S. HRG. 110–173

THE NURSING HOME REFORM ACT TURNS

TWENTY: WHAT HAS BEEN ACCOMPLISHED, AND

WHAT CHALLENGES REMAIN?

HEARING

BEFORE THE

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

WASHINGTON, DC

MAY 2, 2007

Serial No. 110–6

(

Printed for the use of the Special Committee on Aging 

THE NURSING HOME REFORM ACT TURNS TWENTY: 

WHAT HAS BEEN ACCOMPLISHED, AND WHAT CHALLENGES REMAIN? 

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37–151 PDF 2007

S. HRG. 110–173

THE NURSING HOME REFORM ACT TURNS

TWENTY: WHAT HAS BEEN ACCOMPLISHED, AND

WHAT CHALLENGES REMAIN?

HEARING

BEFORE THE

SPECIAL COMMITTEE ON AGING 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

WASHINGTON, DC

MAY 2, 2007

Serial No. 110–6

Printed for the use of the Special Committee on Aging

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

SPECIAL COMMITTEE ON AGING 

HERB KOHL, Wisconsin, Chairman 

RON WYDEN, Oregon 

BLANCHE L. LINCOLN, Arkansas 

EVAN BAYH, Indiana 

THOMAS R. CARPER, Delaware 

BILL NELSON, Florida 

HILLARY RODHAM CLINTON, New York 

KEN SALAZAR, Colorado 

ROBERT P. CASEY, Jr., Pennsylvania 

CLAIRE McCASKILL, Missouri 

SHELDON WHITEHOUSE, Rhode Island 

GORDON H. SMITH, Oregon 

RICHARD SHELBY, Alabama 

SUSAN COLLINS, Maine 

MEL MARTINEZ, Florida 

LARRY E. CRAIG, Idaho 

ELIZABETH DOLE, North Carolina 

NORM COLEMAN, Minnesota 

DAVID VITTER, Louisiana 

BOB CORKER, Tennessee 

ARLEN SPECTER, Pennsylvania 

JULIE COHEN, Staff Director 

CATHERINE FINLEY, Ranking Member Staff Director 

(II) 

C O N T E N T S 

Page 

Opening Statement of Senator Herb Kohl ............................................................. 1

PANEL I 

Kathryn Allen, director of Health Care, U.S. GAO, Washington, DC ................. 3

James Randolph Farris, M.D., regional administrator, Dallas Office, Centers 

for Medicare and Medicaid Services (CMS), Dallas, TX ................................... 48

PANEL II 

Charlene Harrington, professor of Sociology and Nursing, University of California, San Francisco, CA .................................................................................... 68

Alice Hedt, executive director, NCCNHR, Washington, DC ................................ 83

Mary Ousley, president, Ousley & Associates, former chair, American 

Healthcare Association, Richmond, KY .............................................................. 92

Orlene Christie, director, Legislative and Statutory Compliance Office, Michigan Department of Community Health, Lansing, MI ....................................... 103

APPENDIX 

Prepared Statement of Senator Gordon Smith ..................................................... 117

Kathryn G. Allen responses to Senator Smith questions ..................................... 118

Randy Farris responses to Senator Smith questions ............................................ 119

Dr. Charlene Harrington responses to Senator Smith questions ........................ 121

Alice Hedt responses to Senator Smith questions ................................................ 122

Mary Ousley responses to Senator Smith questions ............................................ 123

Orlene Christie responses to Senator Smith questions ........................................ 124

Additional material submitted by Dr. Charlene Harrington ............................... 125

Statement of the American Occupational Therapy Association ........................... 150

Statement of the Center for Medicare Advocacy, Inc. .......................................... 154

Statement submitted by Sam Perlin, Long Term Care Advocate Consultant .... 158

Statement submitted by Cheryl Zuccola ................................................................ 161

Statement submitted by Diane Reed, program director, Consumer Advocates 

for Better Care of Montachusett Home Care Corporation ................................ 163

Statement submitted by Linda Sadden, State long-term care ombudsman, 

Louisiana .............................................................................................................. 165

Statement submitted by Missouri Coalition for Quality Care ............................. 166

Statement submitted on behalf of the Friends and Relatives of Institutionalized AGED (FRIA) ................................................................................................ 167

Statement submitted by Rose B. McGarry, ombudsman program director, 

Elder Services of Merrimack Valley ................................................................... 174

Statement of the Center for Advocacy for the Rights and Interests of the 

Elderly (CARIE) ................................................................................................... 175

Nursing Home Reform Act (OBRA ’87): 20 Years of History submitted by 

the Senate Special Committee on Aging ............................................................ 179

Broken Promises II prepared by the District of Columbia Long-Term Care 

Ombudsman Program .......................................................................................... 188

Material submitted by Health Care Policy and Research, University of Colorado Health Sciences Center ............................................................................... 222

Material from Consumer Reports on Nursing Homes ........................................... 272

Faces of Neglect submitted by NCCNHR Reform ................................................. 276

(III) 

(1)

THE NURSING HOME REFORM ACT TURNS 

TWENTY: WHAT HAS BEEN ACCOMPLISHED, 

AND WHAT CHALLENGES REMAIN? 

WEDNESDAY, MAY 2, 2007 

U.S. SENATE, 

SPECIAL COMMITTEE ON AGING, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:28 a.m., in room 

628, Dirksen Senate Office Building, Hon. Herb Kohl (chairman of 

the committee) presiding. 

Present: Senators Kohl and McCaskill. 

OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN 

The CHAIRMAN. Hello. At this time, we will call this hearing to 

order. We welcome all of our guests and witnesses who are present. 

Back in January, as Chairman of the Committee, I promised that 

we would take a close look at nursing homes to see if our seniors 

are getting the safest, highest-quality care. Today, we are going to 

do exactly that. 

We know that the vast majority of nursing home providers care 

deeply about their residents, and are doing their very best to provide the best possible care. But as we will hear today, many problems still exist in some of our Nation’s nursing homes. 

The Nursing Home Reform Act became law 20 years ago. Better 

known as OBRA 1987, this law set Federal standards for the quality of services for staffing and for inspection and oversight of longterm care facilities. 

Without question, it has improved nursing home care. For example, OBRA 1987 led to a sharp drop in unnecessary physical and 

chemical restraints of residents. Other accomplishments and events 

are on the posters on this podium. 

We will hear today from GAO that, in 2006, nearly one in five 

nursing homes nationwide were cited for poor care that caused actual harm to residents. Among a group of facilities studied in 1998 

and 1999 that provided poor care, the agency found that nearly 

half have made no progress between that time and now. Now, this 

is unacceptable, and it raises questions about how and why our enforcement system is not getting the job done. 

From CMS, we will hear about the challenges facing State inspection agencies in overseeing nursing homes. Surveys do the 

tough work of visiting facilities, documenting the conditions and 

deficiencies they find, and recommending sanctions. But it is trouVerDate 0ct 09 2002 10:07 Nov 01, 2007 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\DOCS\37151.TXT SAGING1 PsN: JOYCE
2

bling that fines and sanctions are often not levied, even when inspectors find violations that leave residents suffering. 

For facilities that continually slip in and out of compliance, regulators need to take much swifter action. Bad apples give the nursing home industry a black eye, and they should not be in this business. 

This Committee has a long history of closely scrutinizing the 

quality of nursing home care, and we intend to reaffirm that commitment. We need to regularly monitor the nursing home industry 

and the performance of Federal and State regulators to make sure 

quality standards are met. 

As a first step, we will follow this hearing with a written request 

to CMS to brief us every 2 months on progress made to implement 

the recommendations and GAO’s testimony that come out of this 

hearing. We will continue to press the Administration to tighten up 

the enforcement system and make sanctions stick. 

We will work with advocates, the industry and regulators on proposals to tighten the enforcement process, so that the bad actors 

no longer escape sanctions. 

We will also be requesting ideas for improving public information 

about the quality of nursing homes. When consumers look at CMS’s 

Nursing Home Compare Web site, they should be better able to tell 

immediately which facilities are providing good care and which are 

providing substandard care. 

We also want to make sure that the nursing home workforce is 

the best it can be by establishing a nationwide system of background checks for workers in long-term care facilities. 

Today, we will hear about groundbreaking work being done in 

the State of Michigan. They have successfully organized a streamlined, cost-effective system of background checks for people who 

apply for jobs in long-term care facilities. 

Michigan’s program is being conducted as part of a pilot program 

that was started in 2003. This program is producing impressive results in other States as well, including my own State of Wisconsin, 

and I believe it is time to expand it nationwide. 

The vast majority of long-term care workers do an excellent job 

at taking care of our family members. But individuals who have a 

record of criminal abuse obviously should not care for the most vulnerable in our society. To that end, I plan to introduce legislation 

that is modeled on Michigan’s background check program. 

We look forward to joining with all of our colleagues on this Committee and in the Congress to ensure that all nursing home residents are safe and receive the highest quality of care. Clearly, our 

Nation’s families deserve nothing else. 

At this time, I would like to welcome our first panel to come forward. 

Our first witness will be Kathryn Allen, who is director of Health 

Care for the U.S. Government Accountability Office. Ms. Allen has 

extensive expertise in Medicaid, children’s health issues and longterm care issues, including nursing homes. Ms. Allen has had a 

long and distinguished career at GAO, also directing studies on private health insurance issues, medical malpractice and access to 

care. 

3

Also on this panel we have Dr. James Randolph Farris of the 

Centers for Medicare and Medicaid Services, CMS. Dr. Farris has 

served as the regional administrator of the Dallas office since 1998. 

In this capacity, Dr. Farris has responsibility for Medicare, Medicaid, the Clinical Laboratory Improvement Act, and State Children’s Health Insurance Programs in the States of Texas, Oklahoma, New Mexico, Arkansas and Louisiana. He also serves as the 

lead CMS Regional Administrator for rural health issues and for 

the survey and certification program. 

We thank you very much for being with us. 

At this time, Ms. Allen, we would like to hear your testimony. 

STATEMENT OF KATHRYN ALLEN, DIRECTOR OF HEALTH 

CARE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, 

WASHINGTON, DC 

Ms. ALLEN. Thank you, Mr. Chairman. I am pleased to be here 

today as the Committee acknowledges the 20th anniversary of the 

passage of OBRA 1987, which, as you have already mentioned, contained very important nursing home reform provisions. 

The Nation’s 1.5 million nursing home residents are a very vulnerable population of elderly and disabled individuals for whom remaining at home is no longer feasible. This population is also expected to increase dramatically in future years, along with the cost 

of their care, with the aging of the baby-boomer population. 

The public investment is large. Combined Medicare and Medicaid 

payments for nursing home services were almost $73 billion in 

2005, including a Federal share of about $49 billion. 

In 1986, the Institute of Medicine reported, among other things, 

the quality of care in many nursing homes was not satisfactory. In 

1987, GAO issued a report that recommended, consistent with that 

report, that Congress pass legislation to strengthen enforcement of 

Federal nursing home requirements. 

Subsequent to these reports, Congress enacted the nursing home 

provisions of OBRA 1987, which changed the focus of quality standards from inputs in a home’s capability to provide care to its actual 

delivery of care and the outcomes of that care. 

Since this Committee subsequently asked GAO to investigate the 

quality of care in California nursing homes in 1997, we have reported to and testified before the Congress many times on these 

issues, identifying issues and problems in Federal and State activities that have been designed to detect and correct quality problems. 

We have made numerous recommendations to improve enforcement 

and oversight. 

CMS has taken many actions in response to our recommendations, and has also undertaken its own initiatives to address these 

and other issues. As a result of OBRA and these other more recent 

efforts, much has transpired over the last 20 years in terms of assessing, overseeing and improving the quality of nursing home 

care. 

My remarks today will focus on progress made and some of the 

challenges that remain in three specific areas: evaluating the quality of nursing home care and the enforcement and oversight functions intended to ensure high-quality care. My statement will be 

based on our prior work. 

4

First, OBRA 1987’s reforms and subsequent efforts by CMS and 

the nursing home industry to improve the quality of care have indeed focused on resident outcomes, as was intended. 

However, as you have already pointed out, a small but significant 

share of nursing homes nationwide continue to experience qualityof-care problems. In last fiscal year 2006, almost one in five nursing homes nationwide was cited for serious deficiencies—those that 

caused actual harm or placed residents in immediate jeopardy. 

Now, while this rate has varied over the last 7 years, we have 

regularly found persistently wide variation across the States in 

terms of the rate at which they cite serious deficiencies, which indicates inconsistency in how they assess quality of care. We have also 

found understatement in the severity of reported deficiencies in 

States where we have reviewed this in more depth. 

My second point: CMS has indeed strengthened its enforcement 

capabilities since OBRA 1987 to better ensure that nursing homes 

achieve and maintain high-quality care. For example, the agency 

has implemented additional sanctions authorized in the legislation, 

such as civil monetary penalties. It has established an immediate 

sanctions policy for nursing homes found to repeatedly harm residents, and it has developed a new enforcement management system. However, several important initiatives require refinement. 

We recently reported that the deterrent effect of CMPs, civil 

monetary penalties, was diluted for a sample of homes that we reviewed with a history of serious deficiencies, because CMS often 

imposed penalties at the lower end of the allowable range. Significant time, sometimes years, could pass between the citation of deficiencies on a survey and a home’s payment because they are allowed to appeal, and the penalty is not required to be paid while 

it is under appeal. 

