

in extreme cases like what happened at the Rehabilitation Center 

at Hollywood Hills. And lastly, I want to thank our witnesses for 

7 

being a part of this important conversation. We very much value 

and appreciate your testimony. 

With that Mr. Chair, unless anyone else wants the remainder— 

Dr. Burgess chairs our Subcommittee on Health—I yield the balance to you. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

Thank you, Mr. Chairman, for holding this hearing on the very important issue 

of protecting one of the most vulnerable populations in the United States—the elderly. 

According to information released by the Centers for Medicare and Medicaid Services (CMS), more than 3 million individuals rely on services provided by nursing 

homes at some point during the year. On any given day, 1.4 million Americans reside in the more than 15,000 nursing homes across our country. The overwhelming 

majority of these nursing homes provide high quality, life-saving care to their residents. 

I’ve heard from many seniors and their families in my district about how they or 

their loved ones are receiving excellent, around the clock care at their nursing 

homes. And many go above and beyond. 

One provider I spoke with recently has a facility in Redding, California, and set 

a good example of what to strive for in preparing for an emergency, with 200 seats 

on buses ready to go at a moment’s notice, and agreements with providers in Klamath Falls, Oregon to house their patients if this summer’s devastating wildfires 

threatened their facility. 

Unfortunately, this doesn’t appear to be the case in all nursing homes across the 

country, such as the Rehabilitation Center in Hollywood Hills, Florida, run by Dr. 

Jack Michel. The tragedy that occurred at this facility during Hurricane Irma was 

a result of inexcusable management, and it resulted in needless loss of life. While 

many facilities in Florida had the right procedures in place and handled the hurricanes well, we need to make sure our federal oversight efforts are effective in detecting low quality, unsafe nursing homes while being mindful to not to impose excessive regulatory burdens that, in some cases, may actually hinder resident care. 

As Chairman Harper described, CMS is the Federal agency responsible for ensuring the safety and quality of care provided to Medicare and Medicaid beneficiaries 

in nursing homes. CMS enters into agreements with individual states, providing 

that state agencies will inspect nursing homes on CMS’ behalf to determine whether 

the facilities in a particular State meet Federal requirements to participate in these 

programs. 

However, CMS may not always be effectively overseeing the work that these state 

agencies are doing on its behalf. Over the last decade or so, the Department of 

Health and Human Services’ (HHS) Office of Inspector General (OIG) and the Government Accountability Office (GAO) have both issued reports indicating that CMS 

could improve its oversight of nursing homes. 

For example, HHS OIG has examined whether sStates properly verify that deficiencies identified during nursing home inspections are corrected. In some instances, 

such as my home State of Oregon, HHS OIG has found that the State properly 

verified that facilities corrected deficiencies after they were identified during inspections. In several of the reports on this topic, however, HHS OIG has found that 

state agencies did not meet that standard of proper oversight. For example, a report 

issued this past May, estimated that in 2016 Nebraska failed to properly verify that 

deficiencies at nursing homes identified during state inspections were corrected 92 

percent of the time. CMS needs to ensure that all state survey agencies are adequately conducting the survey process on their behalf. We are looking forward to 

hearing what CMS is doing to improve its oversight of the survey process. 

We also look forward to hearing from GAO about their work and recommendations—especially their recommendations relating to CMS’ oversight of state survey 

agencies. 

The focus of today’s hearing is to learn more about what CMS is doing to maintain consistency across the country and guarantee that all States are effectively surveying nursing homes on their behalf to ensure compliance with existing federal requirements. We also want to know what we can do to help these efforts. 

It is important that CMS effectively enforce existing requirements for nursing 

homes to protect and promote patient safety, especially in extreme cases like what 

happened at the Rehabilitation Center at Hollywood Hills. Lastly, I’d like to thank 

8 

our witnesses for being a part of this important conversation and look forward to 

their testimony. 

Mr. BURGESS. Well, thank you, Chairman Walden. 

And I just want to mention that like Representative DeGette, in 

January of 2006 this subcommittee held a hearing, field hearing, 

in New Orleans, Louisiana, dealing with just this issue. So this 

morning it is important to see not just one of the lessons learned 

but how it is the implementation of those lessons and how really 

report not just to us, on us, how we are doing in overseeing the 

oversight that the agency is supposed to provide to the facilities 

that are taking care of our seniors. 

So thank you, Mr. Chairman, for doing this hearing and I will 

yield back. 

Mr. HARPER. The gentleman yields back. 

The chair will now recognize the ranking member of the full committee, Mr. Pallone, for 5 minutes. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Mr. Chairman. Nursing home residents are among our most vulnerable populations who are often 

unable to care for themselves and require personal attention. Many 

of us have had loved ones in the care of nursing homes or skilled 

nursing facilities so we can all appreciate the need to ensure these 

facilities are providing high quality care. Most of the time nursing 

homes are staffed by compassionate professionals who want to provide quality care to those who need it and these professionals are 

strong allies too in our efforts to ensure residents are properly 

taken care of. 

As the Department of Health and Human Services Office of Inspector General points out in his testimony today, nursing homes 

offer enormous benefit by providing a place of comfort and healing 

to residents in fragile health, many of whom are insured by Medicaid. The best nursing homes provide excellent care and take seriously their duty to protect their residents. 

That said, nursing home quality of care is a longstanding concern 

and we should always strive to conduct oversight of this sector in 

an effort to improve the overall quality of care. And over the past 

several years, HHS’s OIG and the Government Accountability Office have both found problems in nursing home delivery of care and 

Federal and State oversight. And that is not to say that we should 

be suspicious of all nursing homes, rather, certain providers have 

failed to ensure high quality care. 

For example, OIG has found that when incidents of abuse or neglect occur some nursing homes fail to report them as required and 

GAO has identified gaps in nursing homes’ emergency preparedness and response capabilities. We can and must demand better for 

our loved ones and that is why we must focus our resources to 

weed out these bad actors so that residents are protected and the 

rest of the industry is not given a black eye. 

And that is where the Centers for Medicare and Medicaid Services comes in. In exchange for participating in the Medicare/Medicaid programs, nursing homes must comply with Federal standVerDate Nov 24 2008 15:11 May 23, 2019 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-164 CHRIS
9 

ards related to health and safety. CMS is charged with overseeing 

nursing homes’ compliance with those standards and the agency 

has enforcement mechanisms at its disposal. And among those 

standards are the ability to terminate a facility participation in 

Medicare and Medicaid if it does not comply, however, OIG and 

GAO have long raised questions about CMS’ oversight of nursing 

homes. 

For instance, OIG notes that CMS does not always ensure that 

abuse and neglect at skilled nursing facilities are identified and reported, and when a nursing home is cited for deficiency OIG has 

found that CMS does not always require them to correct the problem. Many of these same issues have been raised for several years 

so the committee needs to hear what progress CMS is making and 

what more needs to be done to better ensure quality of care. 

CMS also relies on state survey agencies to conduct inspections 

of nursing homes on CMS’ behalf, but some States have been better 

than others at ensuring high quality care. OIG’s audits have revealed that several States fell short in investigating the most serious complaints and many had difficulty meeting CMS’ standards. 

Workforce shortages and inexperienced surveyors at the state level 

have also led to the understatement of serious care problems. And, 

hereto, OIG and GAO have found problems with CMS’ oversight of 

the state agencies. We need to hear what CMS needs to do better 

or differently to ensure Federal requirements are being followed. 

And, finally, CMS has yet to finalize and enforce some 2016 regulations to update and strengthen the nursing home standards. 

These regulations address critical areas such as staff training and 

protections against abuse, among other issues. However, last year, 

CMS issued a moratorium on enforcement of many of these regulations. And it is important to hear the input of industry and consumer groups to ensure regulations are done right, but without actually enforcing these rules it is unclear how CMS will ensure the 

quality and safety of our nation’s nursing homes. 

So Dr. Goodrich needs to articulate today how CMS is considering the concerns of the industry and consumers while also meeting its responsibility to ensure high quality care in nursing homes. 

I yield back, Mr., I mean unless anybody else wants the time, but 

I don’t think so. I yield back. 

Mr. HARPER. The gentleman yields back. I ask unanimous consent that the members’ written opening statements be made part 

of the record. Without objection, they will so be entered into the 

record. I also ask unanimous consent that members of the full committee on Energy and Commerce not on this subcommittee be permitted to participate in today’s hearing. 

I would now like to introduce our witnesses for today’s hearing. 

Today we have Dr. Kate Goodrich, the Director of the Center for 

Clinical Standards and Quality, and Chief Medical Officer at the 

Centers for Medicare and Medicaid Services. We welcome you 

today. 

Next is Ms. Ruth Ann Dorrill, Regional Inspector General at the 

Office of Inspector General at the U.S. Department of Health and 

Human Services. Thank you for being here today. 

And, finally, Mr. John Dicken, Director of Health Care at the 

U.S. Government Accountability Office. 

10 

You are each aware that this committee is holding an investigative hearing and when doing so has had the practice of taking testimony under oath. Do you have any objection to testifying under 

oath? 

Let the record reflect that all three have indicated no. The chair 

then advises you that under the rules of the House and the rules 

of the committee you are entitled to be accompanied by counsel. Do 

you desire to be accompanied by counsel during your testimony 

today? 

All of the witnesses have indicated no. 

In that case if you would please stand and raise your right hand, 

I will swear you in. 

[Witnesses sworn.] 

Mr. HARPER. Thank you. You may be seated. You are now under 

oath and subject to the penalties set forth in Title 18 Section 1001 

of the United States Code. You may now give a 5-minute summary 

of your written testimony. 

And we will begin with you, Dr. Goodrich, and you are recognized for 5. We would ask that you pull the microphone a little 

closer to you and make sure that the mic is on. And you know the 

light system is such when it gets to yellow you have 1 minute. Red, 

the floor will not open up, but do bring it in for a landing, OK. 

Thank you. 

You may begin. 

STATEMENT OF KATE GOODRICH, M.D., DIRECTOR, CENTER 

FOR CLINICAL STANDARDS AND QUALITY, AND CHIEF MEDICAL OFFICER, CENTERS FOR MEDICARE & MEDICAID SERVICES; RUTH ANN DORRILL, REGIONAL INSPECTOR GENERAL, OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT 

OF HEALTH AND HUMAN SERVICES; AND, JOHN DICKEN, DIRECTOR, HEALTH CARE, GOVERNMENT ACCOUNTABILITY 

OFFICE 

STATEMENT OF KATE GOODRICH 

Dr. GOODRICH. All right. To Chairman Harper, Ranking Member 

DeGette, and members of the subcommittee, thank you for the opportunity to discuss CMS’ efforts to oversee nursing homes. 

Resident safety is our top priority in nursing homes and all facilities that participate in the Medicare and Medicaid programs. 

Every nursing home must keep its residents safe and provide high 

quality care. Monitoring patient safety and quality of care in nursing homes requires coordinated efforts between the Federal Government and the States. 

To participate in Medicare or Medicaid, a nursing home must be 

certified as meeting numerous statutory and regulatory requirements including those pertaining the health, safety and quality. 

Compliance with these requirements for participation is verified 

through annual unannounced, onsite surveys conducted by state 

survey agencies in each of the 50 States, the District of Columbia, 

and the U.S. territories. When a state surveyor finds a serious violation of Federal regulation they report it to CMS and swift action 

is taken. 

11 

In cases of immediate jeopardy, meaning a facility’s noncompliance has caused or is likely to cause serious injury, harm, or even 

death we can terminate the facility’s participation agreement within as little as 2 days. Civil monetary penalties can also be assessed 

up to approximately $20,000 per day or per instance until substantial compliance is achieved. Other remedies could include in-service 

training or denial of payments. 

For deficiencies that do not constitute immediate jeopardy, these 

deficiencies must be corrected within 6 months or the facility will 

be terminated from the program. Facilities are also required by law 

to report any allegation of abuse or neglect to their state survey 

agency and other appropriate authorities such as law enforcement 

or adult protective services. 

When CMS learns that a nursing home has failed to report or 

investigate instances of abuse we take immediate action. For example, CMS issued a civil monetary penalty of almost $350,000 to one 

nursing home when a state surveyor found they did not properly 

investigate or prevent additional abuse involving eight residents. 

We are always taking steps to enhance our quality and safety 

oversight efforts. Last fall, surveyors began verifying facility compliance with CMS’ updated and improved emergency preparedness 

requirements. Facilities are now required to address location-specific hazards and responses, must have emergency or standby 

power systems and ensure they are operational during an emergency, develop additional staff training, and implement a communications system to contact necessary persons regarding resident 

care and health status in a timely manner. 

In addition, in 2016, CMS updated the nursing home requirements to reflect the substantial advances into theory and practice 

of service delivery that have been made since 1991 such as ensuring that nursing home staff are properly trained in caring for residents with dementia. Given the number of revisions, CMS has provided a phased-in approach for facilities to meet these new requirements. We are in the second of three implementation phases and 

we are taking a thoughtful approach to implementation and providing education to providers while holding them accountable for 

any deficiencies. 

Promoting transparency is another key factor to incentivizing 

quality. By using a five-star quality rating system, our Nursing 

Home Compare website provides residents and their families with 

an easy way to understand meaningful distinctions between high 

and low performing facilities on three factors: health inspections, 

quality measures, and staffing. In April of this year, we took steps 

to make staffing data more accurate. The new payroll-based journal 

data provide unprecedented insight into how facilities are staffed 

which can be used to analyze how facility staffing relates to quality 

and patient outcomes. 

Under the new systems, facilities reporting 7 or more days in a 

quarter with no registered nurse hours or whose audits identify 

significant inaccuracies between the hours reported and the hours 

verified will receive a one-star staffing rating which will reduce the 

facility’s overall rating by one star. 

CMS greatly appreciates and relies on the work of the Government Accountability Office and the HHS Office of the Inspector 

12 

General to inform our efforts. We have implemented a number of 

recommendations in this area and we look forward to additional 

recommendations to help us continuously improve our programs. 

For example, CMS implemented a new survey process last fall 

that provides standardization and structure to help ensure consistency between surveyors while allowing surveyors the autonomy to 

make decisions based upon their expertise and judgment. We expect every nursing home to keep its residents safe and provide high 

quality care. As a practicing physician that makes rounds in the 

hospital on weekends, many of my patients are frail, elderly nursing home residents, so I am personally deeply committed to the 

care of these patients. 

CMS remains diligent in its duties to monitor nursing homes 

participating in the Medicare and Medicaid programs across the 

country and we look forward to continuing to work with Congress, 

States, facilities, residents, and other stakeholders to make sure 

the residents we serve are receiving safe and high quality care. I 

look forward to answering questions you may have. Thank you. 

[The prepared statement of Dr. Goodrich follows:] 

13 


36285.001

E GOODRICH, M.D., 

DIRECTOR, 

i'Ti'N'III1'Do.'l'l'tloD CLINICAL STANDARDS AND QUALJT 

CHIEF MEDICAL OFFICER, 

~!~tENTERS FOR MEDICARE & MEDICAID 

ON 

"E~~ING FEDERAL EFFORTS TO 
14 


36285.002

U.S. House Energy and Commerce Committee, 

Subcommittee on Oversight and Investigations 

"Examining Federal Efforts to Ensure Quality of Care 

and Resident Safety in Nursing Homes" 

September 6, 2018 

Chairman Harper, Ranking Member DeGette, and members of the Subcommittee, thank you for 

the invitation and the opportunity to discuss efforts at the Centers for Medicare & Medicaid 

Services (CMS) to oversee nursing homes. Resident safety is our top priority. It is the duty of 

every nursing home serving Medicare and Medicaid residents to keep its residents safe and 

provide high quality care. 

Monitoring patient safety and quality of care in nursing homes serving Medicare and Medicaid 

beneficiaries requires coordinated efforts between the federal government and the states. To 

qualify for payment for services to beneficiaries, a nursing home must be enrolled in and 

certified by CMS as a skilled nursing facility under the Medicare program or a nursing facility 

under the Medicaid program. States play a critical role in helping CMS survey for facility 

compliance with both federal and state requirements, such as licensure. 

To become certified as a Medicare and Medicaid participating provider of services, a nursing 

home must meet federal statutory and regulatory requirements which include a list of specific 

requirements for participation pertaining to health, safety and quality. 1 Compliance with these 

requirements for participation is verified through unannounced on-site surveys. Nursing homes 

must remain in substantial compliance with these requirements, as well as state law, to continue 

as a Medicare or Medicaid participating provider. Our efforts are informed and improved by the 

work of the Government Accountability Office (GAO) and the Department of Health and Human 

Services Office of Inspector General (HHS-OIG), and we greatly appreciate their 

recommendations and ongoing assistance to ensure resident safety and facility compliance. 

In addition to these quality and safety oversight efforts, CMS has made improving the quality of 

care provided in nursing homes and providing information to consumers about nursing home 

1 Sections 1819 and 1919 of the Social Security Act and 42 C.F.R. Parts 483 and 489. 
15 


36285.003

quality a top priority. For example, in response to quality and safety concerns related to the use 

of antipsychotic medications among a growing number of residents with dementia, CMS 

launched the National Partnership to Improve Dementia Care in Nursing Homes, which has 

worked to optimize the quality of care and quality of life for residents in America's nursing 

homes by improving care for all residents, especially those with dementia, by reducing the use of 

antipsychotic medications and enhancing the use of nonpharmacologic approaches and personcentered dementia care practices. The CMS Nursing Home Compare2 website provides detailed 

information for comparison of nursing homes and features a Five-Star Quality Rating System to 

help consumers, their families, and caregivers compare nursing homes more easily. At the 

direction of Administrator Seema Verma, CMS has been working tirelessly to evaluate and 

streamline regulations and operations with the goal to reduce unnecessary burden, increase 

efficiencies, and improve the customer experience for nursing facilities so that the priority is the 

care of the patient. 

Quality and Safety Oversight 

CMS works with state survey agencies in each of the 50 states, the District of Columbia, Puerto 

Rico, and other U.S. territories to perform surveys of providers and suppliers. For nursing 

homes, state survey agencies inspect these providers for compliance with Medicare and 

Medicaid health and safety standards related to both delivery and monitoring of care, as well as 

Life Safety Code requirements intended to protect residents by providing a reasonable degree of 

safety from tire. The states also take intake of complaints and conduct investigations 

accordingly. 

Facilities must meet state licensure requirements, in addition to CMS statutory and regulatory 

requirements, to be certified as a Medicare and Medicaid provider. The state survey agency, 

working on behalf of CMS, is usually the same agency responsible for both state licensure and 

Federal surveys and oversight. Therefore, these on-site surveys are often performed by the same 

state team at the same time, with the findings entered into two separate survey reports: one for 

state licensure purposes and one for Medicare and Medicaid compliance purposes. Utilizing the 

expertise of state officials to perform surveys means that state agencies and officials have up-to2 Available at: https://www.medicare.gov/nursinghomecompare/search.html 

2 
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36285.004

date information on health and safety risks at facilities, and, as appropriate, can take direct action 

against facilities through state licensure sanction as well as recommend federal enforcement 

actions and remedies in response to deficiencies with health and safety requirements. 

CMS is always looking for ways to improve our quality and safety oversight efforts to safeguard 

nursing home residents. CMS recently updated and improved the emergency preparedness 

requirements for nursing homes and other providers participating in Medicare and Medicaid. 3 

For example, we clarified that certified nursing homes must have emergency electrical power 

systems for lighting entrances and doorways and maintaining fire detection, alarm, extinguishing 

systems as well as life support systems, must have emergency and stand-by-power systems and 

have a plan for ensuring these systems are operational during an emergency, and introduced 

additional testing requirements for these emergency and stand-by-power systems. In addition, we 

required facilities to develop an emergency preparedness training and testing program for new 

and existing staff, contracted service providers, and volunteers, as well as periodic refresher 

training. Facilities were required to comply with the new emergency preparedness on November 

15,2016, and surveys to evaluate compliance with the new requirements began on November 15, 

2017. 

CMS also made revisions to the other nursing home requirements in late 2016. These changes 

reflect the first comprehensive review and update of the regulations since 1991. These updated 

regulations reflect the substantial advances that have been made over the past several years in 

theory and practice of service delivery and safety and address important public health priorities 

such as combatting multi-drug resistant organisms among this vulnerable population. The 

changes made to the regulations include ensuring nursing home staff are properly trained on 

caring for residents with dementia and in preventing elder abuse, facilities take into consideration 

the health of residents when making decisions on the kinds and level of staffing a facility needs, 

staff have the right skills and competencies to provide person-centered care, resident's care plans 

take into consideration goals of cares and preferences, improvements to care planning including 

discharge planning, allowing dieticians and therapy providers the authority to write orders when 

3 https:/lwww. federalregister.govldocuments/20 16109! 16120 16-21404/medicare-and-medicaid-programs-emergencypreparedness-reguirements-for-medicare-and-medicaid 

3 
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36285.005

delegated by a physician and state licensing laws allow, and updating the infection and control 

program including requiring an infection prevention and control officer and an antibiotic 

stewardship program. These revisions are also an integral part of our efforts to achieve broad 

improvements both in the quality of health care furnished through federal programs, and in 

patient safety, while at the same time reducing procedural burdens on providers. 

Given the number of revised and new requirements in this rule, CMS is implementing it in three 

phases. The three phases were determined based on complexity of the revisions and the work 

necessary to revise the interpretive guidance and survey process based on the revisions. The 

requirements under Phase 1 implemented in November 2016, included those that did not impose 

additional requirements on facilities or were straightforward to implement. Phase 2 requirements 

are new requirements and those provisions that required more complex revisions; these were 

implemented in November 2017. CMS also implemented a revised survey process at this time to 

strengthen the survey system incorporating these new requirements. On November 24, 2017, 

CMS announced a temporary moratorium on the imposition of certain enforcement remedies 

such as civil monetary penalties for eight Phase 2 requirements, because of concerns from 

stakeholders about the scope and timing of their implementation. 4 CMS is using this 18-month 

moratorium period to educate nursing homes and providers to ensure they understand the health 

and safety expectations that will be evaluated through the survey process. However, the Phase 2 

temporary moratorium is limited to 8 of 194 requirements and does not include those 

deficiencies related to abuse or neglect of residents. It also does not pause those enforcement 

activities that are required by federal law such as termination for immediate jeopardy findings 

that are not resolved. Compliance with all Phase 2 requirements is still monitored and cited, 

which is reflected in facilities' survey reports. In addition, all deficiencies arc required by federal 

law to be corrected within 6 months or the facility will be terminated from participating in the 

Medicare and Medicaid programs. 

Nursing homes are required by law to receive a recertification survey on an annual basis. 

Generally, state survey agencies conduct nursing home recertification surveys every year on 

4 https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurvcyCertificationGenlnfo/Downloads/Survey-and-Cert-Letter-l8-04.pdf 

4 
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36285.006

behalf of CMS to assess facility compliance. However, complaint surveys can be performed at 

any time, with the actual timing dependent on the severity of the allegation. The Nursing Home 

Compare website includes links and other helpful information to help patients and families 

determine when and how to file a complaint. 5 In addition, nursing homes are required to post 

similar information on how to file complaints and grievances in their facilities. 

When state inspectors identify violations of federal certification requirements, they notify the 

facility and in serious cases refer the case to CMS for enforcement. In most cases, the facility is 

required to develop a plan of correction to address identified violations within a time period 

depending on the scope and severity of the noncompliance violation. Enforcement actions where 

administrative remedies are imposed are taken against nursing homes that are not in compliance 

with Federal requirements. The law provides that CMS or the state authority impose one or more 

remedies when a facility is found to be out of substantial compliance with Federal requirements. 

When immediate jeopardy to resident health and safety exists (meaning that the facility's 

noncompliance with one or more requirements has caused, or is likely to cause, serious injury, 

harm, impairment, or death), a CMS Regional Office or state Medicaid agency must take 

immediate action to remove the jeopardy and correct the deficiency by either terminating the 

facility or installing temporary management in as few as two calendar days after the facility 

receives notice that immediate jeopardy exists. Civil monetary penalties can also be assessed up 

to approximately $20,000 per day (or per instance) until substantial compliance is achieved for 

the deficiency identified. For deficiencies that do not constitute immediate jeopardy, remedies 

could include directed in-service training, denial of payments, or civil monetary penalties. 

Termination of a facility's Medicare and Medicaid participation is required by law for nursing 

homes that do not achieve substantial compliance for non-immediate jeopardy deficiencies 

within six months. 

For those nursing homes which have more deficiencies than average, more serious deficiencies, 

or a pattern of serious deficiencies persisting over a long period of time, CMS may designate the 

5 https://www.medicare.gov/NursingHomeCompare/Resources/State-Websites.html 

5 
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36285.007

nursing home as a Special Focus Facility 6

, which requires the nursing home to be visited in 

person by survey teams twice as frequently as other nursing homes. CMS has strengthened the 

Special Focus Facility, or SFF, program over the past several years to ensure that homes either 

improve so that they can graduate from the program or they are terminated from 

Medicare/Medicaid participation. The longer the problems persist, the more stringent we are in 

the enforcement actions that will be taken. The objective of all remedies is to incentivize swift 

and sustained compliance in order to protect resident health and safety. Within about 18-24 

months after a facility is identified by CMS as an SFF nursing home, we expect that the facility 

would improve and graduate from this program, be terminated from the Medicare or Medicaid 

program, or show progress but continue as an SFF nursing home for some additional time. 

