```

[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]

 
                        SUBCOMMITTEE HEARING ON
   IMPACT OF PREDATORS IN LONG-TERM CARE ON SMALL BUSINESS OPERATORS

=======================================================================

               INVESTIGATIONS AND OVERSIGHT SUBCOMMITTEE
                      COMMITTEE ON SMALL BUSINESS
                 UNITED STATES HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 23, 2008

                               __________

                         Serial Number 110-107

                               __________

         Printed for the use of the Committee on Small Business

  Available via the World Wide Web: www.access.gpo.gov/congress/house

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                   HOUSE COMMITTEE ON SMALL BUSINESS

                NYDIA M. VELAZQUEZ, New York, Chairwoman

HEATH SHULER, North Carolina         STEVE CHABOT, Ohio, Ranking Member
CHARLES GONZALEZ, Texas              ROSCOE BARTLETT, Maryland
RICK LARSEN, Washington              SAM GRAVES, Missouri
RAUL GRIJALVA, Arizona               TODD AKIN, Missouri
MICHAEL MICHAUD, Maine               BILL SHUSTER, Pennsylvania
MELISSA BEAN, Illinois               MARILYN MUSGRAVE, Colorado
HENRY CUELLAR, Texas                 STEVE KING, Iowa
DAN LIPINSKI, Illinois               JEFF FORTENBERRY, Nebraska
GWEN MOORE, Wisconsin                LYNN WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          LOUIE GOHMERT, Texas
BRUCE BRALEY, Iowa                   DAVID DAVIS, Tennessee
YVETTE CLARKE, New York              MARY FALLIN, Oklahoma
BRAD ELLSWORTH, Indiana              VERN BUCHANAN, Florida
HANK JOHNSON, Georgia
JOE SESTAK, Pennsylvania
BRIAN HIGGINS, New York
MAZIE HIRONO, Hawaii

                  Michael Day, Majority Staff Director

                 Adam Minehardt, Deputy Staff Director

                      Tim Slattery, Chief Counsel

               Kevin Fitzpatrick, Minority Staff Director

                                 ______

              SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

                 JASON ALTMIRE, PENNSYLVANIA, Chairman

CHARLES GONZALEZ, Texas              MARY FALLIN, Oklahoma, Ranking
RAUL GRIJALVA, Arizona               LYNN WESTMORELAND, Georgia

                                  (ii)

  

                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page

Altmire, Hon. Jason..............................................     1
Fallin, Hon. Mary................................................     2

                               WITNESSES

Steele, Hon. Kris, Oklahoma House of Representatives.............     6
Banning, Ms. Sandy, Jacksonville, FL.............................     7
Bledsoe, Mr. Wes, Founder and Citizen's Advocate, A Perfect 
  Cause, Oklahoma City, OK.......................................     9
Coble, Mr. Tom, President, Elmbrook Management Company, Ardmore 
  Ok.............................................................    11
McDonough, Mr. Sean, Dougherty, Leventhal, and Price, LLP, 
  Moosic, PA.....................................................    13

                                APPENDIX

Prepared Statements:
Altmire, Hon. Jason..............................................    25
Fallin, Hon. Mary................................................    27
Steele, Hon. Kris, Oklahoma House of Representatives.............    29
Banning, Ms. Sandy, Jacksonville, FL.............................    31
Bledsoe, Mr. Wes, Founder and Citizen's Advocate, A Perfect 
  Cause, Oklahoma City, OK.......................................    36
Coble, Mr. Tom, President, Elmbrook Management Company, Ardmore 
  Ok.............................................................    45
McDonough, Mr. Sean, Dougherty, Leventhal, and Price, LLP, 
  Moosic, PA.....................................................    50

                                 (iii)

  

 SUBCOMMITTEE HEARING ON THE IMPACT OF PREDATORS IN LONG-TERM CARE ON 
                        SMALL BUSINESS OPERATORS

                              ----------                              

                        Wednesday, July 23, 2008

                     U.S. House of Representatives,
                               Committee on Small Business,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 1539 Longworth House Office Building, Hon. Jason Altmire 
[chairman of the Subcommittee] presiding.
    Present: Representatives Altmire and Fallin.
    Chairman Altmire. Call the hearing to order.

             OPENING STATEMENT OF CHAIRMAN ALTMIRE

    This hearing on sexual predators in nursing homes is now 
called to order.
    To put a loved one in a nursing home is never an easy one 
to make. For most it is emotionally fraught and painstaking 
process, but once a selection has been made, most families take 
comfort in knowing that their loved one will be well cared for 
and looked after.
    For America's elderly and impaired, nursing homes have 
historically been places of security, and yet for many 
residents that is no longer the case. As a result of 
insufficient data and conflicting regulations, sex offenders 
have managed to infiltrate many of our country's nursing homes, 
and today millions of our most vulnerable citizens remain at 
risk.
    In this morning's hearing we will discuss the threat that 
sexual predators pose not only to our elderly, but also to the 
small health care providers that protect them. This troubling 
issue is of particular concern to our Committee given that the 
overwhelming majority of nursing homes are also small 
businesses. According to a 2006 GAO report, close to three 
percent of nursing homes are now harboring sex offenders, and 
for these people, advancing age is of little hindrance.
    In fact, the belief that older sexual predators are 
harmless is a dangerous misconception. Studies have shown that 
sex offenders continue to be violent well past middle age.
    It is also worth noting that not all nursing home residents 
are elderly. The truth is that these facilities are often home 
to younger people with serious mental and physical handicaps. 
These younger residents can be both victims and perpetrators of 
nursing home violence.
    The question is: how did these predators break into our 
long-term facilities? This is at least partially the result of 
unreliable detection systems. While the National Sex Offender 
Registry attempts to name all convicted sex offenders, there 
are notable holes in the database. For one, the registry fails 
to include predators that were convicted or released from 
prison prior to its 1996 inception.
    In addition to this problem, recent offenders often fail to 
self-identify and, therefore, cannot be added to the registry 
at all.
    As a result of these two system flaws, GAO believes that 
the registry under counts sexual predators by nearly 60 
percent. Given the database's limited reach, it is reasonable 
to assume that nursing homes may house more sexual offenders 
than the three percent originally thought.
    A tangle of conflicting rules and regulations have made it 
all but impossible for facilities to address their problems 
with sex offenders. Small health care providers are now 
governed by some 70 pages of fine print in the Code of Federal 
Regulations. As a result, the system is a challenge to 
navigate. This is particularly true when it comes to 
reconciling safety policies with privacy concerns.
    Once a sexual predator has been identified, it is often 
difficult for a facility to act on that information. Under the 
Health Insurance Portability and Accountability Act, commonly 
called HIPAA, for example, sharing information about prior 
convictions can in some cases be considered a privacy 
violation. And, in fact, nursing home staff and residents' 
families are rarely informed of the status of other residents' 
offender status.
    In an attempt to fix this broken system, one state is 
already moving forward. Following a series of incidences in 
Oklahoma nursing homes, the state legislature passed a bill to 
create separate facilities for sex offenders. In doing so, they 
hoped to attack this issue head on and set a precedent that can 
be a model nationwide.
    Today we will discuss that particular piece of legislation 
and look for other potential solutions to this problem. Nursing 
homes have traditionally been a safe haven for America's 
elderly and disabled, and it is important that we do everything 
in our power to keep them that way.
    With that I would like to thank all of the witnesses in 
advance for being here and turn it over to my good friend, the 
Ranking Member, Ms. Fallin, from Oklahoma for her opening 
statement. And I would say that she deserves the credit for 
this hearing. This is something that Oklahoma, her home State, 
has taken the lead on. This was her idea to put this hearing 
together. I thank her for her leadership on this, and would 
turn it over to her at this time.
    Ms. Fallin. Thank you, Mr. Chairman.