We also found that CMS’s immediate sanctions policy is complex 

and appears to induce only temporary compliance for homes with 

a history of noncompliance. Moreover, CMS’s new enforcement data 

system are not well-integrated, and the national reporting capabilities are incomplete, which hinders the agency’s ability to track and 

monitor enforcement. 

Third, CMS has increased its oversight of nursing home quality 

and State surveys since the passage of OBRA 1987. But certain initiatives continue to compete for staff and financial resources. 

In recent years, CMS has focused its resources on prompt investigation of complaints and allegations of abuse. It has conducted 

more frequent and many more Federal comparative surveys. It has 

strengthened its fire safety standards and has upgraded its data 

systems. 

But CMS’s intensified oversight efforts, coupled with an increase 

in the number of Medicare-Medicaid providers, has produced greater demands on its resources, which has led to delays in certain 

very important activities. For example, the implementation of new 

survey methodology has been in process for 8 years, and resource 

constraints threaten the planned expansion of this methodology beyond the initial demonstration sites. 

In conclusion, Mr. Chairman, significant attention from this 

Committee, the Congress, the Institute of Medicine and others 

served as a very important catalyst to focus national attention on 

5

nursing home quality issues that culminated in the nursing home 

reform provisions of OBRA 1987. 

Most would agree that many significant reforms and measures 

have been initiated and implemented since that time to improve 

the quality of nursing home care. But the task is not complete. It 

is imperative to continue to focus national attention on and to ensure public accountability for nursing homes to provide high-quality care for all residents. 

With such ongoing efforts, the momentum of earlier initiatives 

can be sustained and perhaps even enhanced, so that quality of 

care for all nursing home residents can be secured, as surely was 

intended by the Congress when it passed this legislation. 

Mr. Chairman, this concludes my prepared remarks. 

[The prepared statement of Ms. Allen follows:]

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The CHAIRMAN. Thank you. That is a very fine statement. 

Dr. Farris. 

STATEMENT OF DR. JAMES RANDOLPH FARRIS, M.D., 

REGIONAL ADMINISTRATOR, DALLAS OFFICE, CENTERS FOR 

MEDICARE AND MEDICAID SERVICES (CMS), DALLAS, TX 

Dr. FARRIS. Good morning, Mr. Chairman. I would like to thank 

you and the committee for inviting me to discuss the quality of care 

provided by nursing homes across our Nation upon the 20th anniversary of the Omnibus Budget Reconciliation Act of 1987. 

This sweeping legislation ushered in a series of landmark nursing home reform initiatives designed to significantly improve quality of care. 

More than 3 million elderly and disabled Americans will receive 

care in nearly 16,000 Medicare and Medicaid certified nursing 

homes this year. About 1.5 million Americans reside in these nursing homes on any given day. 

Our Nation is aging. It is a reality that shapes the public discourse, looms large in our imaginations, and affects our everyday 

lives. 

As families struggle to care for aging parents and other relatives 

who are living longer but often with coexisting and chronic health 

conditions and increasingly complex medical needs, and as more 

members of the baby-boom generation age into seniority, the need 

for high-quality nursing home care will grow exponentially. 

We have come a long way since OBRA. Nursing home quality, 

safety, oversight and enforcement have advanced significantly since 

the reforms were implemented in 1990. 

Today, we face a changed and, in fact, much improved landscape 

that is vastly different from the one that existed even 10 years ago. 

To that end, CMS is grateful for the support and assistance of current and past members of the Senate Special Committee on Aging 

who have demonstrated their tireless commitment to these issues. 

My statement before you now, as well as my written testimony, 

will describe some of our most significant and successful initiatives. 

At the outset, however, I must express my deep concern for the 

future of CMS’s nursing home survey, certification and quality improvement efforts. Without appropriate funding and adequate resources, the agency will not be able to sustain, let alone strengthen 

and expand, the programs and initiatives that have yielded positive 

results thus far. 

The high priority that CMS has afforded to meeting and exceeding its statutory requirements in these areas has indeed paid off. 

99.9 percent of all Medicare and Medicaid certified nursing homes 

are surveyed every 15 months or less. 

In the coming years, however, to our regret, we may need to shift 

our limited resources and rethink our priorities. The Medicare 

budget for survey and certification has remained flat for the last 

3 years. Should this trend persist, we anticipate a $25 million 

shortfall by the middle of fiscal year 2008. 

Under such a scenario, it is inevitable that our efforts will sputter and slow. Already, our implementation of systems improvements has wound down to a crawl. 

49

Finally, we face the possibility of less frequent surveys of facilities, diluted oversight of accreditation and compromised progress 

on the critical front of quality measures, in particular the rollout 

of a key national demonstration project. 

For several years now, improving the safety and quality of nursing home care has been the focus of much Congressional and regulatory attention. For CMS and its partners, it has meant massive 

effort and unprecedented activity. 

Currently, CMS is evaluating the complexity of its immediate 

sanctions policy in an effort to strengthen it and make it more effective, preparing to issue a civil money penalty analytic tool to 

help States to monitor enforcement actions and to improve national 

consistency, planning to seek legislative authority to collect civil 

money penalties during appeals, planning to analyze the feasibility 

and costs of systems modifications to improve the interface between 

complaint and enforcement data systems, and continuing to respond to nursing home complaints in a timely manner. 

Nearly 12,000 more complaint investigations were conducted by 

the agency and the States in 2005 than in 1999. Additionally, since 

1990, CMS has been posting nursing home characteristics, survey 

results and information about facility-specific complaint investigations on its publicly searchable Nursing Home Compare Web site. 

For the past few years, nursing homes with the worst quality-ofcare track records, dubbed ‘‘special focus facilities,’’ have been subject to more frequent surveys and decisive punitive actions if significant improvements are not achieved and sustained. As a result, 

many nursing homes have been induced to operate within Federal 

requirements. Clearly, such a program requires considerable resources. 

In 2005, the last time Congress increased the Medicare budget 

for survey and certification, CMS expanded the number of special 

focus facilities by 35 percent. To the extent that Congress supports 

the President’s 2008 proposed budget for survey and certification, 

CMS will embark on a highly recommended special focus facility 

program expansion. 

Mr. Chairman, thank you for the opportunity to testify on the 

quality of care in our Nation’s nursing homes. With our combined 

efforts, continued vigilance and adequate resources, I am confident 

that we will see continued improvement on this front. 

I look forward to answering your questions. 

[The prepared statement of Dr. Farris follows:]

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The CHAIRMAN. Thank you, Dr. Farris. 

Ms. Allen, your March report suggests that penalties applied by 

CMS against the worst-performing homes appear to be ineffective, 

since many of these homes continue to cycle in and out of compliance. 

Why do you think that the penalties are ineffective? How much 

of this problem occurs at the State level, and how much of it is attributable to CMS? 

Ms. ALLEN. It begins at the State level. It is up to the State to 

decide to what extent that they will use their own authority. States 

do have their own authority to impose penalties, and some choose 

to do that. Then, they can decide if they want to refer to CMS to 

impose penalties. Some choose to do that. Then, CMS makes the 

decision to what extent that it will provide notice, and then there 

is an opportunity for appeals. 

With civil monetary penalties, as I said earlier, while it is under 

appeal, they do not have to pay it. So there is a combination of factors that depend on the timeliness and the effectiveness of it. 

One of the reasons that CMS advised us that they tend to go 

with the lower end of the range is because they are concerned that, 

by taking resources away from the home, that that will interfere 

with their ability to provide the care that needs to be. So they see 

that that could be really counter to the intent for putting money 

toward direct care. 

The CHAIRMAN. Are these penalties that are meted out almost always appealed? 

Ms. ALLEN. They are often appealed, yes. 

The CHAIRMAN. That takes time? 

Ms. ALLEN. Yes, it does. That was one of the recommendations, 

though, that we made in our report, and CMS agreed that it would 

seek the authority that it needs to try to have the penalty paid up 

front when it is imposed. Then, if it is overturned at a later time, 

that it is refunded or something, with perhaps even interest. There 

is precedent for that in other Federal programs. 

The CHAIRMAN. Would that be a significant improvement, or 

cause, in your opinion, a significant improvement in these homes 

that are being sanctioned, if they were required to pay the penalty 

up front pending the appeal? 

Ms. ALLEN. We think it could be more of a deterrent effect, yes. 

The CHAIRMAN. What about you, Dr. Farris? Do you think that 

would help? 

Dr. FARRIS. I think it would. As my colleague has said, we are 

certainly pursuing establishment of escrow accounts that will allow 

us to be able to collect those penalties in advance, up front, and 

be able to refund them if necessary. But because of the fact that 

the appellate process does take a while, it would send a strong 

message if we were able to make these collections early on. 

The CHAIRMAN. Ms. Allen, your testimony cites concerns that 

CMS’s double-G immediate sanctions policy, in which homes cited 

for actual harm in successive inspections are immediately notified 

by CMS that a sanction will be implemented, is not working as intended. 

59

Should CMS consider scrapping the 15-day notification interval 

during which homes can correct the deficiencies and escape the 

proposed penalty? What else might we do? 

Ms. ALLEN. We did not recommend that they scrap the 15-day 

notice, because the home deserves to have notice. But what we do 

recommend is that CMS simplify the policy, because the immediate 

sanctions policy is a complicated policy. It is even very complicated 

to explain about with all the requirements and how it works. 

Again, we made some recommendations to CMS about how it 

could simplify it and remove some of the barriers that get in the 

way of even imposing the penalties. Again, CMS has agreed that 

the complexity has been a hindrance to its implementation, and 

they are working to do that. 

The CHAIRMAN. Dr. Farris, you want to comment on that? 

Dr. FARRIS. Yes. We agree on those comments. It is important for 

us to take a look at the reasons why some homes do conform, some 

homes do correct the deficiencies that they have, and some homes 

don’t. 

Certainly, we agree that there is some complexity to the doubleG policy, and we are re-evaluating that policy. We are going to look 

at it and see if it would make sense to significantly change it. 

The period of time that facilities have for their notice is a required period of time, so we really can’t scrap that. But we can look 

at ways that we can more efficiently and more effectively give them 

notification that they are out of compliance and that we do plan to 

impose penalties. 

We certainly are looking at revamping that policy and simplifying it to make it more workable and more effective. 

The CHAIRMAN. How important is it, in your opinions, that we 

really do come up with a system that more effectively does sanction 

those facilities successfully that are not in compliance and require 

them to get in compliance or go out of business? 

Is this something that you would say is a really, really high priority in this industry, that we do a much better job of ferreting out 

those institutions that are not providing the kind of quality care? 

That we have a system to not only identify them, but insist that 

there be quick compliance or that they be fined or even put out of 

business? 

What is your sense of priority on this, Ms. Allen? 

Ms. ALLEN. GAO would suggest that there needs to be some 

mechanism to deal with the homes that repeatedly are out of compliance on a continuous basis. We had multiple examples of that 

in our most recent report that was just released. 

When so many Federal dollars are going into these homes and 

there are vulnerable residents who are experiencing significant neglect from the care, it is difficult to explain how those homes can 

be allowed to continue to participate in the Federal programs. 

Now, as CMS responded in its comments to our report, and we 

would agree, that sometimes it takes a combination of factors. 

Sometimes it is not sanctions alone, monetary sanctions, because, 

again, that could be taking money out of the system. 

But there are other ways. There is denial of payment for new admissions. There are temporary managers that can go in. Perhaps 

if the home is a member of a chain, there can be ways to have the 

60

chains hold them accountable for bringing in additional resources. 

There can be alternatives. 

One of the concerns about terminating a home is, that what happens with the residents? There is the concern about transfer trauma. Where do the residents go? That is a difficult issue. 

But at the same time, which is worse: staying in a home where 

a person is receiving very poor and negligent care, or moving to a 

facility where they may receive better care? It is a very difficult dilemma. 

But again, it seems like that, for the homes that are providing 

very poor care on a continuous basis, there really is a question 

whether they should be allowed to continue in the Federal program. 

The CHAIRMAN. Thank you. 

Dr. Farris, what are your thoughts? 

Dr. FARRIS. We think that there is definitely a great need to 

prioritize, making certain that homes that do participate in the 

Medicare and Medicaid programs provide good-quality care. There 

are a number of mechanisms that can be implemented to ensure 

this short of termination. 

I think Ms. Allen is entirely correct in mentioning entities such 

as transfer trauma. We know that transfer trauma is a real problem for some residents of long-term care facilities, particularly 

those who are cognitively impaired. 

We also know that, in the part of the world where I live, there 

are access problems. There are times when closing a facility may 

mean that the next closest facility is anywhere from 60 to 200 

miles away. This imposes a hardship on families who would like to 

go and visit their relatives. 

So we are looking, No. 1, as I said earlier, to try to find a way 

to find out why some homes will improve and implement sustainable corrections and why others will not. 

The special focus facilities that I mentioned earlier would be one 

example. We started out in 1999 with 100 of those facilities. We expanded it in 2005 to 135. We are looking very closely at what we 

can do to improve the quality of care in these facilities, which are 

considered the worst of the worst. 

There are a number of different modalities that are available, as 

I said and as Ms. Allen mentioned, in addition to the civil monetary penalties we have, denial of payment for new admissions, but 

we also have the ability to go in and provide them with directed 

plans of care and directed plans of correction. 