CMS is dedicated to maintaining an enforcement system that is centered on promoting high 

quality resident-centered health and safety for nursing home residents. It is always our goal to 

ensure patient access to care while making sure patients are safe and appropriately cared for. 

CMS collaborates with state partners to educate nursing homes regarding our requirements, 

making sure they have the information they need to address any violations found during a 

survey. It is our hope that our efforts will help facilities come back into compliance, as well as 

prevent future noncompliance, without requiring termination from the Medicare and Medicaid 

programs. Nevertheless, we will terminate facilities that do not appropriately correct deficiencies 

because it is our obligation to ensure all nursing home facilities are safe and can meet resident 

needs. 

CMS also leads the National Nursing Home Quality Care Collaborative with the Quality 

Innovation Network-Quality Improvement Organizations. The Collaborative launched in April 

2015 with the mission to improve care for the 1.4 million nursing home residents across the 

country. The Collaborative works to rapidly spread the practices of high performing nursing 

homes to every nursing home in the country with the aim of ensuring that every nursing home 

resident receives the highest quality of care. Specifically, the Collaborative strives to instill 

quality and performance improvement practices, eliminate healthcare-acquired conditions, and 

6 For more information see: https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/CertificationandComplianc/downloads/SFFList.pdf 

6 
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36285.008

dramatically improve resident satisfaction by focusing on the systems that impact quality, such 

as staffing, operations, communication, leadership, compliance, clinical models, quality of life 

indicators, and specific, clinical outcomes. Every state in the country has a significant 

percentage of nursing homes that voluntarily participate in this collaborative. 

CMS also works with GAO and HHS-OIG to identify problems and implement 

recommendations that can improve our oversight of nursing home facilities. For example, GAO 

recommended that CMS develop timeframes and milestones for the development and 

implementation of a standardized survey methodology across all states. 7 CMS has implemented 

a new computer-based standardized survey process for nursing homes that is resident-centered 

which emphasizes evidence of potential quality of care issues and concerns identified through 

resident observation and interviews. This new survey process provides additional standardization 

and structure to help ensure consistency between surveyors while allowing surveyors the 

autonomy to make decisions based on their expertise and judgment. 

Addressing Suspected Abuse and Neglect in Nursing Homes 

Abuse and mistreatment of nursing home residents is never permitted, and CMS takes any 

allegation of these types of incidents very seriously. CMS requires nursing homes to report 

allegations of abuse and neglect immediately to their State Survey Agencies. When we learn a 

nursing home failed to report or investigate incidents of abuse, CMS takes immediate action 

against the nursing home. For example, in 2017, when a state surveyor found that a nursing 

home did not properly investigate or prevent additional abuse involving 8 residents, the nursing 

home was cited with noncompliance at the most serious immediate jeopardy level and was 

assessed a civil monetary penalty totaling approximately $347,000. In addition to issuing civil 

monetary penalties, CMS can deny payments or terminate a facility's Medicare and Medicaid 

participation agreements when appropriate. Since November 2017, CMS has issued 

noncompliance deficiency citations for nursing homes for failure to report or investigate 

allegations of abuse or neglect 2,323 times. 

7 See: https://www.gao.gov/assets/680/673480.pdf 

7 
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36285.009

Section II SOB of the Social Security Act requires covered individuals such as employees, 

contractors and operators offederally funded nursing homes to report immediately to the HHS 

Secretary and local law enforcement any reasonable suspicion of a crime (as defined by local law 

enforcement) committed against a resident of a nursing home. CMS has taken a number of steps 

to implement the reporting requirements under section !!SOB of the Social Security Act since 

enactment of this provision. CMS has issued memoranda, developed education tools for nursing 

facility staff, and provided outreach to State Survey Agencies regarding these requirements. 

Specifically, in 2011, CMS issued memoranda8 informing nursing homes of these new reporting 

requirements and the process for dealing with reporting of suspected crimes. In 2012, we 

developed a toolkit9 that addressed abuse and the section !!SOB reporting requirements and 

mailed this training program to all nursing facilities in the country. In 2016, section !!SOB 

requirements were formally incorporated into federal regulations through notice and comment 

rulemaking. In 2017, CMS published sub-regulatory guidance that provided further clarification 

these requirements. 10 Specifically, this guidance clarifies terms in the regulation such as 

"reasonable suspicion of a crime" and describes the process the State Survey Agency uses to 

evaluate compliance with the requirements. CMS also released training information related to the 

reporting requirements, including a video that trains surveyors and the public on the minimum 

facility requirements in preventing abuse and neglect of nursing home residents. The state 

surveyors began surveying nursing facilities specifically regarding the !!SOB requirements on 

November 28, 2017. 

Additionally, CMS has been coordinating with HHS-OIG regarding the formal delegation of the 

authority to impose a civil monetary penalty against individuals covered under section 1150B and 

the facility for retaliation against such individuals, and the authority to permissively exclude those 

same individuals, as well as the noncompliant facilities, from any federal health care programs. The 

OIG currently has similar enforcement authorities under sections 1128 and 1128A of the Social 

Security Act. 

8 ~/w-.y_!:V.cms..,gov/M.edicare/(1'Qvider-Enrollrnmt:£n9.: 

Certification/SurveyCeJ!lficationGen I Dfuj_QQwn loads/SC Letter I I 30. pdf 9 https://surveyortraining.cms.hhs.gov/pubs/Ciasslntormation.aspx?cid~OCMSHANDINHAND 

10 https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations./NursingHomes.html 

8 
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We anticipate that this formal delegation will be completed shortly. However, irrespective of the 

formal delegation, because a nursing home's obligations under section !!SOB have been 

incorporated into program participation requirements, if an instance of noncompliance with these 

requirements by facilities were to be identified, enforcement sanctions such as civil monetary 

penalties, denial of payments, and termination of a facility's Medicare and Medicaid participation 

agreements, can be imposed under CMS's existing enforcement authority under sections 1819(h) and 

1919(h) of the Act. CMS will continue to work with the IHIS-OJG to enhance our ability to hold 

covered individuals accountable for reporting in addition to facilities as a whole and intend to issue 

regulations regarding enforcement following the formal delegation. 

While CMS is not a law enforcement agency, we take cases of patient neglect and abuse very 

seriously and we work with state agencies, law enforcement, nursing home leadership and staff to 

ensure this vulnerable population is properly cared for and that all viable or alleged instances 

involving abuse or neglect are fully investigated and resolved. We are always looking to improve our 

programs and find better ways to identify, track, and, most importantly, prevent cases of neglect or 

abuse. To improve our current enforcement efforts, we will continue to work in partnership with 

GAO, HHS OIG, Congress, Regional Ot1ices, states, consumer advocates, national associations, and 

other stakeholders. 

National Partnership to Improve Dementia Care in Nursing Homes 

Through our the National Partnership to Improve Dementia Care in Nursing Homes 11 (National 

Partnership), CMS has partnered with federal and state agencies, nursing homes, other providers, 

advocacy groups, and caregivers to improve comprehensive dementia care. CMS and our 

partners are committed to finding new ways to implement practices that enhance the quality of 

life for people with dementia, protect them from substandard care and promote goal-directed, 

person-centered care for every nursing home resident. The Partnership promotes a 

multidimensional approach that includes public reporting, state-based coalitions, research, 

training, and revised surveyor guidance. While the initial focus of the partnership was on 

'

1 https:l/www.cms.gov/Medicare/Provider-Enrollment-and-Certilication/SurveyCertificationGenlnfo/NationalPartnership-to-Improve-Dementia-Carc-in-Nursing-Homes.html 

9 
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reducing the use of antipsychotic medications, the larger mission is to enhance the use of 

nonpharmacologic approaches and person-centered dementia care practices. 

Since the launch of the National Partnership, significant reductions in the prevalence of 

antipsychotic medication use in long-stay nursing home residents have been documented. 

Between the end of 2011 and the end of quarter one of 2017, the national prevalence of 

antipsychotic use in long-stay nursing home residents was reduced by 34.1 percent, decreasing 

from 23.9 percent to 15.7 percent nationwide. All 50 states showed improvement with some 

states showing much more improvement than others. The National Partnership continues to work 

with state coalitions and nursing homes to reduce that rate even further. In October 2017, CMS 

announced a new national goal, involving a 15 percent reduction of antipsychotic medication use 

by the end of2019 12 for long-stay residents in those homes with currently limited reduction 

rates. Our progress to date indicates that we are about half-way towards meeting that 15 percent 

goal. This goal builds on the progress made to date and expresses the Partnership's commitment 

to continue this important effort. We are continuing to look for opportunities to strengthen both 

the survey process and enforcement efforts to ensure that nursing homes are focused on nonpharmacologic approaches and residents are not receiving medications that do not have a clinical 

basis. 

Ensuring Quality of Care by Putting Patients Over Paperwork 

In addition to our monitoring and oversight of facilities, our Agency-wide efforts to return 

patients to the center of care by incentivizing improved quality and reducing provider burden 

play a critical, complementary role to our commitment to safeguarding the health of nursing 

home residents. Through our Patients Over Paperwork initiativc 13 , CMS is reducing provider 

burden and allowing clinicians to spend more time with their patients- this is particularly 

important in a nursing home setting where residents have more complex care needs, and care 

decisions are often directed by family members. Reducing provider burden can also lower 

12 https://www.cms.gov/ncwsroom/fact-sheets/data-show-national-partnership-improve-dementia-care-achievesgoals-reduce-unnecessary-antipsychotic 

13 https://www.cms.gov/Outreach-and-Education/Outreach/Partnerships/PatientsOverPaperwork.html 

10 
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36285.012

administrative costs, allowing facilities to dedicate their resources to other areas such as patient 

care. 

CMS has been working tirelessly to evaluate and streamline regulations and operations with the 

goal to reduce unnecessary burden, increase efficiencies, and improve the customer experience. 

We have used several tactics to help us better understand burden related to nursing homes, from 

formal requests for information from stakeholders to engaging stakeholders directly to provide 

feedback to CMS on areas of burden. In a May 2017 proposed rule, 14 we stated that we are 

currently reviewing the nursing home requirements to balance the need to maintain quality of 

care white reducing procedural burdens on facilities. Specifically we noted that we are reviewing 

the requirements for obsolete or redundant provisions, areas where processes can be streamlined 

to reduce burden and cost, or other areas of possible elimination. We asked stakeholders for 

feedback in areas of burden placed by the revisions to the nursing home requirements and the 

potential impact of resident care and outcomes. We are considering potential changes to the 

requirements based on the feedback received. 

In the Fiscal Year 2019 Skilled Nursing Facility Prospective Payment System Final Rule, CMS 

is moving towards a new patient-driven case-mix model system in Medicare to pay for services 

to residents in skilled nursing facilities. The new Patient-Driven Payment Model is designed to 

improve the incentives to treat the needs of the whole patient, instead of focusing on the volume 

of services the patient receives, which requires substantial paperwork to track over time. The 

Patient-Driven Payment Model simplifies complicated paperwork requirements for performing 

patient assessments by significantly reducing reporting burden (approximately $2.0 billion over 

10 years), helping to create greater contact between health care professionals and their patients. 

This improved case-mix classification system moves Medicare towards a more value-based, 

unified post-acute care payment system that puts unique care needs of patients first while also 

significantly reducing administrative burden. 

https://www.;rpo.gov/fdsys/pkg/FR-20 17-05-04/pdf/20 17-08521.pdf 

11 
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36285.013

On September 7, 2017, CMS released a facility assessment tool 15 that helps a nursing home 

determine what resources are necessary to care for residents competently during both day-to-day 

operations and emergencies. The intent of the facility assessment is for the facility to evaluate its 

resident population and identify the resources needed to provide the necessary personcentered care and services the residents require. The tool may also be used by facilities to make 

decisions about direct care staff needs as well as capabilities to provide services to residents. 

Promoting Transparency, Rewarding Quality, and Encouraging Competition 

Skilled Nursing Facility Quality Reporting Program and Value-Based Purchasing Program 

In recent years, we have undertaken a number of initiatives to promote higher quality and more 

efficient health care for Medicare beneficiaries. These initiatives include Skilled Nursing Facility 

Quality Reporting Program and Skilled Nursing Facility Value-Based Purchasing (VBP) 

Program. The overarching goal of these initiatives is to transform Medicare from a passive payer 

of claims to an active purchaser of quality health care for its beneficiaries. 

The Skilled Nursing Facility Quality Reporting Program is authorized by the Social Security Act 

and applies to skilled nursing facilities and most swing-bed rural hospitals. The goal of the 

program is to use standardized quality measures and standardized data to enable interoperability 

and access to longitudinal information for providers to facilitate coordinated care, improved 

outcomes, and overall quality comparisons. Measures that are reported under the program 

include functional status, cognitive status, skin integrity, medication reconciliation, and major 

falls. In addition, measures on readmissions, discharge to community and Medicare spending per 

beneficiary are calculated using claims data, so skilled nursing facilities do not have to submit 

additional data for these measures. Under the program, skilled nursing facilities that fail to 

submit the required quality data to CMS are subject to a 2 percentage point reduction to the 

otherwise applicable annual market basket percentage update with respect to that fiscal year. 

The implementation of the SNF VBP Program is an important step toward transforming how 

care is paid for, moving increasingly toward rewarding better value, outcomes, and innovations 

15 https:l/gioprogram.org/facilityMassessrnent-tool 

12 
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instead of merely volume. As required by law 16, beginning October I, 2018, the SNF VBP 

Program will make positive or negative adjustments to the otherwise applicable payments under 

the Skilled Nursing Facility Prospective Payment System for services furnished by SNFs based 

on their performance on the program's readmissions measure. The single claims-based all cause 

30-day hospital readmissions measure in the SNF VBP aims to improve individual outcomes 

through rewarding providers that take steps to limit the readmission of their patients to a hospital. 

Also as required by law, CMS will make available SNFs' performance under the SNF VBP 

Program, specifically including each SNF's performance score and the ranking of SNFs for each 

fiscal year. 

Nursing Home Compare Five-Star Quality Rating System 

Transparency is an important part ofCMS's patient safety work and CMS is committed to making 

sure that patients and their families have the information they need to support their health care 

decisions for LTC facilities. CMS first created the Nursing Home Compare website in 1998 and has 

regularly increased the amount of information available to beneficiaries and their families about the 

quality of care in nursing homes participating in the Medicare and Medicaid programs. 

CMS bases the five-star ratings of the Nursing Home Five Star Quality Rating System on an 

algorithm that calculates a composite view of nursing homes from three measures: results from their 

health inspections; performance on certain quality measures; and their staffing levels. CMS's 

Nursing Home Compare Website contains information for more than 15,000 Medicare and Medicaid 

nursing homes around the country. The website also includes detailed reports on facility health 

inspections, life safety code inspections and any identified noncompliance deficiency citations. 

CMS has continually made improvements to Nursing Home Compare and the Five Star Quality 

Rating System to enhance and strengthen the comparison tool to provide the most accurate 

information to beneficiaries and their families. Throughout the years, CMS has added 

information to Nursing Home Compare, including information on facility ownership, federal 

administrative sanctions against nursing homes, and the full text of the nursing home health 

16 Section 1888(h) of the Social Security Act. 

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inspection reports. CMS implemented Nursing Home Compare 3.0 to strengthen and expand the 

Five Star Quality Rating System by adding quality measures, raising nursing home performance 

expectations, adjusting the methods for establishing staffing ratings, and expanding targeted 

surveys. In 2016, CMS expanded the number of quality measures included in Nursing Home 

Compare and the Five Star Quality Rating System. In April 2018, we replaced the data source for 

staffing information submitted by facilities through the Payroll-Based Journal system which 

improves the accuracy of the staffing information on Nursing Home Compare. CMS continues to 

work to improve Nursing Home Compare and the Five Star Quality Rating System. For 

example, in October 2018, we will be adding a measure of hospitalizations among long-stay 

residents as part of our continued efforts to improve quality and reduce costs. 

Tracking Nursing Home Staffing Data 

CMS has long identified staffing as one of the vital components of a nursing home's ability to 

provide quality care. Current law requires facilities to electronically submit direct care staffing 

information (including agency and contract staff) based on payroll and other auditable data. In 

2015, CMS developed the Payroll-Based Journal system, which allows all facilities to submit 

their staffing data each quarter. The data, when combined with census information, is then used 

to calculate the level of staff in each nursing home. Last April, CMS began using the PayrollBased Journal data to post staffing information on the Nursing Home Compare tool. This new 

staffing information is calculated using the number of hours facility staff are paid to work each 

day in a quarter, instead of the previous method of calculating staffing information using the total 

number of hours facility staff work over a two-week period. Also, unlike the previous data 

source, the new data are auditable back to payroll and other verifiable sources. These data 

provide unprecedented insight into how facilities are actually staffed, which can be used to 

analyze how facilities' staffing relates to quality and outcomes. In the future, we will also use 

this data to report on employee turnover and tenure, which also impacts the quality of care 

delivered. 

While the new data warrants additional scrutiny and actions to ensure its accuracy and usefulness 

to consumers, we believe it will ultimately lead to improved staffing and result in better quality 

and care for nursing home residents. Already, the new data has helped us identify issues, such as 

14 
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significant variations in staffing between weekdays and weekends, and days with no registered 

nurse reported onsite. We are deeply concerned about these issues and arc working with nursing 

homes to address them. For example, facilities who report seven or more days with no registered 

nurse hours are now assigned a one-star staffing quality rating. We are also planning to use the 

Payroll-Based Journal data to inform surveyors' investigations to help determine if staffing is an 

underlying cause of any quality issues. Furthermore, since the start of the program, we have been 

providing individualized feedback to each facility about their staffing data for them to use to 

improve the accuracy of future submissions. We will continue to accumulate and analyze the 

data to ensure that nursing homes are staffing their facilities appropriately in order to provide 

quality care to residents. 

Moving Forward 

Resident safety is our top priority in nursing homes that participate in the Medicare and 

Medicaid programs. We expect every nursing home to keep its residents safe and provide high 

quality care. CMS remains diligent in its duties to monitor nursing homes participating in 

Medicare and Medicaid across the country, and we look forward to continuing to work with 

Congress, states, facilities, residents and other stakeholders to make sure the residents we serve 

are receiving safe and high quality health care. 

15 
29 

Mr. HARPER. Thank you, Dr. Goodrich. 

The chair will now recognize Ms. Dorrill for 5 minutes for the 

purposes of your opening statement. 

STATEMENT OF RUTH ANN DORRILL 

Ms. DORRILL. Good morning, Chairman Harper, Ranking Member DeGette, and other distinguished members of the subcommittee. 

I have been visiting nursing homes on behalf of the OIG for 20 

years. When you speak with the people who have chosen to spend 

their professional lives in these settings, they will tell you that 

nursing home care is incremental. By that I mean that the gains 

and the losses can be small and around the margins. 

Nursing homes can be places of comfort and healing. They can 

make the difference between someone having 10 more good years 

or a downward spiral. But it’s important to recognize that people 

who enter nursing homes are at low points at times of crisis. They 

often have not only an acute condition that landed them there in 

the first place, but they have many competing comorbidities and 

complex conditions on top of that. 

Many of the facilities as you’ve said provide excellent care, but 

an alarming number of residents are subject to unsafe conditions, 

much of which is preventable with better guidance and government 

oversight. Our work has found widespread, serious problems in 

nursing home care and my remarks today will rest on three priority areas: harm to nursing home residents, emergency preparedness of nursing homes, and the important role of the state agencies. 

First, in regard to harm, OIG has expended extensive time and 

focus on the problem of resident harm as it’s been referenced already today, including harm from medical care known as adverse 

events. In a national study of hundreds of nursing homes, we found 

that a third of residents, 33 percent, one in three, were harmed by 

medical care—infections, blood clots, aspiration—and half of this 

harm, 59 percent, was preventable. 

And an important point, one of the interesting things about this 

study to us was that most of these events weren’t big, dramatic 

events that you think about when you think about harm or adverse 

events. Most of them were incremental. They were small. They 

were surrounding the daily, hourly care that’s provided by certified 

nurse assistants and staffing throughout the nursing home. 

And there are things that the staff didn’t recognize and, in many 

cases, the family didn’t recognize. The same is happening in hospitals. This low level, substandard care harms a tremendous number of people and we’ve recommended that CMS develop guidance 

and revise requirements for detecting and preventing this harm, 

the detection being a key component. 

Residents also of course face abuse and neglect. In 2012, we 

found that only half of nursing homes were reporting allegations of 

abuse and neglect. And then we went back just last year in 2017 

and looked at emergency room records and we found that it was 

still a substantial problem. There were many cases that were not 

reported by the nursing homes. We urged CMS at that time to take 

immediate action to monitor claims and to enforce against those 

30 

who fail to report. OIG also works in the law enforcement side with 

our partners to hold accountable those who victimize residents. 

Next, on emergency preparedness. So after Hurricane Katrina 

and other storms in 2005 we went into, we had found in looking 

at the deficiencies that almost all nursing homes met their emergency provisions. Ninety four percent were in compliance and yet 

when we visited a sample of homes who were actually affected by 

the hurricanes, we found that the plans weren’t practical and upto-date. That in many cases the nurses would pull out a pad and 

pen when they saw the hurricane coming as opposed to looking at 

the binder on the shelf. 

We also found that once the storms hit and in their aftermath 

that whether the nursing homes evacuated or sheltered in place 

that they had problems with transportation, with staffing, with 

supplies, anything that you can imagine. We also found this for 

wildfires and for flooding. 

When we went back, we also were struck by the fact that after 

additional storms—Ike, Gustav in 2009–2010—we found essentially 

the same thing, no improvement besides additional guidance by 

CMS. We recommended that CMS develop targeted guidance in requirements and as Dr. Goodrich said state agencies began assessing homes for these requirements last November. 

Finally, I want to further emphasize the critical role of the state 

agencies in citing deficiencies when homes aren’t up to snuff. In recent work, we found that seven of nine states did not consistently 

verify that homes actually corrected the deficiencies that the states 

had cited. In another study, we found that States weren’t enforcing 

very critical core components, care and discharge planning, which 

are very important to patient outcomes. We recommended the 

States strengthen those procedures. And the report was in 2013, 

the recommendations were implemented just a few months ago in 

June of 2018. 

In closing, the through line here is that while CMS has taken 

steps to create a framework for improvement, all progress will lie 

in the execution on the part of CMS, on the part of the state agencies, and on the part of the nursing homes. This means focused 

education and accountability from CMS and also staying alert to 

the impact of changes. Are the requirements understood, the new 

requirements by inspectors and homes are they practical? Do they 

improve care? None of that can really be assumed and the consequences are great. 

OIG is recommending that CMS do more to protect nursing home 

residents and we are committed to that as well. We have ongoing 

work assessing a number of areas and we thank you for your ongoing leadership in this area and for the opportunity today. 

[The prepared statement of Ms. Dorrill follows:] 

31 


36285.017

Testimony Before the United States House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Oversight and Investigations 

September 6, 2018 

10:15 a.m. 

Location: 2322 Rayburn House Office Building 
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36285.018

Testimony of: 

Ruth Ann Dorrill 

Regional Inspector General 

Office of Inspector General, U.S. Department of Health and Human Services 

Good morning, Chairman Harper, Ranking Member DeGette, and other distinguished 

Members of the Subcommittee on Oversight and Investigations. Thank you for the opportunity 

to appear before you to discuss one of the most consequential issues in health care today: 

ensuring safe, quality care for residents in the Nation's nursing homes. 

KEY TAKEAWAYS 

High-quality nursing homes can deliver enormous benefit as places of comfort and 

healing. For Medicare beneficiaries, nursing homes provide a clinically managed recovery 

period after illness and injury that can make the difference between more good years ahead or a 

downward spiral. For long-term-care residents and their families, often insured through 

Medicaid, nursing homes can provide responsible and much-needed care to those in fragile 

health. 

Many nursing homes provide excellent care and are diligent in protecting their residents. 

But an alarming number of residents are subject to costly medical harm, unsafe conditions, and 

abuse and neglect, much of it preventable with better practices and oversight. 

Nursing home care is a critical component of the continuum of care. Quality and safety 

of care in nursing homes affect the provision and cost of care in other settings. With an aging 

population and heightened focus on value-driven care, it is increasingly critical that Federal and 

State funds arc used to purchase safe, high-quality care for vulnerable elderly and disabled 

patients. 

Decades of OIG work on nursing homes has uncovered widespread problems in 

providing safe, high-quality care and reporting problems when they occur. We found that one in 

2 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

September 6, 2018 
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36285.019

three Medicare residents in skilled nursing facilities experienced ham1 from the care provided, 

and half of these harm events were preventable. In addition, nursing homes affected by disasters, 

such as hurricanes, often struggle to execute emergency plans and protect residents. We have 

also raised concerns about failures to report potential cases of abuse and neglect. Criminal and 

civil enforcement actions have uncovered misconduct and grossly substandard care. State 

Agencies play a crucial role in ensuring quality and safety in nursing homes. However, 0!0 has 

found mixed results in these agencies' attention to nursing home deficiency corrections and 

complaints. 

