Now I have another letter here, it is to John Twiname who is the Administrator of the Social and Rehabilitation Service, and it expresses grave concern about this problem. It is from William Hutton, executive director of the National Council of Senior Citizens and it is dated April 14, and it is another letter that has not been answered.

Commissioner, I am going to give it to you and I would trust you with the courtesy of giving Mr. Hutton an answer. Essentially he wants to know why HEW is defaulting on the Kennedy amendment.

I will pass that to you at the end of the hearing.

I am sorry if I seem a bit intense but I point out I was provoked yesterday.

That is about all I have.

Senator Moss. Do you have any questions, John Guy?
Mr. MILLER. No.

Senator Moss. Mr. Oriol?

Mr. ORIOL. No.

Mr. HALAMANDARIS. Is Mr. Morris Levy in the audience?
Mr. LEVY. Yes.

Mr. HALAMANDARIS. Mr. Levy, we will hold you until the other two gentlemen are called.

Senator Moss. Well, thank you, Commissioner Newman, Mr. Kimball, Mr. Laughlin and Mr. Frantz. As I indicated, this is an oversight hearing. It is because of our feeling that we have not been getting the action that is called for in the Moss amendments and indeed in other parts of the statute, that we are failing to give the care to our elderly that the Congress has said by law they are entitled to have. We feel that there has been a breakdown and that we are not getting communication.

We think the way to indicate our feelings and our understandings is to hold this oversight hearing. Now if we continue to have this feeling and if it seems to us that we are not getting cooperation we will have a further hearing and decide then what further we need to do. Perhaps if we have further hearings we might want to have the Secretary come before us because of his responsibility for the higher policy matters.

We do thank you for coming and responding to our questions and for your indication that there is going to be an effort made to get com pliance within reasonable time on the command of this statute. Thank you.

Mr. NEWMAN. Thank you, sir.

Senator Moss. We have Dr. Michael B. Miller who is the medical director of the White Plains Center for Nursing Care, White Plains, N. Y. Dr. Miller has appeared before us previously.

We are happy indeed to see you again, sir. We are pleased to have

you come.

Dr. MILLER. Thank you.

Senator Moss. Would Mr. Levy come forward also and perhaps be seated at the table. We may have questions to direct to you.

Dr. Miller, we are glad to have you with us, sir. You have been here and heard the dialog we have had up to now and we will be happy indeed to have your comments and testimony.

STATEMENT OF MICHAEL B. MILLER, M.D., MEDICAL DIRECTOR, WHITE PLAINS CENTER FOR NURSING CARE, WHITE PLAINS, N.Y.

Dr. MILLER. Good morning.

Mr. Chairman, thank you so much for inviting me to appear before this committee once again. It is a great privilege to meet personally, to be able to come to Washington and tell you about our personal clinical experiences that we are having in the New York area with the aged ill, particularly as it relates to the Medicare program.

I just cannot help but respond to what I have just heard. I am a physician, I am deeply committed to caring for the aged, but I am a citizen. Now I am not very diplomatic, I am a feeling person. I must tell you what I am feeling.

I have a great respect for this Government and the people who make it run, for its agents, but I must tell you how I feel on what I have just heard. I could not believe I had come here to hear such poor performance. This is not a personal comment to Mr. Newman who is a recently appointed Commissioner, but I believe the American people have a right to expect continuity of operation of their agencies because of the money they throw into the Government and its operations. It is not enough to hear that with a new Commissioner an agency comes to a halt.

If our performance in New York at a clinical level was at all similar to the performance I have heard here just now, there would be hell to pay. If we do have a new Commissioner this morning, in the last couple of months, I believe that the leadership of HEW had an obligation to send here their best informed people. What I heard this morning is not a reflection on the four men I have heard or seen, it is obviously a reflection of leadership. What we are struggling with at home at a clinical level must reflect what you heard here; it is not separate and apart, it is not the Government here and the people. here-it is one.

I have full sympathy with what I have heard, but I didn't hear a sense of urgency. I heard mañana.

I must go home and face sick people. I must go home and face families in distress. What will I report to them on the basis of what I have heard here?