We are also looking not to penalize the residents of these homes, 

who are really helpless in this situation and very vulnerable. So we 

are looking at ways that we can work with the boards of directors 

of these homes, and particularly in cases where they are parts of 

national chains. We want to make certain that, if the owners are 

not the operators, we make the owners aware of the fact that poor 

care is being rendered in these facilities. 

So we are applying a multi-pronged approach to try to bring 

these facilities along, and we are studying what works and what 

does not over the course of time. I think that we will be able to 

come up with some measures and some mechanisms that will allow 

61

us to ensure high-quality care and terminate only when it is absolutely necessary. 

The CHAIRMAN. This is, I think fairly obviously, but I think we 

need to highlight it and discuss it a bit. We are talking about, in 

every case almost, management, right? It is people who are in 

charge of the facility or their immediate bosses. 

I have found, in my experience, where you have good management, inevitably you have a well-operated business, whether it be 

nursing homes or anything else. Where you have poor managers, 

that is where you run into trouble. 

Isn’t it true, or is it not true, that in these problem facilities, if 

you could replace management with a different management, you 

would almost be certain to expect improvement? Would you make 

that judgment? 

Ms. Allen. 

Ms. ALLEN. It is management. It is leadership. It is also resources. It is a matter of the resources that are going into the 

home, in terms of nursing level, the nurse aid level, as well as nutrition and a number of things. So it is not only the leadership, but 

it is also the financial resources, as well. 

The CHAIRMAN. I am sure that is true. 

Dr. Farris. 

Dr. FARRIS. Ms. Allen is absolutely right. It is multi-factorial. We 

think that the resource constraints that some facilities have would 

need to be addressed in order to allow them to provide better care, 

working with the leadership, and again, particularly if the ownership is different from the management of the facilities. 

It is important to make sure that that board of directors that is 

in charge, or the owners of the facilities, are made aware of the fact 

that there are problems there that need to be addressed. In some 

instances, perhaps in many instances, those boards or that leadership can actually bring to bear some of the other parameters that 

will allow us to make corrections, such as infusing more resources 

into it. 

The CHAIRMAN. We have, what, about 16,000 nursing homes 

across the country, and the estimate is that perhaps 20 percent are 

on that list of having to need great improvement, so that is like 

3,000. 

Is that somewhere in the ballpark, without trying to be too 

arithmatic? Because obviously even the other 80 percent, many of 

those can improve. But in terms of really needing direct attention, 

would you say that there may be 20 percent out of the 16,000 that 

you might estimate that would be on that list? 

Ms. Allen. 

Ms. ALLEN. Yes, that is correct. But may I just add a comment 

to that, or another perspective? 

One of the things that I mentioned in my remarks is that there 

is great variation across the States with that number. It ranges 

from about 2 percent in one State that reports on nursing homes 

that are cited for actual deficiencies to a high of almost 50 percent 

of homes in another State. 

We don’t believe that the actual quality really varies that much. 

What we believe, rather, is that it shows differences in terms of 

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how quality is assessed. That is one of the reasons—and at the 

same time, we also have found that there is understatement. 

So there could be understatement across the States across the 

board. So we continue to be concerned about what the data are telling us. 

That is one of the reasons, though, that we would like to suggest 

it is so important that some of the measures that CMS is working 

on, for example its survey methodology, is so very important, because we need to know what is going on in the homes. There needs 

to be more consistency in terms of how the level of care and quality 

of care is being assessed. 

So I just wanted to make that remark. We are confident that 

about 20 percent of the homes are being cited for deficiency of care, 

but it does vary across the States very significantly. We need to 

pay attention to that variation, as well. 

The CHAIRMAN. That is a good comment. 

Dr. Farris. 

Dr. FARRIS. I think that that variation is key to this discussion. 

We are working with State survey agencies. We have begun to implement training for the State survey agencies to make certain that 

we take out any differential that may be there on a State-by-State 

basis to make sure that the protocols are implemented consistently 

across the country. 

In terms of the numbers of facilities, again, as we said, we have 

already identified 135 of the worst of the worst facilities. Certainly 

we think that that number could be expanded. I wouldn’t go so far 

as to say it could be expanded to 20 percent based upon the variation and the variability that we just talked about, but it can certainly be expanded beyond 135. 

To the extent that the resources are infused into the survey and 

certification budget, we can expand that number, just as we did in 

2005 where we increased it by 35 percent, to be able to look at a 

larger number of the worst of the worst and to begin to work with 

them to bring them into compliance. 

The CHAIRMAN. Would you say that, if you had sufficient resources, an increase in the resources that you have now, that you 

could make a quick and significant improvement in these troubled 

homes? 

Dr. FARRIS. We can certainly begin to effectuate improvements 

and to find ways to not only implement these improvements but to 

also ensure that they are sustainable, to work with these homes on 

an ongoing basis and to work with our State survey agencies, 

again, to achieve consistency. 

But also to work with the homes through the various modalities 

that we talked about, applying not only sanctions but also management, different management to come in, and directed plans of care, 

to ensure that they do come into compliance and continue or begin 

to provide good quality of care on a sustainable basis. 

The CHAIRMAN. Ms. Allen, is it a question of resources? 

Ms. ALLEN. I think that there is no doubt that additional resources would be helpful. 

The CHAIRMAN. OK. 

We have with us the very fine Senator from Missouri, Claire 

McCaskill. 

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Would you make some comments, ask some questions? 

Senator MCCASKILL. Thank you, Mr. Chairman. 

One of the issues I think, having done a number of audits on 

nursing home care as the State auditor in Missouri, and looking at 

what I think those of us who have spent some time on this issue 

call the roller-coaster syndrome, that is the right-to-cure problem. 

There is this incredible tension between the inspectors on the 

ground in terms of keeping that facility open and penalizing appropriately to mandate that the care improves. 

Reality: You have a small nursing home in a small community, 

and they are getting cited and curing, getting cited and curing, 

and, frankly, were it not for the reality of where would those people 

go, I think they might be tougher and, frankly, appropriately 

tougher on some of the nursing homes. 

But I think what happens to the inspectors on the ground that 

are doing the surveys is, one, they develop relationships with the 

administrators. They see some administrators that are trying to do 

good but are having difficulty, whether it is—I know we are going 

to talk about the nursing shortage, but there is a real shortage in 

terms of qualified health care professionals, especially at the level 

of pay that some of these nursing homes can give. 

I guess, has there been any efforts to look at having a mandatory 

plan in place in every State that would allow for the transferal of 

patients on an immediate basis so that tension is relieved? 

In other words, having so many beds being required to be available in facilities that haven’t had Class I violations, that haven’t 

had the history of problems, and that—because I think if you really 

began to have some dramatic penalties, like, ‘‘Hey, you are done, 

we are shutting the door,’’ I think you would have more of a deterrent effect on some of the other consistently problematic homes. 

Have there been any States that you are aware of that have always had kind of a plan in place to transfer nursing home residents, long-term care residents, to other facilities? 

Ms. ALLEN. GAO has not specifically looked at that systematically. 

We do know that one of the more effective penalties has been denial of payment for new admissions. In other words, if there are 

problems, to simply say we are not going to allow any more to come 

in until you correct that. In other words, if there is something to 

affect the income stream, that can be a powerful incentive to correct. 

One of the other issues, though, in some respects, the occupancy 

rate of nursing homes has been coming down. So in some communities, it may be possible to transfer residents to another nearby 

facility. There may be other beds. If there are Medicaid beds available—and that is typically the population we are talking about, 

Medicaid beds—there may not be a Medicaid-certified bed available, so that is an issue of availability. 

There may also be, though, the issue of, in the smaller community, more rural community, is there an available facility for them 

to go to? That is one of the very difficult issues. Are there alternatives for that? 

There is the issue of transfer trauma that is a very difficult issue 

as well. So we acknowledge it is a very difficult issue about what 

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do we do at that point where there is a tradeoff between poor care 

being delivered, particularly for those that is chronically poor care, 

cycling in and out of compliance, the roller-coaster effect. 

If you care about the resident, which is better or worse: moving 

the resident someplace else out of that facility, which is more compassionate, or to leave them in that facility, where they may continue to get——

Senator MCCASKILL. Less-than-great care. 

Ms. ALLEN. Less-than-quality care. 

Dr. FARRIS. Well, Senator, you raise a very important point that 

actually revolves around the issue of access. As we begin to look 

at imposing sanctions against a nursing home, and particularly if 

we are considering strongly the termination of the provider agreement for that nursing home, we begin to work in conjunction with 

the State to find places where there is adequate capacity for patients to be moved. 

Aside from the conversation about the transfer trauma, which is 

a real entity, we have found that there are circumstances in which 

it is very difficult to move patients from one facility to another. 

In some instances it will be imposed by geographic constraints. 

There may not be another home within 60 to 100 miles, where a 

number of patients could be transferred, and this imposes a hardship on the families that would want to visit those patients. 

We also have to look at special needs that some patients may 

have. Some facilities have a particular expertise in taking care of 

certain types of patients. One of the ones that we recently dealt 

with had to do with ventilator patients. There is not a lot of capacity if you need to move patients from a home where there are ventilator-dependent patients. There are some homes that have large 

populations of pediatric patients, which require some special care, 

and you cannot put those into every particular situation. 

So access becomes very important as we start to look at where 

we can move people. We always work with the States to allow them 

to tell us where that capacity is, or if it is not there. 

So, yes, you are absolutely right. There are instances in which 

we are not able to move forward with termination because of access 

issues or because of real strong concerns about transfer trauma. 

But there are other modalities that we can implement, short of 

termination, such as bringing in new managers, different managers, imposing directed plans of care, that we will force them to 

implement. These modalities have been shown to actually bring 

them back into compliance. 

But as we have said, one of the things that we are looking for 

is to find sustainable corrections. 

Senator MCCASKILL. Right. 

I have so many areas I would like to cover in this because of the 

work that we did on this in Missouri. But one of the things that 

is troubling me about the future of nursing home care is that there 

is a trend in my State to begin to use nursing homes as an alternative to mental health facilities by public administrators. 

In the urban areas of our State, there are mental health facilities 

that the courts can use to place people that they believe must be 

put in a facility. But as you probably are aware, in our country, we 

began trying to de-institutionalize our mental health patients by 

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moving them ‘‘out into the community.’’ Well, in some instances, 

that meant to a homeless shelter. In rural areas, where you don’t 

have any kind of safety net for the homeless population, many 

times they end up in a probate court as a ward of the court, and 

the court determines they must be placed somewhere. 

Well, if you are in a relatively rural area, where are you going 

to place these people that may be schizophrenic or psychopaths? 

Well, they are being placed in nursing homes. 

So you have two types of populations in the same nursing home. 

You have an elderly geriatric population that, frankly, with what 

is changing in our health care spectrum, where we are going all the 

way from assisted living, home health care, and we have the wide 

spectrum that we didn’t have—people’s notion that people are 

going into nursing homes to play checkers and maybe stay a while 

and go back home, that is not what the reality is in nursing homes 

now in terms of acuity. 

We have a much larger population. It is non-ambulatory. You 

have people that have much more aggressive needs in terms of dayto-day care because they are only there because the hospital is not 

letting them stay in the hospital anymore, and they are going there 

to die because they can’t be cared for in their home with hospice, 

or whatever. Many of them are. 

Then, you have the juxtaposition of a mental health population 

under the same roof, with two separate requirements in terms of 

regulation. You may have a probate judge telling that nursing 

home, ‘‘You must keep this population from wandering anywhere. 

They must be in lockdown.’’ Then, you have the requirement for 

the nursing home population that you put them in the least restrictive environment, that you can’t use restraints or you are not allowed to use restraints because that, in fact, would be sanctioned 

if you were inappropriately using restraints on the geriatric population. Well, then inspectors come in to do surveys, and they see 

a mental health patient that is being used with restraints, and 

they are getting cited. 

So, what steps has CMS taken to acknowledge these two different types of population? 

If it is happening in my State, I am sure it is happening in other 

States, this juxtaposition between—and kind of the gray area in 

the middle is the Alzheimer’s. What is happening is a lot of these 

mental health patients are ending up in Alzheimer’s units. So, that 

is completely inappropriate. 

By the way, a lot of these staff don’t have a requirement to even 

train their people on the mental health issues, how to deal with the 

mental health population. So you have people who have been 

trained to deal with somebody who is non-ambulatory and geriatric 

that is now dealing with a sociopath or a schizophrenic. It is just 

not good. 

I am curious what, if anything, is going on in your agency to acknowledge that this is happening in our country, and taking steps 

to make sure that we have the appropriate regulations, inspections 

and training in place. 

Dr. FARRIS. Yes, Senator. You, again, raise a very important 

point. This has been recognized, and it is something that is being 

addressed by the leadership at CMS. 

66

The long-term care team that has been put together across the 

agency, across CMS, where we have input from a number of different sources, is taking this sort of situation under advisement. It 

has been recognized. 

If I may change hats for just one second and go back to my 

former life as a public health official, the de-institutionalizing of 

the mentally ill that took place back in the 1980’s has really caused 

a number of problems not only in this particular setting, but——

Senator MCCASKILL. Don’t even get me started on the group 

homes that have nobody doing surveys. I mean, there are no surveys going on in these mental health group homes. 

What is going on in terms of abusive practices and wrong medication, the top of my head can blow off if I start thinking about 

what is going on to these poor people in some of these group homes 

across our country. 

