TRENDS IN LONG-TERM CARE

THURSDAY, MAY 7, 1970

U.S. SENATE,

SUBCOMMITTEE ON LONG-TERM CARE,

OF THE SPECIAL COMMITTEE ON AGING,

Washington, D.C. The subcommittee met at 9:45 a.m., pursuant to call, in room S-407, the Capitol, Senator Frank E. Moss, presiding.

Present: Senator Moss.

Staff members present: William E. Oriol, staff director; David Affeldt, counsel; John Guy Miller, minority staff director; and Val Halamandaris, professional staff member.

OPENING STATEMENT BY SENATOR FRANK E. MOSS, CHAIRMAN

Senator Moss. The hearing will come to order.

This is an oversight hearing by the Subcommittee on Long-Term Care of the Senate Special Committee on Aging. We are here this morning to inquire into the application of the statutes having to do with long-term care, more particularly the amendments to the Social Security Act which were adopted in 1967 called the Moss amend

ments.

It might be said that the theme of this hearing is "law and order." We frequently hear this catch phrase in statements, often by Government officials, deploring the apparent attitudes of various groups of our citizens toward our laws and law enforcement. I use it here in questioning the apparent attitudes of Government officials toward laws enacted by this Congress. Government, too, must obey the law.

A depressing number of examples have been brought to our attention through the press, as well as for protection of patients in Government health programs.

We say to our young people that a citizen may not choose which laws he will obey and which he will not. As I review the actions and the failures to act of the Department of Health, Education, and Welfare in response to the nursing home amendments of 1967, the question is inescapable: Are Government officials asserting a right to choose which laws they will obey and which they will not? Evidences of governmental lawlessness are not lost on young people whom we admonish about law and order.

Nearly 21⁄2 years have passed since the enactment of the Moss amendments and we still can see little practical result from our legislative efforts. Standards for skilled nursing homes were not developed by the time the amendment requiring States to use them became effective on January 1, 1969. Six months later, interim standards

were published which failed in important respects to be responsive to the law. Despite widespread adverse reaction to these interim regulations, including criticism from a special task force appointed by the Department itself, almost a year went by before improved standards were issued. After months of inaction, they were issued shortly after I announced this hearing.

Another of my amendments calls for a program of medical review of the care of each patient in skilled nursing homes for whom title XIX funds are being paid. This requirement became effective July 1, 1969. To date nothing has been issued to the States to implement this amendment. I understand that some believe that conducting a medical review program would be too burdensome upon the State agencies. I remind them that this question was considered and decided by the Congress, and that decision is now the law.

Under section 1861 of the Social Security Act the department has the authority and obligation to set standards for the safety of patients in extended care facilities. On January 9 of this year a tragic fire in an extended care facility pointed up clearly a specific hazard to life which had been omitted from the Medicare standards. The urgent need for a standard on flammable floor covering was developed in hearings before this subcommittee. Five months have passed and no standard on floor covering has emerged from the Department of Health, Education, and Welfare.

We want to know why this executive department seems to be immobilized when confronted with law designed for the welfare and protection of individual patients. We are here today to try to find out. We asked the department to send witnesses who could describe the policy development and decisionmaking processes which have taken place involving the nursing home amendments. We received no reply. We asked the department to identify the officials with major responsibility for reviewing and approving policies, regulations, and administrative actions to carry out the amendments. We did not receive the information. Finally we sent a telegram to the department requesting the attendance of those officials who my staff were able to identify as having something to do with these problems. We received no reply.

I am sure there must be someone here today to represent the department and answer our questions, but our experience in arranging this hearing did little to counteract the growing impression of the indifference of HEW to the plight of nursing home patients under our Government programs, to the concerns of this committee and to the law.

We will place in the record a statement by the chairman of the full committee, Senator Harrison A. Williams.

STATEMENT OF HON. HARRISON A. WILLIAMS, U.S. SENATOR FROM NEW JERSEY

Senator WILLIAMS. Thank you, Senator Moss, for aptly describing our mutual interest in the matters before your subcommittee today. Since you have a full witness list, I will be brief.

First, however, I must take a moment to thank you personally for the outstanding and dedicated contributions that you are making to the committee's overall work.

You are also to be commended for seeking clearcut answers this morning concerning the impact of recent regulations which may have the effect of dismantling the Medicare extended care program-a program which you have worked so hard to develop as an effective alternative to costly hospital care.

