Senator Moss. I am sure you are aware that this committee has been inquiring and trying to get some action on this for a long period of time. Do you have any explanation as to why we get no response or have not been able to get responses to telegrams and letters?"

Mr. NEWMAN. No, sir, I cannot offer any comment to that. Senator Moss. I recognize these are addressed to the Secretary which is the channel that I would use, but I would assume they have to be refined to your Divisions for your suggested reply recommendation.

Mr. Halamandaris mentioned in his summary the telegram that I sent to the Secretary on the 10th of November 1969 telling him I was addressing the American Association of Homes for the Aging and asking what action had been taken on the report of the Task Force on Skilled Nursing Home Care and what plans had been made by the Department for implementation of regulations to comply with my amendments to title XIX concerning higher standards applicable to patients in skilled nursing homes.

I say here in the telegram that I would appreciate a reply by Tuesday or Wednesday at the latest.

Now, did that ever come to your attention?

Mr. NEWMAN. Mr. Chairman, I take responsibility for everything after February 16, 1970.

Senator Moss. I see. Well, this was November 10, 1969, so that is out of your jurisdiction.

Does anybody else on the panel here know why we have not been getting a response?

Frank, do you know about this?

Mr. FRANTZ. I remember the telegram, Senator. Of course we get a flow of correspondence all the time, but I remember this particular telegram because of its content and its source. It came into my office and we did reply to it, as I recall, on the day that it came in. Of course after it leaves Medical Services Administration we have no way of knowing what happens to it.

Mr. HALAMANDARIS. This is rather curious to me. The telegram is dated November 10, and the Senator called November 17, just prior to making a speech in St. Louis, to make sure that we had not heard from Secretary Finch before giving him a thorough blast in St. Louis. Again we were informed that the telegram was never received and now you tell us you drafted a telegram. Now somewhere there is a logjam. I would like to find where that logjam is. I would like to find where our telegrams and letters are hiding out. Somebody is sitting on them down there and I would like to find out where.

Senator Moss. We have had much the same situation on letters, and I have copies of those letters, that we didn't get replies to as well. Mr. HALAMANDARIS. Let me ask you about medical review while we are waiting. I understand you to say that you expect regulations within 10 days, Commissioner. Did you say that?

Mr. NEWMAN. Yes, sir.

Mr. HALAMANDARIS. All right. I am marking on my calendar

May 17.

Mr. NEWMAN. So am I.

Mr. HALAMANDARIS. If my calculation is correct, that is 10 days from now.

All right. We are going to check you on that, I promise.

I want to know again what stage the preliminary standards are in. Where are they? Did you say?

Mr. NEWMAN. They will come before the Office of the Secretary within the next few days. They have been drafted, there has been review in the manner in which I described in my testimony, and I would expect that they will be presented and be cleared through the Office of the Secretary in very short order.

Mr. HALAMANDARIS. Let's see now. When were the standards drafted? How long ago were they drafted?

Mr. FRANTZ. The draft was completed, I believe, in July of 1969. Mr. HALAMANDARIS. The conclusion obviously is that these regulations have been bouncing around down at HEW since July of 1969? I can appreciate the fact that you have got some new procedures that you might have to go through as Mr. Kimball has pointed out but

Mr. NEWMAN. No, I would not point to the procedures which Mr. Kimball referred to as the reason for the delay. I think that establishing a means of accomplishing the intent of the Congress in a program which at present operates with 52 States and jurisdictions requires

Mr. HALAMANDARIS. Now you are saying that you have a tough job. I can appreciate that. But darn it, you know, the Senator worked for the passage of the amendment in 1967, and we point out today that 28 months have gone by with no change or improvement. Twelve of those months were during the Johnson administration, the rest of the delay belongs to you and especially to Colonel Laughlin because of his continuous tenure. The delay, to my way of thinking, is inexcusable. Now you have admitted that if you had things your way, certainly things would have been done differently. What we want to do today is pin down some specific dates, and that is why I made such a point about May 17. Right now I want to change our focus to talk about the provision in the Moss amendments requiring the States to establish Home Health Services.