Dr. FARRIS. Let me just say that, during the time that I was the 

Dallas County health director in Texas, the largest mental health 

institution in Dallas was the Dallas County Jail. 

Senator MCCASKILL. Right. 

Dr. FARRIS. Until we are able to address the appropriate placement of patients with mental illnesses, actually through the system 

of jurisprudence, we tried to implement a system where there were 

diversion programs to keep people out of the criminal justice system who had mental illnesses. 

I think we need to begin to look at this problem from the same 

perspective as it relates to nursing home patients, because many 

of the patients who go into the nursing homes are not going because they want to; they are being sent there. So it has to be addressed at a different level. 

Senator MCCASKILL. I am worried about the families of the elderly. I mean, what I worry about is we are not doing full disclosure. 

If you are about to place a loved one in a nursing home, do we have 

an obligation to tell them that they have a half a dozen sociopaths 

that have been committed to that facility? 

We are talking about young people. We are talking about people, 

many of whom have tendencies to act out, sexually and aggressively, and in terms of assaultive behavior, and they are being 

heavily medicated in order to deal with that. 

Do we have an obligation to make sure that consumers that are 

going to use a nursing home are aware that there are these people 

in the nursing home? Do we need specific regulations requiring 

that nursing homes that have these dual populations, that there is 

two standards of training and that States should have two sets of 

regs, making sure that there is the appropriate oversight in both 

areas? 

Dr. FARRIS. Well, Senator, I think as the group that I mentioned, 

our long-term care team at CMS, begins to delve more deeply into 

these issues, we will be more than happy to get back with you to 

let you know where our thinking is going on this and how we plan 

to address this issue. 

Senator MCCASKILL. I would appreciate that, because, at the 

same time, we do have a problem of census in terms of these 

homes. So homes are looking at ways to fill the beds, so they are 

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turning to this issue. Now, some are doing it responsibly, with 

training. Some of them aren’t. 

I think getting a handle on this is really important because, as 

these nursing homes deal with struggling census—and census is 

the bottom-line determinator as to whether or not they can afford 

to pay the people who work there to give the care that is necessary. 

I don’t want to shut off the availability of bed space to mentally 

ill people who need it, and it may be that we need to take a role 

as government in designating facilities as those that are appropriate to receive these types of patients when we are confident that 

we have the appropriate amount of training and oversight in place. 

Dr. FARRIS. We will be very happy to get back with you on that. 

Senator MCCASKILL. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator McCaskill. Those 

were really insightful comments based on your experience and 

questions, and made a real contribution. 

We thank you both for being here this morning. You have been 

excellent witnesses, and I think you have shed a lot of light on this 

issue. Thank you so much. 

Dr. FARRIS. Thank you. 

The CHAIRMAN. Our first witness on our second panel will be 

Charlene Harrington, who is a professor of sociology and nursing 

at the University of California in San Francisco. Professor Harrington’s research focuses on quality, access, utilization and nursing home expenditures, home and community-based care, as well as 

personal care services. She has been a leader in nursing home care 

reform efforts for the past 3 decades. She has served on the Institute of Medicine’s panel, whose 1986 report led to the passage of 

the Nursing Home Reform Act of 1987. 

The second witness will be Alice Hedt, executive director of the 

National Citizens Coalition for Nursing Home Reform, which is an 

advocacy organization that provides information and leadership 

and Federal and State regulatory legislative policy development to 

improve care and life for residents of nursing homes and other 

long-term care facilities. Ms. Hedt will testify that conditions in 

many nursing homes are still unacceptable, and provide the Committee with recommendations of creating a stronger enforcement 

system. 

Our third witness will be Mary Ousley. Ms. Ousley is the president of Ousley & Associates, former chair of the American 

Healthcare Association, which is the largest trade organization representing long-term care. Since 1988, she has acted as an advisor, 

provider representative on the policy and regulatory development 

of OBRA 1987, on survey and final certification, as well as on enforcement. 

Our last witness will be Orlene Christie, who is director of the 

Legislative and Statutory Compliance Office for the Michigan Department of Community Health. Ms. Christie will discuss how 

Michigan has designed and implemented its background check program, which excludes individuals with certain criminal histories 

and records of abuse from working in nursing homes. 

So we welcome you all here. 

We would start with your testimony, Ms. Harrington. 

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STATEMENT OF MS. CHARLENE HARRINGTON, PROFESSOR OF 

SOCIOLOGY AND NURSING, UNIVERSITY OF CALIFORNIA, 

SAN FRANCISCO, CA 

Ms. HARRINGTON. Thank you, Mr. Chairman. 

I first became aware of the serious quality problems in nursing 

homes in 1976, when I was the director of the California Licensing 

and Certification Program. At that time, about one-third of California nursing homes were providing substandard care. 

Today, over 30 years later and 20 years after the adoption of 

OBRA 1987, still a very large percent of nursing homes offer poor 

care, resulting in harm, jeopardy and death to residents. Literally 

dozens of studies, including those by the GAO and the OIG and researchers, have documented these persistent quality problems. 

I am going to argue today that three areas need to be improved 

in order to ensure high-quality care: first, the enforcement of existing laws; second, adequate nurse staffing levels; and third, financial accountability for government funding. 

The GAO should be commended for its new report and its recommendations, which I certainly endorse. CMS should revise its 

enforcement procedures and practices to streamline them, to increase the size of penalties, and take swift action against poor performing nursing homes. 

In addition, our studies of the wide variation in enforcement 

practices across States have found that the States that do a better 

job of enforcement are those that receive higher survey and certification funds from CMS. This shows the need for increased Federal 

funding for State survey agencies. 

Moving to the underlying issue of poor quality in nursing homes, 

I really think there is no mystery about it. The basic problem is 

that we have inadequate nurse staffing levels in nursing homes. 

The positive relationship between high nurse staffing levels, especially R.N. staffing, and the quality of care in nursing homes has 

been shown in numerous studies. A study by Abt Associates for 

CMS in 2001 reported that a minimum of 4.1 hours per resident 

per day, including .75 R.N. hours, are needed to prevent harm to 

residents with long stays in nursing homes. Two IOM reports have 

recommended increased minimum Federal staffing standards for 

nursing homes. 

Unfortunately, the total nurse staffing levels across the country 

have remained flat for the last 10 years, well below the recommended levels, and some nursing homes have dangerously low 

staffing. Shockingly, R.N. staffing hours have declined by 25 percent across the Nation since the year 2000 alone. 

The decline is directly related to the implementation of the Medicare Prospective Payment System, because nursing homes no 

longer need to provide the level of nursing care that is paid for in 

the Medicare rate. Recognizing the low staffing, some States have 

begun to set their own minimum staffing levels, and Florida has 

recently established a 3.9 total nurse staffing level. 

Studies have shown that nursing homes will increase staffing if 

the Medicaid reimbursement rates are increased. This encourages 

nursing homes to add more staff. But a new study that I have just 

done shows that high State minimum licensed staffing standards 

69

are the most effective policy that you can use to get the staffing 

levels up. 

The nursing turnover rates continue to be high, and those reduce 

the continuity and the quality of care, and they increase the cost 

of nursing homes. Turnover rates are directly related to the heavy 

workloads that nurses have and the low wages and benefits and 

poor working conditions. 

Now, government is paying 61 percent of the Nation’s nursing 

home expenditures, so it has focused most of its efforts on cost containment. The majority of State Medicaid programs have adopted 

prospective payment systems, and nursing homes respond by cutting their staff and cutting their quality to stay under those rates. 

In 1998, when Medicare adopted prospective payment, it was established, but with very little or no accountability. One way to 

make nursing homes more financially accountable under prospective payment is to establish cost centers. 

Four cost centers should be set up: one for direct care, like nursing and therapy; one for indirect care, like housekeeping and dietary; three, for capital costs; and four, for administrative costs. 

After the rates are determined for each cost center, the nursing 

home should be prevented from shifting funds away from the nursing and the direct care to pay for administrative costs for capital 

or profits. Retrospective audits should be conducted to collect funds 

that were not expended on the direct and indirect care that it was 

allocated for, and penalties should be issued for diverting funds 

away from direct care. 

In summary, we need to improve the enforcement, the staffing 

levels and the financial accountability if we are ever going to solve 

these intractable quality problems. 

Thank you very much. 

[The prepared statement of Ms. Harrington follows:]

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The CHAIRMAN. Thank you for your very fine statement. 

Ms. Hedt. 

STATEMENT OF MS. ALICE H. HEDT, EXECUTIVE DIRECTOR, 

NATIONAL CITIZENS’ COALITION FOR NURSING HOME 

REFORM, WASHINGTON, DC 

Ms. HEDT. Good morning. 

Twenty years ago I was a local ombudsman in North Carolina, 

working with 12,000 residents in eight counties. I joined the Coalition for Nursing Home Reform because that organization was leading the way to get OBRA written and implemented. I am honored 

to be here to represent that organization today. 

Senator Kohl, we particularly want to thank you for your leadership on criminal background checks, on funding on the ombudsman 

program, and on the Elder Justice Act. 

I also want to point out that your homestate, Wisconsin, has one 

of the best procedures for nursing home closures, so that residents 

do not suffer from transfer trauma like they do in some of the other 

States. It should be held up as a model for the rest of the Country. 

The CHAIRMAN. Thank you. 

Ms. HEDT. When OBRA was passed in 1987, a lot of changes 

started happening in nursing homes that I was able to observe. 

Those changes included taking off of restraints of residents. At 

that time, over 40 percent of residents were restrained. If you think 

about it a minute, if those numbers were realized today, it would 

mean that 680,000 people each year would be restrained in nursing 

homes. Right now, our rate is about 10 percent. We need to make 

a lot of improvements in that, but there has been a significant 

change. 

Residents also were chemically restrained, and one resident, Judith Mangum, who has been on our board of directors and been in 

a nursing home since before OBRA, told me that she went into the 

nursing home and was literally drugged because she was 21 years 

old and they didn’t know what to do with her. We have seen significant changes in that area. 

Social workers at that time became very involved in promoting 

residents’ rights, and so did long-term care ombudsmen. One of 

those particularly that is still with us is from Missouri, Carol Scott, 

the State ombudsman. They worked hard to make sure that residents knew that they don’t give up their Constitutional rights as 

United States citizens just because they enter a facility. 

Mail started being delivered every day. People started knocking 

on doors before they went into residents’ rooms. There were huge 

improvements. 

I was proud to be a part of an organization that led a coalition 

to bring about nursing home reform, and that included many people in the room today—consumers, providers, health professionals. 

Sadly, our vision for nursing home reform was not realized, and 

has not been realized over the last 20 years. I want to point to four 

major reasons why. 

The first, as Ms. Harrington discussed, is staffing. We know, that 

there has to be a minimum standard of 4.1 hours of nursing care 

per resident each day to have adequate care, so that residents are 

not harmed. Ninety percent of facilities do not staff at this standVerDate 0ct 09 2002 10:07 Nov 01, 2007 Jkt 000000 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 H:\DOCS\37151.TXT SAGING1 PsN: JOYCE
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ard. Moreover, consumers do not know at what levels facilities are 

staffing because there is not accurate, audited, publicly available 

data on nursing home staffing at this time. NCCNHR has a staffing standard that details the staff needed for quality care. 

NCCNHR has a staffing standard that details the staff needed for 

quality care. 

Particularly important is the role of nurses. We know that pressure sores, weight loss and other serious problems that residents 

can experience can be directly impacted by having more R.N. care. 

A lot of times, we forget that there are high costs to poor care. 

When we don’t have enough staff, it results in high cost and increased hospitalizations, more pressure sores and other things that 

are very costly to us as a society. 

The second big area is the enforcement of OBRA that needs to 

be addressed. We fully support the GAO recommendations that 

were brought forth today. 

From a consumer viewpoint, we feel strongly that information 

about sanctions needs to be made available to the public. Right 

now, if I choose a nursing home, I can’t tell if that nursing home 

has been sanctioned or not. I don’t know if admissions have been 

closed. This information needs to be on Nursing Home Care. Consumers have a right to know which nursing homes the states and 

CMS have sanctioned. 

We also feel that temporary managers should be used, and the 

good-performing facilities should be able to take over poor-performing facilities so that it is not the residents that suffer. 

Residents and their family members also need to be involved in 

dispute resolution. Right now, it is the facilities that have the option of disputing the survey’s findings, not the complainant or the 

resident. 

I want to put into the record our ‘‘Faces of Neglect’’ book. This 

documents family members who suffer terribly in nursing homes, 

and whose facilities, in most cases, were not sanctioned. The system literally broke down for these families. We need to make sure 

that other Americans do not suffer like these families did. 

Third, I want to point out that facilities themselves can make a 

huge difference in implementing OBRA. OBRA called for individualized resident care. If care is individualized, that will handle the 

issues around people with mental illness, because facilities should 

have staff that are trained and equipped to handle those facilities. 

If care is individualized, that should handle the issues of people 

with very specific needs going into facilities and with dementia 

that need to be handled. 

Besides staffing and enforcement, we want to make sure that 

every nursing home in the country uses total quality management 

practices to work for individualized care. The Pioneer Movement 

can assist in this, the Quality Improvement Organizations (QIOs), 

the Advancing Excellence Campaign, are all resources that facilities can use to improve management and move toward individualized care. 