Addressing the challenge of improving nursing home safety and quality of care requires 

strong leadership by CMS and serious, sustained commitment and effort by CMS, States, and the 

provider community. 

My testimony today will focus on significant 0!0 findings and recommendations regarding 

nursing home quality and safety in three key areas: 

Y Harm to residents in nursing homes 

Y Nursing home emergency preparedness 

Y State Agency enforcement 

OVERVIEW OF ACCOUNTABILITY FOR NURSING HOME CARE AND OVERSIGHT 

According to CMS, Federal expenditures on nursing home care totaled $73 billion in 

2016, including $44 billion for Medicaid long-term care and $29 billion for Medicare post-acute 

and other skilled care. Most nursing homes are certified to serve as both long-term-care facilities 

and skilled nursing facilities (SNFs ). Long-term-care facilities provide health-related care and 

services needed as a result of a mental or physical condition and may serve beneficiaries whose 

condition may not rise to the level of needing skilled nursing care. SNFs provide skilled nursing 
34 


36285.020

care and rehabilitation services for residents who require such care because of injury, disability, 

or illness, typically following a hospital stay. Meeting the needs of these two different 

populations, long-term care and skilled post-acute care, can complicate the effective 

management of facilities, and make oversight more challenging. 

CMS and States share responsibility for ensuring that nursing homes meet Federal 

requirements for quality and safety. State Agencies are required by CMS to conduct a "survey" 

(inspection) of nursing homes at least every 15 months to certify each facility's compliance. 

CMS oversees the State certification process and provides guidance regarding the survey process 

in its State Operations Manual (SOM) and Interpretive Guidelines. 

When State Agencies identify deficiencies during their surveys, nursing homes must 

submit correction plans, and State Agencies must verify that the facility corrected its 

deficiencies. CMS and State Medicaid agencies may also take enforcement actions to address 

nursing home deficiencies, including imposing civil monetary penalties or terminating the 

nursing home from the Medicare Program, among other actions, as appropriate. 

OIG WORK ADDRESSING HARM TO RESIDENTS IN NURSING HOMES 

OIG found that that one in three SNF residents experienced adverse events during their 

nursing home stays, including infections, pressure ulcers, and misuse of medication. 

In a nation-wide review, OIG found that one-third of residents in SNFs experienced harm 

from the care provided in the nursing homes and more than half of the harm (adverse events) 

were preventable had the facilities provided better care. This report was one in a decade-long 

OIG series regarding adverse events in various healthcare settings, including hospitals. 

The adverse events OIG identified in nursing homes resulted in a range of harmful 

outcomes for residents, including extended stays in the SNF, transfers to hospital emergency 

departments, and the need for life-sustaining intervention. For 6 percent of the adverse events, 

4 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

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the harm contributed to residents' death. Over half of the residents who experienced harm 

returned to a hospital for treatment, incurring millions of dollars in additional Medicare 

expenditures. 1 

Some adverse events involved medical errors such as supplying incorrect medication, but 

most preventable harm resulted from daily substandard care, such as inadequate resident 

monitoring and failure or delay of necessary care. For these adverse events, residents and 

families may not know that they were harmed, thinking instead that the residents' suffering and 

decline were the result of their illness or conditions and inevitable. Nursing home staff also 

failed to identify harm in some cases; for example, a number of adverse events started with 

dehydration, which can quickly result in kidney damage. One nursing home resident died of 

cardiac arrest after progressive kidney failure that was not detected until the resident was 

awaiting discharge from the SNF. 

Most nursing home residents who died or were harmed from adverse events had multiple, 

complex co-morbidities that made their care challenging. We found a wide range of adverse 

events not typically associated with nursing home care, such as internal bleeding due to 

medication. While some events are widely recognized as risks for patients in nursing homes, 

such as falls and pressure ulcers, fewer nursing horne staff may be aware of the risks posed by 

aspiration and blood clots, both of which harmed numerous patients in our study sample. In our 

review of CMS and other guidance, we noted a tendency to focus narrowly on a subset of the 

most extreme harm events, many of which are rare, while missing the broad range of possible, 

more common harms that cause patient declines. 

1 OIG, Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries {OEl-06-11-00370), issued 

February 2014. For this evaluation, OIG contracted with physicians who were experts In SNF care, surgery, cardiology, and 

infectious disease to conduct an extensive medlca! review of SNF 
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What is needed is a shift in thinking about the care provided in nursing homes. Our work 

identifying adverse events in nursing homes and other settings showed that nursing home 

residents often had care needs similar to patients in hospitals, with residents sometimes seriously 

ill and impaired. The hospital community has focused keenly on patient safety and, while still 

experiencing high harm rates in some categories, has made substantial changes in the provision 

of patient care and safety systems. Sustained improvements in nursing homes will require a 

cultural shift that recognizes clinical harm and elevates reduction of harm as a priority for 

nursing home care. 

The foundation of OIG's recommendations to reduce harm is that CMS (and the Agency 

for Healthcare Research and Quality) raise awareness of adverse events in nursing homes (and 

other post-acute-care settings) with the same methods used to promote hospital safety. 

Broadening these and other patient safety improvement efforts to include the nursing home 

environment would ensure that safe care practices promoted in acute care hospitals extend to the 

critical periods of post-acute recovery and long-term care. 

To address the high rate of harm in nursing homes, OIG made two recommendations to 

CMS: (1) provide guidance to nursing homes about detecting and reducing harm to be included 

in facility Quality Assurance and Performance Improvement programs, and (2) instruct State 

Agencies to review facility practices for identifying and reducing adverse events, and link related 

deficiencies specifically to resident safety practices. OIG determined that CMS fully 

implemented these recommendations on adverse events in SNFs as of August 2018. It is too 

early to assess the effectiveness ofCMS's actions in changing practices, but they hold promise 

for improving quality of care and reducing adverse events for nursing home residents. 

6 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

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Meaningful improvement will rest on diligent execution by CMS and States, and 

continued evaluation of the effectiveness of these changes. 

OIG has raised concerns about failure to report allegations or potential cases of abuse and 

neglect of nursing home residents. 

It is both required and expected that nursing homes will report allegations of abuse or 

neglect to law enforcement or other appropriate agencies to ensure resident safety and protect 

victims of crimes. However, OIG has documented serious deficiencies in reporting of abuse and 

neglect of nursing home patients dating back several years and continuing in our recent and 

ongoing work. OIG found that, in 2012, nearly one in four nursing facilities did not have 

policies for reporting allegations of abuse or neglect and the subsequent results of an 

investigation, and facilities reported only half of allegations and investigation results as federally 

required. 2 In response to OIG recommendations that CMS ensure nursing homes maintain 

policies for reporting allegations of abuse or neglect and report allegations in a timely manner, 

CMS revised the SOM in 2017 to instruct State Agency surveyors to assess facility policies and 

practices. 

Yet concerns about unreported abuse and neglect remain. OIG reviewed hospital 

emergency room records from 2015 and 2016 for SNF residents sent to hospitals whose injuries 

may have been the result of potential abuse or neglect in the SNF. In preliminary work, OIG 

found 134 such incidents across 33 States. We further found that many of these incidents may 

not have been reported to law enforcement. Pending completion of the full review, OIG alerted 

CMS that it had inadequate procedures to ensure that incidents of potential abuse and neglect at 

2 OIG, Nursing Facilities' Compliance with Federal Regulations for Reporting Allegations of Abuse or Neglect (OEI07-13-00010), issued in August 2014. 

7 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

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36285.024

SNFs are properly identified and reported.' OIG made immediate suggestions for improvement, 

including that CMS analyze Medicare claims (including matching claims for emergency room 

services to claims for SNF services) to identify incidents of potential abuse and neglect and take 

specific steps to enhance its ability to impose civil monetary penalties for reporting failures. 

OIG investigations and enforcement cases illustrate that nursing home harm can involve 

conduct by individual bad actors, as well facility and chain-wide conduct 

OIG investigates potential criminal conduct and pursues enforcement actions to hold 

accountable those who victimize residents of nursing homes. In some cases, this involves 

criminal activity by bad actors. For example, in 2018, the owner of a long-term-care facility was 

convicted of engaging in the physical and emotional abuse of one of its residents, following an 

investigation by OIG and our law enforcement partners. 

In other cases, facility-wide or chain-wide grossly substandard care can harm patients. 

Such cases may result in civil False Claims Act resolutions or administrative actions, such as 

exclusion. Patient neglect, often due to understaffing, is a recurring issue in False Claims Act 

cases. Other allegations that commonly arise in these cases include overmedication of nursing 

home residents, 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 roofleaks. 

NURSING HOME EMERGENCY PREPAREDNESS 

Despite enhanced guidance from CMS, nursing homes hit by disaster often struggle to 

execute emergency plans and protect residents. 

Nursing home residents and their families rely on facility administrators to plan and 

execute appropriate procedures during disasters. Through years of visiting nursing homes after 

3 OIG, Early Alert: The Centers far 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 

issued in 2017. 
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disasters, we have learned that facilities may ostensibly meet CMS guidelines prior to the 

disaster, but at the time of crisis fail to follow requirements and prior planning. 

In 2006, following Hurricanes Katrina, Rita, and others, OIG found that 94 percent of the 

Nation's nursing homes met Federal regulations for emergency plans. In visiting 20 nursing 

homes affected by hurricanes, however, we found that these plans were often not practical or up 

to date, and that during the crisis many administrators did not know how to navigate CMS 

guidelines and instructions from local authorities, and they often did not have adequate supplies, 

staffing, or transportation in place to care for residents. These findings indicated that State 

Agency reviews of emergency plans were insufficient, and that the plans themselves were often 

not useful.' In a followup study by OIG in 2012, after CMS had revised its guidance to include a 

suggested checklist for preparedness, we visited nursing homes affected by a range of disasters 

and found that only half had plans that included the checklist items.' 

For nursing homes that continued to operate without adequate emergency planning, the 

omissions were often a matter of common sense and the consequences for residents extreme. 

One nursing home that flooded during a storm had no plan for responding to floods, despite 

residing in a flood plain. Other homes evacuated residents to facilities far away and without 

sufficient tracking or methods to ensure residents traveled with personal equipment and supplies, 

such as wheelchairs and medication. Administrators from most nursing homes that OIG studied 

reported that residents experienced deteriorating health conditions, skin issues, and falls resulting 

in serious injury. This occurred in nursing homes that evacuated and those that sheltered in 

place. In some cases of evacuation, residents' poor conditions necessitated hospitalization. 

4 O!G, Nursing Home Emergency Preparedness and Response during Recent Hurricanes (OE!~06-06-00020), issued August 2006, 

5 O!G, Gaps Continue To Exist in Nursing Home Preparedness and Response After Disasters (OEl-06~09~00270), issued April 2012. 

9 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

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Reports of nursing homes' performance in the aftermath of the 2017 hurricanes-including 

failures to evacuate residents or to provide safe sheltering in place-raise continued questions 

about the adequacy of emergency plans and their proper execution. 

OIG recommended that CMS require facilities to create effective emergency plans and 

take other specit!e actions in preparing for emergencies, such as improving staff training and 

communication with local authorities. In 2016, CMS revised its emergency preparedness 

requirements for nursing homes and other healthcare facilities that participate in Medicare and 

Medicaid, to include specific provisions for planning, training, and communication. State 

Agencies began assessing compliance for these provisions in November 2017. OIG will 

continue to monitor these important provisions. 

STATE AGENCY ENFORCEMENT 

State Agencies play a critical role in ensuring the quality and safety of nursing homes, and 

OIG has found mixed results in State Agency attention to nursing home deficiencies. 

From 2015 to 2018, OIG completed audits of nine States to determine whether the State 

Agency took appropriate steps to verify that nursing facilities had corrected identified 

deficiencies. 010 found that State Agencies in seven of nine States were not meeting 

requirements to verify correction of deficiencies. 6 Lack of verification was evident in both 

serious and minor deficiencies. For example, surveyors found that a nursing home failed to 

provide a resident oxygen per physician orders; the corrective action plan included additional 

training for nursing staff. Yet the State Agency was unable to confirm that the staff involved 

attended the training. 

6 OIG's State audits included Arizona (A-09-16-02013), Florida (A-04-17-08052), Kansas (A-07-1703218), Missouri (A-07-16-

03217), Nebraska (A-07-17-03224), New York (A-02-15-01024), North Carolina (A-04-17-02500), Oregon (A-09-16-02007), and 

Washington (A-09-13-02039). 

10 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

September 6, 2018 
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OIG also found that one of the nine States reviewed did not conduct standard surveys for 

approximately 40 percent of nursing homes within the required 15 months. For seven States that 

did not meet requirements, OIG recommended that State Agencies improve verification 

processes, update internal systems, and for the one State, develop a correction plan to ensure the 

State conducts timely surveys. OIG found that the remaining two States were in full compliance. 

Four of the States with recommendations implemented them, including the State not performing 

timely surveys. Recommendations for three of the States remain outstanding, including two 

States that received our audit reports only within the last few months. 

Other OIG findings indicated that State Agency oversight of SNFs was not sufficient to 

ensure that SNFs developed and followed care and discharge plans for residents, as required. 

These care and discharge plans can be the linchpin of effective SNF care, helping to ensure that 

residents receive needed care, protecting residents from receiving unnecessary care, and assisting 

them in securing home- and community-based care and personal care services that can prevent 

them from re-entering the SNF or a hospital. 

OIG made extensive recommendations to CMS that the agency address this problem from 

multiple vantage points: (1) strengthen the regulations on care and discharge planning, 

(2) provide guidance to SNFs to improve planning, (3) increase surveyor efforts to identify 

problems, (4) link payments to meeting quality-of-care requirements, and (5) follow up on the 

SNFs that failed to meet requirements. 7 In June 2018, OIG determined that CMS had fully 

implemented these recommendations. We will continue to monitor the extent to which CMS's 

and State Agencies' actions resolve the problems and improve care. 

State Agencies serve as front-line responders to address health and safety complaints in 

7 OIG, Skilled Nursing Facilities Often Fail to Meet Care Planning and Discharge Requirements (OEI-02-09-00201}, issued 

2013. 
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nursing homes. State Agencies are responsible for onsite investigations of serious complaints of 

abuse and neglect. OIG work in 2017 found that a few states fell short in timely investigations 

of the two most serious categories of complaints: immediate jeopardy and high priority. 8 

NEXT STEPS TO IMPROVE NURSING HOME QUALITY AND SAFETY 

Sustained commitment by CMS and continued collaboration among HHS, States, 

providers, and residents and their families will be critical to ensuring quality and safety. 

Quality nursing home care requires a partnership between a large and diverse group of 

Federal, State, and local entities. Residents and their families are also critical stakeholders. As 

the Federal agency charged with oversight of nursing home compliance and performance, CMS 

must demonstrate strong leadership of this group. Effective collaboration will narrow gaps, 

provide better information and insight, and give greater assurance to residents and their families 

that they will receive high-quality care. 

As an example, following the 2011 OIG report Medicare Atypical Antipsychotic Drug 

Claims for Elderly Nursing Home Residents, CMS led an effort across HHS to correct improper 

drug prescribing and use in nursing homes. OIG found that 83 percent of atypical antipsychotic 

drug claims were for elderly nursing home residents not diagnosed with a condition for which 

the Food and Drug Administration (FDA) had approved antipsychotic medications. This 

supported a theory long held by residents' advocates that nursing homes used atypical 

antipsychotic medications for "off-label" indications, with the purpose of controlling undesirable 

behavior. Both CMS and FDA took action to make changes to regulations and guidance, and 

CMS formed a public-private effort, the National Partnership to Improve Dementia Care in 

Nursing Homes, to engage providers, advocates, and families. Subsequent CMS data show 

8 O!G, A Few States Fefl Short in Timely Investigations of the Most Serious Nursing Home Complaints: 2011-2015 (OEl-01-16-

issued 
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substantial reductions in the use of these drugs among nursing home residents. Given the 

number of stakeholders involved and the urgency of the problems, this type of public-private 

partnership would be useful for CMS to foster improvements across nursing home care. 

Further, it is critical that States remain active participants in the Federal-State partnership 

needed to oversee nursing homes. States are on the front line in surveying nursing homes, 

identifYing deficiencies, and verifying corrections. States play an essential enforcement role 

when residents are victims of abuse and neglect. States' active participation in ensuring that 

nursing homes are providing safe, high-quality care is essential to improving patient outcomes 

and reducing adverse events. 

To protect nursing home residents, OIG will continue to assess CMS oversight and nursing 

home and State Agency performance, monitor the impact of program changes, and use our 

enforcement tools to address misconduct. 

Nursing home residents deserve and should expect high-quality care and to be safe from 

abuse and neglect. OIG will continue to monitor whether CMS's recent actions to improve 

safety and quality produce the intended positive outcomes. Moreover, O!G will follow up on its 

findings and recommendations to State Agencies to strengthen the effectiveness of their efforts. 

OIG has upcoming work that will assess multiple dimensions of nursing home quality 

and safety to protect beneficiaries. These audits and evaluations follow up on past findings and 

recommendations, and examine new areas, such as nursing home compliance with new Life and 

Safety Code requirements, assessment of the accuracy and use of new nursing home staffing 

data, and the extent to which State Agencies investigate involuntary resident transfers and 

discharges. 

Allegations involving patient harm remain a top OIG enforcement priority. OIG will 

continue to investigate potential criminal conduct and pursue administrative actions to hold 
44 


36285.030

accountable those who victimize residents of nursing homes. 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 satety. OIG is currently 

monitoring quality of care CIAs covering more than 200 nursing homes. OIG also collaborates 

closely with the 50 State Medicaid Fraud Control Units (MFCUs) that often have primary 

responsibility for enforcement of cases of abuse and neglect in nursing homes. 

CALL TO ACTION 

To provide guidance, support, and oversight of this industry is a grave and vitally 

important responsibility. Government policies and leadership, Federal and State, can 

substantially affect residents' experience and outcomes. The problems I present today are not 

new, and they may seem daunting and intractable given the challenges and complexities of 

nursing home care. But change is possible, and essential. Nursing home care will always be a 

deeply challenging enterprise, but with dedicated attention and focus, CMS, States, and providers 

can do better. 

While CMS has taken steps to create a framework for correcting problems of resident 

harm and risk, all progress will be in the execution of that framework and the performance of 

CMS, States, and providers. CMS must stay alert to the impact of policies and practices and 

promote meaningful, sustainable change. OIG is committed to working with CMS as it takes 

action to address problems identified by our work, the Government Accountability Office, and 

others. 

Thank you for your ongoing leadership in this area and for affording OIG the opportunity 

to testify and discuss with you this vitally important topic. 

14 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations 

September 6, 2018 
45 

Mr. HARPER. Thank you, Ms. Dorrill. 

We will now recognize Mr. Dicken for 5 minutes for the purposes 

of his opening statement. Thank you. 

STATEMENT OF JOHN DICKEN 

Mr. DICKEN. Chairman Harper, Ranking Member DeGette, and 

members of the subcommittee, I’m pleased to be here today to discuss GAO’s body of work on nursing home quality and the Center 

for Medicaid and Medicaid Services oversight of nursing homes. 

For many years, GAO has reported on problems in nursing home 

quality and weaknesses in CMS’ oversight. As early as 1998, GAO 

reported that despite Federal and State oversight, certain California nursing homes were not sufficiently monitored to guarantee 

the safety and welfare of their residents. In the intervening 2 decades across more than two dozen reports, GAO has consistently 

found shortcomings in the care that some nursing home residents 

received and in Federal and State oversight of nursing homes. 

In response to identified weaknesses, CMS and state survey 

agencies have made a number of changes in their oversight. Inspection protocols have been updated, enforcement tools have been revised, and consumers have been provided more information to compare nursing homes. Yet, we continue to see mixed results in indicators intended to assess the quality of care. Further, we lack full 

assurance of these indicators including information made available 

to consumers are consistently based on accurate data and we remain concerned that the prevalence of serious care problems remains unacceptably high. 

In my remaining time I’d like to briefly summarize key 

takeaways from GAO reports issued in 2015 and 2016 that examine trends in nursing home quality, information made available to 

consumers for comparing nursing homes, and changes CMS had 

made to its oversight activities. I will also note CMS’ responses to 

recommendations we made. 

First, we found that data on nursing home quality showed mixed 

results. We found an increase in reported consumer complaints 

through 2014, suggesting that consumers’ concerns about nursing 

home quality increased. In contrast, trends in care deficiencies, 

nurse staffing levels, and clinical quality indicators through 2014 

indicate potential improvement. 

Second, we found data issues complicated the ability to assess 

quality trends. For example, at that time CMS allowed states to 

use different survey methodologies to measure deficiencies in nursing home care. GAO recommended CMS implement a standardized 

survey methodology across states and in November 2017 CMS completed national implementation. Further, GAO recommended CMS 

implement a plan for ongoing auditing of quality data that had 

been self-reported by nursing homes. The agency concurred and 

has begun auditing staffing data that now relies on payroll-based 

reporting, but CMS does not have a plan to audit certain other 

quality data on a continuing basis. 

Third, in the 2016 report we found CMS did not systematically 

prioritize recommended changes to improve its Nursing Home 

Compare website. In several factors it limited consumers’ ability to 

use CMS’ five-star rating system. CMS agreed with these recVerDate Nov 24 2008 15:11 May 23, 2019 Jkt 037690 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-164 CHRIS
46 

ommendations and earlier this year completed actions establishing 

a process to prioritize website improvements and adding explanatory information about the five-star system. But CMS has not yet 

acted on other recommendations including providing national comparison information that could help consumers better make distinctions between nursing homes. 

Fourth, CMS had modified certain oversight activities at the 

time of our 2015 report and those steps have continued. Some 

modifications expanded activities such as creating new training for 

state surveys on unnecessary medication use, others reduced existing activities. For example, CMS reduced the scope of Federal monitoring surveys which may decrease CMS’ ability to monitor whether state survey agencies understate serious care deficiencies. Similarly, CMS reduced the number of homes designated as special 

focus facilities which may limit its ability to monitor homes with 

poor performance. GAO recommended CMS monitor the effects of 

these modifications and CMS indicates it is beginning to take steps 

to do so. 

In closing, addressing the long-term concerns that nursing residents receive unacceptable care requires sustained Federal and 

state commitment. We maintain the importance of monitoring to 

help CMS better understand how oversight modifications affect 

nursing home quality and to improve its oversight given limited resources. 

Chairman Harper, Ranking Member DeGette, and members of 

the subcommittee, this concludes my prepared statement. I’d be 

pleased to answer any questions that you may have. 

[The prepared statement of Mr. Dicken follows:] 

47 


36285.031

For Release on Delivery 

Expected at 10:15 a.m. ET 

Thursday, September 6, 2018 

GA0-18-694T 

United States Government Accountability Office 

Testimony Before the Subcommittee on 

Oversight and Investigations, 

Committee on Energy and Commerce, 

House of Representatives 

NURSING HOME 

QUALITY 

Continued Improvements 

Needed in CMS's Data 

and Oversight 

Statement of John E. Dicken, Director, Health Care 
48 


36285.032

NURSING HOME QUALITY 

Continued Improvements Needed in CMS's Data and 

Oversight 

What GAO Found 

GAO's October 2015 report found mixed results in nursing home quality based 

on its analysis of trends reflected in key sources of quality data that the Centers 

for Medicare & Medicaid Services (CMS) collects. 

• An increase in reported consumer complaints suggested that consumers' 

concerns about nursing home quality increased. 

In contrast, trends in care deficiencies, nurse staffing levels, and clinical 

quality measures indicated potential improvement in nursing home quality. 

GAO also found that data issues complicated CMS's ability to assess nursing 

home quality trends. For example: 

CMS allowed states to use different survey methodologies to measure 

deficiencies in nursing home care, which complicates the ability to make 

comparisons nationwide. GAO recommended that CMS implement a 

standardized survey methodology across states, and in November 2017 

CMS completed national implementation. 

• CMS did not regularly audit selected quality data including nurse staffing and 

clinical data (for example, on residents with pressure ulcers) to ensure their 

accuracy. GAO recommended CMS implement a plan for ongoing auditing of 

quality data. The agency concurred with this recommendation and has been 

conducting regular audits of nurse staffing data but does not have a plan to 

audit other quality data on a continuing basis. GAO continues to believe that 

regular audits are needed to ensure the accuracy and comparability of 

nursing home quality data. 

GAO's October 2015 report found that CMS had made numerous modifications 

to its nursing home oversight activities. However, CMS had not monitored how 

the modifications might affect its ability to assess nursing home quality. GAO 

found that some modifications expanded or added new activities-such as 

creating new training for state swveyors on unnecessary medication usagewhile others reduced existing activities. For example, CMS reduced the number 

of nursing homes participating in the Special Focus Facility program-which 

provides additional oversight of certain homes with a history of poor 

performance-by over half from 2013 to 2014. CMS officials told GAO that some 

of the reductions to oversight activities were in response to an increase in 

oversight responsibilities and a limited number of staff and financial resources. 

To help ensure modifications do not adversely affect CMS's ability to assess 

nursing home quality, GAO recommended that CMS monitor modifications of 

essential oversight activities to better understand the effects on nursing home 

quality oversight. CMS concurred with this recommendation and told us it has 

begun to take steps to address it. Such monitoring is important for CMS to better 

understand how its oversight modifications affect nursing home quality and to 

improve its oversight given limited resources. 