           OPENING STATEMENT OF RANKING MEMBER FALLIN

    I appreciate your very kind words, but more importantly, I 
appreciate your assistance in putting this hearing together and 
allowing us the opportunity to come together to discuss a very 
important topic.
    And I will say that I am very proud of the State of 
Oklahoma and our legislature and our governor in working 
together in a bipartisan manner to tackle one of our state's 
and one of our nation's most important issues, and that is 
protecting our seniors and those who are infirm in long-term 
care or nursing homes.
    And so thank you to all of our panelists who have joined us 
today and our expert witnesses. I thank you and your Committee 
and all they have done to put this together, along with my 
staff, who I know has worked very, very hard.
    As has been mentioned, we are here today to discuss the 
impact of predators on long-term care and small business 
operators. Most of our nursing homes and our long-term care 
facilities as small businesses, and thus, that is why you are 
in front of the Small Business Committee. We wanted to find an 
angle to get you here so that we could talk about this 
important issue.
    The purpose is to examine the impact and the placement of 
criminals and sexual predators on the operations of small 
businesses that have long-term care facilities, and this is a 
very important issue because it affects many of our parents, 
our grandparents, our aunts, our uncle, our friends across our 
country.
    Federal law and regulations are designed to insure that 
residents in nursing homes have certain basic rights, including 
to be free of physical harm and abuse. These rights frequently 
intersect with the placement of individuals in nursing homes 
who have a record of physical assaults, including sexual 
predators. Seniors residing in assisted living facilities are 
some of the most vulnerable of our citizens. Any time their 
safety or their health is threatened, it is both concerning and 
alarming.
    As someone who has had a mother, and I will even say two 
grandmothers, all in the same facility at the same time, in a 
nursing home in my home town where Representative Kris Steele 
represents in Tecumseh, Oklahoma, I have tremendous respect and 
tremendous admiration for the services that the nursing home, 
Sunset Estates, provided to my relatives, and I just want to 
say up front that nursing homes and long-term care facilities 
deserve our respect as we are discussing this, and they have a 
very special job and it takes a very special person to have a 
job in a long-term care facility or a nursing home to care for 
the elderly and the infirm.
    But in some instances, however, these facilities and their 
staff can be unaware that their could be predators living in 
their facility or even without the means to insure the safety 
of their residents. The rare cases of sexual assault and abuse 
have been documented in these facilities, and they are 
particularly abhorrent.
    I am having this hearing this week to investigate both the 
scope of the problem and even possible roles that the federal 
government might play to help eliminate it, and I sure am 
looking forward to hearing from our nursing home 
representative, Mr. Coble, today who I know is just as 
interested in this topic as we are in taking care of our 
elderly and infirm, and I know that he wants, along with his 
industry, to guarantee the safety of his employees, the safety 
of his patients and the seniors, and even for the families who 
are visiting facilities.
    I would like to extend a very special welcome and thank you 
to all of our witnesses who have traveled a long way to join us 
here today and spend their time to provide your expertise, and 
as I mentioned, I would especially like to welcome our state 
representative, Kris Steele, who is the authority of the 
Oklahoma legislation, who held many hearings in our state, 
listened to all sides, all parties involved in this very 
important issue, and I know brought industry together along 
with families, along with patient advocates, and the 
legislators and, of course, the executive branch with our 
governor to pass this significant, first time, model 
legislation in our nation to be able to separate out sexual 
predators and have some options for states to be able to look 
at that.
    And so I appreciate you coming today. I want to also say a 
special welcome to Mr. Coble, who is representing the health 
care nursing home industry. We appreciate him coming today. I 
told him, you know, our purpose today is not to knock around 
nursing homes and long-term care facilities, but to work with 
you and to do the best we can to create a safe environment 
because we do appreciate and respect the great service that you 
provide in our nation. He has been a long time owner and 
operator of nine long-term care facilities.
    And then Wes Bledsoe with a perfect cause has started this 
crusade many, many years ago, has been around the State of 
Oklahoma for a long time, lobbied me when I was lieutenant 
governor of Oklahoma on this particular issue, and I know has 
worked with our legislators. So, Wes, thank you for all that 
you do.
    He has tremendous documentation on this subject across the 
whole nation, not just in our state, but he has done a lot of 
research. It has personally affected him and his family.
    And then I want to also thank Sandra Banning who has joined 
us here today, who lost her mother as a victim of sexual 
assault in Florida in a nursing home, and I know this is a very 
important issue for you and you're very passionate about it.
    She has been seen on national television giving information 
about how important this is that we try and work together to do 
what we can for our seniors and long-term care people.
    And then, Mr. McDonough, I have not had a chance to meet 
you yet, but we welcome you, and I appreciate you coming today 
to lend your expertise and thank you for being here.
    And just welcome to our committee. We know that your 
information will be extremely helpful.
    I want to just say a couple things. I don't want to go too 
long here, but according to the most recent compilation of 
statistics, the Center for Medicare and Medicaid Services 
estimate that there were 15,762 nursing home facilities in the 
United States with 1.7 million beds and slightly more than 46 
percent of the nursing home facilities in the United States are 
independent businesses and not associated with another nursing 
home. Over two-thirds are operated for a for-profit basis, and 
of those, approximately 81 percent had revenue under $10 
million.
    In short, our nursing homes are highly localized, mostly 
small business, and no enterprise controls more than five 
percent of the beds in the industries, and nursing homes, of 
course, play a critical role in providing the care for 
Americans who are physically or mentally unable to take care of 
themselves and do not have a loved one who can help them.
    Federal regulations established the rights of nursing home 
residents, which include the right to be free from physical 
abuse, including sexual abuse, and to reside in an environment 
that maintains their dignity and quality of life.
    Now, as a condition, Medicare and Medicaid participation 
nursing homes and long-term care facilities must report 
incidents of abuse according to state requirements. However, 
nursing homes and long-term care homes face divergent and 
conflicting federal laws that make it difficult for them to 
satisfy the multiple mandates that are put upon them.
    Depending upon state regulations, many long-term care 
facilities and their residents may not be aware that there are 
residents who are offenders. Though all sex offenders are 
required to register by the National Sex Offender Registry, 25 
percent of them never do register, and the extent to which 
states require and have laws that apply to sex offenders 
registering and reporting to the long-term care facilities 
greatly varies.
    When facility residents are known offenders, differing 
interpretations exist among the states themselves and the 
industry and even federal officials whether to disclose the 
information, and the Chairman mentioned that a minute ago, that 
it could violate federal and state privacy laws.
    But in some instances, long-term care facilities are not 
always notified when individuals with prior convictions enter, 
and the assessment tools for these facilities to determine the 
health care needs of the residents typically do not gather 
information about prior convictions. And so in addition to 
that, there is no federal law to notify a long-term care 
facility of a sex offender who has been placed in their 
facility, and that is one of our main concerns.
    So we in Congress must look at federal law to insure that 
there is a health environment for long-term care residents, one 
that is free from violence and abuse to a fellow resident, and 
it is important to make sure that sexual predator data is 
accurate and available to nursing homes and their families so 
that we can assure that they will be protected in these 
facilities.
    So thank you so much for joining us here today. We are 
looking forward to your testimony, and thank you, Mr. Chairman.
    Chairman Altmire. We will now move into the testimony from 
the witnesses. We will introduce formally each of you one at a 
time. Ms. Fallin will introduce her four witnesses. I will 
introduce Mr. McDonough.
    Before each of you go, I want to explain the five-minute 
rule. Many of you, I am sure, have testified before. You will 
have five minutes for your testimony. There will be a green 
light for the first four minutes. When you see the light turn 
yellow, that means you have one minute remaining. If you could, 
start to summarize. The red light means your five minutes is 
up, and so please conclude your remarks at that time.
    At this point I will turn it over to Ms. Fallin to 
introduce Representative Steele.
    Ms. Fallin. Thank you, Mr. Chairman.