Finally, consumers are asking that information be made publicly 

available that they need. Consumers need to know about the staffing levels. They need to know about if a facility has been sanctioned. They need to know, and want to know, about the cost reVerDate 0ct 09 2002 10:07 Nov 01, 2007 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 H:\DOCS\37151.TXT SAGING1 PsN: JOYCE
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ports and how tax dollars are being used in facilities. Basically, 

they need to know who owns and manages facilities. Right now, 

that information is not available to the public on nursing home 

compare. 

Today, 20 years after the implementation of OBRA, a lot of us 

that worked on that issue will soon need long-term care, as will our 

family members. So I thank you for holding this hearing and not 

forgetting the 3 million Americans who need and utilize nursing 

home care now and those of us who will need care in the future. 

Thank you. 

[The prepared statement of Ms. Hedt follows:]

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The CHAIRMAN. Thank you very much, Alice. 

Mary Ousley. 

STATEMENT OF MS. MARY OUSLEY, PRESIDENT, OUSLEY & 

ASSOCIATES, FORMER CHAIR, AMERICAN HEALTH CARE 

ASSOCIATION, RICHMOND, KY 

Ms. OUSLEY. Thank you. Thank you, Chairman Kohl, Members 

of the Committee. 

Twenty years ago, the passage of the Omnibus Budget Reconciliation Act ushered in an era of change in resident care. Congress 

made the care mandate very clear: All certified facilities must obtain or maintain the highest practical mental, physical, psychosocial well-being for each resident. 

A second mandate of OBRA 1987 was the requirement that each 

facility establish a quality improvement committee. This important 

committee offered a platform from which each facility could evaluate their own outcomes of care, as well as the processes that generated good outcomes of care. 

This commitment to quality improvement is best demonstrated 

by a recent quote by acting CMS Administrator Leslie Norwalk. 

She states, ‘‘Nursing home providers have been on the leading edge 

of this quality movement, long before hospitals, doctors, home 

health providers, pharmacy, dialysis facilities and others came to 

the table. The nursing home industry was out front with quality 

first to volunteer effort to elevate quality and accountability.’’ She 

goes on to say that quality measurement is working in nursing 

homes, and it is the best path to high quality. 

OBRA 1987 was also intended to move the survey and certification process in a new direction. The statute envisioned a resident-centered, outcome-oriented, consistent system of oversight. 

Unfortunately, the system that we have today, many times, bears 

little resemblance to that vision. What we have is a system that 

defines success and quality in a regulatory context that is often 

measured by the level of fines levied and the violations tallied, not 

by the actual quality of care or quality of life. 

We, the American Healthcare Association and all of our members, take very seriously the recently released GAO report, and acknowledge that we still have many challenges ahead of us in addressing and improving the Nation’s most troubled facilities. However, we are also pleased to note in the report that it indicates that 

there has been a dramatic decrease in the number of facilities cited 

for actual harm or immediate jeopardy. 

From a historical and comparative standpoint, let us briefly look 

at the 2003 GAO report, which found an almost 30 percent reduction in the number of actual harm deficiencies cited over an 18-

month period. However, it went on to say that it was unclear 

whether this was due to an understatement of deficiencies or, as 

we would argue, whether or not it was a true indication of quality 

improvement. 

This dichotomy points to the central problem in understanding 

today’s oversight process and underscores the inability to distinguish the failure to identify deficiencies and true quality improvement. 

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The GAO makes several recommendations in their report, and I 

want to highlight and speak to just a few of those. 

Recommendations include: Expand the CMS Nursing Home Compare site to include imposed sanctions and homes subject to immediate sanctions, we agree. But we also agree with the concern that 

the GAO raises in the report that says that if these data are to be 

put on the Web, then we need to make sure that they are accurate 

and understandable by families. 

No. 2, expand the special focus facility program to include all 

homes that meet criteria as poor-performing. We support the transparent processes that ensure improvement in these facilities, and 

encourage greater involvement by the quality improvement organizations in each and every State. 

As it has been clearly demonstrated that such cooperation is effective in improving the quality of care, I do want to say we are 

supportive of CMS terminating consistently poor-performing facilities that cannot achieve or sustain compliance over time. 

No. 3, ensure the consistency of the imposition of civil monetary 

penalties by issuing standardized grids, which was piloted in 2006. 

We disagree with this recommendation. We believe that circumstances surrounding noncompliance must be evaluated on an 

individual basis before any remedy can be imposed, and we do not 

believe a standardized grid would achieve this goal. 

We believe the path to continued improvement is found in assessing the effectiveness of the joint Federal provider nursing home 

quality initiative and our own quality first. I am proud to say it 

is working, and it is being effective. 

Here are some of the facts. Key quality indicators tracked by the 

initiative over the past 5 years have shown improvement, including 

improvement in pain management for nursing home residents, reduced use of restraints, decreased number of residents with depression, and decrease in occurrences of pressure ulcers, just to mention a few. 

We all know that the satisfaction of residents and families are 

absolutely paramount in determining the true quality. A recent 

independent study showed that four out of five residents and families indicated that they were satisfied with their care, and they 

would actually rate that care as good or excellent. 

Each of us here today seek precisely the same objective, which 

is to work to improve the quality of health care in our Nation and, 

specifically, long-term care. To this end, we applaud the legislation, 

the Long-Term Care Quality and Modernization Act, which Senators Smith and Lincoln introduced in the 109th Congress. We 

hope that such a bill that encourages a culture of cooperation will 

be reintroduced. 

In summary, Mr. Chairman, Members of the Committee, I have 

been in long-term care for 30 years, and I can say to you that the 

commitment to quality has never been higher than it is today. 

From the CEOs of the major corporations to the individuals that 

own single facilities, it is on everyone’s mind. Everyone is working 

toward it, and we are doing it, and we are getting better every day. 

Over 4,000 nursing homes today are participating in the just-announced-in-September, ‘‘Advancing Excellence in America’s Nursing Homes.’’ From my perspective, I simply want us to all continue 

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to work together to take the platform that OBRA 1987 gave us and 

help us get better every single day and keep these systems and 

methods evolving so that we all get from our nursing homes what 

we deserve. 

Thank you. 

[The prepared statement of Ms. Ousley follows:]

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The CHAIRMAN. Thank you, Ms. Ousley. 

Ms. Christie. 

STATEMENT OF MS. ORLENE CHRISTIE, DIRECTOR, LEGISLATIVE AND STATUTORY COMPLIANCE OFFICE, MICHIGAN 

DEPARTMENT OF COMMUNITY HEALTH, LANSING, MI 

Ms. CHRISTIE. Thank you, Chairman Kohl and Members of the 

Special Committee on Aging, for this opportunity today to testify 

before you on the Michigan Workforce Background Check Program. 

As you have stated before, my name is Orlene Christie, and I oversee that program. 

In 2004, Governor Granholm and the Michigan Department director, Janet Olszewski, proposed strong requirements to assure 

the health and safety of Michigan’s citizens in long-term care facilities. This project is a priority for the Governor and for the Department Director. 

Working cooperatively with the Michigan legislature, the Office 

of Attorney General and the Centers for Medicaid and Medicare 

Services, Michigan successfully implemented the Workforce Background Check Program. Through a competitive process, Michigan 

was also successful in securing a $3.5 million grant to create an effective statewide background check system. 

Through the passage of Public Acts 27 and 28 of 2006, Michigan 

laws were enhanced and improved to require all applicants for employment that would have direct access to our most vulnerable population, the elderly and disabled, to undergo a background check. 

Additionally, all employees who are hired before the effective date 

of April 1, 2006, would need to be fingerprinted within 24 months 

of the enacted laws. 

Before the new laws were passed, only some employees in nursing homes, county medical care facilities, homes for the aged and 

adult foster care facilities were required to have some kind of background check. Prior to 2006, the background checks were less comprehensive and primarily included just a name-based check of the 

Internet criminal history tool. The FBI’s fingerprint check was only 

required for employees residing in Michigan for less than 3 years. 

The previous law also did not require all employees with direct 

access to residents in long-term care facilities to undergo a background check. Further, for those persons who were subject to a 

background check, there was no systematic process across the multiple health and human services to conduct the checks to disseminate findings or to follow through on results. 

With Michigan’s expansion of the laws, all individuals with direct 

access to residents’ personal information—that information can be 

financial, medical records, treatment information or any other identifying information—are now required to be a part of Michigan’s 

Workforce Background Check program. 

The scope of the checks was also enhanced to include hospice, 

psychiatric hospitals, hospitals with swing beds, home health and 

intermediate care facility/mental retardation. 

Let me explain a little bit about how our program works. 

Michigan created a Web-based application that integrates the 

data bases for the available registries and provides a convenient 

and effective mechanism for conducting criminal history checks on 

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employees. Independent contractors and those granted clinical 

privileges in long-term care facilities, those individuals are now 

covered under the new laws. 

Further, the online Workforce Background Check System is designed to eliminate unnecessary fingerprinting through a screening 

process. As of April 1, 2007, almost 99,000 applicants have been 

screened through Michigan’s Workforce Background Check Program. 

Of the 61,000 or so individuals that a background check was 

prompted on, about 3,200 were deemed unemployable and excluded 

from potential hiring pools due to information found on the State 

lists that include the iChats, the Office of Inspector General exclusion list, the nurse aid registry, the sex offender registry, the offender tracking system, and the FBI list. 

The applicants that have been excluded from employment are not 

the types of people that Michigan could ever afford to hire. These 

people have contact with some of our most vulnerable population. 

We have prevented hardened criminals that otherwise would have 

access to these vulnerable populations from employment. 

As Michigan’s demographic profile mirrors that of the Nation, 

the offenses that disqualify individuals from employment in longterm care under the new laws are expected to all be similar across 

the United States. 

Of the criminal history reports that were examined, fraudulent 

activity and controlled substance violation accounted for 25 percent 

of all disqualifying crimes. Fraudulent activity, as we all know, includes such things as embezzlement, identity theft and credit card 

fraud. This is particularly alarming, given the projected increase in 

financial abuse amongst the elderly. 

Accessible to long-term care providers through a secure I.D. and 

password, a provider is easily able to log on to the Workforce Background Check System to conduct a check of a potential employee. 

If no matches are found on the registries, the applicant goes on to 

an independent vendor for a digital life scan of their fingerprints. 

The prints are then submitted to the Michigan State Police and 

then to the FBI. 

If there is a hit on the State or national data base search, a notice is sent to either the Michigan Department of Community 

Health or our other agency, the Michigan Department of Human 

Services, for their staff and our staff to analyze the results of the 

criminal history. 

Michigan has also implemented what we call a ramp-back system, where Michigan State Police notifies the two agencies that I 

have just talked about of a subsequent arrest and, in turn, the 

agency notifies the employer. This way, we can assure that, in realtime, as soon as a criminal history record is updated—and that can 

include an arrest, a charge or a conviction—the Department and 

the employer will know about it and will be notified. 

As I conclude, as a result of Michigan’s Workforce Background 

Check Program, the health and safety of Michigan’s vulnerable 

population is protected by ensuring that adequate safeguards are 

in place for background screens of direct service workers. 

While the vast majority of health care workers are outstanding 

individuals—and I do want to make that point—who do a wonderVerDate 0ct 09 2002 10:07 Nov 01, 2007 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 H:\DOCS\37151.TXT SAGING1 PsN: JOYCE
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ful job of caring for people in need, we are extremely pleased that 

Michigan’s Workforce Background Check Program has stopped 

more than 3,000 people with criminal histories from possibly preying on our most vulnerable population. 

By building an appeals process, we also have developed a fair 

system for reviewing inaccurate criminal records or convictions. 

So, as you can see, Mr. Chairman, Michigan has been leading the 

way in the area of employee background checks. As I indicated before, this project is and has been and will continue to be a priority 

for Governor Jennifer Granholm and for the Michigan State director, Janet Olszewski. 

We appreciate this opportunity to share this information with 

you today and look forward to our continued cooperation on this 

vital topic. Thank you. 

[The prepared statement of Ms. Christie follows:]

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The CHAIRMAN. Thank you. Thank you, Ms. Christie. 

I would like to ask you, each member briefly, to comment on Ms. 

Christie’s background check program, and would you think that is 

a high priority, in terms of having a national background check 

program? 

Ms. Harrington. 

Ms. HARRINGTON. Yes, I certainly agree. I think it is a very important step forward, and I am very pleased to hear about the 

Michigan program. I think Federal legislation is in order. A number of States do have it, but there is half of the States that don’t. 

The CHAIRMAN. Right. 

Ms. Hedt. 

Ms. HEDT. Yes, we think it is essential. 

There are two kinds of abuse and neglect that residents experience. One is from individuals who should not be working in the 

field, and the other is from neglectful practices, for not having 

enough staff or not caring for a resident appropriately. This would 

help very much to handle that first situation. 

The CHAIRMAN. Ms. Ousley? 

Ms. OUSLEY. Yes, we absolutely have had longstanding policy 

with the American Healthcare Association that we support background checks, and we are very supportive. 

The CHAIRMAN. I would like to ask for your comments on CMS’s 

Nursing home Compare Web site. Many people find that it is not 

clear how to use it. They don’t find the information they are looking for. 

For example, you, Ms. Ousley, don’t think that it should have a 

list of sanctions. I guess that is your position, or something like 

that. 