Mr. NEWMAN. Yes. I just want to make one comment about the feeling you ascribe to me-that is, if I had my way things would be done differently. I certainly would like to see the time frame telescoped but I think the clearance review is necessary to get all of the interested parties to comment and to feel that they have participated in the development of a policy. Our obligation is to develop a workable program which is consistent with the intent of the Congress. As I indicated in my statement I understand the intent of the Moss amendments; I personally subscribe to them; and will do all that I can to see that they get implemented.

Senator Moss. But doesn't the Secretary or somebody set some deadlines when these comments have to be cleared and be back in? Mr. KIMBALL. Mr. Chairman, we have put out an instruction memorandum to each of the operating agencies of the Department asking them to furnish us a list of all regulations which are due by a definite date, such as June 30 for the period under discussion. We have asked the agencies if there is any slippage, the early development is, of course, in the agency, it reaches us at certain points as I indicated in that procedure. Henceforth, when deadline dates are set we should know that they are being met and know when they are being missed.

Senator Moss. Now on this medical review, this was to be effective on the 1st of July 1969. What deadline date do we have on that now?

Mr. NEWMAN. I can't offer a comparable deadline date other than the statement that I made about the clearance of the regulation.

Mr. HALAMANDARIS. He said he would have preliminary regulations for us by May 17.

See, this is part of the problem. We would have liked to have had some of the other individuals further up in HEW here today so that we could get a rather firm commitment from them as to a specific time table. I got extremely aggravated yesterday on the telephone trying to get a few people to this hearing because (1) our letter of invitations of April 16 was not answered and (2) our telegram which went out about May 5 was also neglected. We had to resort to the telephone to find out indeed who was coming. Now that is bad. I just offer that to you for your judgment.

Mr. NEWMAN. I apologize on behalf of the Department.

Mr. HALAMANDARIS. Are you saying unequivocally that you cannot give us a deadline when you are going to have medical review in effect? Mr. NEWMAN. I would hope the effective date would be the date of the regulation; however, I don't feel that I can make that commitment at this time. I will certainly do everything that I can to see that is accomplished.

Mr. HALAMANDARIS. I will accept your promise.

Senator Moss. Now the Home Health Services is to be effective June 30, 1970, I believe. Will you meet that deadline?

Mr. FRANTZ. Mr. Chairman, a draft regulation has been prepared on that. This was not done in my office and I am not able to comment on the content of it but I am aware of what happened.

The draft has been prepared and it has had internal clearances with other participating agencies. It is now under review by the Office of the General Counsel. As far as I am aware, there are no legal difficulties anticipated or any controversial issues involved. I would think that considering the stage it is in now that it would be out before the deadline date.

Mr. HALAMANDARIS. Again I don't believe that anybody is promising us a deadline when the Home Health Services would be in effect. Is that true? Do you stand on that position, Commissioner?

Mr. NEWMAN. I don't think that I can make a commitment of that kind.

Mr. HALAMANDARIS. But you are giving us your promise that you will earnestly work for implementations.

Mr. NEWMAN. Yes, sir.

Mr. HALAMANDARIS. That is something anyway.

Senator Moss. Now the new regulations of April 29 command MSA to establish the ratio of nursing personnel to patients. What is your deadline now when this ratio will be effective?

Mr. NEWMAN. There is at present no deadline that I am aware of, Senator.

Senator Moss. Again no deadline.

Let's see. By law the Secretary has responsibility to deny Federal funds if all of the requirements of the State licensure are not met. Is there a proper deadline for implementation of this requirement?

Mr. FRANTZ. Mr. Chairman, the amendment to the regulation which includes this provision in the definition of the term skilled nursing home was one of those which was published in final form on June 24 of 1969. This regulation is, therefore, in effect at this time.

Mr. HALAMANDARIS. Let me have a comment here. As the Commissioner mentioned, the way that this is being implemented is by supposedly integrating this requirement in the definition of skilled nursing home care. Ostensibly implementation of this portion of the Moss amendments is now complete. I point out there are two things wrong with this approach. No. 1, the statute specifically spells out that title XIX referring to skilled nursing homes is not the only title involved. There are other titles that are involved-I, V, XIV, and XVI. Now those are completely neglected they lose the protection of the law if you implement it this way.