    Kris Steele is our state representative from Oklahoma, 
author of the law. He represents the 26th District. He has been 
a member of the House since 2001. He is a member of the Public 
Health Committee, Veterans Subcommittee, Human Services 
Committee, and serves as the chair of the Health Subcommittee 
in the legislature.
    He was very instrumental in passing this bill which will 
establish separate and secure long-term care health facilities 
for violent and sexual offenders.
    He has a Bachelor's degree in religion and a Master's and 
also is Associate Minister with Wesley United Methodist Church 
in Shawnee, Oklahoma.
    And we are glad to have you here. Thank you for coming.

STATEMENT OF REPRESENTATIVE KRIS STEELE, DISTRICT 26, OKLAHOMA 
                    HOUSE OF REPRESENTATIVES

    Mr. Steele. Thank you very much.
    Well, good morning. I would, first of all, like to say 
thank you to Congresswoman Fallin, Mr. Chairman, and members of 
the Committee on Small Business. It is, indeed, an honor and a 
privilege to participate in this discussion with such a 
distinguished group of individuals.
    Greetings from the great State of Oklahoma.
    I am here today to talk about the impact of predators in 
long-term care facilities on small business operators. Let me 
begin by saying that protecting senior adults, especially those 
who are vulnerable, should be a primary function and a top 
priority of government. This year the Oklahoma legislature 
enacted a proactive measure intended to reduce the risk of 
abuse and provide appropriate safeguards for seniors living in 
nursing homes.
    A growing number of registered sex offenders sparked a 
discussion of where to place those individuals who have served 
their time of incarceration and yet are no longer capable of 
independent living. An in-depth study on this issue resulted in 
the creation of House Bill 2407, which directs the Department 
of Health to request bids from the private sector for the 
operation of a stand alone, specialized, long-term care 
facility that will house elderly sex offenders, registered sex 
offenders.
    The request for proposal will also set forth certain 
specifications to designate the heightened security measures 
necessary to protect the public and the residents of the said 
facility. According to the Oklahoma Department of Corrections, 
an estimated 2,450 inmates convicted of sex crimes or violent 
crimes will be released from prison in Oklahoma in the next ten 
years. Twenty-six percent of these individuals will be age 51 
or over and potentially in need of long-term care.
    Numerous studies confirm that certain sex offenders are 
highly resistent to rehabilitation. Registered sex offenders 
living in nursing homes can create a dangerous environment for 
the other residents in the home. It is estimated that 
approximately 30 individuals listed on the Oklahoma sex 
offender registry currently reside in nursing homes today.
    In 2005, Oklahoma passed a law requiring nursing homes to 
post public notifications when a registered sex offender is 
admitted. This measure also directed the Department of 
Corrections of notify local law enforcement entities about the 
location of sex offenders residing in nursing homes within 
their community.
    However, because of low staff levels and a short supply of 
security guards, some long-term care operators have experienced 
difficulty in properly monitoring sex offenders residing in 
their facilities.
    Federal regulations also prevent nursing homes from 
restraining residents except in very rare circumstances. 
Offenders living in nursing homes also present a challenge for 
small businesses. Knowing an offender is living in a particular 
facility creates a sense of uneasiness, a sense of unrest, and 
a sense of uncertainty for family, loved ones, and the other 
residents. The perception is that no one is safe in a home with 
an offender. Yet federal law requires that states pay for long-
term care services for those individuals who are Medicaid and 
Medicare eligible regardless of whether or not they're 
convicted felons.
    An interim study conducted in the fall of 2007 resulted in 
nursing home officials encouraging lawmakers to prevent those 
convicted of sex crimes from being placed in with the general 
population. In addition, advocate groups, such as AARP and 
others, expressed support for the establishment of a separate 
facility for registered offenders in need of long-term care.
    By encouraging the private sector to establish a nursing 
home with additional security measures for registered 
offenders, it is the belief of our state that better 
protections would be afforded to the aging population while 
meeting the needs of those who have served their debt to 
society yet remain at risk of reoffending.
    Protecting our senior adults, again, should be a primary 
responsibility and priority of government. Our goal should be 
focused on creating safe environments so that our senior adults 
can live the latter part of their lives free from the fear of 
harassment or assault. Implementing appropriate safeguards for 
the elderly is imperative in making this goal a reality.
    Again, thank you for the opportunity to address you about 
this topic today.
    [The prepared statement of Rep.Steele can be found in the 
appendis at page 29.]

    Ms. Fallin. Thank you so much Representative Steele.
    Our next witness is Ms. Banning, and she is a mother and a 
victim of sexual assault. I am sorry. Her mother was a victim 
of sexual assault in a Jacksonville, Florida nursing home. She 
was featured on the Today Show broadcast in April as an 
advocate for nursing home resident protection from sexual 
offenders.
    She has also appeared on CBS Evening News along with other 
media from around the State of Florida. She is serving as the 
medical staff manager for the U.S. Navy Medicine Support 
Command in her capacity which she has had for 15 years and has 
been a government employee for over 28 years.
    And we welcome you and thank you for coming to share your 
very personal story.

       STATEMENT OF SANDRA BANNING, JACKSONVILLE, FLORIDA

    Ms. Banning. Thank you, Congresswoman Fallin, Chairman 
Altmire, distinguished members. I have never addressed such an 
august body before. So if my lips tremble, please forgive me.
    July 23rd, 2008, today. July 23rd, 2002, six years ago 
today, Ivy Edwards took his wheelchair into my mother's room. 
He placed that wheelchair under the handle of her door, turned 
it sideways so that he couldn't be disturbed. He climbed into 
bed with my mother, and he raped her.
    I received a call that night from the nursing home staff 
and said, ``Ms. Banning, we caught a man in bed with your 
mother, but he was just lying there. Nothing was going on. 
She's asleep. Do you want us to send her to the Sexual Assault 
Response Center?''
    I said, ``Are you sure nothing happened?''
    They said, ``Yes, he was just lying there.''
    I said, ``For God's sakes, don't scare her to death. No, 
don't wake her up.''
    The next morning at work, ten o'clock, I received a call 
from the social worker from the same nursing home who said, 
``Ms. Banning, more occurred last night than we originally told 
you, and we're going to have to send your mother to the Sexual 
Assault Response Center.''
    I said, ``You're not sending her anywhere till I get 
there.''
    So when I got there, I was met by my mother, by the police, 
by the members of the staff, and my mother looked at me and 
said, ``Hi.''
    And I said, ``Hi, Mamma.'' I said, ``Do you know why I'm 
here?``
    And she said, ``For a visit?''
    And I said, ``No.`` I said, ``Mamma, last night you were 
raped.''
    My mother's expression was, ``Oh, my God.'' My worst fear 
was realized. I placed my mother in a home for care so that she 
would be safe because in her own home she walked the streets at 
night, and I would say, ``Mamma, you're going to get raped if 
you walk the streets at night.''
    And she'd say, ``Oh, Sandra, who'd rape an old woman?''
    Ivy Edwards would. Ivy Edwards was arrested at 2:30 that 
morning. The nursing home bagged my mother's clothes, as they 
termed it. They put everything in for evidence. Ivy Edwards was 
taken to the police before I was ever called to be told that 
she had been raped. When Ivy Edwards was arrested, it was his 
59th arrest. He had been arrested since the 1940s. Among them 
sexual assault, child molestation, burglary, heinous crimes, 
but the court system placed Ivy Edwards in the nursing home 
with my mother from a homeless shelter because he was a danger 
to society and others.
    No one, not my mother, not her family, not her daughter, 
should have to hold her hand while she undergoes sexual assault 
examination and watch the tears stream out her face because 
someone had taken from her what she did not give voluntarily.
    My mother was married to my father for 23 years. To the 
best of my knowledge, no one ever touched my mother except my 
father until Ivy Edwards took control. So what I ask is that 
Congress take steps to put in place a regulation, a law, some 
sort of guarantee that your mother, your father, your brother, 
your sister, yourself will not be out there and placed in a 
home with another Ivy Edwards.