Ms. OUSLEY. I agree that the sanctions should be there. It is simply that we want to make sure that the data is accurate when it 

goes up, that there are not mistakes. 

The CHAIRMAN. Right, and listed for each nursing home the level 

of staffing and things of that sort. 

Is that Web site really important to the public? If so, how can 

we improve it? Ms. Harrington? 

Ms. HARRINGTON. Yes, I think it is really important. 

One of the most important aspects of that Web site is the staffing 

information. Unfortunately, the data for the staffing comes from 

the survey at the 2-week time period of the annual survey, and it 

is not audited. 

So what we would recommend is that all nursing homes be required to report their detailed staffing data electronically every 

quarter, and that that be put up on the Web site, and for the full 

year, rather than just at the time of the survey. 

The CHAIRMAN. OK. 

Ms. Hedt. 

Ms. HEDT. We think it is a very important Web site because it 

is a sole source for consumers to go to to compare across the country. 

There are States that have Web sites that are more consumerfriendly and that have more detailed information. I can provide 

that to you later. 

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Years ago in my career, an administrator said to me, ‘‘I don’t 

mind paying my civil monetary penalty, but please don’t put it in 

your newsletter that goes out to the public.’’ I think that a lot can 

be accomplished by making sure that the public knows when facilities have provided poor care and the sanctions that are applied. 

The CHAIRMAN. Thank you. 

Ms. Ousley. 

Ms. OUSLEY. Yes, I think the Nursing Home Compare is extremely important, and we are very supportive of it. As I said earlier, we do want to make sure that that data is accurate, that it 

is updated frequently. 

I also want to say, from OBRA 1987’s perspective, I am very 

proud of the comprehensive assessment that nursing homes do on 

each and every resident. It is the only sector of health care in 

America where you can actually go on a Web site and you can see 

outcomes of care that are occurring. I am proud of that, and I am 

proud that CMS has it there. 

It is difficult to read. It is complicated, and I know that the average consumer has some problem with that. One of the things that 

I do when I work with nursing home administrators, I encourage 

them, when families come in to talk about admitting a loved one 

to the nursing home, that they take the time to explain to that consumer how to read and what it actually means. I think that is very 

important. I think it is a very important role that an administrator 

can play. 

The CHAIRMAN. Thank you. 

Ms. Christie. 

Ms. CHRISTIE. I do believe that that information is vital. I believe 

knowledge is key, and with that type of tool that anyone can access, people can have a better understanding and a better knowledge in terms of where their loved ones are being sent and what 

kind of care they are getting. 

The CHAIRMAN. Thank you. 

Senator McCaskill. 

Senator MCCASKILL. Thank you, Mr. Chairman. 

One of the things that I think we struggle with in this area is, 

first, the staffing levels and whether we need mandatory staffing. 

I didn’t know how many States have mandatory staffing levels. I 

should know that, but I have not been focused on the whole Country for very long. So, pardon my ignorance as to how many States 

have it. But I think, obviously, the staffing issue is paramount and 

very, very important, and the nurse component of that, also. 

The other thing that I think I mentioned previously is the acuity 

level, and the vast differences there are between various facilities 

in terms of what percent of their population is ambulatory versus 

non-ambulatory. What is the acuity level they are dealing with? All 

nursing home facilities are not created equal, in terms of what type 

of population they are dealing with on an ongoing basis. 

I know that there has been discussion about this, and I would 

certainly, for both Dr. Harrington and Ms. Hedt, what are your 

feelings about—I think the cost containment centers, that is a 

great way of getting at the issue, but I didn’t hear an acuity cost 

center in there. 

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It is much more expensive and requires much more staffing to 

deal with the more seriously needy clients in long-term care as opposed to those who aren’t. What can we do at the Federal level to 

begin to address reimbursement levels on the basis of acuity, so 

that those homes that have the more aggressive acuity patients 

maybe are not getting the same reimbursement as those who won’t 

take those more difficult clients.? 

Ms. HARRINGTON. Yes, I think that is a very good point, that acuity needs to be taken into account when you estimate staffing. In 

fact, the Medicare rates do take into account acuity. It has all the 

different case mix levels when it calculates the Medicare rates. 

Senator MCCASKILL. The Medicare or Medicaid? 

Ms. HARRINGTON. Medicare. Then, about half of the States have 

acuity built into the State rate. 

The problem is that, once these rates are given out, set for each 

facility, then the nursing home is allowed to spend the money the 

way they want. So they don’t have to spend it on the staffing to 

address the acuity that they were given the right for. So that is the 

flaw. 

Senator MCCASKILL. In the States that have acuity built into 

their reimbursement rates—we certainly don’t in Missouri. For 

those that do have acuity in their reimbursement rates, are those 

audited? If so, how? 

Ms. HARRINGTON. Yes, the States that have case mix reimbursement usually do have some auditing procedures. They may need to 

be more extensive. 

Senator MCCASKILL. Because my fear would be that they would 

come in with a high acuity, and then it would be a very—then, for 

whatever reason, either by circumstances or by planning, that that 

acuity level would drop, and that the reimbursement rate would remain high, or vice versa. How do we get at that? 

Ms. HARRINGTON. Well, most States only set their rates once a 

year, so they don’t necessarily adjust during the year. They probably figure it averages out. 

Senator MCCASKILL. Missouri went, I think, a decade without resetting its rates, so I would like the idea that rates would be readjusted on an annual basis. How many States adjust on an annual 

basis? 

Ms. HARRINGTON. I actually don’t know right now. 

Senator MCCASKILL. Wow. That would be great. 

Ms. HARRINGTON. Most States do have a rate increase on an annual basis, but the rate increase is more tied to how much money 

the legislature feels they have that year for the cost-of-living increases, rather than looking at the acuity. 

But the problem is that most States don’t have very good mechanisms for auditing, so the money is not necessarily spent on what 

it is intended for. This is what I am raising as the key issue. 

Ms. HEDT. From our perspective, the minimum staffing standard 

is just that, it is a minimum standard, and that would need to be 

adjusted for increased acuity of the residents that are there. 

We are absolutely mindful of the need for financial resources to 

care for people, depending on the level of care that they need, but 

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dent as opposed to corporate profits or high salaries of the executives. 

We need to make sure that the workforce has health care benefits, an adequate living wage, as well as appropriate supervision 

and is a part of that planning for individualized resident directed 

care. 

Senator MCCASKILL. I am trying to pick the ones I want, because 

it is hard for me to narrow it down in a short period of time of all 

the things I would like to talk about. 

I would like to talk more about the background check, and I 

think there is absolutely no excuse that background checks are so 

difficult across this country right now, with the technology we now 

have available to us. 

I know that in Missouri we had several audit findings on background checks. Frankly, there was this huge backlog of background 

checks, and it was because we had put into place a new carry-andconceal weapon law, and so they were trying to decide which 

checks were more important, the people who wanted to carry a 

weapon all the time or the people who were caring for elderly or 

the mentally ill in our State. It was really a huge public policy 

issue and problem. 

But in terms of the surveys, I think that the Web site is great, 

where consumers can potentially compare nursing homes on a 

number of different bases in terms of making a decision. I understand the need for the data to be accurate. 

The problem I have with those is that so much of it is based on 

the annual survey. Where I come from, it is pretty hard not to 

know when your annual survey is going to be. I am not sure that 

the information we get from annual surveys is what we need it to 

be. There is no question that there have been incidents that where 

facilities have staffed up for the annual survey, and staffed back 

down when annual survey was over. 

I would like the reaction of the panelists as to the potential of 

mandating the annual survey on a spot basis, so that no one knows 

when the annual survey is going to occur, that the folks that are 

doing the annual survey show up at the facility unannounced and 

without any kind of prediction as to when they are going to be 

there. 

We found the problem was so bad at one point in Missouri that 

not only were the annual surveys predictable, every survey was 

predictable. I mean, every check, whether it was a follow-up, everybody knew always when the State was coming. We weren’t getting 

a realistic look at what true care on the ground was because of the 

predictability of the survey time. 

So if you all would address that in terms of the predictability of 

the annual survey and the lack of an accurate glimpse of what the 

standard of care really is in that home. Because everyone spiffs up, 

polishes up, paints, gets everybody there just to prepare for the annual survey. 

Ms. HARRINGTON. Absolutely, I agree. They need more frequent 

surveys. We think they need at least an annual survey at a minimum. But part of the problem is the resources that the agencies 

have. They don’t even have enough resources to do their complaint 

investigations, in many cases. 

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So I think that increasing the Federal resources so that they 

could have more frequent surveys, especially of these poor-performing facilities, would make an enormous difference. 

Senator MCCASKILL. Should we require that they be surprised? 

Ms. HARRINGTON. Yes, absolutely. 

Ms. HEDT. That is part of what should be happening now. In reality, it isn’t happening. But residents tell us, and family members, 

that the more surveys that take place at night, the more surveys 

that take place on the weekend, the better picture they are——

Senator MCCASKILL. Right. That was one of our findings, that 

there was never an investigation that occurred in the dark of night. 

Now, this has been several years ago. I think they have begun 

doing that now. I think they have improved on that in Missouri. 

Ms. HEDT. Yes, there is a required percentage, a minimum goal 

that the State should be doing at night and on weekends. 

That being said, we want to make sure that all facilities are surveyed on a consistent basis so that it is not more than a year when 

a facility receives a survey. Partly, that is why facilities know they 

are going to get a survey now, because it is every 9 to 15 months, 

and so we know it is going to happen. It is not necessarily that 

they are being told. 

The key to it is that facilities should always be prepared for a 

survey, and be meeting those basic nursing home reform law requirements all the time. 

Senator MCCASKILL. I get that, that if you have to do it once a 

year, everybody kind of knows when it is going to be. But to me, 

it seems like the value we get out of maybe a facility having a survey in January and then being surprised by having another survey 

in June would more than overcome in terms of the kind of 

inoculating effect that would have on the whole industry, would 

more than overcome the fact that maybe one wasn’t going to get 

one except once every 18 months. 

You see what I am saying? The lack of predictability overall I 

think would have such a positive impact that it would make up for 

the fact that maybe everyone wasn’t getting in right around the 12- 

or 13-month mark. 

Ms. OUSLEY. Well, both Alice and I spoke to the issue of quality 

improvement and quality management in facilities. Quite honestly, 

if a facility has a well-functioning quality management program 

that takes into consideration the entire operations and all of the requirements, it makes no difference. It should never make any difference when a facility is surveyed. 

Again, I go back to the comprehensive assessment that OBRA 

1987 brought, and the survey methodology around outcomes. That 

is to be an overtime evaluation, that when a surveyor comes in, 

they are to look at: What did this patient look like the day they 

came to this facility, and what do they look like now? Did facility 

practice help them get a lot better, or has facility practice made 

them not get well or actually decline? 

If you do that correctly and look at the outcomes, it really doesn’t 

matter. If everyone feels more comfortable with a more frequent 

survey, more power to it. 

I do want to speak to an issue that Dr. Farris said, and that was 

the new quality indicator survey process that is being piloted now 

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by CMS. This would be a way that, actually, this software can be 

made available also to nursing home providers, and they can use 

it as part of their quality management program. 

Have an ongoing assessment at all times so that, when something starts to go a little bit wrong, you can get that fixed quickly, 

and you understand that the regulations are not for surveyors. 

They are for making sure that we give good patient care every single day. 

Ms. CHRISTIE. Senator, while I am not the most appropriate person to answer your specific question, I do know that those conversations are being held at levels higher than myself, and I will 

be more than happy to go back and get the information that you 

are requiring. 

Senator MCCASKILL. OK. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCaskill. Your contributions have been really good to this hearing because of your background, your experience, and the questions that you have asked. 

We would like to thank the second panel. You have been outstanding and made real contributions in our ongoing efforts to improve the quality of care in nursing homes across this country. 

I would note that what you had to say and your testimony was 

relevant enough so that I would note that our first two panelists 

stuck around, which is not always true at hearings. 

So we thank you for staying around, and we thank you for your 

contributions. 

We thank you all for being here, and this hearing is closed. 

[Whereupon, at 12:05 p.m., the Committee was adjourned.] 

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A P P E N D I X 

PREPARED STATEMENT OF SENATOR GORDON SMITH

I want to thank Senator Kohl for holding this important hearing today. The issue 

of nursing home quality and safety has long been an issue of particular interest for 

me and I thank the panelists for being here today. The essential work that they 

do whether it is monitoring or evaluating care, providing care or advocating for 

nursing home residents, supplies the framework that helps so many of our elderly 

family members age with dignity. 

We are here to look at the Nursing Home Reform Act, also called OBRA ’87. This 

Act was created more 20 years ago to ensure quality care for the now more than 

1.7 million nursing home residents in America. By signing this bill into law, President Reagan, along with Congress, indicated that the Federal government has responsibility to ensure the health and safety of nursing home residents. It is a responsibility that I take very seriously, as I know my colleagues do. 

We are a nation that is living longer than ever before. With the baby boomers, 

we will see an exploding elderly population. This surge will only compound any safety or quality issues currently in the system. That is why I look forward to continuing to work with the advocacy community, nursing home care providers and the 

Centers for Medicare and Medicaid Services (CMS) to ensure the capacity and quality standards meet our current needs and adequately anticipate the needs of the future. 