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The second thing that is wrong with your incorporating this requirement is that you are simply saying that unless your skilled nursing home is in compliance with all the State's regulations you don't get paid. That is the way the standard reads. There is no substantial change from the way the program has been before.

Under the command of the Moss amendments the Secretary has a definite responsibility to assess, to make sure, that before any Federal money goes out, that all nursing homes must be more than within substantial compliance, they must meet all the requirements of the State licensing board. That way you are implying that the Secretary's affirmative responsibility has been deleted. It is now only one of a series of the requirements that make up skilled nursing home care. Do you agree?

Mr. NEWMAN. No, sir.

Mr. HALAMANDARIS. It does not surprise me. In effect you have a negative regulation here, you have another nonregulation. That is the way I read it.

Okay. Let's go over our checklist. With regard to the ratios, then again you cannot promise us any deadline. Could you give us any thought as to what would be reasonable from your own personal point

of view?

Mr. NEWMAN. No, I can't. From my personal point of view I can tell you that the question of quantitative standards in compliance with this aspect of the regulation is being extensively reviewed. I pointed out earlier the difficulties of attempting to attain the level of effectiveness of the program, which is the intent of the Congress, and at the same time accomplish in the management of the program a workable program for States. Implementation is more difficult than merely wanting it to happen.

Mr. HALAMANDARIS. Let me address a question to Colonel Laughlin. Isn't it true, Colonel

Mr. LAUGHLIN. Mister.

Mr. HALAMANDARIS. Mister. All right.

Isn't it true that there is substantial disagreement within your Department as to the implementation of this legislation? Is there not substantial resistance to establishing any ratios at all?

Mr. LAUGHLIN. I suppose just like everything else there are differences of opinion among professional people.

Mr. HALAMANDARIS. Substantial differences of opinion?
Mr. LAUGHLIN. Varying degrees.

Mr. HALAMANDARIS. You are very responsive, I am going to call on you again.

If I may gentlemen, I am going to talk about something else. The companion of the Moss amendments of 1967 was the Kennedy amendment requiring the licensing of the Nursing Home Administrator charging you with coming up with regulations for the licensing of nursing home administrators.

Now I want to clarify congressional intent. Let me direct this to Mr. Frantz because he was involved in the passage of these amend

ments.

Mr. Frantz, was it congressional policy in your opinion that at the time when you were instrumental in passing these amendments that the boards which license the Administrator would be made up of the majority of nursing home operators? Would you say that was the policy of Congress? Was it the policy of Congress?

Mr. FRANTZ. Well, I am always hesitant to talk about the policy of Congress. I can give you my recollections of the thinking of the staff and our understanding of the thinking of the sponsor of this amendment at the time.

Mr. HALAMANDARIS. Good.

Mr. FRANTZ. As I understand the issue you are raising here it is a question of whether the nursing home administrator should in effect. license himself.

Mr. HALAMANDARIS. Exactly.

Mr. FRANTZ. Whether administrators should dominate the board. It was our thinking that the language "representative of the professions and institutions" meant that the legislation did not call for a self-licensing mechanism.

Mr. HALMANDARIS. Did not call?

Mr. FRANTZ. That is right. The historical context is that even at that time when the bill was in its formative stage we were hearing the argument about doctors licensing themselves and pharmacists licensing themselves and so on and why not us? We did not think that this was a valid analogy. We did not think that nursing home administration was an established body of knowledge which was the exclusive province of the practitioners. Indeed, in order to establish it as a body of knowledge it needed the contribution of a large number of other representatives of the health and health service professions.

So in effect this language "representative of professionals and institutions is concerned with the care of the chronically ill" represented the sponsor's decision on that argument.

Mr. HALAMANDARIS. All right. I bring up the question because what is happening in many States is that the provision of the law as you stated it, that a majority of nursing home operators should not in effect license themselves, is being cut away. There has been one waiver granted in this case of the State of Iowa, there are presently four others pending. I believe I am correct in this.

Now if the four other challenges are granted, then in effect another waiver will be established and HEW will sit by and allow the nursing home boards in the States to be composed of a majority of nursing home operators, and in effect that is what is going to happen if the challenges are granted.