    We have to make a change. We have to protect those that 
cannot protect themselves. We protect the children, but when 
you look at our nursing home residents, they are two, three, 
four, five years old in their mind. So let's protect them, too.
    Thank you so much for the opportunity to address. I 
appreciate, and I hope so much that we can make some changes.
    [The prepared statement of Ms. Banning can be found in the 
appendis at page 31.]

    Ms. Fallin. Thank you, Ms. Banning. We appreciate your 
sharing such a very personal story with us, and we will use 
what is meant for evil for good here.
    Now it is my pleasure to welcome Wes Bledsoe, who has been 
a very dedicated founder of a group called the Perfect Cause, 
which is a citizen advocacy organization. He has been very 
tireless in his work that he has begun on the disabled and 
elderly after the death of his own grandmother in May of 2000 
at Eunice Allen. He uncovered her nursing home's attempt to 
cover up the negligent acts that led to her death and has since 
exposed patterns of some abuse and neglect that have been in 
nursing home for long-term care residents and has been a very 
outspoken person on this particular issue.
    And, Wes, we appreciate all of your research and your work 
and appreciate your coming today to give testimony.

  STATEMENT OF WES BLEDSOE, FOUNDER AND CITIZENS' ADVOCATE, A 
                         PERFECT CAUSE

    Mr. Bledsoe. Thank you, Congresswoman, and thank you, Mr. 
Chairman, members of the Committee and staff. Thank you for 
this opportunity to talk about the impact of predators in long-
term care facilities and small business operators.
    Predators in nursing homes are bad for business. Much like 
the dead canary in a mine, it is a signal of invisible danger 
that requires immediate action. So, too, do predators in 
nursing home.
    I have a lot of information that I can share with you 
today, and so I would like to just get down to key bullet 
points and hopefully you can ask questions that I can provide 
more detail to you as we move forward.
    What is this about? It is about the delivery of a product, 
good quality care in nursing home, which is mandated by federal 
legislation, by state legislation across this country.
    What we are talking about are rapes, sexual assaults, 
physical assaults, and even murders committed by violent and 
sexual offenders who reside as residents in long-term care 
facilities. So far we have documented over 60 of these crimes 
committed by these offenders against residents, female as well 
as male, staff, and even one three year old little girl who was 
visiting her great grandfather in a Richardson, Texas nursing 
home.
    What are the types of offenders? And we have mentioned 
registered sex offenders as a problem, but there are other 
types of offenders we have key concerns about, and those 
offenders include inmates, parolees, violent offenders found 
incompetent to stand trial.
    Mr. Chairman, as you pointed out, it is not just registered 
sex offenders. There are many sex offenders who are not 
required to register. They were grandfathered out before the 
registration laws were enacted. And there is also registered 
sex offenders who do not have to register for life.
    We also have convicted felons, and then we have a group of 
residents who assault others in long-term care facilities but 
were never charged or prosecuted because either they or their 
victim are of diminished capacity.
    Who places these offenders in long-term care facilities? 
District court judges, county sheriffs, adult protective 
services organizations, Departments of Corrections, and 
sometimes they are agencies to find housing for offenders being 
released from Department of Corrections facilities, as well as 
individual offenders can admit themselves or their families 
admit them into these facilities.
    We have heard all kinds of justification which we refer to 
as fairy tales used by officials to justify the placement of 
these residents in facilities. We hear that they are all old. 
Not true. Much like the GAO report has documented and the 
reports that we have also conducted, over half of these 
offenders are under 65 years of age. We found 19 year old 
registered sex offenders living as residents in nursing homes.
    Old offenders do not pose a threat. Ivy Edwards is one of 
those examples. There are other examples where elderly 
offenders do absolutely pose a threat.
    They are incapacitated. They are in wheelchairs. They 
cannot harm anybody. Again, not true. Ivy Edwards was in a 
wheelchair and other offenders, bilateral amputees, those with 
partially amputated feet have also raped and assaulted fellow 
residents in long-term care facilities.
    They were told that child molesters are safe because they 
don't pose a threat to those old people. Again, documented 
cases that we have provided to this Committee through court 
records, police records and media reports show, again, that 
that is absolutely false.
    Nursing homes are capable of handling these offenders. 
There is not any training for nursing home staff on how to deal 
with these criminal offenders.
    Other prior offenses are minor or these crimes happened 
long ago. Not true. Again, most of these crimes have been 
committed within the last 14 years. We have found these 
offenders living in long-term care facilities. And the crimes, 
the crimes they were committed for were not out urinating in 
public behind a bush or in the alley. These crimes are rape, 
assault, and murder.
    These offenders have paid their debt to society. We have 
heard that a lot. We have documented cases where offenders were 
sent directly to nursing homes and other long-term care 
facilities without ever going to a Department of Corrections 
Facility. They went from jail conviction to a nursing home, and 
even in documents where they said they pose a significant 
threat to the safety of themselves and other.
    What can we do? We have several recommendations I would 
like to respond to you during the question period, and I can 
share those recommendations with you.
    Thank you for this opportunity to come forward. I hope 
tonight that you will give thought to what is happening to our 
residents and what happened to Sandy Banning's mother.
    Thank you very much for this opportunity.
    [The prepared statement of Mr. Bledsoe can be found in the 
appendix at page 36.]

    Ms. Fallin. Thank you, Mr. Bledsoe. We appreciate you 
coming today.
    And now I would like to introduce Mr. Tom Coble, who is the 
founder and CEO of Health Care Management Company of Oklahoma, 
which specializes in creating long-term care based integrated 
health care delivery systems. HMC partners with organizations 
to evaluate, develop and operate Medicare Advantage special 
needs plans for institutional, home, and community based health 
plans.
    He also owns and operates eight skilled nursing facilities, 
an assisted living facility, and a rehabilitation company, and 
is the president of the Oklahoma Association of Health Care 
Providers, and we appreciate you joining us here today. 
Welcome.

STATEMENT OF TOM COBLE, PRESIDENT, ELMBROOK MANAGEMENT COMPANY 
       ON BEHALF OF THE AMERICAN HEALTH CARE ASSOCIATION

    Mr. Coble. Thank you. Thank you, Chairman Altmire, Ranking 
Member Fallin, and members of this Subcommittee.
    I am grateful for the opportunity to be with you here today 
to offer our profession's perspective on the very difficult and 
complex issue of sex offenders in our nursing facilities.
    I am honored to be here today representing the American 
Health Care Association. Americans are living longer, and our 
nation's aging population is growing. Many of these individuals 
have medical and cognitive conditions which require care in a 
nursing facility. Currently more than three million American 
each year rely on the care and services delivered in one of the 
nation's nearly 16,000 nursing facilities.
    The forecast for the demand for nursing care is alarming. A 
March 2008 report from the National Investment Center for 
Senior Housing and Care Industry indicates that demand for 
long-term care services will more than double by 2040.
    Even with this high demand and rapidly growing need of the 
nation's aging population, nursing homes have continued to 
improve quality. I am proud of the efforts and initiatives 
advanced by the association that I represent today and seek to 
enhance improved quality of care and services provided in our 
nation's nursing facilities each day.
    I am here today to discuss the impact of predators in long-
term care on small business operators. Reported problems 
involving sex offenders have been rare, but any incident is 
unacceptable, especially given the age and infirmity of those 
involved. Some have stated that there is a simple or easy 
solution to this very complex issue, but unfortunately that is 
just not the case.
    Providing long-term care and other health services for 
those who have any type of criminal past is a critical societal 
issue. Any solution must encompass not only health care 
providers and their patients, but also law enforcement and 
federal and state agencies.
    The basic question seems to be what and whose ethical and 
legal obligation it is to insure that individuals who have paid 
their debt for prior criminal activity have their health care 
needs met as members of our society. When these individuals 
reach an age or exhibit physical condition or cognitive 
impairments that require long-term care services, where and how 
should their health care needs be met to insure everyone's 
safety and security?