-------------United States Government Accountability Office 
49 


36285.033

Chairman Harper, Ranking Member DeGette, and Members of the 

Subcommittee: 

I'm pleased to be here today to discuss our work on nursing home quality 

and the Centers for Medicare & Medicaid Services' (CMS) oversight of 

nursing homes. Nationwide, approximately 15,600 nursing homes provide 

care to about 1 A million nursing home residents-a population of elderly 

and disabled individuals. To help ensure this population receives quality 

care, CMS defines the quality standards nursing homes must meet in 

order to participate in the Medicare and Medicaid programs. 1 To monitor 

compliance with these standards, CMS enters into agreements with state 

survey agencies to conduct required surveys, or evaluations, of the 

state's nursing homes. 

For many years, we and the Department of Health and Human Services 

(HHS) Office of the Inspector General (OIG) have reported on problems 

in nursing home quality and on weaknesses in CMS's oversight 2 As early 

as 1998, GAO reported on residents in California nursing homes who 

received unacceptable care that sometimes endangered their health and 

safety. 3 In the intervening two decades, across more than 20 reports, 

GAO has repeatedly reported on shortcomings both in the care some 

nursing home residents received and in the federal and state oversight of 

nursing home care. For example, a 1999 report found that complaint 

investigation processes were often inadequate to protect residents, and a 

2008 report found federal oversight continued to demonstrate that state 

inspections understated serious care problems• In response to identified 

weaknesses, CMS and state survey agencies have made some changes 

1

Medicaid, a federal~state health financing program for low~income and medically needy 

individuals, is the nation's primary payer of Jong~term services and supports for children 

and adults with disabilities and aged individuals. Medicare, the federal health insurance 

program for people age 65 and older, individuals under age 65 with certain disabilities, 

and individuals diagnosed with end~stage rena! disease, covers some short-term skHied 

nursing and rehabilitative care for beneficiaries following an acute care hospital stay. 

2

See, for example, OIG, Adverse Events in Skilled Nursing Facilities: National Incidence 

Among Medicare Beneficiaries, OEI-06-11-00370 (Washington, D.C.: Feb. 2014). 

3

See GAO, California Nursing Homes: Care Problems Persist Despite Federal and State 

Oversight, GAO/HEHS-98-202 (Washington, D.C.: July 27, 1998). 

4

See GAO, Nursing Homes: Complaint Investigation Processes Often Inadequate to 

Protect Residents, HEHS-99-80 (Washington, D.C.: Mar. 22, 1999 and Nursing Homes: 

Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care 

Problems and CMS Oversight Weaknesses, GA0-08-517 (Washington, D.C.: May 9, 

2008). 

Page1 
50 


36285.034

in how they conduct oversight of nursing home quality, and some 

potential improvements in nursing home quality have been reported in 

recent years. For example, CMS has reported a decrease in the 

percentage of homes that were cited for serious health deficiencies from 

2006 to 2014-' In addition, CMS and others have reported on 

improvements in specific nursing home clinical measures, such as 

reductions in the use of physical restraints, which can be a sign of 

improved quality of care. 

However, as you know, news stories and reports continue to identify 

potential problems in nursing homes. For example, a July 2018 article 

from Kaiser Health News highlighted that new data collected by CMS to 

evaluate nurse staffing showed most nursing homes had fewer nurses 

and caretaking staff than they had previously reported to CMS, with 

frequent and significant fluctuations in day-to-day staffing. 6 As part of its 

ongoing work, the OIG determined CMS does not have adequate 

procedures in place to ensure incidents of potential abuse or neglect of 

Medicare beneficiaries in nursing homes are identified and reported.' In 

light of these concerns and a delay in enforcement of 2016 long-term care 

regulatory reforms, as well as a reduction in civil money penalties for noncompliance with federal health and safety requirements, 17 state 

attorneys general sent a letter urging CMS to implement the strengthened 

regulations and maintain penalties for non-compliance in May 2018. 6 

5

CMS, Nursing Home Data Compendium 2015 Edition. 

6J. Rau, "Like a Ghost Town: Erratic Nursing Home Staffing Revealed Through New 

Records." Kaiser Health News, July 13, 2018, accessed August 27, 2018. 

https://khn.org/newsllike-a-ghost-town-erratic-nursing-home-staffing-revea!ed-throughnew-records/ 

7 See Daniel R. Levinson, OIG, HHS, memorandum to Seema Verma, Administrator, CMS, 

Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures 

To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are 

fdentified and Reported in Accordance With Applicable Requirements, A-01-17 -00504 

(Aug. 24, 2017). 

8

Attorneys General of California, Connecticut, the District of Columbia, Hawaii, Illinois, 

Iowa, Maryland, Massachusetts, Minnesota, Mississippi, New York, Oregon, 

Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, letter to the Secretary of 

Health and Human Services and Administrator of CMS, Regulation of Skilled Nursing 

Facilities (May 30, 2018). 

Page 2 GA0-18-694T 
51 


36285.035

Background 

To help inform today's discussion, my testimony will focus on the findings 

from our October 2015 report examining CMS's oversight of nursing 

home quality' In particular, this statement will address: 

1. trends in nursing home quality through 2014, and 

2. changes CMS had made to its oversight activities as of October 2015. 

In addition, I will highlight key actions that we recommended HHS take, 

including HHS's response and the current status of those 

recommendations. 

While my comments today focus on the findings of our October 2015 

report, they are also informed by our large body of work examining 

nursing home quality. (See Appendix I for a list of related GAO reports.) 

In our October 2015 report, we analyzed four key sets of quality data from 

CMS using the most recent data available at that time. We also reviewed 

relevant oversight and data documents and interviewed officials from 

CMS central office, CMS regional offices, and state survey agencies for a 

selected group of states. The 2015 report includes a full description of our 

scope and methodology. We also obtained information from CMS on the 

status of our 2015 recommendations, as of 2018. We conducted the work 

on which this statement is based in accordance with generally accepted 

government auditing standards. Those standards require that we plan 

and perform the audit to obtain sufficient, appropriate evidence to provide 

a reasonable basis for our findings and conclusions based on our audit 

objectives. We believe that the evidence obtained provides a reasonable 

basis for our findings and conclusions based on our audit objectives. 

Oversight of nursing homes is a shared federal-state responsibility, with 

CMS central and regional offices overseeing activities completed by state 

survey agencies. Specifically, CMS central office (1) oversees the federal 

quality standards nursing homes must meet to participate in the Medicare 

and Medicaid programs and (2) establishes the responsibilities of CMS's 

regional offices and state survey agencies to ensure federal quality 

standards for nursing homes are met. CMS regional offices oversee state 

activities and report results back to CMS central office. Specifically, 

regional offices are required to conduct annual federal monitoring surveys 

9

See GAO, Nursing Home Quality: CMS Should Continue to Improve Data And Oversight, 

GA0-16-33 (Washington, D.C.: Oct. 30, 2015). 

Page 3 
52 


36285.036

to assess the adequacy of surveys conducted by state survey agencies. 

CMS regional offices also evaluate state surveyors' performance on 

factors such as the frequency and quality of state surveys. Finally, in each 

state, under agreement with CMS, a state survey agency assesses 

whether nursing homes meet CMS's standards by conducting regular 

surveys and investigations of complaints regarding resident care or 

safety, as needed. 

CMS collects data on nursing home quality through annual standard 

surveys and complaint investigations, as well as other sources, such as 

staffing data and clinical quality measures. 

Standard surveys. By law, every nursing home receiving Medicare or 

Medicaid payment must undergo a standard survey during which 

teams of state surveyors conduct a comprehensive on-site evaluation 

of compliance with federal quality standards. 10 Nursing homes with 

consistently poor performance can be selected for the Special Focus 

Facility (SFF) program, which requires more intensive oversight, 

including more frequent surveys. 11 

Complaint investigations. Nursing homes also are surveyed on an 

as-needed basis with investigations of consumer complaints. These 

complaints can be filed with state survey agencies by residents, 

families, ombudsmen, or others acting on a resident's behalf. During 

an investigation, state surveyors evaluate the nursing home's 

compliance with a specific federal quality standard. 

Staffing data. Nurse staffing levels are considered a key component 

of nursing home quality and are often measured in total nurse hours 

1

°For most deficiencies identified during surveys, a home is required to prepare a plan of 

correction, and, depending on the severity of the deficiency, surveyors may conduct a 

revisit to ensure that the nursing home has implemented its plan and corrected the 

deficiency. The scope and severity of a deficiency determine the enforcement actionssuch as requiring training for staff, imposing monetary penalties, or termination from the 

Medicare and Medicaid programs. 

11According to CMS guidance, SFF nursing homes that fail to significantly improve after 

three standard surveys, or about 18 months, may be involuntarily terminated from 

Medicare and Medicaid. The SFF program is statutorily required, and CMS is mandated to 

conduct its SFF program for homes that have "substantially failedn to meet applicable 

requirements of the Social Security Act. For more information on the SFF program, see 

GAO, Poorly Performing Nursing Homes: Special Focus Facilities Are Often Improving, 

but CMS's Program Could Be Strengthened, GA0·10-197 (Washington, D.C.: Mar. 19, 

2010) 

Page4 
53 


36285.037

per resident day. Higher nurse staffing levels are typically linked with 

higher quality nursing home care. 

Clinical quality measures. Nursing homes are required to provide 

data on certain clinical quality measures-such as the incidence of 

pressure ulcers-for all residents to CMS. CMS currently tracks data 

for 18 clinical quality measures. 

CMS publicly reports a summary of each nursing home's quality data on 

its Nursing Home Compare website using a five-star quality rating." The 

Five-Star Quality Rating System assigns each nursing home an overall 

rating and three component ratings-surveys (standard and complaint), 

staffing, and quality measures-based on the extent to which the nursing 

home meets CMS's quality standards and other measures. In a 2016 

report, we found that CMS did not have a systematic process for 

prioritizing recommended changes to improve its Nursing Home Compare 

website and that several factors limited the ability of CMS's Five-Star 

Quality Rating System to help consumers understand nursing home 

quality and choose a home. We recommended that CMS establish a 

process to evaluate and prioritize website improvements and add 

explanatory information about the Five-Star System to Nursing Home 

Compare. HHS agreed and in 2018 completed actions on these 

recommendations, but has not yet acted on the other recommendations, 

including providing national comparison information that we maintain are 

important to help enable consumers to understand nursing home quality 

and make distinctions between nursing homes. 

GAO, Nursing Homes: Consumers Could Benefit from Improvements to the Nursing 

Compare Website and Five-Star Quality Rating System, GA0-17-61 (Washington, 

Nov. 18, 2016) and Health Care Transparency: Actions Needed to improve Cost and 

Quality Information for Consumers, GA0-15-11 (Washington, D.C.: Oct 20, 2014). 

Page 5 GA0-18-694T 
54 


36285.038

Nursing Home Quality 

Data Show Mixed 

Results, Although 

Data Issues 

Complicate Ability to 

Assess Quality 

Trends 

Data on Nursing Home 

Quality Showed Mixed 

Results 

In our October 2015 report examining trend data that give insight into 

nursing home quality, we found that four key data sets showed mixed 

results, and data issues complicated the ability to assess quality trends. 

Nationally, one of the four data sets-consumer complaints-suggested 

consumers' concerns over nursing home quality increased from 2005 to 

2014. However, the other three data sets-deficiencies, staffing levels, 

and clinical quality measures-indicated potential improvement in nursing 

home quality (see Table 1 ). Specifically, we found consumer 

complaints-which can originate from residents, families, ombudsmen, or 

others acting on a resident's behalf-had a 21 percent increase from 

2005 to 2014. In contrast, nurse staffing levels increased 9 percent from 

2009 to 2014 and selected quality measure scores showed decreases in 

the number of reported quality problems, such as falls resulting in major 

injury from 2011 to 2014. 

Table 1: Overview of Trends in Key Nursing Home Quality Data 

Quality data 

Consumer complaints 

Deficiencies cited on standard 

surveys 

Nurse staffing 

Selected quality measures 

Description 

Average number of consumer complaints 

reported per nursing home 

Average number of serious deficienciesdeficiencies that, at a minimum, caused harm to 

the resident cited per nursing home surveyed 

Average total nurse hours per resident day 

Nursing homes' scores on 8 of CMS's clinical 

nursing home quality measuresc 

Time period Changea 

2005-2014 Increase in complamts 

(21%) 

2005-2014 Decrease in serious 

deficiencies (41%) 

2009-2014 Increase in nurse hours 

(9%) 

2011-2014 Decrease in quality 

problems (varied by 

measure) 

Source GAO analysts of Centers lor Medtcare & Med•ca1d Services (CMS) data I GA0-18..Q94T 

3

Speciftcal!y, from 2005 through 2014, the average number of consumer complaints reported per 

nursmg home increased nationally from 3.2 to 3.9. From 2005 through 2014, the number of serious 

deficiencies cited per nursmg home surveyed decreased nationally from 0.35 to 0.21. From 2009 

through 2014, the average total nurse hours per resident per day increased nationally from 4.2 to 4.6. 

From 2011 through 2014, nationwide nursing homes' scores on a!l8 of our selected quality measures 

improved, at least somewhat, but the rate of decline varied greatly by quality measure For example, 

the percentage of long-stay residents with too much weight loss decreased 1.3 percent over the 4-

Page 6 GA0-18-694T 
55 


36285.039

Data Issues Complicated 

CMS's Ability to Assess 

Quality Trends 

~he average total nurse hours per resident per day is a measure of registered nurse, licensed 

practical nurse, and nurse assistant hours. At the time of our 20"15 report th!s measure was based on 

the number of hours worked that nursing homes Self-reported; as of July 2016, these measures were 

based on payroll and other verifiable data submitted to CMS by the hOmes. 

"The selected quality measures include the percentage of long-stay residents who report moderate to 

severe pain; the percentage of long-stay, high-risk re~idents wlth pressure 'Ulcers; the percentage of 

long-stay residents who lose too much weight; the percentage of long-stay residents who were 

physically restrained; the percentage of long-stay residents experiencing one or more falls with major 

injury; the percentage of long-stay resident$ who received antipsychotic medication; the percentage 

of short-stay resldents who report moderate to severe pain; and the percentage of short~stay 

resldents with pressure utcers that are new or worsening. 

In addition, we identified 416 homes in 36 states that had consistently 

poor performance across the four data sets we examined. Of the 416 

homes, 71 (17 percent) were included in the Special Focus Facility (SFF) 

program at some point between 2005 and 2014. 

In our October 2015 report,.we found CMS's ability to use available data 

to assess nursing home quality trends was complicated by various issues 

with these data, which made it difficult to dettlrmine whether observed 

trends reflecl actual changes in quality, data issues, or both. CMS has 

taken some actions to address these data complications, however, more 

work is needed. 

Consumer complaints: The average number of consumer complaints 

reported per nursing home increased in the tO years of data we 

examined, although it is unclear to what extent this can be attributed to a 

change in quality or to state variation in the recording of complaints. 

Some state survey agency officials explained that changes in how they 

recorded complaints into CMS's complaint tracking system could in part 

account for the jump in reported complaints. In addition, officials at one 

state survey agency explained the increase in complaints could also 

reflect state-level efforts to provide consumers with more user-friendly 

options for filing complaints. Similarly, in April2011, we found differences 

in how states record and track complaints. 13 

Page7 GA0·18·694T 
56 


36285.040

Deficiencies cited on standard surveys: The decline in the number of 

serious deficiencies-deficiencies that at a minimum caused a harm to 

the resident-in the data we examined may have indicated an 

improvement in quality, although it may also be attributed to 

inconsistencies in measurement For example, the use of multiple survey 

types, such as both traditional paper-based surveys and electronic 

surveys, to conduct the standard survey that every nursing home 

receiving Medicare or Medicaid payment must undergo complicates the 

ability to compare the results of these surveys nationally. 14 In our October 

2015 report, we recommended CMS implement the same survey 

methodology across all states; HHS agreed with this recommendation 

and in November 2017 completed its national implementation of this 

electronic survey methodology. 15 

Nurse staffing: CMS data showed the average total nurse hours per 

resident day increased from 2009 through 2014, although eMS did not 

have assurance these data were accurate. Many of the regional office 

and state survey agency officials we spoke with expressed concern over 

the self-reported nature of these data, noting that it may be easy to 

misrepresent nurse staff hours. At the lime of our 2015 report, CMS was 

in the process of implementing a system to collect staffing information 

based on payroll and other verifiable data and has now completed that 

implementation, as required by law. We recommended in 2015 that CMS 

establish and implement a clear plan for ongoing auditing of its staffing 

data and other quality data. HHS agreed with this recommendation and in 

July 2018 CMS provided us with documentation that it was conducting 

regular audits of this new nurse staffing data. According to CMS, facilities 

experienced challenges submitting complete and accurate data in the 

early stages, however, as of April 2018 the agency has begun relying on 

14Some regional offices and state survey agencies we spoke to for the October 2015 

report noted electronic surveys result in fewer deficiencies cited, especially for more 

serious deficiencies and deficiencies related to quality of care, Thus, the decreasing trend 

of serious deficiencies could be the result of an expanding use of electronic surveys, 

rather than an improvement in the quality of nursing homes. 

15CMS, letter to State Survey Agency Directors, Revision to State Operations Manual 

(SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues, S&C: 17-36-NH (June 30, 2017). 

Page 8 GA0-18-S94T 
57 


36285.041

the payroll data to calculate the staffing measures that it posts in Nursing 

Home Compare and uses in the Five-Star Quality Rating System. 16 

Selected quality measures: Nursing homes generally improved their 

performance on the eight selected quality measures we reviewed, 

although it is unclear to what extent this can be attributed to a change in 

quality or possible inaccuracies in self-reported data. Like the nurse 

staffing data used by CMS, data on nursing homes' performance on these 

measures were self-reported, and until 2014 CMS conducted little to no 

auditing of these data to ensure their accuracy. In our 2015 report, we 

found CMS had begun taking steps to help mitigate the problem with selfreported data by starting to audit the data in 2015; however, the agency 

did not have clear plans to continue the audits beyond 2016. As such, in 

our recommendation we indicated the need for ongoing auditing of data 

used to calculate clinical quality measures. As of August 2018, CMS has 

not provided us a plan for ongoing auditing of its clinical quality measures 

and we continue to believe that CMS should establish and carry out such 

a plan. 

Collectively, these data issues have broader implications related to 

nursing home quality trends, including potential effects on the quality 

benchmarks CMS sets and consumers' decisions about which nursing 

home to select. 17 Furthermore, data used by CMS to assess quality 

measures are also used when determining Medicare payments to nursing 

homes, so data issues-and CMS's internal controls related to the datacould affect the accuracy of payments. Moreover, the use of quality data 

for payment purposes will expand in fiscal year 2019 when a nursing 

home value-based purchasing program will be implemented, which will 

increase or reduce Medicare payments to nursing homes based on 

certain quality measures. 

16See CMS, letter to State Survey Agency Directors, Transition to Payrolf~Based Joumaf 

(PBJ) Staffing Measures on the Nursing Home Compare Tool on Medicare.gov and the 

Five Star Quality Rating System (April 6, 2018, QS0-18-17-NH). 

171n our 2016 report on CMS's Nursing Home Compare and Five-Star Quality Rating 

System, we reviewed the extent to which the rating system-which is based on these data 

sets-enables consumers to understand nursing home quality and make distinctions 

between homes. See GA0-17-61. 

Page 9 GA0-18-694T 
58 


36285.042

CMS Had Modified 

Oversight Activities by 

2015, But Had Not 

Monitored Potential 

Effect on Nursing 

Home Quality 

Oversight 

Our 2015 report found that CMS had made numerous modifications to its 

nursing home oversight activities in recent years, but had not monitored 

the potential effect of these modifications on nursing home quality 

oversight. Some of these modifications expanded or added new oversight 

activities-for example, CMS expanded the number of tools available to 

state surveyors when investigating medication-related adverse events, 

increased the amount of nursing home quality data available to the public, 

and created new trainings for surveyors on unnecessary medication 

usage. 18 However, other modifications reduced existing oversight 

activities. 

In 2015, we highlighted modifications that reduced two existing oversight 

activities-the federal monitoring survey program and the SFF program. 

Federal monitoring surveys: CMS reduced the scope of the federal 

monitoring surveys regional offices use to evaluate state surveyors' 

skills in assessing nursing home quality. CMS requires regional 

offices to complete federal monitoring surveys in at least 5 percent of 

nursing homes surveyed by the state each year. Starting in 2013, 

CMS required fewer federal monitoring surveys to be standard 

surveys and allowed more monitoring surveys to be the narrower 

seeped and less-resource intensive revisits and complaint 

investigations. 19 

Special Focus Facilities: CMS reduced the number of nursing 

homes participating in the SFF program. 20 In 2013, CMS began to 

reduce the number of homes in the program by instructing states to 

terminate homes that had been in the program for 18 months without 

improvement from participating in Medicare and Medicaid. As we 

have previously reported, between 2013 and 2014, the number of 

nursing homes in the SFF program dropped by more than half-from 

152 to 62. In 2014, CMS began the process of re-building the number 

GA0~16*33 for additional information on oversight modifications made. 

19Before 2013, CMS required 80 percent of these federal monitoring surveys be standard 

sU!veys-the most comprehensive type-which cover a broad range of quality issues 

within a nursing home. The remaining 20 percent of surveys were permitted to be either 

revisit or complaint surveys, which are more narrow in scope and are also less-resource 

intensive. 

20Nursing homes placed in the SFF program receive additional oversight because of the 

homes' history of poor performance. If homes do not improve the quality of their care, 

CMS can terminate their participation in Medicare and Medicafd. 

Page 10 GA0-18-694T 
59 


36285.043

GAO Contact and 

Staff 

Acknowledgments 

of facilities in the SFF program; however, according to CMS officials, 

the process would be slow, and as of August 2018 there were 85 

SFFs. 

In 2015, CMS said some of the reductions to oversight activities were in 

response to an increase in oversight responsibilities and limited number 

of staff and financial resources. Specifically, CMS officials said increasing 

oversight responsibilities and a limited number of staff and financial 

resources at the central, regional, and state levels required the agency to 

evaluate its activities and reduce the scope of some activities. In the 

October 2015 report, we recommended CMS monitor oversight 

modifications to better assess their effects; HHS agreed with the 

recommendation and told us they are beginning to take steps to address 

this issue. We maintain the importance of monitoring to help CMS better 

understand how its oversight modifications affect nursing home quality 

and to improve its oversight given limited resources. 21 

Chairman Harper, Ranking Member DeGette, and Members of the 

Subcommittee, this concludes my prepared statement. I would be 

pleased to respond to any questions that you may have at this time. 

For further information about this statement, please contact John E. 

Dicken at (202) 512-7114 or dickenj@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this testimony. In addition to the contact named above, 

key contributors to this statement were Karin Wallestad (Assistant 

Director), Sam Amrhein, Summar Corley, Pam Dooley, Will Simer!, and 

Jennifer Whitworth. 

21 Under federal internal control standards, ongoing monitoring should occur in the course 

of normal program operations, See GAO, Standards for Internal Control in the Federal 

Government, GAO/AIMD-00-21.3.1 (Washington, D.C.: Nov.1999). 

Page 11 GA0-18-694T 
60 


36285.044

Appendix 1: Related 

GAO Reports 

Nursing Homes: Consumers Could Benefit from Improvements to the 

Nursing Home Compare Website and Five-Star Quality Rating System. 

GA0-17-61. Washington, D.C.: November 18, 2016. 

Skilled Nursing Facilities: CMS Should improve Accessibility and 

Reliability of Expenditure Data. GA0-16-700. Washington, D.C.: 

September 7, 2016. 

Nursing Home Quality: CMS Should Continue to Improve Data and 

Oversight. GA0-16-33. Washington, D.C.: October 30, 2015. 

Health Care Transparency: Actions Needed to Improve Cost and Quality 

Information for Consumers. GA0-15-11. Washington, D.C.: October20, 

2014. 

Nursing Homes: More Reliable Data and Consistent Guidance Would 

Improve CMS Oversight of State Complaint Investigations. GA0-11-280. 

Washington, D.C.: Apri17, 2011. 

Nursing Homes: Complexity of Private Investment Purchases 

Demonstrates Need for CMS to Improve the Usability and Completeness 

of Ownership Data. GA0-10-710. Washington, D.C.: September 30, 

2010. 

Poorly Performing Nursing Homes: Special Focus Facilities Are Often 

Improving, but CMS's Program Could Be Strengthened. GA0-10-197. 

Washington, D.C .. March 19, 2010. 

Nursing Homes: Addressing the Factors Underlying Understatement of 

Serious Care Problems Requires Sustained CMS and State Commitment. 

GA0-10-70. Washington, D.C.: November 24, 2009. 

Nursing Homes: Opportunities Exist to Facilitate the Use of the 

Temporary Management Sanction. GA0-10-37R. Washington, D.C .. 

November 20, 2009. 

