As you know, it has been one of my missions to find an answer to the mystery. I am here to give you a report and to summarize the events. that have taken place up to now. What follows is chronological.

In 1967 the Moss amendments were included with the social security amendments. The intent was to raise standards of care in Medicaid skilled nursing homes.

Today, some 28 months after enactment, it is time to take stock and measure our progress.

The reason for your amendments, Mr. Chairman, as I recall, was first the conclusion developed after 4 years of hearings that Medicaid moneys purportedly paying for skilled nursing home care were really going to pay for unskilled care or, worse, neglect, and secondly, an attempt was made through your amendments to provide uniformity of State standards often inadequate and subject to political pressures. The bill that was sponsored enjoyed substantial support from the American Nursing Home Association and passed the Congress and was signed into law January 2, 1968.

Details of implementation were left to the newly formed Medical Services Administration under Commissioner Francis Land.

With Dr. Land the implementation of the Moss amendments was left to Frank Frantz, well known to this committee because his work as a member of our committee staff lead to the adoption of this amendment. As I said, the program enjoyed the substantial support of the then Secretary Wilbur Cohen, and the cast of characters would not be complete without the name Harold G. Smith, who served at the same time as a part-time member of MSA and as the consultant with the American Nursing Home Association.

There were substantial conflicts of opinion, charges that Medicaid rates were too low and that standards should not be raised until the rates were raised. There were cries of shortages of nurses, still a first draft of standards was available in December of 1968, reportedly in line with the policy requirements of the Moss amendments. There was substantial opposition at this December Atlanta meeting from the American Nursing Home Association on the specific provision of this draft with regard to ratio of personnel per patient.

On January 10, 1969, a second draft was available. I point out at this time the deadline for implementation January 1, 1969, had passed so HEW was already in default at the time they came up with the second draft. Reportedly at this time, with the new administration about to take over, Dr. Land made substantial changes in view of the persuasive arguments by State officials.

Mr. Chairman, a third draft was available by a new group. This was done on January 13 and a fourth draft on January 15. This fourth draft was presented by the committee on January 16. The committee was headed by Col. Thomas Laughlin and on the committee was Harold Smith. Those who viewed that fourth draft concluded it was a sell-out of the Moss amendments.

A fifth revision came on January 17. Here again there was substantial controversy about the function of the charge nurse on the evening shift and on the waiver provisions.

In what was at least the sixth draft, HEW on June 24, 1969, announced the so-called interim standards effective after 30 days for comment. These regulations extended liberal waiver provisions for charge nurses in skilled nursing home facilities through July 1, 1970.

What followed on July 31, Mr. Chairman, was your hearing before this committee. At that time you said: "We are left with regulations that say, in effect, that a single, untrained practical nurse on duty in a home with 200 or 300 patients or more constitutes properly supervised nursing services on the afternoon and night shifts."

Eleanor Baird representing the American Nursing Home Association endorsed the intent of the proposed standards but expressed "grave concern and strong reservations about the ability of the States to implement them-unless adequate lead time is provided."

Editorially, I suggest, Mr. Chairman, that adequate lead time has now been made available.

The National Council of Senior Citizens through Mr. William R. Hutton said, "The regulations, when compared to the Moss amendments, show that the interests of nursing home industry have been accommodated and the aged have been sold short."

Mary E. Shaughnessy, for the American Nursing Association, declared that standards should be set according to services that are to be provided, not on the basis of availablility of qualified personnel. Rev. William Eggers of the American Association of Homes for the Aging commented that his group knew of no national shortage of qualified LPN's. "Facilities that cannot qualify as skilled nursing homes for personnel or other deficiency should be called by another name and reimbursed at a lower level until they can make the grade." Col. Thomas Laughlin, testifying in place of Dr. Land who had resigned as MSA Director, said that he was in favor of grace periods which were necessary because HEW had never provided enough money for a training program to overcome a shortage of fully qualified LPN's.