    As you are aware nursing homes provide a residential 
setting with 24-hour care and services for millions of 
individuals who require significant assistance dues to physical 
or mental limitations. It is critical for this Committee and 
others to understand that these facilities fulfill a necessary 
role caring for the frail, elderly and disabled who can no 
longer safely be cared for in their homes or communities.
    The most important aspect of determining appropriate 
services in any nursing facility patient, including security 
issues is the individual patient assessment. Currently a 
federally mandated assessment must occur upon admission to a 
facility in order to create an individual care plan for each 
resident that insures their clinical needs are met, as well as 
addresses any safety or security concerns.
    A resident who is known to have a criminal history, is 
known to be a registered sex offender may or may not require 
additional supervision or separation from the general facility 
population. An individualized care plan for a convicted 
criminal or sex offender in a persistent vegetative state would 
clearly be different from an ambulatory resident who has no 
criminal past but has exhibited behavioral issues.
    In 2006, the GAO issued a report on registered sex 
offenders in long-term care facilities. While the study focused 
on the issue of sexual offenders residing in nursing 
facilities, we were dismayed that the report stopped short of 
issuing any recommendation about the profession should address 
this issue.
    Presently in most states long-term care facilities are not 
notified by law enforcement officials of an incoming resident 
status as a sex offender or of their criminal background which 
prevents a facility of accurately evaluating the potential risk 
posed by the former sex offender as an individual basis. While 
the patient's history may contribute to and alter the 
individual care plan, it is important to understand that even 
with the information about a patient's criminal past, long-term 
care givers may be unable to deny admission when placement is 
court ordered.
    Also of note are the strict federal and state discharge 
requirements which may prevent the timely discharge of patients 
discovered to have a criminal past or, more significantly, be 
exhibiting behaviors that actually pose safety and security 
issues.
    Health care providers, government oversight agencies, and 
enforcement must come together whether on a state or national 
level to begin to address reasonable and appropriate solutions 
to this growing problem. AHCA is deeply concerned about the 
issue of sexual predators in nursing homes and will continue to 
work to insure all residents, family and staff are safe in 
their facilities.
    However, facilities can only do so much in the current 
system. A national database of sex offenders as well as a 
consistent and standard definition of the term need to be 
created. Policy makers and law enforcement also have a 
responsibility to provide clear policies for long-term care 
facilities to deal with this issue that addresses resident 
protection, as well as compliance with federal privacy laws.
    AHCA is committed to quality long-term care for all 
residents, and we are continually working to improve and 
enhance quality in all facilities. A collaborative effort 
between long-term care providers, Congress, and law enforcement 
is necessary to achieve the highest levels of safety for all 
residents.
    I would like to end my testimony today on a personal note. 
I have four family members living in our facilities right now, 
including my mother and wife's grandfather. I live in the 
community where I was born, raised, and will be buried. Every 
day I help to take care of the people who helped raise, 
educate, and prepare me for life. I take the responsibility of 
caring them very seriously and I strive to provide the highest 
quality of care possible.
    Long-term caregivers have many employment choices, but they 
choose to come to work in our facility each day providing care 
to the frailest of our society. they are heroes of long-term 
care, and I entrust the care of my loved ones to them each day.
    Thank you for the opportunity to offer these comments on 
behalf of millions of professional, compassionate, long-term 
caregivers and the millions of frail elderly and disabled 
Americans they serve each day.
    I look forward to responding to your questions.
    [The prepared statement of Mr. Coble can be found in the 
appendix at page 45.]

    Chairman Altmire. Thank you, Mr. Coble.
    Mr. McDonough, Mr. Sean McDonough is an attorney from 
Pennsylvania, and his law firm recently represented the victim 
of an assault in a nursing home, and in that case the court 
found that the nursing home was negligent in allowing a 
resident with a criminal background to be enrolled in the 
facility without notifying the residents or taking steps to 
protect their safety.
    Mr. McDonough is Board certified in child advocacy by the 
National Board of Child Advocacy and a member of the American 
Board of Child Advocates.
    Thank you for being here, Mr. McDonough. We look forward to 
your testimony.

 STATEMENT OF SEAN McDONOUGH, ESQ., DOUGHERTY, LEVENTHAL, AND 
                           PRICE, LLP

    Mr. McDonough. Good morning, Congressman Altmire, Ranking 
Member Fallin, and members and staff of the Committee. I have 
been asked to provide testimony this morning on the issue of 
the impact of predators on long-term care facilities on small 
business operators. As the Congressman noted, my firm, myself 
and my partner, Pat Dougherty, recently represented a woman by 
the name of Lilian Guernsey, who is now deceased, and her son 
Thomas Itterly arising out of two documented sexual assaults 
perpetrated upon Ms. Guernsey by 31 year old Daniel Statham.
    An overview of the circumstances surrounding Mr. Statham's 
admission to the Country Living Personal Care Home demonstrate 
in graphic fashion the need for some legislation to assist 
small business operators in avoiding the myriad of problems 
associated with accepting sexual offenders at their facilities 
without appropriate screening or consideration as to whether 
these individuals should be accepted into a setting where some 
of our most vulnerable citizens are placed for care.
    Steps need to be taken to insure that our elderly and 
infirm citizens do not suffer the type of violent attack 
experienced by Lilian Guernsey at the hands of Mr. Statham.
    Mr. Statham was 31 years old at the time he raped Lilian 
Guernsey. At the time that he arrived at the Country Living 
Personal Care Home, he had had eight prior adult arrests, three 
convictions,a dn two adult commitments to correctional 
facilities. In 1992 alone, he had been charged with no less 
than 11 offenses, some of which were violent offenses and many 
of which he was not prosecuted for because he was determined to 
be incompetent to stand trial.
    However, in 1994, Statham was arrested in Lackawana County, 
Pennsylvania as a result of an assault on his girlfriend, and 
he was sentenced to serve one to three years in prison. Shortly 
thereafter, he pled guilty to a charge of aggravated indecent 
assault in northeastern Pennsylvania in Wayne County and was 
sentenced to serve three to six years in a state correctional 
facility.
    In that case Statham had taken a 13 year old girl into a 
wooded area and raped her. Statham refused to participate in a 
sexual offender treatment program during his period of 
incarceration, and as a result he maxed out his sentence, and 
this is where the case really becomes troubling.
    At the completion of Mr. Statham's sentence, he did not 
provide the Commonwealth of Pennsylvania with an address where 
he could go. As a result of that, the commonwealth directed the 
State Police to take him to the Northumberland County Prison. 
At that time, the judicial system in Northumberland County 
brought Statham before the court and he was sentenced to time 
serve in six months' probation.
    When the court made an inquiry as to whether that probation 
was in the mitigated range for the offense, the probation 
officer indicated, ``I have no idea. We have no information on 
the defendant at all.''
    Therefore, Statham was permitted to leave the prison and 
taken first to the Omni One Personal Care Home and then Country 
Living without even a rudimentary presentence investigation 
having been performed. The order of court, which we have 
incorporated into the materials which we submitted for the 
consideration of the panel stated the following: ``the court 
directs the defendant to take a bus to a halfway house in 
Scranton and to maintain his residence in Northumberland 
County.''
    It was established during Ms. Guernsey's trial against 
Country Living that Northumberland County prison officials had 
notified the personal care homes, both personal care homes 
where Mr. Statham had resided prior to the rape that he had 
been sentenced for a violent sexual offense and that he was 
being released directly from a correctional facility.
    Lilian Guernsey was raped on February 27, 2002. My partner 
and I tried that case exactly four years to the date beginning 
on February 27 of 2006. The events of February 27, 2002 could 
have been prevented if some initiatives, which Mr. Bledsoe has 
been proposing around the country, had been implemented.
    The sexual offender assessment report, which I have 
referenced in the materials provided to the panel, indicates in 
graphic detail the indignities visited upon Lilian Guernsey by 
Daniel Statham on that tragic evening. Lilian's story needed to 
be told as to what occurred to her on that evening, and her 
victimization unfolded during the trial which occurred.