Nursing Homes: CMS's Special Focus Facility Methodology Should Better 

Target the Most Poorly Performing Homes, Which Tended to Be Chain 

Affiliated and For-Profit. GA0-09-689. Washington, D.C.: August 28, 

2009. 

Page 12 
61 


36285.045

(102987) 

Medicare and Medicaid Participating Facill1ies: CMS Needs to Reexamine 

Its ApproaCh for Funding State Oversight of Health Care Facilities. 

GA0-09-64. Washington, D.C.: February 13,2009. 

Nursing Homes: Federal Monitoring Surveys Demonstrate Continued 

Understatement of Serious Care Problems and CMS Oversight 

Weaknesses. GA0-08-517. Washington, D.C.: May 9, 2008. 

Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not 

Deterred Some Homes from Repeatedly Harming Residents. 

GA0-07-241. Washington, D.C.: March 26, 2007. 

Nursing Homes: Complaint Investigation Processes Often Inadequate to 

Protect Residents. GAOIHEHS-99-80. Washington, D.C.: March 22, 

1999. 

California Nursing Homes: Care Problems Persist Despite Federal and 

State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998. 

Page 13 GA0-18-694T 
62 


36285.046

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64 

Mr. HARPER. Thank you, Mr. Dicken. 

This is now the members’ opportunity to ask questions of each 

of you to learn more about this very important issue, so I will recognize myself for 5 minutes. 

Ms. Dorrill, HHS OIG has identified improving care for vulnerable populations including the care provided to individuals in nursing homes as a top management challenge for a decade. Could you 

expand on this and tell us why ensuring nursing home residents 

receive the proper standard of care continues to be such a longstanding challenge for HHS and specifically CMS? 

Ms. DORRILL. Yes, thank you for the question. It certainly is true 

that we have considered this a top management challenge for years 

and we would love to have that removed from the list. But unfortunately the problems remain. And I think it is important to note 

that although so many of these problems are longstanding that we 

are in a different place in time so the heavy lift with revising recommendations that has been done, when I said in my statement 

that we have a framework I think that’s correct. And so we are at 

a different place than we were when we cited those TMCs over the 

years. 

Mr. HARPER. Is that a better place? 

Ms. DORRILL. Yes. I think it’s a first step, absolutely. And that 

but the proof will be in the execution of that, that sometimes a requirement and the actions of the homes just like emergency planning can be miles apart. And so, but that first step was an enormous one and an important one. And so we would hope as we see 

execution over the next couple of years that we might be able to 

eliminate this concern from our top management challenges. 

Mr. HARPER. Do you see now that you and CMS are all on the 

same page? 

Ms. DORRILL. It’s a great question, yes and no. Yes, on some factors we feel that in respect to our adverse events the harm from 

medical care that CMS has been proactive in they pulled us into 

the process of providing that guidance based on our expertise and 

have laid out very explicit instructions for nursing homes and surveyors. In other areas I wouldn’t grade them as highly. 

Mr. HARPER. Mr. Dicken, I would like to ask you a similar question. Given GAO’s substantial body of work examining Federal efforts related to nursing home quality of care, have any issues stood 

out to you as being long-term challenges for CMS? 

Mr. DICKEN. Yes, thank you. And I think as you note that we do 

have a long-term body of work and many of those same types of 

issues have occurred. We are pleased that over the years CMS has 

implemented many of the recommendations we’ve had and made a 

number of changes. Certainly we’ve seen improvements in things 

like training of surveyors, a more standardized methodology for 

surveyors. We do continue to see that there’s important need to 

make sure that information that CMS is receiving is accurate and 

that they’re using it for assessing States consistently. 

And very important that as there are a number of changes occurring over the years that CMS and others continue to monitor to see 

what the effects of those changes actually are, both in some of the 

improvements and the enhancements that have been made as well 

as some of the reductions in oversight that have been made. 

65 

Mr. HARPER. All right. Let me just follow up on that just a little 

bit if I can. Are there any aspects of CMS’ efforts relating to nursing homes that GAO’s work may have touched on would you believe merit additional attention? 

Mr. DICKEN. Well, we do still have a number of open recommendations that CMS has taken some steps in, one, in trying 

to make sure the information’s more accurate. I think Dr. Goodrich 

mentioned that they have now much more verifiable information on 

staffing and are using that to more thoroughly look at and use inspections of staffing. 

There are other areas still, however, where they still need to 

make sure that getting accurate information and of monitoring 

those effects. 

Mr. HARPER. And, Dr. Goodrich, if I can ask you a question. Obviously in my opening statement I mentioned the terrible tragedy 

in Florida at Hollywood Hills at the Rehabilitation Center. And I 

know CMS terminated the facility from Medicare and Medicaid and 

has obviously recognized how horrible that is. 

The owner of the facility still has an ownership interest in 11 

other facilities. Under CMS’ current authority, is there anything 

preventing him from opening a new or additional nursing home facility? 

Dr. GOODRICH. So thank you for the question. The tragedy at 

Hollywood Hills was just that, devastating tragedy that should 

never have happened. As has been said before, it was a complete 

management failure. As I understand the facts of this case, there’s 

nothing in Medicare that prevents Dr. Michel—if I’m saying his 

name right—— 

Mr. HARPER. Yes. 

Dr. GOODRICH [continuing]. From having ownership interest in 

Medicare facilities. Medicare can only bar an individual who has 

been convicted of a felony or who is on the OIG exclusion list. 

Mr. HARPER. In light of Dr. Michel’s history, do you believe you 

need additional tools that can restrict based upon something less 

than a criminal conviction? 

Dr. GOODRICH. So this is not my exact area, but I am aware that 

CMS issued a proposed rule in 2016 to further enhance our program integrity abilities related to this area. We received a number 

of comments on that rule and we are currently considering them 

in terms of how to move forward. 

Mr. HARPER. Thank you, Dr. Goodrich. 

The chair will now recognize Ranking Member DeGette for 5 

minutes. 

Ms. DEGETTE. Thank you. 

Ms. Dorrill mentioned that updating the recommendations is 

going to be the first step to trying to solve this problem. And as 

I mentioned in my opening statement, in 2016 CMS issued regulations that updated the Federal health and safety rules for nursing 

homes. 

I know, Dr. Goodrich, that CMS is now in the process of implementing those regulations. I think the one you just referred to is 

probably one of them. You said that in your testimony these 

changes are the first comprehensive updates of the nursing home 

regulations since 1991; is that right? Yes Dr. Goodrich. 

66 

Dr. GOODRICH. Sorry. That is correct. 

Ms. DEGETTE. And so I am assuming that a lot has changed in 

the industry that would necessitate an update to those rules and 

I would assume that the 2016 regulations were designed in part to 

reflect the advancements and improve how the industry provides 

quality care to nursing home residents; is that correct? 

Dr. GOODRICH. Yes, that is correct. 

Ms. DEGETTE. And as I said in my opening statement, since the 

rules have been finalized CMS has taken several actions that could 

delay some of them or roll them back altogether. First of all, the 

rules were designed to be implemented in phases, but not all the 

phases have been implemented yet. 

Second, CMS now has issued a moratorium on enforcing some of 

those rules, and, finally, last year CMS launched a review of nursing home regulations to or requirements to determine whether any 

of them placed procedural burdens on facilities. So it sounds like 

maybe some of these proposed rules will never be implemented; is 

that correct? 

Dr. GOODRICH. We are currently in the process as you mentioned 

of implementing the rule that we finalized in 2016. We are on target for implementing all three of the phases and that is underway 

now. 

Ms. DEGETTE. OK. And what is your timeframe for implementing 

all of the phases? 

Dr. GOODRICH. So phase 1 was implemented shortly after the 

publication of the final rule in 2016. This was really the things that 

nursing homes were already doing or were very simple to achieve. 

Ms. DEGETTE. OK. 

Dr. GOODRICH. Phase 2, we began implementation and surveying 

and enforcing on November 28th of 2017, so that is underway now. 

We’ve surveyed about—— 

Ms. DEGETTE. It has been about a year. 

Dr. GOODRICH. It’s been about a year and phase 3 begins in November of 2019. 

Ms. DEGETTE. And how long will that take? 

Dr. GOODRICH. So nursing homes are expected to be compliant 

with the phase 3 requirements by November of 2019. So at that 

time that will be the expectation. 

Ms. DEGETTE. OK. And so let me just ask the question again. Do 

you anticipate that all of the 2016 rules will be implemented? 

Dr. GOODRICH. Yes, we are on track to implement the 2016 final 

rule. 

Ms. DEGETTE. OK. Now I want to ask you a question about a 

CMS proposal that might prohibit nursing home residents from 

being able to bring a lawsuit. There is a rule that bans pre-dispute 

arbitration agreements and CMS has signaled it may remove it. In 

other words CMS is proposing to remove what I consider to be a 

consumer protection rule that was designed to make sure that 

nursing home residents could go to court or could join other people 

in lawsuits to settle grievances and that they wouldn’t be forced 

into arbitration. 

I know a lot of groups like the AARP have expressed concerns 

about this proposed change. What is the status of that? Does CMS 

intend to do that and why? 

67 

Dr. GOODRICH. So as you mentioned as part of the 2016 final rule 

we did impose a ban on pre-dispute arbitration. 

Ms. DEGETTE. Yes. 

Dr. GOODRICH. Shortly thereafter, Department of Health and 

Human Services was sued for an injunction, a preliminary and permanent injunction to stop CMS from enforcing that ban on pre-dispute arbitration. The court granted a preliminary injunction in November of 2016, so we currently cannot enforce what we finalized—— 

Ms. DEGETTE. Did by court order? 

Dr. GOODRICH. Yes. 

Ms. DEGETTE. And what is the status of that lawsuit, do you 

know? 

Dr. GOODRICH. I’m not certain of the status but the injunction is 

still in place so we are not able to enforce. 

Ms. DEGETTE. If you could get us the status of that lawsuit that 

would be—— 

Dr. GOODRICH. Certainly. 

Ms. DEGETTE [continuing]. Very helpful to us because my view 

and I think Congresswoman Schakowsky would really agree with 

me about this as one of the most effective ways to address if we 

see rampant nursing home abuses is when patients can bring class 

actions against some of these bad actors. And, you know, these 

families they are going into nursing homes, they are being asked 

to sign these arbitration agreements. They are so desperate to get 

the health—as I think all of you have said, these are families in 

crisis many times and so they just sign it and then they have 

signed away their legal rights. 

So we will do everything we can, I think, to make sure that we 

can enforce that 2016 rule that people don’t have to be forced to 

sign arbitration agreements. With that I yield back. 

Mr. HARPER. The gentlewoman yields back. 

The chair will now recognize the gentleman from Oregon, the 

chair of the full committee, Mr. Walden, for 5 minutes. 

Mr. WALDEN. Thank you, Mr. Chairman. And I want to thank 

our witnesses. We have another hearing going on downstairs and 

so some of us have to bounce back and forth. 

Dr. Goodrich, a September 2017 data brief issued by the OIG indicated that there was a significant amount of variation with respect to how state survey agencies classified the complaints they 

received. For example, data compiled by the OIG showed that in 

2015 there were three States that prioritized complaints as being 

immediate jeopardy at least 40 percent of the time, while eight 

States did not designate any of their complaints as immediate jeopardy. 

Can you explain why there seems to be such a variation in how 

States prioritize complaints and what is CMS doing to ensure that 

complaints and deficiencies are addressed in a more consistent 

manner? 

Dr. GOODRICH. Yes, thank you for the question. So, first, I want 

to say we very much appreciate the work of the OIG and the GAO 

in the oversight of our programs. They really help to make our programs better and we have concurred with the vast majority of their 

68 

recommendations particularly on this issue around state service 

oversight, state agency oversight. 

So we are undertaking actively a number of actions to address 

exactly these recommendations. So number one, CMS regional offices do meet quarterly with the state survey agencies to discuss 

issues, look at trends and how they’re performing, any concerns 

that they may have. We also recently undertook an effort to really 

overhaul our Federal oversight surveys. 

We are required to conduct Federal oversight surveys of about 

five percent of state surveys or at least five state surveys and we’ve 

been doing this for awhile, but we’ve undertaken an effort beginning in April of this year to revise that process in response to what 

we learned from the OIG as well as the GAO. So that’s underway 

now as well. 

We also give monthly feedback reports to the state survey agencies that we began in April of this year which allow them to understand where their own deficiencies are, where there may be patterns of inconsistencies or where they’re not appropriately citing 

deficiencies as they should. And this has really been made possible 

by the new standardized software-based survey process that we implemented last fall across the country. 

Mr. WALDEN. Ah, OK. 

Dr. GOODRICH. And then finally we are in the process right now 

of really overhauling the State Performance Standards System. 

This is a system that we’ve had underway for awhile, but again in 

response to the recommendations from the OIG and the GAO we 

began an effort again in April of this year to evaluate this entire 

program to identify ways to improve it. It’s a very large-scale effort, 

will take at least a year to do but is well underway. And it’s really 

focused on improving the efficiency and the effectiveness of measuring and improving state performance. 

Mr. WALDEN. Right. 

Dr. GOODRICH. So we’re very happy that we have these recommendations and that we’re moving forward on them. 

Mr. WALDEN. Good, thank you. Admittedly, this is old, but my 

mother spent her last few months in a nursing home in our hometown 28 years ago. And I spent a lot of time in and out as you do 

with a parent and I was always struck by how much time the people that were giving health care had to spend on paperwork. And 

they would be off in the cafeteria and I went over, and I was in 

state legislature at the time, and I said what is all this, and just 

reams of paper, paper, paper. 

And I thought at some point, here, as public policy people we 

want what everybody wants is quality safe care especially for this 

vulnerable and difficult fragile population and sometimes government just overreacts and says we need a new rule, we need a new 

regulation, we need another something which in the end eats up 

the resource that is hard to get. 

It is hard to, as we all know there are medical shortages in terms 

of nurses and aides and everybody else and it just struck me that 

would my mother have been better off with less reporting and paperwork and somebody that actually was checking on her more 

often. Do you know what I mean? And we have got to have both, 

it is finding this right balance. But boy, I hope somebody is looking 

69 

at just the layer, a layer, a layer we tend to add on to address a 

single problem that may occur in Florida and so we think we have 

to do this everywhere. 

And looks at are there some things that we could peel back that 

would actually allow improved quality of care and then what are 

the real management tools we need and make sure they are being 

enforced effectively in this process. It is hard, I know, but I have 

seen it firsthand. My parents, both my parents and my mother-inlaw and over the years and, you know, you realize it is a difficult 

population and very fragile medically. Things happen and mistakes 

are made and there are some bad actors. 

And so I just hope as you all are doing your work somebody is 

looking at that angle as well so the measrements and the tools for 

enforcement are effective but make sense too. So, Mr. Chairman, 

I yield back. 

Mr. HARPER. The gentleman yields back. The chair will now recognize the gentlewoman from Florida, Ms. Castor, for 5 minutes. 

Ms. CASTOR. Thank you, Mr. Chairman. I think this investigation by the committee is very important on nursing home resident 

care and the quality of our skilled nursing centers across the country and I appreciate the focus on emergency preparedness. It has 

not been a year since Hurricane Irma swept through and I think 

it is important for us to go through what CMS is doing, what 

States are doing. 

One thing that should not be done has become clear here as was 

reported by the AP earlier this year. As Hurricane Irma bore down 

on Florida, Governor Rick Scott gave out his cell phone number 

during a conference call with administrators of the State’s nursing 

homes and assisted living facilities. He told them to contact him if 

they ran into problems and he would try to get help. 

So they did 120 times according to phone records released earlier 

this year, not last year. Nearly all the calls went directly to voice 

mail before being returned. The Associated Press reached 29 of the 

callers and found that in numerous cases the Governor’s offer to 

personally intervene may have slowed efforts to get help and fostered unrealistic and potentially dangerous expectations that Scott 

could resolve problems. 

Irma knocked out power across much of Florida as its strongest 

winds swept from Key West to Jacksonville, so most of the skilled 

nursing centers asked for restoration of electricity. But Florida is 

served by private electric companies and municipal utilities and 

none are directed by the state, so the Governor’s office could only 

request that particular nursing homes be given priority. 

Twelve patients later died of overheating at a nursing home that 

called Scott’s cell phone three times. Its administrators say Scott’s 

staff didn’t get them help restoring the air conditioning but we 

know it was a significant management failure as well by the owners of Hollywood Hills. This cannot be the answer for emergency 

preparedness. 

So I understand now there are new requirements that went into 

effect in November of 2016. CMS is now surveying states. That 

began last year. What have we found? Are the states following 

through? I will let you begin, Doctor. 

70 

Dr. GOODRICH. Absolutely. Thank you for the question. As you 

mentioned, we did finalize the emergency preparedness rule in November of 2016. This applied to all Medicare-certified facilities certainly including long-term care facilities or nursing homes. We 

began verifying that compliance in November of 2017. 

So far we have surveyed about 75 percent of facilities. We anticipate we will have surveyed across the country a hundred percent 

of facilities by February of 2019. As you noted, there is a need for 

proper communications systems when there is a disaster and one 

of the components of the emergency preparedness rule that facilities are now required to adhere to is to develop and maintain communications systems to contact appropriate staff and authorities. 

Ms. CASTOR. So are you finding now in the surveys that they are 

adhering to the new requirements? 

Dr. GOODRICH. So we are finding currently that there have been 

some providers that have been cited for noncompliance so we are 

working with them to bring them into compliance rapidly. That is 

an area that they are required to adhere to. Currently, we are not 

finding that that is one of the most commonly cited deficiencies, 

but it is something that we are surveying for actively. 

Ms. CASTOR. Thank you. States have a critical role here and I am 

concerned with certain States not following through with requirements. For instance, OIG’s audits have found that some States fell 

short in investigating the most serious complaints in nursing 

homes. 

Ms. Dorrill, what are the nature of these complaints and what 

should we expect the States to do in response? 

Ms. DORRILL. The complaints ran across the board and then half 

of them were associated with high priority or immediate jeopardy, 

so serious complaints. And so I think the issue at hand is that 

states have to be held accountable. Dr. Goodrich talked a bit about 

that system and I think it’s critical to all these pieces coming together that the states are understanding the new requirements and 

effectively enforcing those in the homes. 

Ms. CASTOR. Do you believe CMS is holding states accountable 

when they do not follow through with their responsibilities? 

Ms. DORRILL. So much of this is new, we’ll certainly be looking 

at it. But so much of the new requirement in the guidance is just 

new within the last 9 months and so we don’t know but we certainly have pointed out weaknesses. And we think that it’s a twopronged approach. It’s education and it’s also ensuring that there’s 

some kind of accountability on the part of the States to ensure that 

they follow through. 

Ms. CASTOR. Thank you. I yield back. 

Mr. HARPER. The gentlewoman yields back. The chair will now 

recognize the gentleman from Virginia, the vice chairman of the 

subcommittee, for 5 minutes. 

Mr. GRIFFITH. Thank you very much, Mr. Chairman. I greatly 

appreciate it. 

Dr. Goodrich, my colleagues, Congresswoman Black, Congressman Adrian Smith, Luja ́n, and Crowley and I recently introduced 

the Reducing Unnecessary Senior Hospitalization Act of 2018 

which seeks to improve quality in nursing homes by providing 

quality acute care at patients’ bedsides via telehealth instead of 

71 

transferring them to the hospital. By CMS’ own calculations, twothirds of hospital transfers are avoidable leading to increased costs 

to Medicare and negatively impacting health outcomes and quality 

of care. 

What are your thoughts on the potential for complementing current nursing home staff with emergency trained first responders 

utilizing telehealth to connect physician specialists, i.e., emergency 

physicians that might not otherwise be available to this patient 

population? 

Dr. GOODRICH. So thank you for that question and letting me 

know about this pending legislation. So we do understand that as 

you mentioned transfers to the hospital, that’s a very disrupting 

event for a nursing home patient and many of them are avoidable. 

This is something we actually measure as part of our quality reporting programs so we’re certainly aware that there’s a significant 

level of admissions to a hospital. 

So we would be very interested and willing to provide technical 

assistance to you and your staff on this legislation at your convenience. 

Mr. GRIFFITH. Well, I appreciate that very much and thank you. 

I am really excited by telemedicine. Representing a fairly rural district, I can tell you that one of my small nursing home chains has 

implemented wound care by using telemedicine, so they have a 

wound care specialist who is available. 

And one of their nurses will go in and see the patient who may 

have a bedsore or some other kind of injury and they are looking 

at through a pair of glasses that has a camera on it and the wound 

specialist wherever they are in the United States can see that 

wound, get a color picture, be able then to tell the nursing home 

staff what needs to be done to make sure that that wound is being 

treated properly and taken care of. So I am really excited about 

telemedicine as a whole. 

Let me go to your payroll-based journal for staffing, because I do 

think that sometimes there may be some confusion. And while we 

recognize that we want the staffing to be there so you all can use 

it as a tool, you mentioned it in your statement, Mr. Dicken mentioned in his that the self-reporting hadn’t worked because there 

was a difference. 

But I think that may be a little unfair to CMS and to the nursing 

homes affected, to some of them. Not the bad actors but people that 

are really trying, because am I not correct that it is a slightly different standard? In self-reporting if you had a salaried employee 

who worked 50–55 hours a week they got to count that extra time, 

but under your report which I have no quarrel with, I am just saying they are different, you only count those folks at a maximum of 

40 hours of being on the floor. 

Likewise, if you have an LPN who is doing supervisory work, 

they don’t get credit for their supervisory time where an RN would. 

Again no quarrel with the change, but just saying that to say that 

the old reporting system was intentionally underreporting might 

not be fair since it is really apples to oranges. Wouldn’t you agree 

with that? 

Dr. GOODRICH. The previous reporting system was essentially a 

2-week snapshot that the nursing homes completed on a form durVerDate Nov 24 2008 15:11 May 23, 2019 Jkt 037690 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-164 CHRIS
72 

ing their recertification survey. The current system as you mentioned is based upon daily staffing levels of numerous different 

types of staff that the nursing homes have to report quarterly to 

CMS. And certainly as we were standing that up we had to make 

certain decisions around ensuring that what is reported is 

auditable back to the payroll so that it could be as it is required 

by law so that it could be as accurate as possible. 

So the situations you mentioned around a salaried employee, yes, 

we only count the 40 hours a week that they would be working. 

Mr. GRIFFITH. And I don’t have any quarrel with that but to say 

that there was understaffing previously when you are using different metrics wouldn’t really be fair to CMS or to some of the 

nursing homes. Wouldn’t that be fair to say? 

Dr. GOODRICH. I would say it’s very difficult to compare the two. 

Mr. GRIFFITH. Difficult to compare, OK. 

The Commonwealth of Virginia partnering with healthcare providers developed a long-term care mutual aid plan which is a voluntary agreement among participating nursing homes that they 

will share supplies, resources, and house residents from other facilities if a serious need arises. We heard Chairman Walden say 

earlier that one of his nursing homes or a small chain had a facility 

in California and was looking to move patients to Oregon. This is 

actually a statewide system. 

Are you familiar with this type of plan and do you think it will 

work and do you think other sStates will adopt it? 

Dr. GOODRICH. I am not familiar with this kind of plan but we 

certainly would be interested to learn more and again our staff 

would be glad to follow up with you on this. 

Mr. GRIFFITH. Very good. Thank you so much. 

I yield back, Mr. Chairman. 

Mr. HARPER. The gentleman yields back. The chair will now recognize the gentleman from California, Mr. Ruiz, for 5 minutes. 

Mr. RUIZ. Thank you, Mr. Chairman. Taking care of seniors has 

been a big priority for me as a physician. I am an emergency medicine doctor, Dr. Goodrich, and now as a Member of Congress advocating for them here. And when a loved one is placed in the care 

of a nursing home, we trust and expect that they will receive high 

quality care and as we know many nursing homes do exactly that. 

But it is also clear from years of reports from OIG and GAO that 

there are problematic providers out there. 

Ms. Dorrill, your office did groundbreaking work that identified 

instances of adverse events in nursing homes and you found that 

one in three Medicare beneficiaries experienced harm during their 

stay. So what kind of adverse events did these residents experience, can you elaborate on those? 

Ms. DORRILL. Yes, thank you for the question. It really ranged 

the gamut. And that’s actually a part of our message is that we 

found that nursing homes were focusing on just a small number of 

events, falls with injury, for example, and pressure ulcers, and they 

were excluding a broad range of events that were already happening that went unnoticed as harm. Things like blood clots and 

dehydration that can seem like subtle—— 

73 

Mr. RUIZ. That they didn’t identify and allowed it to persist for 

a time. How about medical errors, giving the wrong medication, et 

cetera? 

Ms. DORRILL. Fourteen percent of our events involve medical 

error. When a lot of people think about adverse events they think 

it’s all medical error. But one of the things that we’ve tried to promulgate is this notion that adverse events can occur from general 

substandard care. It’s not really a mistake, it’s just not doing the 

right thing. 

Mr. RUIZ. So you say that half of these were preventable. Can 

you give me some examples of those that were not preventable 

that—— 

Ms. DORRILL. Yes. So, for example, if someone was given a medication and they were allergic to that and had a reaction but no one 

knew that they were allergic, that was not information that the 

physician could have acted upon. 

Mr. RUIZ. And so are these different adverse events not on the 

state agencies’ survey lists? Why are they not looking for these? 