Well, I just had to respond.

Medicare at a clinical level is moribund. A year ago our patient population in our extended care facility was about 40 percent. We are operating at about 7 percent now. I would like to clarify an issue. I do not believe it is the policy of nursing homes in general to withdraw from Medicare. There may be an isolated incidence of that presentation. We do not want to retire from Medicare, we believe it is an effective medical, social, and legislative program if properly implemented.

We simply can't find the patients who will qualify for Medicare coverage on the basis of what this great agency has done to the legislation implemented or passed by Congress. I think it is imperative to keep in mind this was Congress's intent. I don't think it is difficult

to interpret its intent. I think it was Congress' intent to bring comfort, expert medical and nursing services to the aged and support to their family and on a broader basis support to the community in which they live.

HEW has the obligation to implement that, not strangle it. Now it is as I said before moribund. I would like to examine with you this morning how such strangulation has been effected. In a recent issue of Modern Nursing Home, January 1970, page 9, an article by Thomas Tierney, Director of the Bureau of Health Insurance, Social Security Administration, makes a major issue on one of the reasons that aged ill are unable to qualify for covered benefits. He states:

The extended care patient is one who has been hospitalized for treatment of a medical condition and who now while no longer requiring the full range of hospital services still needs continuing skilled nursing services in an institutional setup which can assure the availability of such services on an around the clock basis.

This comment is an attempt to define what is known as extended care. He says:

The test that has to be applied to the law of course is that if the service being furnished does not need to be furnished by skilled nursing personnel, then they do not constitute skilled nursing services for extended care coverage.

Now that sounds plain enough but it isn't. There is an assumption here and an assumption that is on thin ice. There is an assumption that there are accepted criteria, standard criteria by wh.ch patients are discharged from the hospitals. There are no such criteria. Patients are discharged from hospitals for a variety of reasons.

One, the patient has had enough, he wants out, he is in prison in a hospital room.

Two, the family has its own reasons.

Three, the doctor may have his own reasons.

And underneath is lurking the problem of who pays for the services. Discharge often reflects a hospital's need for beds. This has little or nothing to do with the medical problems involved. In this helterskelter situation it would take a brave man indeed to define with any degree of certainty the meaningless extended care facility or extended care. On that ground Mr. Tierney is on terribly weak grounds.

In order to fortify the effectiveness of this program he says:

In the July-September 1969 quarter, 271,500 bills for patient care in the ECF were submitted for payment. Of these only 19,000, slightly over 7 percent, were denied in whole or in part on the basis that the care furnished did not constitute extended care services.

I am always grateful when I look to you for letting me come here. Such fallacy. Each person sees what they want to see. He is only reporting what he thinks substantiates his position. This is not personal, talking about SSA, talking about HEW. He is seeing just a part of the iceberg, those that he turns down. How about all those that we exclude in order to save them the embarrassment of retroactive denials, retroactive payments?

How about the misery of trying to exclude families when they are hit with problems that they were not previously educated to? Hospitals have now wised up in the past year. They, too, have a conscience to a substantial level; namely, they don't want their dischargees to be embarrassed in ECF and there is a whole process there.

Social agencies are not sending their people in any longer. The 7 percent is a meaningless number. We spend in our institution half of our admitting time on trying to determine which patients will or will not qualify under the following definitions which I will soon read to you. I would say to you that the 3 to 7 percent Mr. Tierney is talking about quintupling is nearer the facts. Some place the SSA must come into the field to learn the true facts. You cannot learn what is going on at a human social level behind a desk conceptualizing using criteria that don't hold water.

Now let me describe for you next the tool that SSA has used to define law and order, your term before. I never thought of it this way. I thought only citizens were concerned with law and order. It just escaped me the Government, too, must also yield to law and order. There is a law, Congress passed that law. It is not for SSA to determine what the law should be, it was passed. It should be implemented, not frustrated.