    After she was assaulted, Lilian returned to Memphis, 
Tennessee with her son Tom, and he cared for his mom in his own 
home as best he could, but she lived out her days in a nursing 
home outside of Memphis. Lilian Guernsey died within two months 
of the conclusion of the trial brought on her behalf against 
Country Living Personal Care Home. She was 90 years old at the 
time of her death.
    As a result of the attack on Lilian Guernsey, Daniel 
Statham was charged with rape, sexual assault, and indecent 
assault. He currently is serving an extended prison sentence at 
the state correctional institution at Camp Hill.
    As a final observation, I would suggest to the members of 
this panel would be very honorable work that you are doing here 
today, that some initiatives need to be in place by the time 
Daniel Statham is released from prison.
    Thank you.
    [The written statement of Mr. McDonough can be found in the 
appendix at page 50.)

    Chairman Altmire. Thank you, Mr. McDonough, and thank you 
to all of the witnesses.
    We will now enter into the question and answer portion, and 
what we will do is a couple of rounds. I will ask a few 
questions and turn it over to Ms. Fallin and we will do it 
again.
    I wanted to start with Mr. Bledsoe, and we appreciate you 
being here with the expertise that you bring to the table on 
this issue. States have widely differing procedures regarding 
the issues that we're discussing today, and I wondered if you 
had some recommendations on states in the country that we could 
use as a model that have taken a leadership role and taken 
steps to address this issue and were Congress to get involved 
on the legislative side, what states could we use to exemplify 
with regard to this issue?
    Mr. Bledsoe. Thank you, Mr. Chairman. An excellent 
question.
    There are several recommendations that I have, some of 
which have been implemented by other states, and some have not. 
The biggest recommendation I have is to follow Oklahoma's 
example. Representative Steele, Senator Tom Adleson from 
Oklahoma, ten percent of the legislators in Oklahoma co-
sponsored this bill, the long-term care sex offender's bill, 
House Bill 2704 in Oklahoma. That bill separating offenders 
from non-offenders is the most concrete legislation that we can 
do at the federal level and at each state level. It absolutely 
removes predators from their prey. So that would be my first 
recommendation.
    The second recommendation is we need to do criminal 
background checks on all residents coming into facilities. 
Illinois conducted criminal background checks on their 
residents, and while we had documented about 100 registered sex 
offenders living as residents in long-term care facilities in 
Illinois, when they did criminal background checks, they found 
over 1,000 convicted felons were living in their facilities.
    So criminal background checks will answer a lot of 
questions and respond to some issues that Mr. Coble brought up 
about how we screen these people and how we decide what kind of 
levels of care do we need to be providing for them.
    Notification is an absolute necessity between the criminal 
background checks and until the time we have these secure long-
term care facilities following Oklahoma's example in place.
    Staff, residents, families, and visitors at these 
facilities absolutely need to know if there's a criminal 
offender in the facility. Oklahoma is one of those states that 
has some of that notification. We would like to see more.
    We also need to make sure that crimes are being reported to 
law enforcement. Many of these crimes are never reported to law 
enforcement. There needs to be legislation to make sure that 
crimes are mandatorily reported to law enforcement when they're 
found or suspected. There are statutes across the country for 
this, but they are relatively loose, and they need to be 
tightened up.
    Another recommendation is we need to absolutely track these 
criminal offenses that take place in long-term care. We need to 
track the offense, where it occurred. As well, we need to track 
the offender. When an offender commits a crime in a long-term 
care facility, if we haven't already done a criminal background 
check, we need to do a criminal background check on that 
offender and see what kind of history they have.
    That way in the future as we move forward with this system, 
we can monitor, we can evaluate, and we can modify it 
accordingly.
    And then we should also look at video monitoring and make 
that an option for residents who want to have video monitoring 
in their rooms, and this way we can see who it is that's been 
assaulting them and identify whether that's a staff member, 
whether it's a visitor, or if it is a fellow resident and who 
it is so that we can take appropriate action.
    Chairman Altmire. Thank you.
    Mr. McDonough, in your lawsuit the court found that there 
were no reasonable attempts to create safeguards to protect 
residents. Can you identify some of the basic steps that 
nursing homes can take moving forward to address this type of 
problem?
    Mr. McDonough. I think, and I am sensitive, Congressman 
Altmire, to Mr. Coble concerns relative to the management of 
risk, and I think that the nursing home industry and the 
personal care home industry should aggressively look toward 
government. I know regulation is typically considered to be a 
bad thing, but in this particular instance it is a good thing.
    In our case, as I tried to highlight, unfortunately the 
criminal justice system and the court was essentially complicit 
in the victimization of Ms. Guernsey. It seems to me that the 
most appropriate step has to be very detailed reporting 
requirements with respect to past criminal history so that 
nursing home operators without unnecessary government 
interference can certainly have the tools available to them to 
make an informed decision as to whether or not a particular 
individual is an appropriate candidate for their facility.
    So it would seem to me that particularly when someone is 
referred to a long-term care facility directly from the 
criminal justice system, as was the case with Daniel Statham, 
that the referring agency should have an affirmative obligation 
to specifically detail that individuals' past criminal history.
    I think as a threshold that is a very minimum requirement 
that could be instituted. Now, in our particular case it was 
established that the owner of the facility did, in fact, or had 
been made aware of Mr. Statham's background. So it was not 
quite as much an issue in our case, and it was one of the 
things that the court found to be particularly egregious about 
the home's conduct.
    But there has to be knowledge on the part of the operators 
of these facilities as to the nature of the person's prior 
offenses.
    Chairman Altmire. So do you believe, Mr. McDonough, that 
state registries and background checks are adequate safeguards 
or you are recommending them as a minimum?
    Mr. McDonough. Well, there is certainly a minimum 
safeguard, and then there has to be some additional 
consequences for the failure to properly notify the personal 
care homes and the nursing homes about the person's background.
    Here we had a breakdown in two separate probation 
departments, one in Wyoming County where the personal care 
facility at issue was located, as well as Northumberland 
County. So certainly the registration procedures for Megan's 
law offenders in the Commonwealth of Pennsylvania, which is 
currently in place, needs to be enforced, and I think that 
federal congressional oversight of this issue is certainly 
warranted in light of the tragic consequences that have been 
documented before the panel this morning.
    Chairman Altmire. Thank you.
    And I will give one more follow-up question to Mr. Coble 
and then we will turn it over to Congresswoman Fallin.
    You have heard what Mr. Bledsoe and Mr. McDonough and the 
other witnesses have said. What is the impact on the nursing 
home industry of this type of recommendation, a notification 
where everyone coming into the nursing home would be aware of 
the background of everybody else in the nursing home as it 
relates to this issue? What would that do to your industry?
    Mr. Coble. Well, our industry certainly agrees, Mr. 
Chairman, with the need to be notified, and we don't want to 
take anyone to any of our facilities who is danger to any of 
our residents, our visitors, our staff, anyone.
    We need notification. We need databases that are accurate. 
We do not need the courts ordering people into our facilities 
that are a danger to anyone. It is all based around assessment.
    I mean, if that person is in an end of life vegetative 
state it is one thing. If they are, as in some cases we have 
heard today, able to harm another person, they do not need to 
be there.
    And so our industry is for quality and safety. As I said, 
my mother lives there. I am not going to put anyone in one of 
my facilities that would harm my mother.
    The other thing that will be a challenge to our legislation 
in Oklahoma is federal privacy laws, as the Health Department 
starts to build a framework around the legislation that was 
passed, and also some very strict federal regulations around 
discharge and transfers of residents who reside in our 
facilities.
    Many times we want to move residents from our facilities 
and we cannot do it because federal law prohibits us from being 
able to do that, and so it would be very helpful. You can do 
many things up here that would allow the legislation that 
passed in Oklahoma to advance.
    Ms. Fallin. Thank you, Mr. Chairman.
    To follow up on your comment, Tom, about federal law 
prohibits you from transferring, can you explain that a little 
bit further? So if you know that you have an offender in your 
home, are you saying that you are prohibited from transferring 
them?