I believe that all stakeholders must work collaboratively to solve problems within 

the system. In fact, I am currently working with Senator Lincoln to reintroduce the 

‘‘Long-Term Care Quality and Modernization Act,’’ that we first proposed in the 

109th Congress. This bill encourages improvements to nursing homes and the longterm care system generally. I look forward to continuing to work with many of the 

advocates, care providers, and regulators here today to continue to improve and to 

ultimately pass this legislation. 

Some good news is that nursing home quality has improved since 1987. The GAO 

has reported in their March 2007 study that the number of serious deficiencies in 

the four states they examined has decreased between 2000 and 2005. I understand 

that national data shows a similar downward trend. This is to be applauded. However, we must not rest on our laurels. With about 22 percent of nursing homes still 

out of compliance with Federal standards—more improvement are necessary. 

The past two decades have revealed a true culture shift occurring within the 

world of long-term care, including services that put the patient at the center of care, 

encourage inclusion of families in decision-making and giving more choices in the 

location of the care, such as community-based and in-home care. 

In fact, my home state of Oregon is a leader in helping elderly and dependent persons remain in their homes as they age and/or require more hands on care. The vast 

majority of Americans want to retain their independence and remain in their homes. 

Because of this culture change, they are able to do that now more than ever. Federal programs and funding should continue to move in this direction. 

However, while our elderly are being given more choices in their care, we know 

that there will always be a section of the population that is too frail, too dependent 

upon services, to remain in their homes and communities. Nursing homes become 

the option that can most suit their needs. Nursing home residents are some of the 

most vulnerable people in our nation. Some have families that can help monitor 

their care, but many do not. These people depend upon the care providers and the 

regulators to ensure they are receiving the services they need. 

Some of the reports that we will discuss today, including the most recent by the 

Government Accountability Office (GAO), point out the bad actors within the nursing home industry. Today we must look at these actors and determine what we can 

do to either help them perform at a much higher level and with consistency, or look 

at ways they can phased out of the system. We must also look at how the closing 

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1GAO, Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some 

Homes from Repeatedly Harming Residents, GAO–07–241 (Washington, D.C.: Mar. 26, 2007). 2Special Focus Facilities are subject to two standard surveys each year rather than annually 

and may be terminated from participation in the Medicare and Medicaid program if they do not 

show significant improvement within 18 months. In December 2004, CMS expanded the program from about 100 homes to about 135 homes. 3GAO, Nursing Homes: Federal Actions Needed to Improve Targeting and Evaluation of Assistance by Quality Improvement Organizations, GAO–07–373 (Washington, D.C.: May 29, 2007). 4 CMS contracts with QIOs to work with providers such as hospitals and nursing homes to 

improve the quality of care provided to Medicare beneficiaries in each state, the District of Columbia, and the territories. 5 CMS, State Operations Manual, Appendix PP—Guidance to Surveyors for Long Term Care 

Facilities, § 483.25(c). 

of these facilities would affect the patients they serve and communities in which 

they are located. 

I am confident that our panel of experts will help to answer these questions. I 

want to thank all of our witnesses for being here today and for their tireless work 

to improve quality of care for all who reside in our nation’s nursing homes. 

RESPONSES TO SENATOR SMITH QUESTIONS FROM KATHRYN G. ALLEN, GAO 

Question. GAO identified in its 2005 report on nursing home enforcement that 

CMS’s efforts have been further hampered by an expanded workload due to increased oversight and initiatives that compete for staff and financial resources. The 

latest GAO report identifies that we are still not succeeding in removing the worst 

offenders from the system. How could CMS refocus its energy on oversight tasks 

and initiatives to target the real underperformers? 

Answer. In our March 2007 report, we recommended two actions, among others, 

the Centers for Medicare & Medicaid Services (CMS) could take to provide more effective oversight of poorly performing nursing homes.1 First, we recommended that 

CMS strengthen the criteria for terminating homes with a history of serious, repeated noncompliance by limiting the extension of termination dates, increasing the 

use of discretionary terminations, and exploring alternative thresholds for termination, such as the cumulative number of days that they are out of compliance with 

federal quality requirements. Second, we recommended that CMS consider further 

expanding the Special Focus Facility program which still fails to include many 

homes with a history of repeatedly harming residents.2 In commenting on a draft 

of that report, CMS also agreed to collect additional information on complaints for 

which data are not reported in federal data systems, which will help CMS to better 

identify and deal with consistently poorly performing homes. 

In addition, a GAO report issued after the Committee’s May 2, 2007, hearing recommended that CMS take two actions to ensure that available resources are better 

targeted to the nursing homes and quality-of-care areas most in need of improvement.3 First, we recommended that CMS further increase the number of low-performing nursing homes that Quality Improvement Organizations (QIO) assist intensively.4 Second, we recommended that CMS direct QIOs to focus intensive assistance on those quality-of-care areas on which homes need the most improvement. 

Question. As a Commissioner with the National Commission for Long Term Quality Care, I have heard stories of good actors being punished for precisely the innovation we want them to encourage. For instance, I was told of a facility that is well 

known for treating pressure sores. Because of their innovation, they receive patients 

from other facilities who have persistent pressure sores. However, when they are 

evaluated, the number of patients with pressure sores is then counted against them. 

Have you heard of stories like this and what do you recommend can be done to encourage innovation and good actors? 

Answer. As you indicated, some nursing homes specialize in wound care, such as 

treating pressure sores. The nursing home quality-of-care requirement pertaining to 

pressure sores focuses on the care a nursing home is providing a resident with a 

pressure sore. It specifically states that a nursing home must ensure that a resident 

who enters a home without pressure sores does not develop any unless the individual’s clinical condition demonstrates that they were unavoidable and a resident who 

has pressure sores receives necessary treatment and services to promote healing, 

prevent infection, and prevent new sores.5 As such, a nursing home should not be 

cited for a deficiency in quality of care simply because residents have pressure sores. 

A deficiency in quality of care does exist, however, if the nursing home is providing 

inadequate treatment to residents with pressure sores. 

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Question. While I want to ensure quality care for patients in nursing facilities, 

I am concerned that if we close facilities that are consistently underperforming that 

we may cause more harm to patients. I am concerned that if a facility in a rural 

or very low income area is closed that patients will be at risk of not receiving care 

at all in those areas or being relocated away from their families and support networks. In your studies, where are most of the poor performing facilities, and if they 

are in rural and low-income areas, do you think that there is a real risk of a negative impact on resident care? 

Answer. We have not reported on geographic distribution of all poorly performing 

nursing homes. In our March 2007 report, we assessed whether there were alternative placements for several poorly performing homes in our sample from four 

states and found that there were alternative homes in the vicinity. As I testified 

before this Committee on May 2, we acknowledge that terminating a nursing home 

from participation in Medicare and Medicaid can cause concerns about relocating 

residents to another home, including the adverse effect known as transfer trauma; 

however, we believe that such concerns must be balanced against the actual harm 

to residents as a resulting from poor quality care if they continue to reside in a perpetually poorly performing home. 

Question. One issue that I have heard discussed concerning the survey process is 

that surveyors may not report on some deficiencies because they consider the penalties too onerous for the facilities. Is this an issue that you have studied and have 

you heard surveyors mention any concerns to this affect? 

Answer. We have not reported on this issue. In commenting on a draft of our 

March 2007 report, however, CMS expressed concern about whether its policy of immediate sanctions for homes with serious deficiencies on consecutive surveys actually discouraged the citation of serious deficiencies. We are currently examining the 

understatement of serious deficiencies during state surveys, a study requested by 

Senators Kohl and Grassley. As part of our work for this study, we are planning 

a Web-based survey of state surveyors concerning the factors that may influence the 

deficiencies they cite. 

RESPONSES TO SENATOR SMITH QUESTIONS FROM RANDY FARRIS, CMS 

Sanction Effectiveness? 

The Government Accountability Office (GAO) has identified that while CMS has 

attempted to improve both the collection and deterrent effect of civil money penalties (CMPs) that serious problems still exist that call into question the CMPs’ effectiveness. CMS even commented in GAO’s recent report that providers view CMPs 

as the ‘‘cost of doing business’’ and are tantamount to a ’’slap on the wrist’’. 

Question. In addition to improvements to the actual policy, what is CMS doing 

to assess the enforcement capability of this particular sanction in light of these comments? 

Answer. CMS’ examination of our enforcement effectiveness in the area of Civil 

Money Penalties (CMPs) has been primarily along 2 tracks:

1) potential refinements to CMP maximum amounts, and 

2) refinements to the decisionmaking process on imposing the CMPs.

Our recent pilot and evaluation of the CMP Analytic Tool addresses the latter 

track. The imposition of a CMP is an optional remedy under the Nursing Home Reform Legislation promulgated in 1987. We have issued the CMP Analytic Tool. The 

Tool includes a scope and severity framework for CMS Regional Offices to monitor 

enforcement actions, communicate with States, address outliers that significantly 

depart from the norm, and improve national consistency. 

To improve national consistency for this remedy, CMS’ guidance also includes a 

scope and severity framework for CMS to (a) monitor enforcement actions, (b) facilitate communication with States, and (c) address outliers that significantly depart 

from the norm. 

We expect the guidance and the CMP Analytic Tool to mitigate the extent to 

which civil money penalties tend to cluster at the lower end of the allowable range, 

particularly for nursing homes with repeated, serious quality of care deficiencies. 

With regard to the argument that CMPs may simply be viewed as a ‘‘cost of doing 

business’’ (and may therefore be ineffective as a motivator to improve or as a deterrent to quality lapses), we are examining additional enforcement techniques that 

apply a combination of sanctions rather than so much reliance on just one type of 

sanction. An example is a combination of CMP and denial of payment for new admissions. While we believe CMPs do indeed function as a motivator, attention-driver, and deterrent for most nursing homes, we are concerned that CMPs may lose 

much of their effectiveness for those providers with the lowest levels of compliance. 

120

An important initiative for testing and tracking the effectiveness of multivariate 

enforcement action is our Special Focus Facility initiative that focuses on those 

nursing homes with the most deficiencies. CMS’ 2007 Nursing Home Action 

Plan describes these and other initiatives. The Action Plan may be found at 

http://www.cms.hhs.gov/CertificationandCompliance/12—NHs.asp#TopOfPage 

Is a Statutory Fix in Order? 

One of the bigger problems with CMPs is the delay in receipt of payment because 

of the statutory requirement that requires exhaustion of all administrative appeals 

before collection of the CMP. This makes the deterrent effect of the final all that 

more attenuated. GAO has recommended that CMS consider the provision on CMPs 

in the Surface Mining and Reclamation Act of 1977, which requires that the mining 

operator either pay in full the fine or place the proposed amount in an escrow within 30 days that is held until the resolution of an appeal. 

Question. Has CMS considered the effectiveness of a pre-appeal payment or escrow account option? Would that offer a greater deterrent effect that fits within the 

spirit of the CMPs? 

Answer. We do not currently have the authority under the Social Security Act to 

collect CMPs prior to the appeals hearing and determination. We agree that collecting CMPs during the period of an appeal likely would have a greater deterrent 

effect. 

The Federal/State Disconnect 

In the most recent GAO report on nursing home enforcement, one of the findings 

that struck me was the level of disconnect between CMS here in Washington and 

the regional offices and state agencies that are tasked with implementing that statutes and guidelines regarding the nursing home industry. 

Question. From your perspective as a CMS Regional Administrator, can you comment on this discrepancy and offer a few ideas on how this can be remedied so that 

everyone can get on the same page and work towards more uniform enforcement 

and oversight? 

Answer. In a large program of national scope, we seek to ensure all agencies are 

aligned through major efforts such as: 

(a) a very detailed State Operations Manual (SOM) that specifies the manner in 

which statutes and regulations are to be applied, 

(b) 40–60 publicly available Survey & Certification letters each year to communicate consistent approaches to surveys and clarification of important policy issues, 

(c) extensive training programs to orient both State and federal surveyors (especially new surveyors), 

(d) weekly conference calls between survey and certification central office leadership and leadership in the CMS regional offices. 

We also bring CMS (both central and regional offices) and States together to identify and develop strategies for improving communication and consistency. Annually, 

CMS hosts a Leadership Summit that brings together State survey agency leadership as well as management representatives from all ten CMS regional offices. CMS 

Regional Offices bring States together on a regular basis and conduct monitoring 

visits. The CMS also participates in the annual Association of Health Facility Survey Agencies (AHFSA) conference. AHFSA is the association made up a State survey agencies throughout the country. 

As described previously, CMS also publishes an annual Action Plan which serves 

as a blueprint for initiatives CMS will undertake. The CMS 2007 Nursing Home Action Plan provides several initiatives that:

• Improve how nursing home surveyors interpret specific nursing home requirements. We have revised surveyor guidance for selected regulatory requirements that 

relate to quality of care through an interactive process with nationally recognized 

experts and stakeholders; 

• Develop a national surveyor training tool for use in training regional and State 

surveyors; 

• Refine State Performance Standards to ensure uniform monitoring of State 

performance; 

• Expand training opportunities for surveyors to better equip them by increasing 

the number of available courses, adding more geographic sites for training and by 

adding web based training; and 

• Develop a triage policy to guide States in determining whether a discretionary 

Denial of Payments for New Admissions is imposed or a termination date is set earlier than the time periods required by law.