In an unusual move, indicating conflict within the department, HEW had named a task force to review the interim regulations. The record of the Moss hearings was sent to the panel, including members from the top rungs of ANHA, AAHA, organized labor, senior citizens' councils and State medical-welfare units. The chairman was Mrs. Charline J. Birkins of the Colorado Department of Social Services.

Available August 19, her task force report was reportedly in vindication of the January 10 draft, calling for complete compliance with the Moss amendments. However, this first draft was recalled. The information we received was that, "It did not reflect the views of all the members."

In October, yet another draft was rumored ready to be issued in November. Throughout November we waited in vain for the draft to be issued.

On November 10 you will recall, Mr. Chairman, you were preparing to address the November 17 convention of the American Association of Homes for the Aging. By telegram you notified Secretary Finch accordingly and you asked him the following questions:

"No. 1. What action has been taken on the report of the Task Force on Skilled Nursing Home Care?

"No. 2. What plans have been made by the Department for implementation of regulations to comply with my amendment to title XIX concerning higher standards applicable to patients in skilled nursing homes?"

As you know, Mr. Chairman, you telephoned just before making your speech on Monday, November 17, to check with your office to find if there had been a reply to your telegram from Secretary Finch's office. In fact, no reply had been received. Further, HEW denied ever having received this telegram.

On January 9, Mr. Chairman, from your hearings in St. Petersburg, Fla., before this committee and again on January 15 in Hartford, Conn., in your opening statement you made a strong call to HEW for the implementation of your amendments.

On April 16, Mr. Chairman, your speech appeared in the Congressional Record and announced this hearing. On April 29 the standards appeared in the Congressional Record.

A few conclusions, Mr. Chairman.

That HEW has not allocated time, money, and personnel to implementing standards is a fact. To prove this fact, I have established a comparison with the implementation of the Medicare law as it related to extended care facilities. As you know, the Medicare law was passed in July 1965 and was to take effect with regard to the extended care provisions on the 1st of January 1967. HEW had 18 months to implement that law.

Procedurally the same steps, Mr. Chairman, are entered in implementation of the extended care law as there would be in implementation of the Moss amendments. These steps are:

1. Standards are put out in regulation form;

2. Arrangements must be made with State health departments for State surveys to apply these regulations;

3. Development of a procedure for certifying on the basis of these procedures;

4. Sending personnel out to the States to consult with States and to monitor their initial implementation.

The information that I have received from the Social Security Administration as to the manpower or the number of personnel that they had within that 18-month period-and I would believe that these are very conservative figures, Mr. Chairman-indicates that 122 people were involved at one time or another during this 18-month period to bring about the implementation of the extended care Medicare program and in fact 40 man-years of labor were exhausted getting the extended care program so that it would function.

The figures for personnel in man-years under the Moss amendments remain to be established. The question remains: Why the procrastination? Why has it taken 28 months to implement your amendments? Are the legislative actions of Congress but empty gestures?

It is one thing, Mr. Chairman, when individuals suffer injury in the face of inaction by the Congress, it is quite another thing when the Congress has acted and in spite of the will of Congress the injury

continues.

What becomes clear is that the Congress in passing your amendments has acted to provide standards and protections for patients in nursing homes under the Medicaid program. From all appearances the attitude of those charged with implementing the will of Congress approaches indifference if not outright culpable neglect and as a result the patient continues to suffer.

In closing I would like to quote the 1955 Second Hoover Commission which picked up the celebrated decision of the United States v. Lee. In that decision the Supreme Court said:

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.

It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

Thank you, Mr. Chairman.

Senator Moss. Thank you, Mr. Halamandaris for setting forth your research and your views on the nature of the obstacles in the path of the implementation of statutes that have been enacted by the Congress.

We will not hear from Mr. John Veneman, Under Secretary of Health, Education, and Welfare; he could not be here today. I might say he is before a House committee.

I do know that Commissioner Newman of the Medical Services Administration is here; Mr. Laughlin, the Deputy Commissioner of the Medical Services Administration: and Mr. Frantz, Chief, Office of Nursing Home Programs.

Are there other representatives of HEW here? Mr. Butler, Mr. Walden or Mr. Twiname? Are any of those gentlemen here? Mr. KIMBALL. No, Mr. Chairman.