Ms. DORRILL. I think that there’s been a revolution and this is 

true for hospitals too in the whole notion of adverse events. And 

CMS has changed its hospitals provisions as well that I think there 

was just a narrow focus on a small number of events and people 

weren’t thinking about harm more broadly. 

Mr. RUIZ. So they weren’t. 

Ms. DORRILL. No. 

Mr. RUIZ. They weren’t looking for these different types of adverse events. 

Ms. DORRILL. That’s correct. 

Mr. RUIZ. So I would like to turn to another quality of care concern. In your recent reporting, OIG again identified Medicare beneficiaries in nursing homes who suffered harm, this time from abuse 

and neglect, where still OIG found that, quote, a significant percentage of these incidents may not have been reported to law enforcement. 

So I find this very troubling and so did you, or OIG, enough to 

issue an early alert to CMS about the findings. What are some of 

the immediate actions CMS can take to address these 

vulnerabilities? 

Ms. DORRILL. Thank you. We first requested that they do what 

we did which is it’s possible to look in the claims and find out a 

lot of these things are claims associated with abuse and neglect 

and that we suggested that CMS do that to monitor the situation. 

And then, secondly, we also suggested that they enhance their pursuit of the authority to be able to give remedies when these events 

were not reported. 

Mr. RUIZ. Dr. Goodrich, what has the agency taken, what actions 

has the agency taken to address this finding? 

Dr. GOODRICH. So regarding the recommendation to look in the 

claims for emergency room services and matching those claims to 

skilled nursing facilities, that is something that we are currently 

exploring the feasibility of doing. 

Mr. RUIZ. You haven’t started it but you are just looking into it. 

Dr. GOODRICH. We’re exploring whether or not that’s feasible to 

do to be able to have that information to the surveyors. 

74 

Mr. RUIZ. Well, by law, as an emergency physician if somebody 

reports any suspicion of abuse or neglect that has to go into the 

medical record and that has to be reported to the county officials 

and APS and all that so that would be a good place to start. 

I have another question in terms of empowering the clients and 

consumers and also their families. Is there any requirement that 

when a patient gets or a person gets admitted to a nursing home 

during the orientation that they are given an understanding of 

their rights, of quality measures, resources, to understand more 

about what those quality measures are and also a way to report 

any concerns to a third party like an agency or CMS, is that a requirement, part of your requirements for CMS so that they know 

that and is that being implemented properly? 

Dr. GOODRICH. Yes. So yes, that is a requirement as part of our 

requirements for participation that residents or their, and their 

families or their surrogates be informed of their rights as soon as 

they are admitted into a nursing facility and that they are informed of their rights to file complaints with the state survey agency or with law enforcement. 

Mr. RUIZ. Are they given the information on how to do that? 

Dr. GOODRICH. Yes, it’s supposed to be posted in the nursing 

home. Sorry, I’m not familiar with the details. 

Mr. RUIZ. Yes, see, that is the difference that Ms. Dorrill was 

saying. It is either posted or you have something in writing, but 

the true understanding and the implementation of that information 

is a different story. 

So do we know if it is being conducted in a way where during 

the orientation they are being explained on how to file a complaint? 

Dr. GOODRICH. Yes. As part of the admission process in addition 

to everything about the plan of care in clinical care, one of our conditions or requirements for participation is around patient rights 

and being informed of those rights. 

Mr. RUIZ. Thank you. 

Mr. HARPER. The gentleman yields back. The chair will now recognize the gentlewoman from Indiana, Mrs. Brooks, for 5 minutes. 

Mrs. BROOKS. Thank you, Mr. Chairman, and thank you for holding this very important hearing. 

Ms. Dorrill, I would like, as Chairman Harper talked about in 

his opening statement, I want to focus a little bit on my line of 

questioning regarding the owner of the facility where the 12 residents died in the aftermath of Hurricane Irma, the Hollywood 

Hills. Because it is my understanding that Dr. Michel had been the 

subject of wrongdoing in the past, including settling with the Department of Justice long ago, corporate integrity agreement, after 

being implicated in a scheme to receive kickbacks for providing unnecessary medical treatment to elderly residents, and that was the 

’06 timeframe. 

Can you please explain—and I am a former U.S. Attorney so I 

have worked with HHS OIG. Can you explain what tools are available to you to exclude facility owners from owning nursing homes 

if obviously OIG had determined and there was a settlement and 

so forth, but they were involved in participating in this unlawful 

conduct or fraud, can you go into deeper detail about exclusion 

process? 

75 

Ms. DORRILL. Yes, just to say though, I’m not in the Counsel’s 

Office. I’m not an investigator but I’ll do my best, that OIG has a 

number of tools at our disposal and this it’s critical to us. It’s the 

main part of our work that we hold wrongdoers accountable. And 

so I think the important thing to remember is that those tools are 

at our disposal and that it depends on the specific facts and circumstances of the case what direction we go. 

But we certainly have the exclusion authority. We also have tools 

such as under the False Claims Act we have the ability to impose 

civil monetary penalties. We also have hundreds of criminal investigators who help their law enforcement partners to investigate 

criminal cases. So it’s a broad range of activity and core to our mission. 

Mrs. BROOKS. Can you talk a little bit though about the exclusion 

authority tool and how long the process takes, who ultimately 

makes the decision as to when a provider is on the exclusion list? 

Ms. DORRILL. So for those who may not be familiar, and again 

I’m not in the Counsel’s Office, but the OIG can exclude individuals 

and entities from Federal programs such as Medicare and Medicaid 

for various types of conduct set forth in statute, including false 

claims. The primary effect of that exclusion is it will no longer pay 

for services and we maintain a database with all that information 

publicly. 

OIG has certainly excluded nursing home providers. We recently 

excluded a 13-facility nursing home chain. We have something like 

70,000 excluded providers now, something like 1,600 just this fiscal 

year alone. So I don’t know if that fully answers your question. 

Mrs. BROOKS. It doesn’t require though a criminal conviction 

then for a person to be excluded or an entity to be excluded? 

Ms. DORRILL. I’ll need to take that question, I’d be so happy to, 

back to my Counsel’s Office to make sure that I can give you accurate information there. 

Mrs. BROOKS. I think we would like to know more information 

about the exclusion process from Counsel’s Office and from your office particularly relative to, not only we had that incident, but as 

I understand there are other incidents involving this particular 

provider let alone the Hollywood Hills incident. So I am interested 

in knowing how long the process takes, who makes the final decisions, what are the categories that a person can be excluded. 

Then I would like to ask both you and Dr. Goodrich a little bit 

more about the emergency preparedness issues. We are reauthorizing what is called PAHPA, Pandemic All-Hazards Preparedness 

Act, and we are including in that a provision to have the National 

Academy of Medicine do an overview of emergency preparedness by 

hospitals but also long-term care facilities. And because as I am 

hearing you both say that while there might be plans in place that 

doesn’t necessarily mean the execution of those plans happen. 

And do you believe there needs to be more attention to this emergency preparedness that we are not doing enough? Dr. Goodrich? 

Dr. GOODRICH. Thank you. Obviously this is a huge priority for 

us especially given the events of last year. So as we’ve mentioned 

we are in the process, in the early process of implementing that 

regulation and surveying facilities for that. So as you’re working, 

doing your work on this area we’d be more than happy to give you 

76 

technical assistance and talk through these issues with you. But 

we are early in the process and I think learning how it is going. 

Mrs. BROOKS. OK, thank you. 

Ms. Dorrill, anything further before my time is expired? 

Ms. DORRILL. No, just asserting that we found significant problems with the emergency planning and appreciate your focus on 

that area. 

Mrs. BROOKS. Thank you. I yield back. 

Mr. HARPER. The gentlewoman yields back. The chair will now 

recognize the gentlewoman from Illinois, Ms. Schakowsky, for 5 

minutes. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. 

If I sound a little impatient about this focus on nursing home 

and safety it is because I have been working on this issue since the 

mid-80s, including when I was in the state legislature in Illinois 

and ever since I have been here in Congress. There are some provisions in the Affordable Care Act that deal with nursing homes that 

I was successful in getting into the legislation. But I don’t know 

how many GAO reports there have been. I don’t know how many 

reports from oversight committees there have been about these persistent problems. 

And as we enter into this age where more, the aging of America, 

the graying of America, more and more people needing long-term 

care including nursing homes, it is hard for me to hear words like, 

this is an important first step. I mean we need to be making last 

steps now. We need to be getting at the heart of the problem. 

Let me ask you, Dr. Goodrich, who has the primary responsibility 

to make sure that nursing home quality standards are met, States 

or CMS? And is it the policy of the Trump administration to shift 

more of the responsibility to the States? 

Dr. GOODRICH. So it is a shared responsibility between the States 

and CMS. We promulgate the regulations and then we oversee the 

state survey agencies in their implementation of the surveys of the 

nursing homes and the implementation of those regulations. And 

as I—— 

Ms. SCHAKOWSKY. Are we seeing more of a shift toward States 

or is this always standard? 

Dr. GOODRICH. Our process for overseeing health and safety for 

nursing homes remains the same. It hasn’t changed. It remains a 

partnership in the way that I just described. 

Ms. SCHAKOWSKY. What was the rationale behind no longer imposing financial penalties for each day of a violation? Couldn’t that 

be seen as a weakening of a commitment to enforcement? 

Dr. GOODRICH. Specifically related to the civil monetary penalties 

what we were seeing over the last few years and what had been, 

I think, also recognized by others was that there was quite a bit 

of variation in how civil monetary penalties were being applied 

across the country. In some areas not being applied enough when 

they should have been and in other areas being applied in situations when actually should have had different enforcement remedies applied. 

So we sought to make that process more standardized and more 

uniform so that there was consistency across the country in the 

correct application of civil monetary penalties. And so last year 

77 

*The information has been retained in committee files and can be found at: https:// 

docs.house.gov/meetings/IF/IF02/20180906/108648/HHRG-115-IF02-20180906-SD003.pdf. 

what we did was we worked with the regional offices and we developed a civil monetary penalty tool so that survey agencies and our 

regional offices could go and use that tool which has essentially an 

algorithm in it to ensure that regions are consistently and accurately applying civil monetary penalties. 

Ms. SCHAKOWSKY. Except that I am asking about the penalties 

then, not the monitoring, the penalties, no longer imposing financial penalties for each day. 

Dr. GOODRICH. So we do still impose financial penalties for each 

day, so per day penalties depending upon the circumstance. And 

the number of those penalties has actually risen over the last 4 

years. In 2014 we had just over 1,100 per day civil monetary penalties and in 2017 we had almost 2,000 per day. 

Ms. SCHAKOWSKY. So let me ask you this. Do the nursing home 

advocates support these changes? 

Dr. GOODRICH. We have certainly worked with and been transparent about our intents here related to—— 

Ms. SCHAKOWSKY. That is kind of a yes or no. 

Dr. GOODRICH. I would have to ask the nursing home advocates. 

We certainly have had discussions with them about this. We have 

seen—— 

Ms. SCHAKOWSKY. My understanding is no. Let me also, I want 

to get to a Human Rights Watch report * found that in an average 

week nursing facilities in the United States administer powerful 

anti-psychotropic drugs in over 179,000 people who don’t need 

them. I ask unanimous consent to enter that report into the record. 

Mr. HARPER. Without objection. 

[The information appears at the conclusion of the hearing.] 

Ms. SCHAKOWSKY. These drugs are often given without informed 

consent. This is after a 2011 OIG report that found rampant overuse of these anti-psychotic drugs. 

So, Dr. Goodrich, what actions are CMS taking to address the 

high rate of these drugs and used 7 years after that OIG report? 

Dr. GOODRICH. So we would completely agree that this has been 

a very significant quality and safety issue within nursing homes. 

That is why in 2011 in partnership with a number of stakeholders 

we launched the National Partnership to Improve Dementia Care 

in Nursing Homes, which was a holistic effort around dementia 

care, but definitely had a very serious focus around reducing inappropriate use of anti-psychotics in nursing homes. 

We have seen over that time period from 2011 to early 2017 a 

34 percent reduction in the inappropriate use of anti-psychotics and 

we are now focusing—— 

Ms. SCHAKOWSKY. So two-thirds still remains. 

Dr. GOODRICH. So there is still overuse. That is true. And there 

are particular nursing homes in the country who have not made 

the kinds of improvements that we would hope. And so we have set 

a new goal to focus on those facilities that are still overusing to unacceptable extent. 

Ms. SCHAKOWSKY. Thank you. 

78 

Mr. HARPER. The gentlewoman yields back. The chair will now 

recognize the gentlewoman from California, Mrs. Walters, for 5 

minutes. 

Mrs. WALTERS. Thank you, Mr. Chairman. Federal regulations 

enumerate a limited number of circumstances under which a nursing facility or skilled nursing facility may transfer or discharge a 

resident against their will. Under Federal law, a nursing facility or 

skilled nursing facility must also readmit residents who may temporarily leave for a hospitalization. However, claims that nursing 

home residents are being dumped or denied readmission appears to 

be a growing concern. 

For example, according to press reports, the California State 

Long-term Care Ombudsman received more than 1,500 complaints 

in 2016 alleging that residents have been improperly discharged or 

evicted from nursing homes in California. This is a 73 percent increase from the number of complaints received since 2011. The Illinois State Ombudsman has stated that such complaints have more 

than doubled since 2011. 

Dr. Goodrich, does CMS view involuntary discharges of nursing 

home residents or denials of readmission as a significant problem? 

Dr. GOODRICH. Yes. This is something that we have also heard 

reports about happening and it is something that we’re concerned 

about absolutely. 

Mrs. WALTERS. When nursing home residents are involuntarily 

discharged from or denied readmission to a nursing home after a 

hospital stay, where do they typically end up and how are they 

cared for? 

Dr. GOODRICH. So I think that’s variable and that is something 

that we are trying to explore a little further to understand what’s 

happening on the ground with these residents. So certainly where 

they end up if that’s your question can be quite variable. It can be, 

with a family member and another facility is often where they will 

end up going as well. 

Mrs. WALTERS. Are you guys trying to do any sort of analysis on 

this to find out exactly where they are ending up? 

Dr. GOODRICH. I’d be happy to get back to you with the answer 

to the question to how we’re taking a look at that. I’m not sure of 

the specifics. 

Mrs. WALTERS. Did you want to add something? 

Ms. DORRILL. We have, we’re currently underway on this exact 

issue. I share your concern and we have a study that will be coming out shortly that will be of interest to you. 

Mrs. WALTERS. OK, thank you. 

Federal law also requires States provide nursing home residents, 

who allege they were improperly discharged or transferred, with a 

hearing and, if appropriate, provide for residents a readmission to 

the nursing home if they prevail. However, it has been alleged that 

California is failing to enforce its own hearing decisions in instances where decisions have been rendered in favor of residents. 

In a 2012 letter to the California Department of Public Health, 

Center for Healthcare Quality, CMS stated that while it could not 

advise California what particular state agency should enforce the 

hearing decisions, as that is for the States to decide, CMS regulations are clear that the state agency must promptly make correcVerDate Nov 24 2008 15:11 May 23, 2019 Jkt 037690 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-164 CHRIS
79 

tive actions. CMS reiterated California’s obligation to enforce its 

hearing decisions in a letter sent on August 31st, 2017. 

Dr. Goodrich, how does CMS verify that States are fulfilling their 

legal obligations to adjudicate and enforce hearing decisions related 

to improper nurse home discharges or transfers? 

Dr. GOODRICH. So this is a topic with which I’m not terribly familiar of the specifics of the California case, but we’d be very happy 

to take a look at it and get back to you with responses to that. 

Mrs. WALTERS. OK, so then I don’t know if you can answer these 

two questions but I will ask you. Does CMS know whether California is meeting its legal obligations to enforce these decisions? 

Dr. GOODRICH. I’m not personally aware but we will get back to 

you with that. 

Mrs. WALTERS. OK, then I have one more. Does CMS know of or 

have reason to believe other States may be failing to enforce their 

hearing decisions? 

Dr. GOODRICH. I think that’s something we certainly would be 

concerned about and would be happy to get back to you with responses. 

Mrs. WALTERS. OK, if you guys could follow up—— 

Dr. GOODRICH. We will. 

Mrs. WALTERS [continuing]. And get back to the committee on 

that we would really appreciate it. 

Dr. GOODRICH. Of course. 

Mrs. WALTERS. Thank you and I yield back the balance of my 

time. 

Mr. HARPER. The gentlewoman yields back. I will now recognize 

the vice chairman of the subcommittee, Mr. Griffith, for the purposes of a follow-up question. 

Mr. GRIFFITH. Yes, and I think that Ms. Schakowsky and I might 

be on the same side, we might not be, but it deals with the daily 

fines and so forth. Because I am aware of a situation, so I am glad 

you are looking at it so we can get these algorithms where they 

make sense because you want to punish people for bad acts. 

But I am aware of a situation where coffee was spilled. There 

was an incident. Something should have been said but somehow 

the fine ended up being between $1 million and $2 million dollars. 

The patient never went to the hospital. No serious injuries. Clearly 

something needed to be done, but it seemed that maybe the old algorithm was a little out of whack if you end up with a $1 million 

to $2 million dollar penalty for spilled coffee and no hospitalization. 

Dr. GOODRICH. So I’m not familiar with that particular incident, 

but I think that is potentially an example where there was again 

as I mentioned before we weren’t always seeing consistent application of the civil monetary penalties in both directions. And so that’s 

why we really have been trying to standardize that. 

Mr. GRIFFITH. And I appreciate that and hope that you all get 

that all worked out, but agree that there ought to be penalties and 

there ought to be something that the nursing homes can know that 

this is what we are supposed to do, and if there is a problem the 

penalty will be something that is equal to or in the vein of what 

ought to be happening. 

Thank you, yield back. 

80 

Mr. HARPER. The chair will now recognize Ms. Schakowsky for 

the purposes of a follow-up question. 

Ms. SCHAKOWSKY. So in terms of CMS enforcement I wondered 

how you are using these new—we have been talking somewhat 

about the payroll staffing data reported by nursing homes to enforce the requirements that each facility have a registered nurse on 

duty at least 8 hours every day. Let me just state my preference. 

I think most people who put a person in a nursing home would be 

shocked that there is not a nurse, a registered nurse 24/7, when 

they get the bill for the month that there is not a nurse there. 

I have a piece of legislation I have introduced, Put a Nurse in 

a Nursing Home. But I am just wondering how you are following 

up on that. 

Dr. GOODRICH. Absolutely. Thank you for bringing that up. We 

would agree that the new payroll-based journal system gives us 

really unprecedented insight into staffing within nursing homes. 

And as you mentioned, some of the things that we have discovered 

since we started requiring the reporting of those data is exactly 

what you mentioned, is that there are some nursing homes that do 

not have a registered nurse as required by our regulations for 8 

hours a day, 7 days a week. 

And I think even more concerning is that we see fluctuations in 

some nursing homes, again a minority but it’s there, where that 

those deficiencies in nurse staffing are more common on the weekends than they are on the weekdays. And I can’t think of any clinical reason why that should be different on a Saturday than on a 

Tuesday. 

So that is something that we are concerned about and right now 

we’re taking two actions related to that. I will caveat that by saying this is early, we’re exploring the data and we’re thinking ahead 

about other ways in which we can use these data better. So number one, one thing we have already done is in the five-star rating 

system nursing homes that do not have nurse staffing as appropriate for at least 7 days out of a quarter, their star rating goes 

down to one star and that affects the staffing star rating and that 

affects that overall star rating as well. 

We are also looking at ways in which we could incorporate the 

findings that I just mentioned about the fluctuations and the lack 

of nursing as required by regulation further into the star rating 

system. The second thing that we’re doing is we are embedding the 

data, the staffing data into our survey software which will then 

allow the state surveyors when they go onsite to do their investigations to have that information around staffing for that nursing 

home that they are in so that they can look for quality issues that 

may be related to staffing based upon the data they have right 

there in their hand. 

So those are two ways in which we’re, for now, initially using 

these data, but we’ll continue to explore other ways. 

Ms. SCHAKOWSKY. OK, and any of the other two witnesses want 

to say anything on this topic? I don’t know. 

Ms. DORRILL. I just wanted to say that we have work underway 

now on the payroll-based journal and we plan to look at the accuracy of the data and CMS’ use of it at this early implementation. 

81 

Ms. SCHAKOWSKY. OK. I would really like to see that after you 

complete your investigation of that issue. So good, thank you very 

much. I yield back. 

Mr. HARPER. The chair will now recognize the gentleman, in celebration of his birthday, the gentleman from Georgia, Mr. Carter. 

Mr. CARTER. Thank you, Mr. Chairman. I appreciate you sharing 

that with everyone. And I do appreciate it very much. 

Mr. HARPER. We didn’t ask what year. 

Mr. CARTER. You can’t thank me for that as well, yes. 

Well, thank all of you for being here. Full disclosure, I am currently the only pharmacist serving in Congress. Not only am I a 

pharmacist, but I was also a consultant pharmacist and my expertise and my career was spent in institutional pharmacy in nursing 

homes. I have gone through Federal inspections, state inspections, 

so this is something that I am very familiar with. 

And I have to tell you I was blessed to be in a number of good 

nursing homes that provided quality care that really cared about 

the patients and sometimes I could be frustrated by some of the 

regulations. And I just want to encourage you, a couple of things. 

First of all, you know, it is important and it is important to have 

a registered nurse 8 hours a day. It is important to make sure that 

rules and regulations are followed, but sometimes we get caught up 

in the cookie cutter approach that one size fits all. 

And I just want to encourage you and I say that because I have 

seen it firsthand. I have seen how nursing homes struggle and they 

struggle to find good quality help. They don’t pay very high, they 

can’t afford to. It is difficult at times. That is no excuse, you still 

have to have quality care and as I say I was very blessed to be in 

facilities that provided quality care. 

I think that you have—I am sorry I had another hearing, but we 

have already talked about the payroll-based journal and about the 

fact that salaried employees, and trust me, I have seen a salaried, 

a DNS who has is registered as 40 hours seeing a more 60 or 80 

hours a week. So that is kind of a misnomer and I hope you take 

that into consideration. 

And then whenever you are talking about a 30-minute lunch 

break, I have seen them take 5 minutes to cram something in their 

mouth and go on and continue on. I have also seen it as you well 

know, and I know I am the preacher preaching to the choir here, 

but nursing homes can fall apart quickly. I have been in a nursing 

home in the morning and it was in top shape and then by the afternoon and just because of the patient population it can really fall 

apart very quickly. 

But anyway, having said that I will tell you that I am concerned 

particularly the Federal inspectors as it relates to the state inspectors. I have seen the state inspectors sometimes try to do too much 

because the Federal inspectors are following them. Generally what 

happens is that you would always know if the fire inspector came 

and then probably the surveyors, the state surveyors were coming 

next because the fire inspector would always come first and then 

the state surveyors would come. 

And the Federal surveyors would come after the state surveyors 

in order to see how well the state surveyors had done and sometimes I felt like they were putting undue pressure on some of the 

82 

state inspectors. Not that they didn’t need it at times, they did, and 

it is important. It is important to have the checks and balances in 

that and I understand that. 

I wanted to ask you and I will ask Dr. Goodrich, you, this question about some of the potential complexity for providers that have 

that the regulations. As I understand it, there has been a temporary moratorium placed on some of the 194 regulations as a result of the stakeholder feedback. Just to clarify, how many of the 

194 regulations had this moratorium placed on them? 

Dr. GOODRICH. Eight. 

Mr. CARTER. Eight of them. And out of those eight did any of 

those have to do with neglect or with abuse? 

Dr. GOODRICH. They did not. 

Mr. CARTER. They did not, OK. Good, they should not and I appreciate that. And, finally, do facilities still have to enforce these 

eight regulations and have a plan in place to fix them if they are 

noncompliant? 

Dr. GOODRICH. Absolutely. That’s our expectation, yes. 

Mr. CARTER. That is your expectation, good. Again you know, I 

have seen the burden that can be placed on these facilities and 

again no one is accepting and I am certainly not advocating that 

they shouldn’t have quality care. This is a very feeble, if you will, 

population that needs this help. But I just want to make sure we 

have balance here. I want you to understand that I have worked 

side by side with these people in the nursing homes and they are 

good people for the most part. 

Now, like every profession you have bad actors and you have to 

get rid of those bad actors and to a certain extent, to a large extent 

that is your responsibility and the responsibility of the state surveyors. We need to get those bad actors out. They need to be 

brought to justice, if you will. But for the most part, I just feel like 

I need to express to you the true quality work that many of these 

facilities provide and that many of these employees provide. And, 

Mr. Chairman, I will yield. 

Mr. HARPER. The gentleman yields back. The chair will now recognize the gentleman from Florida, Mr. Billirakis, for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it. Thanks 

for holding this hearing, so very important. 

As you know, Mr. Chairman, last year we had Irma that hit Florida. The many hardworking staff of our nursing homes and assisted living facilities prepared for the hurricane, 862 facilities 

evacuated, over 2,000 facilities lost power in the state of Florida. 

They were tested by the storm and the vast majority passed. Again 

those folks were doing the Lord’s work and we do appreciate them 

so very much. 