CMS recognizes the need for assertive leadership and actions to ensure all the 

principal enforcers are steadfast in application and uniform in execution of remedies 

imposed. We welcome the interest and support of Congress in all of these efforts. 

121

RESPONSES TO SENATOR SMITH QUESTIONS FROM CHARLENE HARRINGTON, UCSF 

Staffing Issues are Budget Issues 

Question. I understand that you have participated in the drafting of several recommendations to the Administration on ways to increase staffing levels, while making the fiscal impact less onerous. 

Can you share a few of the most feasible recommendations with the Committee, 

including the timeframe for implementation and any administrative needs or 

changes such recommendations would require? 

Answer. As noted in my testimony, a study by Abt Associates for CMS (2001) reported that a minimum of 4.1 hours per resident day were needed to prevent harm 

to residents with long stays (90 days or more) in nursing homes. Of this total, .75 

RN hours per resident day, .55 LVN hours per resident day, and 2.8 NA hours per 

resident day were reported to be needed to protect residents. The report was clear 

that residents in homes without adequate nurse staffing levels faced substantial 

harm and jeopardy. In order to meet the total 4.1 hours per resident day, 97% of 

homes would need to add some additional nursing staff. Based on this report and 

a strong body of research evidence, there is a clear need to increase the minimum 

staffing standards for nursing homes. 

One way to increase staffing is to increase state Medicaid reimbursement rates. 

My latest study shows that Medicaid reimbursement rates would need to be increased by $90 per resident per day in order to encourage nursing homes to voluntarily increase staffing levels. At this point, many states are struggling with budget 

deficits and financial problems so they are unlikely to be willing to raise rates this 

high. 

A more effective approach is to have the federal government and/or state governments increase the minimum requirements for registered nurses, licensed nurses 

(RNs and licensed practical nurses), and total nursing staff. Florida has increased 

is total nursing requirement to 3.9 hours per resident day and increased its Medicaid nursing home payment rate to cover this increase in staffing. Other states 

might be willing to increase the total nursing requirements if the federal government would give the state some financial incentive to do so. Certainly the federal 

government could take an important step forward by embracing higher staffing 

standards and encouraging states to raise their standards. 

Federal legislation could be used to increase its minimum licenses staffing standards to the level recommended in the Abt study (1.3 hours per resident per day) 

including a requirement for 24 hours registered nurse staffing in nursing homes. 

The question is whether reimbursement rates would need to be increased to meet 

this higher standard. Certainly the current Medicare reimbursement rates appear 

to be adequate to cover the Abt standards without a rate increase (based on GAO 

and MedPac reports). Medicaid reimbursement may need to be raised to meet the 

higher standard. Congress could ask each state to determine whether Medicaid rate 

increases would be needed and could pay for half or more of these costs in its Medicaid cost sharing arrangements. 

Question. In your testimony, you recommended that CMS utilize the sanctions of 

receivership and temporary management procedures relating to facilities with repeated poor performance. Is there a proven track record of success with this type 

or reorganization and if so, do you have any data on how a change of ownership 

effects the quality of care in an underperforming facility? 

Answer. Since temporary management is already an option under OBRA 1987, 

some states have used temporary management and receiverships procedures with 

poor performing facilities. California, in particular, has used this approach a number of times until facilities were sold, closed or brought back into compliance. These 

approaches have proven effective and yet states have often been reluctant to use 

them because of the amount of time and resources required to implement this approach. If the federal government were to assume the full costs for temporary management, states would be more likely to use this option. 

The success of the procedure depends upon either forcing an owner to come into 

compliance or attracting a reputable, high quality owner to purchase a facility. 

States need to be careful to review the credentials of potential buyers to make certain they have a good reputation for high quality of care before they approve an 

ownership change to ensure that the change will be an improvement over the poor 

performing facility. 

Question. Is there a danger that we are setting up new management too fail since 

the fines and sanctions from the previous poor performing management would carry 

over to the new management? 

Answer. The state and federal survey agencies could levy the fines and sanctions 

on the poor performing facility but forgive these fines and sanctions if the facility 

122

obtains a new owner. Generally, the issue of previous fines and sanctions are something that are negotiated as a part of the purchase price paid by a new owner. 

Question. Your testimony discussed the potential positive impact of applying cost 

centers to nursing facility funding as a way to ensure that certain operations, especially staffing, are properly funded. Is there a concern that this kind of oversight 

could negatively affect a nursing home’s flexibility in caring for its residents? Could 

the formula be too restrictive and not account for different operating plans? 

Answer. This approach of establishing cost centers would prevent facilities from 

taking funds allocated for staffing, therapy and direct care to use for capital improvements, administration, and profits. Certainly accountability is a critical factor 

in the use of public funds. The Centers for Medicare and Medicaid Services would 

need to develop a clear procedure for allocating funds for the different established 

cost centers and for oversight. The debate would then focus on the amount of funds 

allocated to the different cost centers. Some nursing homes are making excessive 

profits by reducing direct care to residents and this clearly should be unacceptable. 

RESPONSES TO SENATOR SMITH QUESTIONS FROM ALICE HEDT

Question. Fire Safety. How would you recommend CMS and nursing facilities proceed with making fire safety improvements that will be effective but not cost prohibitive? 

Answer. Senator Smith, NCCNHR appreciates the opportunity to address an issue 

that has been especially troubling to nursing home consumers and to the Senate 

Special Committee on Aging for more than 30 years: Fire safety. NCCNHR and its 

members are very concerned about the serious deficiencies in fire safety regulation 

and enforcement revealed in a GAO report, a USA Today investigation, and two 

tragic multiple-death fires in Connecticut and Tennessee—because we know from 

experience that public regulation and effective enforcement prevent deaths. 

Progress in fire safety regulation has dramatically improved the protection of 

nursing home residents from fire injuries and death in the years since Medicare and 

Medicaid were enacted. Two years before the aging committee published its 1975 

paper, ‘‘The Continuing Chronicle of Nursing Home Fires,’’ 51 people had been 

killed in multiple-death nursing home fires, an increase from 31 the year before. 

Today, however, multiple-death nursing home fires on this scale occur less frequently because federal and state regulation have improved safety—particularly in 

newer facilities, where federal law now requires automatic sprinklers, and in states 

that require automatic sprinkler systems in all nursing homes. Unfortunately, the 

tragic deaths of 31 residents in Nashville and Hartford in 2003 remind us that residents are still unnecessarily at risk of dying in a fire in several thousand Medicare 

and Medicaid-certified facilities that are not required to have automatic sprinklers. 

Their deaths are a reminder that fire safety is part of the unfinished business of 

the Nursing Home Reform Act. 

According to CMS estimates, there are about 3,700 nursing homes in the United 

States that do not have sprinklers or that are only partially sprinklered. NCCNHR 

supports prompt implementation of CMS’s proposal of October 27, 2006, to require 

all nursing homes to be fully equipped with automatic sprinklers. Our comments on 

the proposed regulations which were endorsed by 66 national, state and local organizations—are attached. 

NCCNHR has supported legislation to provide low-cost loans or grants to nursing 

homes that need financial assistance to install sprinklers. However, we do not believe that costs should deter the federal government from implementing this basic 

safety requirement that is already decades overdue. We urge you to consider the following: 

• The costs are not unreasonable for an industry that annually receives $73 billion in Medicare and Medicaid funds (almost $50 billion of it from the federal government) to provide care for people who are among the most vulnerable to injury 

or death in case of fire. CMS estimates that it would cost an average-size or smallsize nursing home 0.8 to 1.2 percent of its revenues over a five-year period to become fully sprinklered. Only 821 nursing homes do not have any sprinklered areas, 

according to CMS estimates, that would require installation of sprinklers throughout the building(s). 

• The nursing home industry is profitable and can afford to meet essential safety requirements. After 16 residents died in a National HealthCare nursing home in 

Nashville in 2003, the corporation announced that it would install sprinklers in all 

of its facilities that did not have them. In the third quarter that year, the company’s 

earnings increased by more than 23 percent over the same period the year before 

(not accounting for losses from the fire), and it has continued to show substantial 

123

gains in net income. In May 2007, National HealthCare reported increased quarterly earnings almost 30 percent higher than the same quarter in 2006. 

• Poor care is always costly. In addition to the loss of life, nursing home fires 

increase medical expenses, the burden on firefighting departments, and liability 

costs, and they result in substantial property damage and loss. They may also leave 

shortages of Medicare and Medicaid beds in a community. 

Sprinkler installation is not a problem in many states—nursing homes simply 

have to have them to obtain a license to do business. All nursing homes in Oregon 

and a dozen other states are fully sprinklered, according to the American Health 

Care Association, and six other states have at least 95 percent of their facilities fully 

sprinklered. Several states are in the process of implementing automatic sprinkler 

requirements for all their long-term care facilities, including, in some cases, assisted 

living and personal care homes. 

Thank you again for the opportunity to address this issue. NCCNHR urges you 

to support prompt implementation of CMS regulations to require automatic sprinkler systems in all nursing homes that receive federal funding. 

RESPONSES TO SENATOR SMITH QUESTIONS FROM MARY OUSLEY, AHCA 

Question. Will More Regulation Help? 

Answer. More guidance is unlikely to help and actually could result in more confusion. AHCA believes that joint training for surveyors and providers is key to ensuring there is uniform interpretation of CMS’ guidance. While nothing can guarantee each surveyor and each provider will interpret CMS guidelines in the same 

way every time, presenting the information simultaneously and allowing for both 

questions and discussion is more likely to ensure that surveyors and providers share 

a mutual understanding of what is necessary for a facility to be in compliance with 

the regulations. 

In fact, Section 101 of, The Long Term Care Quality and Modernization Act (S. 

1980), directs the Secretary of Health and Human Services to conduct a 5-state, 2-

year demonstration program to establish a process for joint training and education 

of surveyors and providers as changes to regulations, guidelines and policy are implemented. Following the demonstration, the Secretary would be required to report 

to Congress on the program’s results, including the program’s impact on the rate 

and type of deficiencies that nursing homes participating in the demonstration compare to a state’s other facilities (not participating in the demo). S. 1980 is sponsored 

by three members of the Senate Special Committee on Aging—Blanche Lincoln (D–

AR), Gordon Smith (R–OR) and Susan Collins (R–ME). 

Question. Foreign Nurse Recruitment 

Answer. There is no simple policy to ensure that increasing the number of available nurses would directly benefit long term care. Still, eliminating artificial caps 

on work visas for foreign-born nurses would improve the current nurse shortage facing all health care providers, including long term care. A 2002 AHCA study examining staff vacancy rates in our nation’s nursing homes found approximately 52,000 

Certified Nursing Assistants (CNAs)—those who provide 80% of direct patient 

care—are needed now just to meet existing demand for care. AHCA’s study also estimated an additional 13,900 Registered Nurse (RN) and 25,100 Licensed Practical 

Nurse (LPN) positions remain vacant in nursing homes across the country. The 

shortage of available employment-based visas for nurses, primarily from India and 

the Philippines, severely limits the ability of nursing home providers to fill those 

vacancies. 

Another challenge long term care providers face, especially skilled nursing facilities, is competing for a limited number of nurses. More than 80% of nursing home 

residents rely on either the Medicare or Medicaid funding to pay for the care and 

services they need, so long term care providers depend upon regular and systematic 

cost of living increases (e.g., annual market basket update to SNF Medicare funding) in order to compete with other care settings that often can afford to pay higher 

wages to recruit and retrain skilled caregivers. Without adequate and stable funding—and recognition by states to provide Medicaid reimbursement that at least covers the cost of care for SNF residents—SNFs are unlikely to be able to afford to 

offer a more competitive wage to both foreign and domestic nurses in long term care.

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RESPONSES TO SENATOR SMITH QUESTIONS FROM ORLENE CHRISTIE

Staff and Resident Background Check 

Question. Michigan, along with six other states, is participating in the initial pilot 

program on background checks for employees that work in long term care positions 

(except for adult foster care). I understand from my staff that the initial response 

to the program is very positive, and that Michigan is becoming a leader in this area. 

Answer. Our program does not include adult foster care. 

Question. Recognizing the program is still in its early stages, can you provide any 

insight into how long term implementation of a background check program will contribute to better quality of care and greater security for those in residential or other 

forms of long term care? 

Answer. The criminal history record is a tool that can be used to identify those 

individuals with a propensity for criminal behavior and our laws prevent them from 

working in long-term care facilities. Greater security results from reduced opportunity and access to vulnerable adults. Over time, the long-term care workforce will 

be comprised of individuals with either no history of relevant crimes or a history 

that shows no offenses after the effective date of the laws. The background check 

program shines a light on the behavior of caregivers and elevates the status of vulnerable adults in our society. The very existence of the program sends a clear message that we will not tolerate abuse, neglect or exploitation by caregivers. 

Question. Does the background check program screening include offenses committed outside the state or jurisdiction initiating the search? 

Answer. Our program includes a national fingerprint-based criminal history 

search. 

Question. What happens if there are records of abuse from prior employment that 

did not rise to the level of a criminal offense? 

Answer. Our law prohibits employers from hiring, contracting with or granting 

clinical privileges to an individual who has been the subject of a substantiated finding of abuse or neglect or misappropriation of property by a state or federal agency 

pursuant to an investigation conducted in accordance with 42 USC 1395i–3 or 

1396r. A search of the Michigan Nurse Aide Registry and the OIG exclusion database is done as part of the screening process.

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