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Hearing on CMS’ Regulation of Nursing Homes Leaves Us With More Questions Than Answers

“Frail and vulnerable people are harmed when nursing homes fail to meet our standards. And I don’t think any of us wants to wait until the next natural disaster or other disaster exposes some kind of a deficiency that kills dozens of people.”
                                                 -Rep. Diana DeGette (D-CO)

 

On Thursday, the House Subcommittee on Oversight and Investigations held a hearing to address substandard care and recent findings of abuse and neglect in U.S. nursing homes.

In his opening statement, Committee Chairman Representative Gregg Harper (R-MS) told those present that “In 2014 OIG [Department of Health and Human Services’ Office of Inspector General] found that, based on its review of more than 650 medical records of Medicare beneficiaries that were receiving care in a nursing home, approximately one-third of residents experienced some type of harm during their stay. According to OIG, nearly 60 percent of this harm was either clearly preventable or likely preventable.”

Using this statistic to drive the hearing, Rep. Harper and other Representatives who make up the subcommittee each had 5 minutes to ask 3 witnesses of their knowledge of what is being done to prevent further instances of abuse and neglect, as well as how to hold those “bad actors” responsible for failing to protect elderly nursing home residents. The major witness was Dr. Katie Goodrich, Chief Medical Officer for the Centers for Medicare & Medicaid Services (CMS), who answered most of the committee members’ questions on canceled, ongoing, and planned CMS initiatives.

Illinois Representative Pushes for Answers
In the most fiery line of questioning, one of Illinois’ own, Democratic Rep. Jan Schakowsky, began by saying that she was tired of listening to CMS describe new rules and disciplinary measures as “an important first step.” Schakowsky went on to say that since the 1980’s she’d been watching the nursing home industry and has been inundated with hard evidence of nursing home abuse and neglect. She described how she had grown impatient of hearing that CMS is just starting initiatives when they should be finishing them.

Rep. Schakowsky also cited both a Human Rights Watch report and an OIG report that found high rates of antipsychotic use, questioning why the overuse of antipscyhotic drugs for dementia patients is still at an all time high, despite the implementation of a CMS program to educate nursing homes on alternative methods for treating dementia. While Dr. Goodrich cited their improvement, Rep. Schakowsky was quick to point out that 2/3 of nursing homes are still overusing these medications.

 

Preventing “Bad Actors” From Owning and Running Nursing Homes
Rep. Susan Brooks (R-IN) pushed CMS for answers as to what powers they have to prevent bad nursing home owners from taking ownership of more facilities or continuing to operate. Her questions stemmed from the tragedy last year at the Rehabilitation Center at Hollywood Hills, the Florida nursing home whose lack of an emergency plan caused the death of 12 residents in the aftermath of Hurricane Irma. The owner, Dr. Jack Michel, had a 2006 settlement with the Department of Justice for his leadership of a kickback scheme involving his nursing homes. Rep. Brooks wanted to know how someone could have been found guilty of participation in a fraudulent scheme involving a nursing home and yet still be allowed to operate nursing homes throughout the state.

Ms. Dorrill, the witness representing the OIG said that their agency personally has authority to exclude people from owning nursing homes, but that she was not sure if this required a criminal conviction. She noted that she was not in the justice office, so she wasn’t sure of the legal ins and outs, but that she knew that OIG has excluded nursing home facilities in the past.

Rep Brooks then asked Ms. Dorrill to have counsel at OIG get back to the committee with information as to what exactly the “exclusion tool” involved, specifically how long the exclusion process took, what actions would merit exclusion, and who made the ultimate decision. She said it sounded like the plans were in place, but that  the “execution” of these plans didn’t seem to be happening.

Committee to Fight for Arbitration Agreement Ban
In another exchange, Rep. Diana DeGette (D-CO), asked CMS about the status of a ban on arbitration agreements in nursing homes. Rep. DeGette said the ability to sue nursing homes is “what I consider to be a consumer protection role that was designed to make sure nursing home residents could go to court or join other people in lawsuits to settle grievenaces and they wouldn’t be forced into arbitration.”

When CMS’ Dr. Goodrich replied that there was a legal injunction that prevented the ban from being  implemented, Rep. DeGette asked Dr. Goodrich to get back to the committee with the status of an arbitration agreement ban, particularly the lawsuit responsible for the injunction. As a side note, the lawsuit responsible for the injunction was brought forth by nursing home industry advocates who believed nursing homes would be harmed by the ability of residents to sue for instances of abuse and neglect that resulted in harm.

DeGette concluded by saying the committee would do everything they could to enforce the rule that nursing home residents and their loved ones wouldn’t have to sign arbitration agreements in order to be admitted to a facility.

In all, the hearing ended with CMS agreeing to follow up with information requested by the committee, but with no promises to aggressively address and discipline nursing homes who engage in understaffing, in the overuse of antipsychotic drug in dementia patients, and in the abuse and neglect of their residents.

 

The full video of the hearing can be found here.