Reports to this committee from nursing home patients and staff personnel express deep concern principally over two regulatory changes. One directive prohibits reimbursement under Medicare for nursing home patients who are merely custodial. Although these individuals may need an extension of the type of care previously received during their hospital stay, payment can be made only if they have rehabilitative potential.

Another restriction petmits reimbursement under Medicare only if a patient comes within the meaning of "skilled nursing home care. Several directors at extended care facilities, inlluding one of our witnesses this morning, have criticized this limited definition as being artificial and arbitrary.

This hearing today, I believe, is particularly timely and appropriate. During the past 6 months, it is reported that more than 500 nursing homes throughout the country have refused to admit Medicare patients. Others are cutting back on the number of Medicare patients that they will admit.

At issue is the practice by certain insurance intermediaries of denying eligibility under Medicare to nursing home patients long after they have been admitted.

This situation is reaching crisis proportions for extended care facility administrators, staffs, patients, and their families.

Nursing homes are in a quandary because of inconsistent and confusing decisions by fiscal intermediaries concerning eligibility and entitlement to reimbursement for covered services. When Medicare benefits are denied retroactively, extended care facilities receive no payment for services they have already rendered in good faith, unless, of course, they can collect from the patient or his family. In order to avoid the risk of denied payment, nursing homes by the hundreds are dropping out of the Medicare program.

For most extended care facilities, it is extremely difficult to determine with any degree of certainty which patients will be covered. This is true although a competent physician certifies in writing that the patient needs extended care. Because of this problem, many doctors are reluctant to refer needy patients to nursing homes for extended care-even though such care would be of important therapeutic value and less costly than continued hospitalization.

The net effect is to increase hospital stays and to reduce days of nursing home care, although this care may cost the Government only one-third of the amount for hospitalization. Many patients believe that it is preferable to leave the patient in a hospital for convalescence rather than to submit him to such uncertainty. However, shaving one hospital day from Medicare's national average could result in a savings of $400 million.

Unfortunately, in the middle of this "no man's land" is the unsuspecting patient. At the time of admission, no patient can be absolutely certain of having his bills paid by Medicare, even though he has been certified by his physician. Moreover, this risk for payment of non

covered services by the patient is substantial, since only about one-half of the claims for nursing home care last year were approved. This problem is particularly onerous for the poor and near-poor elderly who are especially hard hit by these unanticipated bills. In many instances, their financial resources are completely wiped out.

Because of this urgent problem, confusion and widespread public misunderstanding have developed over extended care. Most elderly patients believe Medicare will cover 100 days of posthospital care provided:

They have been in a hospital for at least 3 days in a row before admission to the extended care facility;

They are admitted within 14 days after leaving the hospital; and

Their doctor certifies that they need extended care for further treatment of a condition treated in the hospital.

However, little effort has been made to inform the public adequately about the program's limitations, such as the coverage for "skilled nursing care" but not for "custodial" care.

Consequently, families and patients become upset, especially if their doctor or the nursing home assured them of coverage. And, who can blame them for being upset. A retroactive cutoff in coverage of benefits can mean a charge of well over a thousand dollars in many

instances.

Yet, a large number of attending physicians have refused to discharge patients following a denial of their claims. To do so, in their judgment, would be tantamount to malpractice. The result is a vicious circle in which no one is happy.

The patient is angry because his claim will not be reimbursed.

The attending physician is upset because his decision has been overruled by a nonprofessional, who may not fully understand the medical exigencies of the situation.

And, the extended care facility is frustrated because they have rendered services, but have not been paid.

With this in mind, I am sure, Senator Moss, that your subcommittee will seek answers to many perplexing questions:

What can be done to correct the present uncertainity for older persons in need of nursing care?

How can more effective procedures be developed to assure extended care facilities of reimbursement for services which they perform?

Should a nonprofessional have the power to overturn the medical judgment of the physician?

Senator Moss. We are going to proceed today first with a staff report since so much of this had to be extracted by the staff detailing the problems and questions and then we will hear from representatives of HEW who are present here today.

Mr. Val Halamandaris, an attorney and professional member of the Committee on Aging, will be asked first to give the staff report.

STATEMENT OF VAL HALAMANDARIS, PROFESSIONAL STAFF MEMBER, COMMITTEE ON AGING

Mr. HALAMANDARIS. Thank you, Mr. Chairman.

In your April 16 statement in the Congressional Record you asked the question: What ever happened to the Moss amendments?