    Mr. Coble. If we have someone in our home, whether it is a 
sexual predator or someone who has some really inappropriate 
behavior that could cause them to be a safety or a danger to 
another person, it is very difficult to transfer them. They 
have to be a danger to themselves or to others to the point 
that we cannot meet their needs or basically the fact that they 
are just not paying for their care.
    And so those are the only two circumstances for which, and 
then at that point in time it is very difficult to get them out 
because the Department of Human Services or the ombudsman 
intercede on their behalf, and we are not allowed to get rid of 
them.
    You know, the legislation that Representative Steele came 
forward with and championed, I mean, all parties sitting at 
this table were lock in arms in support of, and so we need a 
place that when we do identify them, that if as a small 
business owner it is causing concern and distress to family 
members, residents, staff, that we can then move that person 
to.
    Ms. Fallin. Are there any challenges you see with Medicare 
or Medicaid as far as receiving federal government help to 
house these offenders, to be able to put them in a separate, 
stand alone facility like the legislation Oklahoma has passed? 
Do you see any type of hindrances that we need to address on 
the federal level of taking the federal money and using that 
for a stand alone facility to house these offenders?
    Mr. Coble. I am not aware of any, but AHCA would be glad to 
provide you with that information.
    Ms. Fallin. Representative Steele, do you know of anything 
we need to be addressing on the federal side?
    Mr. Steele. Well, I would reiterate the fact that both 
Medicaid and Medicare are entitlement programs, and as I 
understand both of those programs, if a person qualifies, meets 
the eligibility criteria, then he or she is eligible for the 
funding for those long-term care services, and with the 
legislation that we are talking about today, this stand alone 
facility is a nursing home. It is not a prison, meaning that 
the residents in that facility would be treated just like other 
nursing homes.
    It would have stricter supervision, a higher level of 
surveillance and security, but the residents would still be 
free within that facility, and to date I am not aware of 
anything that would prohibit Medicaid or Medicare funding for 
individuals who may be placed in this particular facility.
    Ms. Fallin. Are there any changes that you see that the 
nursing home industry would need to be able to have this 
separate, stand alone facility in law?
    Mr. Steele. Well, in Oklahoma, we are primarily a rural 
state. We are proud of that fact, and we have a lot of nursing 
homes in our state that are at or below capacity right now. So 
I think the idea for what we want to do in Oklahoma is to 
utilize an existing building for the operation of this.
    The industry would have to meet the additional security 
measures that the Department of Health will create as they 
continue to put together the request for proposals in order to 
qualify as a potential resident or potential provider for this 
facility.
    Ms. Fallin. Sean, you talked about some of the legal 
issues. How do we address the privacy issue of the patients 
versus actually being able to get good, detailed information 
that Mr. Coble has said that he needs? How do we be able to 
balance the two?
    Mr. Coble. Well, it certainly is a question of balance, but 
I think as I had indicated in my earlier remarks, first and 
foremost is to have an adequate criminal background check on 
the individual, and there are existing laws in place on the 
state level that require registration of particularly in the 
case of sexual offenders, and while I think there are other 
violent type people in these homes, the criminal background 
checks on these individuals for convicted offenses in my view 
do not implicate the privacy issues that exist with respect to 
health care records.
    Say if someone is diagnosed with some type of a mental 
illness, that is an issue separate and apart from the criminal 
background that many of these people bring to the facilities. 
So I do not see a privacy issue with respect to the criminal 
predators.
    With respect to violent tendencies as a function of mental 
disabilities, that is a different issue, Congresswoman, that 
candidly I do not have the answer to in light of the HIPAA 
regulations, which we all know are very stringent.
    Ms. Fallin. I have one last question here for now. All of 
the recommendations that you heard from Mr. Bledsoe and also 
from--do you pronounce it McDonough?
    Mr. McDonough. McDonough.
    Ms. Fallin. I am sorry. I mispronounced it earlier.
    Did you hear anything that you thought would not be 
reasonable as far as being able to implement some of those 
recommendations or would be cost prohibited?
    Mr. Coble. Well, I think most of the changes in law really 
that give us the freedom to operate do not have a cost to them, 
but we feel that the criminal background checks should be done 
by law enforcement or state agencies and provided at a point 
where we can access them and look into them because they have 
access to the information and the ability to simulate that so 
that we can check against that.
     So outside of those things, no.
    Ms. Fallin. Okay. Thank you.
    Thank you, Mr. Chairman.
    Chairman Altmire. I wanted to ask Representative Steele a 
couple of questions about his bill.
    You provide for the creation of separate nursing facilities 
for sex offenders, and I am interested in the cost of this. Is 
this something that you feel that there is adequate support in 
the nursing home industry that they would operate this 
independently and feel like they would be able to make money 
doing this and do it on their own, or is this something that 
you would need state or federal money or some other source to 
help fund?
    Mr. Steele. That is a great question, and I appreciate the 
question.
    The idea at this point is to put together a request for 
proposal and allow the private industry to use an existing 
building so that there would be no money in new construction 
other than perhaps what it would take to bring the facility up 
to meet the heightened security and surveillance measures that 
the Department of Health would put forward.
    I want to reiterate what Mr. Coble has said in the 
beginning. We worked with the industry and with the advocates 
for a number of years to get to this point, and again, I think 
the idea is to not use any taxpayer dollars necessarily or any 
more additional money for sex offenders in need of long-term 
care. Rather, we want to try to identify a situation that can 
truly be a win-win situation, a win situation in reducing the 
risk associated with a very vulnerable population of people who 
are currently living in our nursing homes, and a win situation 
for those individuals who have served their time of 
incarceration, are registered sex offenders, may be prone to 
reoffend and in need of long-term care.
    Chairman Altmire. Thank you.
    And on that same note, with the process Governor Henry 
recently signed the bill and you have passed it and enacted it 
now. Can you talk a little bit about any opposition that may 
have come up? Were there advocacy groups or for some group on 
the other side? What did you have to overcome as far as points 
against the legislation as it was moving through the process?
    Mr. Steele. Well, with an issue like this as much as 
anything, it comes down to communication, and I think because 
we have been working on this particular issue for a number of 
years with people from the industry, people within the advocacy 
groups, and really tried to take our time and understand and 
communicate along the way, we have not experienced a whole lot 
of opposition because people seem to understand what we are 
trying to accomplish with this particular piece of legislation, 
and it has been truly a bipartisan initiative.
    I mean, without Governor Henry's help, without Senator 
Adleson, who is a different party than myself, working and 
working hard for this particular legislation in the Senate, it 
would never have become a reality. But truly this is one of 
those issues that transcends party politics. It transcends the 
political minutia that sometimes we can get caught up with. It 
is an issue that is truly about helping people, and we feel 
like that we have at least come up with an idea that is a 
beginning point for accomplishing that goal.
    Chairman Altmire. Thank you.
    I have no further questions. Congresswomen?
    Ms. Fallin. Just a few more, Mr. Chairman.
    If I could ask Ms. Banning, of all the recommendations that 
you have heard today, being someone who has had to deal with 
this personally, have you found these suggestions to be helpful 
to protect a senior like your mother, or are there further 
steps that we need to be taking?
    Ms. Banning. This has probably been one of the most 
exciting days I have had to hear these suggestions. Wes and I 
have had dialogue over the last few years. He has told me 
proposals. I have done research on my own.
    My biggest concern, Ivy Edwards was found unfit to stand 
trial, put in a mental institution, was released in 2005 back 
into the nursing home. So he is out there again. He is 88 years 
old. Just a measure to prevent that from happening.
    A separate facility if these individuals are identified, a 
floor of a facility, a wing of a facility, to let the 
families--speaking as a family member, had I known that there 
was someone that could have caused harm such as Ivy Edwards to 
my mother, I would not have left her there for one day.