Let me show you how this Government agency has frustrated the law through our fiscal intermediary-no better, no worse than any body else, all baited and struggling with their difficulties, SSA also baited and struggling in their unpreparedness to handle this problem. Keep in mind the professionals in the intermediary who are not trained as were SSA not trained to cope with the critical problems of aging. They brought to the interpretation of these new regulations a wonderful intensive background in insurance medicine.

Now some of you who are involved in the field of medicine must know that patients who are able to take drugs by mouth are considered to be receiving an unskilled service. You know the fallacy of that. You know the fallacy that drugs given by any method-by vein, by injection, muscle, under the skin, by mouth, via a tube-carry the same hazards. Drugs given in any form must, if you are committed to topflight medical nursing, constitute a skilled service.

I am repeating again our testimony of Hartford but I think it is important to be heard in Washington. Keep in mind the use of a catheter for a population that averages 22 years of age. Forty-two percent of our population have a permanent catheter or are using catheters intermittently. Within 24 hours after the insertion of any catheter into the bladder the patient is confronted with infection. This is clinical fact. The SSA says the following: When you insert the catheter it is a skilled service; leave it there, it is a nonskilled service. I would say the opposite. If you can get a nonskilled service person to put a catheter in, I would forgive him but once it is in, it becomes an instrument of either life or death, a highly skilled service.

I also rebel with another definition; namely, the SSA said if turning a patient every hour through the day 24 hours is the only significant or primary service, it is a nonskilled service. That would have to be written by a layman, it could not be written by a clinician who has to work with these patients daily. Could any of you who have worked with our kinds of patients who have brain disease, heart failure, kidney trouble, diabetes, can't see, can't hear if this patient is so handicapped, is turning the patient the only significant treatment required?

He has got to be fed, he is going to have a catheter in him, he requires bowel management, he probably has brain disease if not cord disease. He has feelings, his family has feelings. Who would feel so self-assured that they feel they could bring all the necessary skills to this particular situation which I am now faced with calling a nonskilled service? It is a mighty strong person to wash out the realities of clinical medicine on a dollar basis.

Now there are other areas that can be dissected but one I feel particularly close to and I must bring it to your attention. The definitions of skilled care are related particularly to specific items of a skill doing something for the patient. There is complete absence of how a nurse, a physical therapist, an occupational therapist, a physician relates to a patient and yet this could be the critical item of whether that patient survives, moves, is immobilized, or dies.

Let me tell you what I mean. Given a patient with a major stroke-forget confusion, brain deficits, disorientation, incompetence, frightened, despondent, frustrated, threatened, and the patient confused whether he wants to live or die. The family meets that patient, please forgive me, frightened, despondent, guilt ridden. One affects the other. Whether that patient can be mobilized at a higher level of function will require the most skilled relationship of motivation, inspiration between nurse and patient, nurse and family, family and patient, patient and family.

Now I will just describe that for you. This is the skill, this is totally washed out. This is not a public service. Let alone what the doctor is going to do, let alone his responsibility in mobilizing, coordinating a total therapeutic program, it is all washed out.

I was going to ask them a question. Don't you feel as deeply as I do about this?

You come home with me. One.

VOICE. You come home with me.

Dr. MILLER. Let me define on a positive basis what is skilled care, not what it is not. What are the functions of a nurse, nursing diagnosis? One, she has got to be able to identify the patient she is dealing with and his changing nature. Two, the measure of drugs. Now what people do at home on their own time is one thing, what they do when

am responsible is quite another. Once a nurse with a license and once a doctor with a license touches a drug and delivers it to the patient, there is a great art and skill involved in that drug management and cannot be relegated to a patient. Drug management has been a major skill in nursing service.

Nursing rehabilitation has a technique. There are specific roles in which the nurse is involved but there are other roles which are equally important; namely, the coordination and a tying together of the nursing arts with other ancillary functions such as physical therapy, occupational therapy, speech therapy, recreational therapy, religious therapy, et cetera. Someone has got to put it together, it will not be put together spontaneously. There is a great art and skill in that

area.

Now of course there are specific nursing functions. In our society I see we place little value on certain profound nursing functions, such as feeding a patient. There is an assumption that all nurses have been trained in feeding patients. That assumption is not true. Doctors