Yet, in every group there are bad actors as my colleague just 

said. We had the Rehabilitation Center at Hollywood Hills fail to 

take the proper measures to protect their residents and as a result 

12 people died from heat exposure despite having a hospital across 

the street from the facility. These deaths were 100 percent preventable. 

One of the concerns that have is how many facilities are not in 

compliance with the emergency rule. Dr. Goodrich, I believe that 

CMS began compliance surveys last year. That is my underVerDate Nov 24 2008 15:11 May 23, 2019 Jkt 037690 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 U:\MY DOCS\HEARINGS 115\HEARINGS\115-164 CHRIS
83 

standing. Do we know how many facilities are currently not in 

compliance with the emergency rule? That is my first question. 

Dr. GOODRICH. Certainly. So we are about 75 percent of the way 

through surveying all facilities nationally for the emergency preparedness requirements. We will have completed surveys for a hundred percent of facilities by February of 2019. While we are finding 

that the majority of facilities are in compliance or come into compliance quickly, we have had some citations for noncompliance that 

are intended to swiftly bring these facilities into compliance. So we 

have had about 2,300 facilities or so, so far, be cited for noncompliance that then would have to implement a corrective action plan 

in order to come into compliance. 

Mr. BILIRAKIS. So 2,300 out of how many? 

Dr. GOODRICH. There’s a total of about 15,600 nursing homes but 

again they haven’t all been surveyed yet. 

Mr. BILIRAKIS. Right, so but the majority of them have been surveyed. 

Dr. GOODRICH. Seventy five percent about. 

Mr. BILIRAKIS. OK, thank you. The rehab center had their provider agreement terminated. This is the one that I was speaking 

of in Hollywood, Florida. It was terminated by CMS. Despite this, 

the owner of the rehab center still has an ownership stake in 11 

other facilities that participate in the Medicare program. These facilities continue to operate despite the tragedy that occurred last 

year and the previous allegations that the Department of Justice 

made against the owner regarding providing unnecessary medical 

treatment to seniors. 

Dr. Goodrich, given your experience at CMS, are you surprised 

by this that there are so many, he is operating so many other facilities? And yes and is he being monitored? Can you maybe expand 

on that, please? 

Dr. GOODRICH. Certainly. So for any Medicare-certified facility of 

any type they are required to undergo surveys just like nursing 

homes do, so whatever type of facility an owner may have an ownership interest in. So they have to undergo periodic recertification 

surveys in the situation of nursing homes, those are annual. And 

then there’s complaint surveys that can take place if somebody files 

a quality of care complaint. 

So any facility no matter what type that is Medicare-certified 

would have to undergo these surveys as well. 

Mr. BILIRAKIS. OK, can you maybe get back to me on whether 

these other 12 facilities that this person owns follow the emergency 

rule? Can you give me that information? I know you can’t, more 

than likely you don’t have it with you now. 

Dr. GOODRICH. What I do know is that the other facilities owned 

by this owner have undergone the standard recertification surveys. 

As it relates specifically to emergency preparedness we will have 

to get back to you on that. 

Mr. BILIRAKIS. Please get back to me on that. I appreciate it. 

Again, Doctor, I know the State is trying to pull the rehab center’s 

owners licenses, but I am told it is tied up in the court system at 

the moment. I know I don’t have a lot of time, so can CMS terminate the provider agreements with the various facilities that he has 

an ownership stake in? Do you have the ability to do that? 

84 

Dr. GOODRICH. As I understand it, Medicare has the ability to 

bar an individual from owning other facilities under two circumstances. One is if they have a felony conviction and the second 

is if they’re on the OIG exclusion list. 

Mr. BILIRAKIS. OK, very good. 

Well, thank you, Mr. Chairman. Thanks for allowing me to sit 

in and thanks for holding this hearing. I appreciate it. 

Mr. HARPER. The gentleman yields back. 

Just a little quick follow-up to you, Ms. Dorrill, and to you, Mr. 

Dicken. Both HHS OIG and GAO have found situations where 

these allegations of abuse or neglect or substandard care they have 

been reported but state survey agencies failed to investigate those 

claims in a timely manner. CMS reserves immediate jeopardy classifications for situations that have caused or are likely to cause a 

serious injury, harm, or death to a resident and require such a 

claim to be investigated within 2 days. 

So, Ms. Dorrill and Mr. Dicken, when state survey agencies fail 

to conduct those timely investigations especially in cases of immediate jeopardy, does that place nursing home residents at greater 

risk? 

Mr. DICKEN. Certainly as we’ve looked at the complaint investigation processes we’ve seen that States have sometimes been 

challenged to meet timeframes better at the immediate jeopardy 

types of issues that you raise. We did see, however, that as States 

are not timely it’s much more difficult for States to be able to substantiate allegations and there are higher substantiation when 

they are meeting timely frameworks. So it is important to have a 

timely and complete complaint investigation. 

Mr. HARPER. All right. Well, let me follow up on that. So does 

this failure also potentially allow facilities which may have in fact 

harmed a resident to go unpunished and perhaps give a false impression that they are providing a better standard of care than 

they actually are? 

Mr. DICKEN. Well, certainly to the extent that the complaints are 

not investigated or not investigated in a timely manner that as you 

know can make it hard to substantiate. Certainly there are other 

processes that can go in and identify that as part of the standard 

survey process, but that is a real concern that if they are not being 

substantiated and because of not timely reviews. 

Mr. HARPER. Thank you. 

Ms. Dorrill, anything you would like to add to that? 

Ms. DORRILL. Just to reiterate how important timeliness is in 

terms of substantiation. We did find that there were only a handful 

of States who had substantial problems with that to the extent that 

that’s helpful. 

Mr. HARPER. I want to thank each of you for being here. Our concern is the care and well-being of the residents of any of these facilities. They are the loved ones of many families that care greatly 

about what happens. You have a great responsibility. We thank 

you for being here today. 

I also want to remind members that they have 10 business days 

to submit questions for the record, and should you receive any of 

those as witnesses from today we would appreciate your response 

85 

as promptly as possible to that. With that the subcommittee is adjourned. 

[Whereupon, at 12:00 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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36285.048

E 

TO: 

C U.S. HOUSE OF REPRESENTATIVES 

COMMITTEE ON ENERGY AND COMMERCE EST. 1795 

Members, Subcommittee on Oversight and Investigations 

September 4, 2018 

FROM: Committee Majority Staff 

RE: Hearing entitled "Examining Federal Efforts to Ensure Quality of Care and 

Resident Safety in Nursing Homes." 

The Subcommittee on Oversight and Investigations will hold a hearing on Thursday, 

September 6, 2018, at 10:15 a.m. in 2322 Rayburn House Office Building, entitled "Examining 

Federal Efforts to Ensure Quality of Care and Resident Safety in Nursing Homes." The purpose 

of the hearing is to explore the roles of the Centers for Medicare and Medicaid Services (CMS) 

and the Office oflnspector Geheral at the U.S. Department of Health and Human Services (HHS 

OIG) relating to the management and safety of nursing home facilities. 

I. WITNESSES 

• Kate Goodrich, M.D., Director, Center for Clinical Standards and Quality, and Chief 

Medical Officer, CMS; 

• Ruth Ann Dorrill, Regional Inspector General, HHS OIG; and 

• John Dicken, Director, Health Care, Government Accountability Office (GAO). 

II. BACKGROUND 

The Committee on Energy and Commerce (the Committee) began conducting oversight 

of nursing homes after numerous media reports described instances of abuse. neglect, and 

substandard care occurring at SNFs and NFs across the country, including the Rehabilitation 

Center at Hollywood Hills where at least 12 residents died in the immediate aftermath of 

Hurricane Irma in September 2017. 1 

1 See, e.g., NH Staff, Nursing home lawyers a no-show in records case, NAPLES HERALD, May 22, 2018, 

http://naplesherald.com/20 18105122/nursing-home-lawyers-a-no-show-in-records-casel; Blake Ellis and Melanie 

Hicken, Sick, Dying and Raped in America's Nursing Homes, CNN, Feb. 22, 2017, 

http:/ /www.cnn.com/interactive/20 I 7/02/health/nursing -home-sex -abuse-investigation/. 
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Majority Memorandum for September 6, 2018, Subcommittee on Oversight and Investigations 

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A, Management Failure at the Rehabilitation Center at Hollywood Hills 

On October 20, 2017, the Committee sent a bipartisan letter requesting documents and 

information from Jack Michel, an owner of the Rehabilitation Center at Hollywood Hills 

(Rehabilitation Center) where at least 12 residents died in the immediate aftermath of Hurricane 

Irma in Florida2 The Committee raised concerns about the organization's failure to protect the 

health, safety, and welfare of residents at the facility. 3 According to the Florida Agency for 

Health Care Administration (AHCA), the Rehabilitation Center failed to follow adequate 

emergency management procedures after the facility's air conditioning system lost power during 

Hurricane Irma.4 Despite increasingly excessive heat, staff at the facility did not take advantage 

of a fully functional hospital across the street and "overwhelmingly delayed calling 911" during 

a medical emergency. 5 

The facility also had contractual agreements with an assisted living facility and 

transportation company for emergency evacuation purposes yet did not activate these services. 6 

CMS uliimately terminated the Rehabilitation Center from the Medicare and Medicaid programs 

following an on-site inspection where surveyors found that the facility failed to meet Medicare's 

basic health and safety requirements 7 During a hearing before the Subcommittee on Oversight 

and Investigations in October 2017, CMS described the events at this nursing home as a 

"complete management failure." 8 

On November 17, 2017, Dr. Michel provided a response through his attorney to the 

Committee's inquiry, contending among other things, that the facility made patients as 

2 Letter from Hon. Greg Walden, Chairman, H. Comm. on Energy & Commerce, et al., to Dr. Jack Michel, Owner, 

Rehabilitation Center at Hollywood Hills, LLC (Oct. 20, 2017), available at https://energycommerce.house.gov/wpcontent/uploads/2017/10/20171020Hol!ywoodHills.pdf; See also NH Staff, supra note I. 3 Letter from Hon. Greg Walden, Chairman, H. Comm. on Energy & Commerce, et al., to Dr. Jack Michel, Owner, 

Rehabilitation Center at Hollywood Hills, LLC (Oct. 20, 2017). 4 Florida Agency for Health Care Administration, Press Release: AHCA Suspends the License of the Rehabilitation 

Center qf Hollywood Hills (Sept. 20, 20 17); Paul McMahon, et al., Ninth nursing home patient dies; Gov. Scott 

details contact with state, SUN SE>JTINEL, Sept. 19, 2018, http://www.sun-sentinel.com/news/hollywood-nursinghome-hurricane-deaths!fl-reg-nursing-home-n inth-death-20 I 70919-story.htm I. 5 AHCA Press Release, ACHA Suspends the License of the Rehabilitation Center ofHollywood Hills, (Sept. 20, 

20 17); U.S. Dep't of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), Survey of 

the Rehabilitation Center at Hollywood Hills, LLC, at 2 (Sept. 22, 20 17); State of Florida, Agency for Health Care 

Administration vs. Rehabilitation Center at Hollywood Hills. LLC, Emergency Suspension Order (Sept. 20, 20 17). 6 U.S. Dep't of Health and !Iuman Services, Centers for Medicare and Medicaid Services (CMS), Survey of the 

Rehabilitation Center at Hollywood Hills, LLC (Sept. 22, 2017). 7 U.S. Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, Notice to Public of 

Rehabilitation Center at Hollywood Hills. Termination Notice (Oct. 11, 2017), available at 

https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenlnfo/Downloads/ 

Termination-Notice-Fiorida-NH-Rehabilitation-Center-at-Hollywood-Hills-LLC.pdf. 

8 Examining HHS's Public Health Preparedness for and Response to the 2017 Hurricane Season: Hearing Before 

the Subcomm. On Oversight & Investigations of the H. Comm. On Energy and Commerce, 115'h Cong., Preliminary 

Transcript, I 08 (Oct. 24, 2017) available at https://docs.house.gov/meetings/IF/IF02/20171 02411 06530/HHRG-115-

IF02-Transcript-20 171 024.pdf. 
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Majority Memorandum for September 6, 2018, Subcommittee on Oversight and Investigations 

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comfortable as possible during the loss of air conditioning. 9 According to the letter, "'although 

AC power was lost on September 10, Hollywood Hills continued to otherwise have electrical 

power, and deployed eight 'spot coolers' (portable air conditioning units that had been purchased 

as part of hurricane preparedness) and numerous fans through the building in an effort to keep 

residents as comfortable as possible, given the loss of central air conditioning." 10 However, 

according to an engineer testifying in the ongoing litigation between the Rehabilitation Center 

and the State of Florida, Hollywood Hills failed to properly ventilate the portable coolers which 

resulted in increased temperatures in most of the facility, particularly the second floor where the 

majority of deaths occurred. 11 According to the expert, the coolers operated by the facility 

"made it worse." 12 

i. Past Allegations Involving Dr. Michel and Corporate Integrity Agreement 

The Committee's investigation and public reports revealed that facilities affiliated with 

Dr. Michel have been the subject of federal government scrutiny for over a decade. In 2006, 

Larkin Community Hospital (Larkin), and others entered into a settlement agreement with the 

Department of Justice (DOJ) to resolve a civil case in which the government alleged Dr. Michel 

and his associates paid kickbacks and performed medically unnecessary treatments on elderly 

beneficiaries to generate Medicare and Medicaid payments. JJ According to DOJ's complaint, 

Dr. Michel initiated the scheme during a meeting with an associate of the then-owner of a nearby 

hospital, Larkin by proposing, "ask your boss if he would pay $1 million to make $5 million." 14 

Thereafter, Dr. Michel and his associates allegedly entered into a scheme to engage in seven 

different types of kickback arrangements. 1 5 

Dr. Michel and the parties eventually settled with DOJ for $15.4 million without an 

admission of guilt. 16 With the settlement, Larkin and Dr. Michel entered into a five-year 

9 Letter from Geoffrey D. Smith, Atty., Smith & Associates, to Han. Greg Walden, Chairman, H. Comm. on Energy 

& Commerce, et al., (Nov. 17, 2017) (On file with the Committee). 

10 !d. 

11 Deposition of William Scott Crawford, PE, State of FLfor l/ealthcare Admin. Vs. Rehabilitation Center at 

Hollywood Hills, Feb. 16, 2018, available at; see also Terry Spencer, Expert: Coolers Made it Worse in Nursing 

Home Where 12 Died, ASSOCIATED PRESS, Mar. 23, 2018, https://www.yahoo.com/news/expert-coolers-madeworse-nursing-home-where-12-185954138.html; Erika Pesantes, ct. al, Second Floor was Deadliest at Nursing 

Home with No Air Conditioning, SUN SENTINEL, Oct. 6, 2017, http://www.sun-sentinel.com/news/hollywoodnursing-home-hurricane-deaths/fl-sb-nursing-home-sunrise-hollywood-20170927-story.html. 

12 !d. 

13 U.S. Dep't of Justice, Press Release, Miami Hospital Pays $15.4 Million to Resolve Fraud Case for Kickbacks & 

Medically Unnecessary Treatments (Nov. 30, 2006), available at 

https:l/www.justice.gov/archive/opa/pr/2006/November/06 _ civ _ 803 .html. 14 United States v. Jack Jacob Michel, eta/., Complaint of the United States, No-04-21579-C!VJORDAN/TORRES, at 31 (Filed Jun. 29, 2004) (S.D. Fla.). 15 !d. at 30-36. 16 U.S. Dep't of Justice, Press Release, Miami Hospital Pays $15.4 Million to Resolve Fraud Case for Kickbacks & 

Medical(y Unnecessary Treatments (Nov. 30, 2006) available at 

https://www.justice.gov/archivelopa/pr/2006/November/06_civ_803.html; See also United States v. Philip Esjormes, 

Government's Motion for Pre-Trial Detention and Supporting Memorandum, Case No. 16-20549, at Attachment B, 

Page 6 (Filed Jul. 22, 2016) (S.D. Fla.) (Attachment B includes Settlement Agreement Binder from United States v. 

Michel ("Civil Action"), No-04-21579-CIV-JORDAN/TORRES (S.D. Fla.)). 
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Corporate Integrity Agreement (CIA) with HHS OIG in 2006. 17 Despite the CIA, media reports 

indicate that from approximately 2002 to 2016, at least one then-employee and physicians at 

Larkin were allegedly involved in the largest single criminal health care fraud case ever brought 

against individuals by DOJ. 18 

ii. Dr. Michel Continues to Own Multiple Health Care Related Facilities 

Participating in Federal Programs 

Last year, state regulators in Florida raised concerns about patient safety at another 

facility owned by Dr. Michel. 19 In December 2016, the AHCA found 30 violations at Floridian 

Gardens Assisted Living Facility, including "sexual assault of patients, low staffing, and 

ignoring patients. " 20 As a result, the facility was banned from accepting new patients for several 

months 21 In September 2017, the AHCA took additional steps to close Floridian Gardens.22 

According to information obtained by the Committee from CMS, Dr. Michel currently has an 

ownership interest in at least 11 health care related facilities enrolled in Medicare despite the 

tragedy at the Rehabilitation Center and other previous instances of apparent vvrongdoing. 23 

B. Emergency Preparedness at SNFs and NFs 

Emergency preparedness is a critical issue for long~terrn care facilities, and CMS requires 

that Medicare- and Medicaid-certified nursing homes comply with certain federal requirements 

regarding emergency preparedness. HHS OIG has examined some of these requirements, issuing 

reports in 2006 and 2012 regarding emergency preparedness and response in nursing homes. 24 

In these reports, I!HS OIG found that there were gaps in nursing home preparedness and 

17 U.S. Dep't of Health and Human Services, Office oflnspector General, Integrity Agreement Between the Office 

oflnspector General of the Dep't of Health and Human Services and Jack J. Michel, M.D. (Nov. 17, 2006); U.S. 

Dep 't of Health and Human Services, Office of Inspector General, Integrity Agreement Between the Office of 

Inspector General of the Dep't of Health and Human Services and Larkin Community Hospital (Nov. 13, 2006). 18 Jay Weaver, Bribes to low-paid state worker key to$! billion Miami lvfedicarefraud case, prosecutors say, 

MtAMl HERALD, Jul. 29,2017, http://www.miamiherald.com/newsilocal/articlel64232522.html; See also U.S. Dep't 

of Justice, Press Release, Three Individuals Charged in$! Billion Medicare Fraud and Money Laundering Scheme 

(Jul. 22, 20 !6), available at https:i/www.justice.gov/opa/pr/three-individuals-charged-1-billion-medicare-rraud-andmoney-Jaundering-scheme. 

19 Melanie Payne & Arek Sarkissian, Nursing Home Deaths: Owner's Other Facility Faced State Ban on New 

Patients, USA TODAYNETWORKFLORJDA, Sept. 15,2017, https://www.usatoday.com/story/ 

news/nation-now /20 I 7/09/ 15/nursing-home-deaths-owners-other-facility-faced-state-ban-new-patients/67234000 1/. 

20 /d. 

21 /d. 

22 See Florida Agency for 1 !ealth Care Administration, Press Release: AHCA Takes Additional Action to Close 

Larkin-OwnedALF(Sept. 28, 2017), 

https://www.ahca.myflorida.com/Executive/Communications/Prcss __ Releases/pdf/Larkin-OwnedALFPR.pdf. 23 E-mail from Staff, Centers for Medicare and Medicaid Services to Staff, H. Comm. on Energy & Commerce (May 

11,2018.5:12 pm) (On file with the Committee). 24 l!_S_ Dep't of Health and Human Services, Office of the Inspector General, Nursing Home Emergency 

Preparedness and Response During Recent Hurricanes, OEI-06-06-00020 (Aug. 2006) available at 

https://oig.hhs.gov/oei/reports/oei-06-06-00020.pdf; U-S. Dep't of Health and Human Services, Office of Inspector 

General, Gaps Continue to Exist in Nursing Home Emergency Preparedness and Response During Disasters: 2007-

2010, OEI-06-09-00270 (Apr. 2012) available at https://oig.hhs.gov/oei/reports/oei-06-09-00270.pdf. 
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response and made recommendations to CMS to update and revise certain federal requirements 

regarding emergency preparedness25 

Over the past decade, CMS has adopted new policies and procedures to improve 

emergency preparedness in nursing homes and other health care facilities. For example, in 2007, 

CMS issued three emergency preparedness checklists for health care facilities (including nursing 

homes), State Long Term Care (LTC) Ombudsman programs, and State Survey Agencies.26 

More recently, in September 2016, CMS finalized a new emergency preparedness rule for 

Medicare and Medicaid participating providers and suppliers that imposed new requirements on 

17 different provides/suppliers, including long-term care facilities. 27 The rule, among other 

things, outlined four core elements of the Emergency Preparedness Program for all provider 

types (i.e., Risk Assessment and Planning, Policies and Procedures, Communication Plan, and 

Training and Testing).28 At the Subcommittee's October 2017 hearing entitled "Examining 

HI-lS's Public Health Preparedness for and Response to the 2017 1-lunicane Season," CMS was 

asked about its emergency preparedness requirements and testified that the surveyors would 

begin surveying for the new rule starting in November 2017 and that the rule required, among 

other things, generators, emergency preparedness plans, and training on a continual basis. 29 

C. CMS Oversight of National Nursing Homes 

On April2, 2018, the Committee wrote to CMS Administrator Seema Verma, requesting 

documents and information relating to CMS' oversight ofSNFs and NFs participating in the 

Medicare and Medicaid programs30 Media reports cited in the letter described instances of 

nursing home residents being abused and neglected and, in some instances, the nursing homes 

subsequently failing to detect and investigate adequately the abuse and neglect.31 Analysis 

conducted by one news outlet found that between 2013 and 2016, the federal government cited 

more than 1,000 nursing homes for either mishandling cases related to, or failing to protect 

residents against, rape, sexual abuse, or sexual assault, with nearly 100 facilities incuning 

multiple citations.32 The Centers for Disease Control (CDC) National Center for Health 

25 !d. 26 U.S. Dcp't of Health and Human Services, Office of Inspector General, Gaps Continue to Exist in Nursing Home 

Emergency Preparedness and Response During Disasters: 2007-2010, OEI-06-09-00270, at 5 (Apr. 2012). 

Centers for Medicare and Medicaid Services, Emergency Preparedness Rule. CMS.GOV (last updated Jul. 9, 

20 18), available at https:/iwww.cms.gov/Medicare/Providcr-Enrollment-andCertification/SurveyCertEmergPrep/Emergency-Prep-Rule.html. 

28 !d. 29 The compliance deadline for the new rule was November 15, 2017. !d.; Examining HHS's Public Health 

Preparedness for and Response to the 2017 Hurricane Season: Hearing Before the Subcomm. On Oversight & 

Investigations oft he H. Comm. On Energy and Commerce, 115'" Cong., Preliminary Transcript, l 08 (Oct. 24, 20 17) 

available at https://docs.house.gov/meetings/IF/IF02/20171024/I 06530/HHRG-115-IF02-Transcript-20 171024.pdf. 30 Letter from Hon. Greg Walden, Chairman, H. Comm. on Energy & Commerce. et al., to Hon. Seema Verma, 

Administrator, Centers for Medicare & Medicaid Services (Nov. 17, 20 17) available at 

https://energycommerce. house.gov /wp-content/uploads/20 18/04/20 l80402CMS. pdf. 31 Ellis and Hicken, supra note I. 

32/d. 
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Statistics found that, as of2014, there were 15,600 nursing home facilities in the United States; 

69.8 percent of U.S. nursing home facilities have for-profit ownership33 

For over a decade, HHS OIG has identified improving care for vulnerable populations, 

including the care provided to individuals receiving nursing home care, as a top management 

challenge for HHS and has continuously expressed concerns about residents being at risk of 

abuse and neglect34 According to HHS OIG's 2017 report on top management challenges: 

Nursing facilities continue to experience problems ensuring quality of care and 

safety for people residing in them. OIG identified instances of substandard care 

causing preventable adverse events, finding an estimated 22 percent of Medicare 

beneficiaries had experienced an adverse event during their nursing stay35 

The report further states that "OIG continues to raise concerns about nursing home 

residents being at risk of abuse and neglect. In some instances, nursing home care is so 

substandard that providers may have liability under the False Claims Act."36 

In addition, GAO has developed a substantial body of work wherein CMS' efforts to 

ensure that nursing home residents are free from abuse and receive the proper standard of care 

have been called into question.37 

33 Centers for Disease Control and Prevention, Nursing Home Care (last updated May 3, 2017) available at 

https:l/www.cdc.gov/nchs/fastats/nursing-home-care.htm. 

34 U.S. Dep't of Health and Human Services, Office of!nspector General, Top Management and Performance 

Challenges Facing HHS 2017, #4 Improving Care for Vulnerable Populations (last accessed Aug. 29, 2018), 

https://oig.hhs.gov/rcports-and-publications/top-challenges/2017/2017-tmc.pdf; U.S. Dep't of Health and Human 

Services, Office of Inspector General, Tap Management and Performance Challenges Facing HHS 2016, #7 

Ensuring Quality of Care and Safety for Vulnerable Populations (last accessed Aug. 29, 2018), 

https://oig.hhs.gov/reports-and-publications/top-challenges/20 16/TMC _20 16 _508.pdf; U.S. Dep't of Health and 

Human Services, Office of Inspector General, OIG 's FY 2015 Top Management and Pe~formance Challenges 

Facing the Department ofHealth and Human Services, Management Challenge 6: Ensuring Quality in Nursing 

Home, Hospice, and Home- and Community-Based Care (last accessed Aug. 29, 2018), https://oig.hhs.gov/reportsand-pub I ications/top-challenges/20 15/20 I 5-tmc. pdf. 35 2017 Management Challenges, supra note 34. 