    I think that the families deserve to know. They have a 
right to know who is there. So background checks, a simple 
background check was done in a matter of minutes the detective 
told me and revealed the 59 arrests for Ivy Edwards, the last 
arrest being my mother's. So letting the families know I think 
is imperative for peace of mind if nothing else.
    And having the staff know. We sued the nursing home. We 
prevailed and got a judgment for negligence. They had no idea; 
the jury had no idea of Ivy Edwards' background. It was the 
behaviors that he exhibited while he was there. So I think if 
the nursing home had known up front what type of individual 
this was, I think that there would have been different measures 
taken to protect those that are there.
    Ms. Fallin. Are you saying that Ivy Edwards is back in a 
long-term care facility?
    Ms. Banning. The Attorney General for the State of Florida 
told a news reporter, Kelly Garlock, that when she was doing 
the investigation to find out if Ivy Edwards was still alive or 
if he was still in Chattahoochi, she was told that he was 
released in 2005, that he would never be competent to stand 
trial, and he was released back into the nursing home industry 
in the State of Florida.
    Ms. Fallin. Have you had any contact with that long-term 
care facility?
    Ms. Banning. I have checked every one I can find. I cannot 
find Ivy Edwards anywhere.
    Ms. Fallin. Well, I hope you find him and you give them a 
heads up.
    Ms. Banning. I hope I do, too. Yes, ma'am.
    Ms. Fallin. I think that will be very important.
    If I could ask Representative Steele a couple more things, 
my understanding from the GAO report and from just the limited 
research that I have done, and you are the expert on this, but 
the GAO report did not identify any similar federal law for 
notifying facilities of sexual offenders like some of the 
states have. I know states have varying degrees of laws of 
notification on sexual offenders, but am I correct about that 
or is there a federal law that mandates that facilities have to 
be notified of sexual offenders or people who might be of harm 
to the residents?
    Mr. Steele. Congresswoman Fallin, it is my understanding 
there is no such federal law currently on the books.
    Ms. Fallin. Do you believe that a federal law would be 
beneficial?
    Mr. Steele. I do. I do think a federal law would be 
beneficial in requiring nursing homes to perform background 
checks on residents and also on all staff who may work within 
that facility. But, again, I think we need to take into 
consideration who pays for those background checks.
    The thing that we want to do is not hinder business, but 
rather help business, and I hope that what we have done in 
Oklahoma is we have provided an alternative place for offenders 
who need long-term care to go so that those businesses in 
Oklahoma who primarily care for the general population do not 
have a negative perception problem that their particular 
facility is unsafe.
    And I think that what we want to try to get to is the point 
where family and loved ones and the residents themselves have a 
peace of mind when they enter into a long-term care facility in 
our nation.
    Ms. Fallin. Well, following up on that cost, who did the 
State of Oklahoma decide would pay that cost for notifying the 
long-term care facilities?
    Mr. Steele. In 2005, I believe it is currently the 
responsibility of the nursing homes themselves, and that is an 
issue that probably needs to be revisited, but as of right now, 
it is incumbent upon the industry itself to provide those 
background checks.
    I will tell you at that time and I think still today, the 
industry in Oklahoma is very willing to do whatever they can do 
to make sure that they address a problem that may jeopardize 
the safety of their residents, and so they kind of stepped 
forward in 2005 and said, ``Hey, we believe this is the right 
thing to do. We believe in it so much that we will go the extra 
mile and we will actually pay for those background checks 
ourselves in order to insure the safety of our citizens.''
    Ms. Fallin. Mr. Coble, do you have any response to that?
    Mr. Coble. Well, I just want to follow up on what 
Representative Steele has said. We in Oklahoma, and I think I 
can say this on behalf of the American Health Care Association, 
we want no one in our facility who is a threat or a harm to any 
resident, visitor or staff member, and also, the most important 
thing is we want peace of mind.
    I think Ms. Banning and what she was saying, families, we 
need to put this to bed so that we can take care of the frail 
elderly. I know we had a couple ladies who would call our house 
in Oklahoma three years ago when this issue was on the 
forefront being discussed, and they were worried. They lived in 
our assisted living, and they would call my home, and my wife 
would have to reassure them that we are doing the appropriate 
things and that we are not going to do that.
    But it is just a pressure on family members, and I am a 
provider and a family member both, and so I want to insure that 
everyone that we take care of is safe and we provide high 
quality care.
    Ms. Fallin. Mr. McDonough, do you think that having a stand 
alone, separate facility and using the Medicare/Medicaid money 
would be able to satisfy society's needs to provide for infirm 
offenders as human beings? They do need to go somewhere. So is 
this a good alternative for them?
    Mr. McDonough. I believe that it is. I believe that is, 
Congresswoman Fallin. When Mr. Bledsoe and I first began to 
talk about the issue, that was one of the first questions that 
came to mind. Well, in terms of basic human needs, regardless 
of their past offenses against society, have to be taken care 
of, particularly not so much in the case of Mr. Statham as a 31 
year old who could have resided independently, but for some of 
the elderly physicians, and I think mindful of Mr. Coble's 
concerns, there will be a market, as it were, for the housing 
of these individuals because they have to go somewhere.
    And as I had said earlier, from the industry perspective of 
managing risk, facilities that are willing to take these people 
in at least will do so with their eyes open as to what they are 
facing and what additional safeguards need to be implemented to 
insure that these residents do not harm one another.
    But I think clearly market forces would certainly dictate 
that there is a place for these facilities in society and that 
they can, indeed, be profitable. So I think it is an 
appropriate alternative and a workable one at that.
    Ms. Fallin. Mr. Chairman, that leads me to one last thought 
here, and I promise this will be it.
    If I could ask Representative Steele, you know, one of the 
biggest concerns in discussing these types of facilities is how 
do you pay for it, and so have you found in your studies that 
by the use of Medicare/Medicaid funds and the ability of the 
private sector market to adapt to be able to establish one of 
these facilities that it can be paid for in a reasonable manner 
for the State of Oklahoma or even the federal government?
    Mr. Steele. Well, as I understand it, and I might want to 
defer to Mr. Coble to make sure I have my statistics correct, 
but about 70 percent of our nursing home population is Medicaid 
eligible, Medicaid/Medicare eligible, and again, those are 
entitlement programs, and so if a person is eligible, they 
receive funding for those long-term care services regardless of 
their criminal history.
    And so ultimately it becomes a question of do we want to 
house these individuals who are sex offenders and who qualify 
for Medicaid or Medicare in with the general population or do 
we want to house them in a separate facility, and they would 
receive the funding no matter where we put them. It is just a 
matter of where do we need to put them in order to provide the 
protection that I think we are all in agreement here today that 
needs to be provided for our general population.
     And so I think that for the private sector, who is willing 
to designate a facility to house offenders, they would receive 
the funding just like they would if, say, that offender were 
housed somewhere else in a home that was not a separate 
facility.
    Chairman Altmire. Thank you all for being here today. This 
is a very difficult subject to discuss, and we welcome any 
further feedback that you have to continue the discussion.
    Mr. Steele, Mr. Bledsoe, Mr. McDonough, thank you for your 
advocacy and your tireless work on behalf of the victims. Mr. 
Coble, we realize that we put you in a very difficult position 
today as a representative of the industry to discuss what the 
industry has done while having to address the fact that some 
have failed within the industry, and we realize that it was a 
difficult position to put you in. Thank you for your testimony.
    Ms. Banning, we certainly realize that it is very difficult 
to discuss on the personal issue what has happened to you and 
what happened to your mother, and we regret that we had to ask 
you to come forward, but as Congresswoman Fallin said, we are 
going to make something good come out of what happened, and we 
just cannot thank you enough for being able to share the story 
and under very difficult circumstances come before us. Thank 
you.
    Thank you to everybody.
    I ask unanimous consent that members of this Committee will 
have five days to submit statements and supporting materials 
for the record, and without objection that is so ordered.
    And we will conclude the hearing. Thank you.
    [Whereupon, at 11:23 a.m., the Subcommittee hearing was 
concluded.]
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