Mr. Chairman, I am the Department's regulations officer, Arthur Kimball.

Senator Moss. Thank you, Mr. Kimball.

Well, now, I suppose that if there is room at the table you representatives of HEW could all come forward and sit at the table and we would proceed in whatever order seems legical. Mr. Kimball, Mr. Newman, Mr. Laughlin and Mr. Frantz.

Senator Moss. Commissioner Newman, you have heard my opening statement and that of Mr. Halamandaris. Do you have any statement you would like to make or explanation? We would be glad to hear that and we may want to ask you some questions. I will offer the same suggestion to the other gentlemen who are here at the table. Mr. NEWMAN. I do have a brief statement, Mr. Chairman. Senator Moss. Thank you. Would you proceed then.

STATEMENT OF HOWARD NEWMAN, COMMISSIONER, MEDICAL SERVICES ADMINISTRATION, ACCOMPANIED BY ARTHUR KIMBALL, REGULATIONS OFFICER; THOMAS LAUGHLIN, DEPUTY COMMISSIONER, MEDICAL SERVICES ADMINISTRATION; AND FRANK FRANTZ, CHIEF, OFFICE OF NURSING HOME PROGRAMS, MEDICAL SERVICES ADMINISTRATION

Mr. NEWMAN. Mr. Chairman and members of the subcommittee, we are pleased to be here today to give an account of our work in the field of nursing home care under the medical assistance program and to try to answer the rhetorical question posed by the chairman in announcing this hearing: "Whatever happened to the Moss amendments?" In this statement I shall describe very briefly the actions

which have been taken following the passage of the amendments of 1967 relating to nursing home care and the current status of implementation of each. I will treat these amendments in the order of their effective dates since the relative imminence of effective dates largely dictated their priorities.

Although not one of the Moss amendments, a major amendment dealing with long-term institutional care, added to the Social Security Act by the amendments of 1967, was that which authorized the intermediate care program. This amendment became effective on the date of enactment, January 2, 1968. As of that date, States were authorized to make payments under titles I, X, XIV, and XVI for care of individuals in intermediate care facilities. It was imperative, therefore, to give immediate priority to developing the framework of the Federal policy within which States wishing to adopt intermediate care could proceed.

While the Medical Services Administration had primary responsibility in the development of regulations for most of the amendments, other agencies of the Department were also involved. Regulations implementing the intermediate care facility program were developed initially through the joint efforts of the Medical Services Administration, the Assistance Payments Administration, and the Administration on Aging. The community Health Service and the Division of Mental Health Service programs of the National Institute of Mental Health were consulted. Additionally a number of conferences were held with representatives of the Bureau of Health Insurance of the Social Security Administration because of the implications involved in defining this type of institution for the spell of illness determinations under Medicare.

The interim regulations were published in the Federal Register on September 12, 1968. Following publication, comments and suggestions were received from State agencies, professional and provider groups and other interested persons. Final regulations were published in the Federal Register on June 24, 1969. We have provided for the subcommittee's convenience copies of these regulations.

Section 234 (c) of Public Law 90-248 originated as one of the Moss amendments. It provides that no Federal funds may be paid to match payments made to any nursing home which does not fully meet State requirements for licensure. This provision was incorporated in regulations by amending the Federal definition of "skilled nursing home," as the term is used in title XIX, to provide that no facility failing to meet all State requirements would meet the definition. This amendment was first published in August of 1968. Final revisions of this particular set of regulations containing this amendment were published June 24, 1969. For the subcommittee's convenience, I have provided copies of this regulation with the pertinent section marked. The major amendment on which a large proportion of our time and effort has been spent is that amendment which provides that nursing homes receiving payments under a State's title XIX plan must meet certain standards. This committee, through its hearing of July 30, 1969, is familiar with many of the issues and delays encountered in the development of regulations for the implementation of this amendment as published in the Federal Register on June 24, 1969.

Following publication of these regulations, a special task force was appointed to assist us in reviewing the many comments which were