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Testimony on Preventing Improper Evictions of Nursing Home Medicaid Residents by Michael Hash
Deputy Administrator, Health Care Financing Administration
U.S. Department of Health and Human Services

Chairman Bilirakis, Congressman Brown, distinguished Committee members, thank you for inviting us here today to discuss our efforts to improve protections for nursing home residents. The Health Care Financing Administration (HCFA) is aggressively working to improve the oversight and quality of nursing home care. Preventing inappropriate eviction of Medicaid residents is an essential part of this effort.

There have been intolerable situations in which facilities transferred or discharged Medicaid residents on false grounds and without appropriate notice. This creates serious disruptions in care and untold emotional toll on frail beneficiaries we are sworn to protect.

We have taken swift and strong action in these situations, including the imposition of $10,000 per day of civil money penalties. States have also taken swift and strong action. States and HCFA together have made clear that we are very serious about protecting Medicaid residents from inappropriate transfers and discharges. But we need to do more, and we need legislation to do it.

Chairman Bilirakis, America's nursing home residents need the bill you and Congressman Davis are introducing to be enacted into law. I am proud to say that the Clinton Administration and my agency strongly support your legislation. America's nursing home residents must not live in fear that they will be evicted solely because they rely on Medicaid to pay for their care. We must enact this bill to prohibit transfers or discharges of Medicaid residents when a nursing home chooses to leave the Medicaid program. I know my staff has provided technical assistance to your staff in drafting the legislation. We look forward to working with you further to ensure passage and to ensure that the goals of this legislation are met. We also may need to address further protection of Medicaid residents when nursing homes decrease the number of beds available to Medicaid residents, and we look forward to working with you on that issue as well.

BACKGROUND

About 1.6 million elderly and disabled Americans receive care in approximately 16,800 nursing homes across the United States . Through the Medicare and Medicaid programs, the federal government provides funding to the States to conduct on-site inspections of nursing homes participating in Medicare and Medicaid and to recommend sanctions against those homes that violate health and safety rules.

Medicaid nursing home participation is voluntary, and current law allows nursing homes to determine and change the extent of their participation. They can designate that only part of their facilities, for example a certain number of beds or certain wings, are available to Medicaid beneficiaries. If a nursing home wants to reduce the portion of its facilities that are available to Medicaid patients, it must give 30 days notice of its intentions to both the State and the affected residents. It also must ensure that any displaced residents continuously receive all necessary care as they are moved to other appropriate facilities.

USING REGULATORY AUTHORITY

We are taking steps to address problems created when facilities curtail service to Medicaid residents with the authority we have now. We recently issued new policy stating that a nursing home may decrease the portion of its facilities that are available to Medicaid or Medicare residents only once per year. We also are considering whether further regulatory changes would help protect Medicare and Medicaid residents. However, without the legislation Chairman Bilirakis and Rep. Davis are proposing, we do not have authority to prevent evictions of Medicaid patients if nursing homes leave the Medicaid program.

NURSING HOME INITIATIVE PROGRESS

As I said, preventing inappropriate evictions is an essential component of our broad initiative for improving the quality of nursing home care and oversight. These reforms build on progress made since 1995, when we began enforcing the toughest nursing home regulations ever. We have made solid progress since we announced our new initiative last July. We have taken several steps to improve inspections by States, who have the primary responsibility for conducting these on-site inspections and recommending sanctions for care and safety violations. We have:

• issued new guidance to States to strengthen their nursing home inspection systems;
  
  
• made clear that States will lose federal funding if they fail to adequately perform surveys and protect residents because we can and will contract with other entities, if necessary, to make sure those functions are performed properly;
  
  
• established a new monitoring system to ensure that States identify problems and impose appropriate sanctions;
  
  
• formally reminded States that they must enforce sanctions for serious violations and may not lift them until an on-site visit verifies that problems are fixed;
  
  
• required States to sanction facilities found guilty more than once for violations that harm residents, with no option to avoid penalties by correcting problems during a grace period;
  
  
• required States to conduct more frequent inspections for nursing homes with repeated serious violations while not decreasing their inspections for other facilities;
  
  
• required States to stagger surveys and conduct a set amount on weekends, early mornings and evenings, when quality and safety and staffing problems often occur;
  
  
• instructed States to look at an entire chain's performance when serious problems are identified in any facility that is part of a chain, and begun developing further guidelines for sanctioning facilities within problem chains;
  
  
• begun developing new regulations to let States impose civil money penalties for each serious incident and repeal current rules that link penalties only to the number of days that a facility was out of compliance with regulations; begun developing new survey protocols to detect quality problems in nursing homes
  
  
• using a systematic, data-driven process, with initial changes to be implemented this year; and
  
  
• secured, with strong support from Congress, a fiscal year 1999 budget with $171 million for survey and certification activities, including $4 million earmarked for the new initiative, and requested $60.1 million for fiscal year 2000 to enable us and other HHS components to fully implement all provisions of the Nursing Home Initiative. This includes $35 million for HCFA to strengthen State inspection and enforcement efforts, $15.6 million in mandatory Medicaid money to supplement State inspection and enforcement efforts, and $9.5 million to ensure adequate resources for timely judicial hearings and court litigation.

We have taken additional steps to help consumers choose facilities, help facilities improve care, and help our law enforcement partners prosecute the most egregious cases. We have:

• created and begun testing a new Internet site, Nursing Home Compare, at www.medicare.gov, which will allow consumers to compare survey results and safety records when choosing a nursing home;
  
  
• posted best practice guidelines at cms.hhs.gov/medicaid/siq/siqhmpg.htm on how to care for residents at risk of weight loss and dehydration;
  
  
• begun planning national campaigns to educate residents, families, nursing homes and the public at large about the risks of malnutrition and dehydration, nursing home residents' rights to quality care, and the prevention of resident abuse and neglect;
  
  
• begun a study on nursing home staffing that will consider the potential costs and benefits of establishing minimum staffing levels; and
  
  
• worked with the Department of Justice to prosecute egregious cases where residents have been harmed, and to improve referral of egregious cases for potential prosecution.

Legislative Proposals

The Clinton Administration's fiscal year 2000 budget includes proposals for:

• requiring nursing homes to conduct criminal background checks of prospective employees;
  
  
• establishing a national registry of nursing-home workers who have abused or neglected residents or misappropriated residents' property; and <
  
  
• allowing more types of nursing-home workers with proper training to help residents eat and drink during busy mealtimes.

The cost of conducting background checks and querying the national registry will be financed through user fees. The Administration will put forward additional proposals as needed for additional legislative authority to further improve nursing home quality and safety.

CONCLUSION

We are making solid progress in our efforts to improve the oversight and quality of nursing home care, but there is more that we must do. We are doing what we can with the regulatory authority we now have. We are working to secure passage of the President's legislative initiatives to further protect nursing home residents.