36 !d. 

37 See U.S. Gov'T ACCOUNTABILITY OFFICE, GA0-16-33, Nursing Home Quality: CMS Should Continue to 

Improve Data and Oversight (2015) available at https://www.gao.gov/assets/680/673480.pdf. See also U.S. Gov'T 

ACCOU!o;TABILITY OFfiCE, GA0-11-280, Nursing Homes: More Reliable Data and Consistent Guidance Would 

Improve CMS Oversight of State Complaint Investigations (20 II) available at 

https://www.gao.gov/assets/320/317514.pdf; U.S. GOV'T ACCOUNTABILITY OFFICE, GAO- 10-197, Poorly 

Performing Nursing Homes: Special Focus Facilities Are Often Improving, but CMS's Program Could be 

Strengthened (2010) available at https://www.gao.gov/assets/310/302117.pdf; U.S. Gov'T ACCOUNTABILITY 

OFFICE, GA0-10-70, Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems 

Requires Sustained CMS and State Commitment (2009) available at https://www.gao.gov/assets/300/298953.pdf; 

U.S. Gov'T ACCOUNTABILITY OFFICE, GA0-08-517, Nursing Homes: Federal Monitoring Surveys Demonstrate 

Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses (2008) available at 

https://www.gao.gov/assets/280/275154.pdf; and U.S. GOV'T ACCOUNTABILITY OFFICE, GA0-07-241, Nursing 

Homes: Efforts to Strengthen Federal Enforcement !lave Not Deterred Some Homes for Repeatedly Hanning 

Residents (2007) available at https://www.gao.gov/assets/260/258016.pdf. 
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i. Oversight of Nursing Homes: Surveys, Deficiencies, and Corrective Action 

J>Ians 

HHS utilizes state health agencies or other state agencies to determine if nursing homes 

meet the minimum federal requirements for participation in the Medicare and Medicaid 

programs (hereinafter "Conditions of Participation" or "CoPs"). 38 Accordingly, through an 

agreement with HHS, the state agency is required to "conduct standard surveys to determine 

whether nursing homes are in compliance with Federal participation requirements."39 A standard 

survey is defined as "a periodic nursing home inspection," using procedures specified in CMS' 

State Operations Manual (hereinafter "Manual"), "that focuses on a sample of residents selected 

by the state agency to gather information about the quality of resident care furnished to Medicare 

or Medicaid beneficiaries in a nursing home."40 A survey must take place at each facility "at 

least once every 15 months."41 However, each state must maintain a statewide average of 

conducting surveys once every 12 months. 42 Nursing homes that do not achieve substantial 

compliance within six months will be terminated from participating in Medicare and Medicaid. 43 

The state is also required to review "complaint allegations" with the option to "conduct a 

standard survey or an abbreviated standard (complaint survey) to investigate noncompliance with 

the CoPs.44 ''A nursing home's noncompliance with a Federal participation requirement is 

defined as a deficiency."45 The state agency determines the deficiency rating utilizing severity 

and scope components.46 Each deficiency is assigned a letter rating of A to L, with L being the 

most serious and A the least47 

Severity is the degree of or potential for resident harm and has four levels, beginning with 

the most severe: (I) immediate jeopardy to resident health or safety, (2) actual harm that is not 

immediate jeopardy, (3) no actual harm with potential for more than minimal harm but not 

immediate jeopardy, and ( 4) no actual harm with potential for minimal harm. Scope is the 

number of residents affected or pervasiveness of the deficiency in the nursing home and has 

three levels: (1) isolated, (2) pattern, (3) widespread. The Manual provides information on the 

severity and scope of levels used to determine the deficiency rating. 48 

18 See U.S. Dep't of Health and Human Services, Office of Inspector General, Kansas Did Not Always VerifY 

Correction ofDeficiencies Identified During Surveys of Nursing Homes Participating in Medicare and Medicaid 

(A-07-17-03218), Sept. 2017, available at https://oig.hhs.gov/oas/reports/region7!71703218.pdf. 

39 !d. 

40 !d. 

41 !d. 42 42 U.S.C. § 1395i-3(g)(2)(A)(iii)(l) and 42 U.S.C. § 1396r (g)(2)(A)(iii)(l). 43 CMS Nursing Home Enforcement. available at https://www.cms.gov/Medicare/Provider-Enrollment-andCertiftcation/SurveyCertificationEnforcementfNursing-Home-Enforcement.html. See also 42 U.S.C. § l395i3(h)(2)(C) and 42 U.S. C. § 1396r(h)(3)(D). 44 HHS OIG Report, supra note 38. 

45 !d. 

46 !d. 

47 !d. 

48 !d. 
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Table 1: Severity and Scope Levels for Deficiency Ratings49 

Nursing homes are required to submit corrective actions plans to either the appropriate 

state agency or CMS, detailing how the nursing home corrected the deficiency or plans to correct 

the deficiency. 50 After receiving the plan, the state or CMS certifies whether the facility is in 

substantial compliance with the CoPs. 51 Substantial compliance occurs when "there is 

substantial compliance by verifying correction of the identified deficiencies through obtaining 

evidence of correction or conducting an onsite review."52 

According to information provided to the Committee by CMS, the number of complaint 

surveys with deficiencies cited at the immediate jeopardy level has increased each of the last four 

years. In 2013, there were 1,250 complaints at the immediate jeopardy level compared to 1,801 

in 2017, the most recent data available-an increase of more than 44 percent. 5

3 

ii. Delays Reviewing Complaint Allegations 

While staffing shortages continue to be an issue for a variety of reasons in the nursing 

home industry and at state agencies, some nursing home residents appear to be placed in unsafe 

situations because of a lack of oversight by state agencies and CMS.54 A September 2017 Data 

Brief issued by the HHS OIG found that in 2015, 764 immediate jeopardy nursing home 

complaints were not investigated by state agencies within two working days, as required by 

CMS, and 4 73 complaints were not investigated within 15 days. 55 Immediate jeopardy is 

described by CMS as being instances where "the facility's noncompliance with more or more 

requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, 

49 U.S. Dep't of Health and Human Services, Office oflnspector General, Florida Did Not Always Verify Correction 

of Deficiencies Identified During Surveys of Nursing Homes Participating in Medicare and Medicaid, A-04-17-0852 

(Apr. 20 18) available at https;//oig.hhs.govloaslreportslregion4141708052.pdf. 50 HHS OIG Report, supra note 38. 51 /d 52 /d 53 Centers for Medicare and Medicaid Services, supra note 23. Federal law requires states to maintain procedures 

and adequate staff to investigate complaints of violations offederal requirements by SNFs and NFs. See 42 U.S.C, § 

1395i-3(g)(4)(A) and 42 U.S. C.§ 1396r(g)(4)(A). 54 See John Caniglia & Jo Ellen Corrigan, Ohio Nursing Home Inspectors Fail to Meet Federal Deadlines Amid 

Serious Understaffing: A Critical Choice, THE PLAIN DEALER, Apr 23, 2017, available at 

https:iiwww. cleveland com/metro/index. ssj/20 171041 ohio-nursing_ home _inspectors J. html. 55 U.S. Dep't of Health and Human Services, Office of Inspector General, A Few States Fell Short in Timely 

Investigation of the Most Serious Nursing Home Complaints: 2011-2015 (OEI-0 1 -16-00330) (Sept. 20 17) available 

at https;/ loig.hhs.gov/oei/reports/oei-0 1 -16-003 30 .pdf. 
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or death to a resident"56 HHS oro also found that 4,743 high priority nursing home complaints 

were not investigated in 2015 within the required 10 working day period. 57 

However, it should also be noted that failing to properly address and administer 

complaint investigations has been a long-standing problem for state agencies and CMS. For 

example, a report issued by the U.S. General Accounting Of1icc58 in 1999 found that "[s]erious 

complaints alleging that nursing home residents are being harmed can remain uninvestigated for 

weeks or months. Such delays can prolong situations in which residents may be subject to abuse, 

neglect resulting in serious care problems like malnutrition and dehydration, preventable 

accidents, and medication errors."59 According to the report, CMS (then known as the Health 

Care Financing Administration (HCFA))60 had only established minimal standards for complaint 

investigations and did not perform adequate oversight to ensure resident complaints were being 

investigated in a timely manner. 61 HHS OIG also made similar findings in a 2006 report, once 

again noting inadequacies in CMS' oversight62 

iii. Correction of Deficiencies Not Always Verified 

HHS oro has also issued several reports examining whether states always verified 

correction of deficiencies identified during surveys of nursing homes participating in Medicare 

and Medicaid. 63 While in some instances HHS oro found that states properly verified 

correction of deficiencies identified during surveys of nursing homes, 64 HHS OIG generally 

found that states did not always verify correction of deficiencies identified during surveys of 

nursing homes participating in Medicare and Medicaid65 For example, in September 2017, HHS 

OIG released a report finding that Kansas did not always verify whether nursing homes corrected 

56 /d. 57 /d. 58 The U.S. General Accounting Office was renamed the U.S. Government Accountability Office (GAO) in July 

2004. See GAO Human Capital Reform Act of2004, Pub. L. 108-271, 118 Stat. 811 (2004). 59 U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-99-80, Nursing Homes: Complaint Investigation Process Often 

Inadequate to Protect Residents ( 1999) available at https:liwww.gao.gov/assets/230/2271 08.pdf. 6° CNN, Medicare agency renamed as prelude to reforms, CNN, June 14, 2001, 

http://www.cnn.com/200 l /HEAL TH/061!4/hcfa.changes/. 61 U.S. GEN. ACCOUNTING OFFICE, supra note 59. 62 U.S. Dep't of Health and Human Services, Office oflnspector General, Nursing Home Complaint Investigations 

(OEl-0 J-04-00340) (July 2006) available at https://oig.hhs.govloeilreports/oei-Ol-04-00340.pdf. 63 According to a May 2018 report issued by HHS OIG, OlG had released 15 reports related to this topic. See, e.g., 

U.S. Dep't of Health and Human Services, Office of Inspector General, Nebraska Did Not Always VerifY Correction 

of Deficiencies Identified During Surveys of Nursing Homes Participating in Medicare and Medicaid, A-07-17-

03224 (May 20 18) available at https://oig.hhs.gov/oas/reports/region7/71703224.pdf. 64 See, e.g., U.S. Dep't of Health and Human Services, Office of Inspector General, Missouri Properly Verified 

Correction ofDeficiencies Identified During Surveys of Nursing /lames, A-07-16-03217 (Mar. 17, 20 17) available 

at https://oig.hhs.gov/oaslreportslregion7/716032l7.pdf; U.S. Dep't of Health and Human Services, Office of 

Inspector General, Oregon Properly Verified Correction of Deficiencies Identified During Surveys of Nursing 

Homes Participating in Medicare and Medicaid, A-09-16-02007 (Mar. 14, 2016) available at 

https:/ I oig.hhs.gov loaslreports/region9/9 J 602007. pdf. 65 HHS OIG Report, supra note 63 at Appendix B. 
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deficiencies66 The report found that, out of 100 sampled deficiencies identified during CY 2014 

surveys, Kansas failed to adequately verify that the deficiencies were corrected 52 percent of the 

time.67 HI-IS OIG also found that the state failed to conduct required standard surveys within the 

required 15-month timeframe for 35 of79 nursing homes in CY 201468 According to a recent 

media report, Kansas "may conduct less than 40% of required nursing home surveys" during 

201869 

iv. Inconsistency of Penalties 

According to information reviewed by the Committee, there appears to be variation in 

penalties among states and regions relating to how civil monetary penalties (CMPs) are assessed. 

In some cases, there is little to no correlation between the severity of deficiency and the resulting 

civil monetary penalty. Even within the same state, some facilities can incur significant civil 

monetary penalties despite not having any serious deficiencies while other facilities may have 

been cited for several deficiencies yet incur little to no penalties. For example, at least one 

nursing home did not incur any financial penalty even after being cited for not protecting 

residents after a case of sexual abuse was sustained. 70 There also appears to be a variation 

relating to intra-facility penalties. For instance, some facilities are cited for having serious 

deficiencies, sometimes in successive surveys, yet incur little to no monetary penalties. 

Alternatively, these facilities may incur significant civil monetary penalties for deficiencies that 

are relatively low on CMS' severity scale. 

v. llSOB Authority l)elegation 

According to an August 2017 Early Alert, HHS OIG identified 134 Medicare 

beneficiaries who were treated in 2015 and 2016 for injuries that may have been caused by abuse 

or neglect when the individual was receiving care at a SNF. 71 IIHS OIG raised concerns that 

CMS has inadequate procedures to ensure that incidents of potential abuse or neglect at SNFs are 

identified and reported in accordance with applicable requirements. 72 Under Section 1150B of 

the Social Security Act, covered individuals in federally funded SNFs and NFs are required to 

immediately report any reasonable suspicion of a crime committed against a resident of that 

facility. 73 The law imposes various penalties, including CMPs of up to $300,000 and possible 

66 U.S. Dep't of Health and Human Services, Office of Inspector General, Kansas Did Not Always VerifY Correction 

of Deficiencies Identified During Surveys of Nursing Homes Participating in Medicare and Medicaid. A-07-17-

03218 (Sept. 20 17) available at https:l/oig.hhs.gov/oas/reports/region717l703218.pdf. 

67 !d. 

68 !d. 69 Kimberly Marse las, MCKNIGHT'S LONG-TERM CARE NEWS, Apr. 26, 2018, 

https:/ /www. mckn ights.com/news/agency-may-conduct-less-than-40-of-required-nursing -home-surveys-in-kansasthis-year/article/761192/. 

70 Ellis and Hicken, supra note I. 71 U.S. Dep't of Health and Human Services, Office of Inspector General, Early Alert: The Centers for Medicare & 

Medicaid Services Has Inadequate Procedures to Ensure That Incidents of Potential Abuse or Neglect at Skilled 

Nursing Facilities Are Identified and Reported in Accordance with Applicable Requirements (A-01-17-00504) (Aug. 

24, 20 17) available at https://oig.hhs.gov/oas/reports/region l/11700504.pdf. 72 /d. 73 42 u.s.c. § 1320b-25(b). 
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exclusion from participation in federal health care programs, for failure to report possible crimes 

against SNF and NF residents74 

According to HHS OIG, CMS has not, however, taken any enforcement actions using 

section 1150B of the Social Security Act or used the penalties it contains despite its effective 

date of March 23, 2011. 75 CMS officials told HI-IS OIG that CMS has not taken any 

enforcement actions under 1150B "because the HHS Office of the Secretary has not delegated 

the enforcement of section 1150B to CMS[,]" and that it had "not identified any instances in 

which a covered individual failed to report an incident of potential abuse or neglect of a 

Medicare beneficiary."76 CMS further indicated that it had commenced working with the HHS 

Office of the Secretary in June 2017 to obtain the delegated enforcement authority. 77 CMS is 

continuing to work on the delegation authority. 

vi. CMS' Administration of the Special Focus Facility (SFF) Program 

As part of the Nursing Home Oversight and Improvement Program, the HCFA78 created a 

Special Focus Facility (SFF) initiative in 1998.79 The SFF program is designed to address 

nursing homes that have more problems than other nursing homes, more serious problems than 

most other nursing homes, and a pattern of serious problems that has persisted over a long period 

of time80 A facility is placed in the SFF program if the State Survey Agency selects the facility 

from a list of program candidates that is created by CMS. 81 As a SFF, the nursing home is 

subject to twice as many in-person visits by survey teams as other nursing homes and may face 

progressive enforcement actions. 82 CMS expects that within about 18-24 months the nursing 

home will: (I) improve and graduate from the SFF program; (2) be terminated from the 

Medicare and Medicaid programs; or (3) be provided with an extension of time to continue 

participating in the SFF program because the nursing home has made "very promising 

progress. "83 

74 42 U.S.C. § 1320b-25(c). 75 HHS OIG, supra note 71. 

76 !d. 

77 /d. 

78 The HCF A was renamed the Centers for Medicare & Medicaid Services (CMS) in June 200!. See CNN, supra 

note 60. 79 See Statement of Alice Bonner, PhD, RN, Director of the Division of Nursing Homes, Office of Clinical 

Standards and Quality, Centers for Medicare & Medicaid Services Before the United States Senate Special 

Committee on Aging (July 2, 20 !2), available at https:llwww.aging.senate.govlimolmedia/doclhr248ab.pdf. 8

° Centers for Medicare and Medicaid Services (CMS), Special Focus Facility ("SFF") Initiative (last updated Aug. 

!6, 20 !8), available at https:llwww.cms.gov/Medicare/Provider-Enrollment-andCertification/CertificationandComplianc/NHs.html. 

81 See Centers for Medicare and Medicaid Services, Center for Clinical Standards and Quality/Survey & 

Certification Group, Fiscal Year (FY) 20!7 Special Focus Facility (SFF) Program Update (Mar. 2, 20!7), available 

at https:llwww.cms.gov/Medicare/Provider-Enrollment-andCcrtification/SurveyCertificationGenlnfo/Downloads/Survey-and-Cert-Letter-17-20.pdf. 

82 Centers for Medicare and Medicaid Services (CMS), Special Focus Facility ("SFF") Initiative (last updated Aug. 

16, 20!8), available at https:llwww.cms.gov/Medicare/Provider-Enrollment-andCertification/CertificationandComplianc/NHs.html. 

83 !d. 
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Since the program's creation, CMS has made improvements to the program to, among 

other things, increase the number of nursing homes participating in the program, strengthen 

enforcement, enhance transparency, and rate all nursing homes using a Five-Star Quality Rating 

System84 As of August 16,2018, there were a total of85 facilities in the SFF program, 

including 20 newly added facilities to the SFF program, 33 facilities in the SFF program that had 

not improved, 32 facilities in the SFF program that had shown improvement, and 25 facilities 

that had recently graduated from the SFF program85 According to CMS' August 16,2018 

update regarding facilities in the SFF program, the amount of time that the current facilities in 

the SFF program have been in the program ranges from 0 months to 47 months. 86 Some of these 

facilities have been in the program longer than CMS' expected 24 months, as the list shows that 

two facilities have been in the SFF program for more than 24 months and have not improved and 

4 facilities have been in the SFF for more than 24 months and have shown improvement87 

It is important to note that the SFF program does not supersede the statutory requirement 

that a nursing home be terminated from the Medicare and/or Medicaid program if it does not 

achieve substantial compliance with federal requirements within six months of the date of the 

first findings of noncompliance88 

D. Updated SNF and NF Conditions of Participation 

Congress enacted the Federal Nursing Home Reform Act (hereinafter "Act" or "Nursing 

Home Reform Act") as part of the Omnibus Budget Reconciliation Act of 1987.89 The 

enactment of the Nursing Home Reform Act followed the publication of a comprehensive study 

conducted by the Institute of Medicine's Committee on Nursing Home Regulation which found 

that, at the time, quality of care in many of the nation's nursing homes was lacking.90 The 

Committee on Nursing Home Regulation therefore recommended "[a] major reorientation of the 

regulatory system is needed to make it focus on the care being provided to residents and the 

effects of the care on their well-being."91 

The Act required SNFs and NFs to provide, among other things, "services to attain or 

maintain the highest practicable physical, mental, and psychosocial well-being of each resident, 

in accordance with a written plan of care[,]"92 and established minimum personnel requirements 

84 Centers for Medicare and Medicaid Services (CMS), Special Focus Facility ("SFF"") Initiative (last updated Aug. 

16, 20 18), available at https:l/www.cms.gov/Medicare/Provider-Enrollment-andCertification/CertificationandComplianc/NHs.html. 

85 !d. 

86 !d. 

87 !d. 

88 See CMS, supra note 81. See also 42 U.S.C. § 1395i-3(h)(2)(C) and 42 U.S.C. § 1396r(h)(3)(D). 89 Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330 (1987). 90 ]NST. OF MED., COMM. ON NURSING HOME REGULATION, IMPROVING THE QUAI.!TY OF CARE IN NURSING HOMES 

22 (1986). See also U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-99-46, Nursing Homes: Additional Steps Needed 

to Strengthen Enforcement of Federal Quality Standards 5 ( 1999) available at 

https://www. gao. gov/assets/23 0/227015 .pdf. 91 !NST. OF MED .• supra note 90 at 22. 92 42 U.S.C. § 1395i-3(b)(2) and 42 U.S.C. § 1396r(b)(2) (Under the Act, NFs must also provide residents activities 

in accordance with the written plan of care). 
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for resident nursing care93 The Act also included a resident "bill of rights" requiring NFs and 

SNFs to promote and protect the rights of residents to, among other things, be free from 

restraints, including chemical restraints, imposed for discipline or convenience and the rights of 

residents to be active participants in the planning of their medical care94 In furtherance of the 

Act's intent and policy objectives, the HCF A95 issued implementing regulations in 1989 and 

1991, establishing the Conditions of Participation (CoPs) for SNFs and NFs participating in the 

Medicare and Medicaid programs. 96 However, enforcement of some implementing regulations 

did not become effective until July 1995, attributable, in part, to the large volume of comments 

HCF A received during the rulemaking process. 97 

On July 16, 2015, CMS issued a proposed rule to update comprehensively the CoPs for 

NFs and SNFs participating in the Medicare and Medicaid programs. CMS issued its final rule 

on October 4, 2016.98 The final rule divided the updated CoPs into three phases-with Phase I 

requirements to be implemented by November 28, 2016 and Phase 2 and Phase 3 requirements to 

be implemented by November 28,2017 and November 28,2019, respectively.99 CMS estimated 

that the total projected cost of the final rule would be $831 million in the first year of 

implementation, and $736 million per year in subsequent years. 100 

In a June 30, 2017 memorandum, CMS announced that it was imposing a 12-month 

moratorium on the usc of civil money penalties, denial of payment, and/or termination from the 

Medicare and Medicaid programs, for facilities determined to be out-of-compliance with certain 

Phase 2 regulations, though noting that the regulations would still take effect on November 28, 

2017. 101 CMS maintained that it would use the year-long period to "educate facilities about 

certain new Phase 2 quality standards by requiring a directed plan of correction or additional inservice training." 102 On November 24,2017, CMS announced it was extending the moratorium 

on the enforcement of certain Phase 2 requirements for a period of IS-months, in lieu of the 

previously announced 12-months, "[t]o address concerns regarding the scope and timing of the 

revised requirements[.J" 103 

93 42 U.S.C. §§ 1395i-3(b)(4)-(5) and 42 U.S.C. §§ 1396r(b) (4)-(5). 94 42 U.S.C. § 1395i-3(c) and 42 U.S.C. § !396r(c). 95 The HCFA was renamed the Centers for Medicare & Medicaid Services (CMS) in June 2001. See CNN, supra 

note 60. 96 54 Fed. Reg. 5,316 (Feb. 2, 1989) and 56 Fed. Reg. 48,826 (Sept. 26, 1991). 97 U.S. Gen. Accounting Office, supra note 90. 98 81 Fed. Reg. 68,688 (Oct. 4, 2016). 

99 !d. 

!00 !d. 101 Memorandum from Dir., Survey and Certification Group, Centers for Medicare and Medicaid Services to State 

Survey Agency Directors (June 30, 2017) available at https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCerti fication Gen Info/Down loads/Survey -an d-Cert-Letter- 17-3 6. pdf. 102 !d. 

103 Memorandum from Dir., Survey and Certification Group, Centers for Medicare and Medicaid Services to State 

Survey Agency Directors (Nov. 24, 2017) available at https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenlnfo/Downloads/Survey-and-Cert-Letter-18-04.pdf. In its memo, CMS noted 

that it was not extending the moratorium on regulations that address reporting requirements for the reasonable 

suspicion of a crime due to the concerns about significant resident abuse going unreported. 
99 

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III. ISSUES 

The following issues may be examined at the hearing: 

• Federal efforts to verify that SNFs and NFs participating in the Medicare and 

Medicaid programs are meeting the mandatory CoPs, which are intended to 

ensure that beneficiaries receive the appropriate levels of care and are free from 

abuse or neglect; 

• The role of State Survey Agencies in overseeing SNFs and NFs, and CMS' 

oversight thereof; 

• The consistency and proportionality of enforcement remedies imposed on SNFs 

and NFs that have been determined to be out of compliance with one or more 

CoPs; 

Evaluation of SNFs and NFs that have a commonality of ownership; 

CMS' Administration of the Special Focus Facility program; 

• Implementation of the emergency preparedness rule and the adequacy of 

emergency preparedness in SNFs and NFs across the country; and 

HHS OIG's and GAO's work evaluating abuse, neglect, and substandard care 

occurring at SNFs and NFs. 

IV. STAFF CONTACTS 

If you have any questions regarding the hearing, please contact Lamar Echols, 

Christopher Santini, or Natalie Turner of the Committee staff at (202) 225-2927.