Copyright 2002 A special report by the ST. LOUIS POST-DISPATCH Posted 10/16/2002 The senior member of Congress wrapped his gnarled hands around the microphone sitting on the green felt-covered witness table and asked his distinguished colleagues: "What have the elderly in this country done to make their government and their neighbors so willing to have them starved, neglected and uncared for?" It was 1982 and Rep. Claude Pepper, the first chairman of the House Select Committee on Aging, was haranguing his colleagues on avoidable deaths in nursing homes. "This sin is no secret," said Pepper, a Florida Democrat. He cited work done by Utah's former Democratic senator, Frank Moss, who two decades earlier had conducted 30 hearings and released a 12-volume report titled, "Nursing Home Care in the United States: Failure of Public Policy." Now, almost 40 years after Moss first raised the issue, Congress is again trying to do something about it. Last month, the Senate Special Committee on Aging proposed the first federal law to comprehensively address neglect, abuse and exploitation of America's elderly. The 138-page bill, called the Elder Justice Act of 2002, was introduced by Louisiana Sen. John Breaux, a Democrat, Utah Sen. Orrin Hatch, a Republican, and 10 other senators of both parties. The bill, for the first time, calls for law enforcement to work with the health and social service agencies that have traditionally fought alone against neglect. Congress needs facts to fight any legislative battle. In the battle for nursing home reform, the facts are provided by congressional investigators and lawyers who have documented life-threatening deficiencies. They are cloistered in out-of-the-way, cramped offices belonging to the Senate Special Committee on Aging, the House Committee on Government Reform, the Senate Small Business Committee and others. These men and women toil in anonymity, never to be quoted or photographed, deferring all public comments to the committee members for whom they work. Yet they work with a fervor. Most spent years scrutinizing nursing homes where the stench of urine was overwhelming, or sitting by the beds of all too many emaciated or wound-infested victims of neglect. They've been made bleary-eyed from poring over the medical records of those who died, cataloging how bad care or no care killed someone's parents or grandparents. These people and their counterparts in the General Accounting Office compiled hundreds of reports, surveys and investigations of nursing homes and their problems. The members of Congress for whom they work say the investigators' findings prove the need for extensive reform. "This really isn't a secret. The GAO, the congressional investigators and academic researchers throughout the country have documented nursing home problems for years, but they've been voices on the wind and nothing happened," said Lori Stiegel, who heads the American Bar Association's Commission on Legal Problems of the Elderly. "The nursing home lobby has tremendous power and for years has fought efforts for meaningful legislative reform, not only on Capitol Hill, but in statehouses throughout the country. They speak with much greater volume than do the advocates for the elderly." Members of Congress agree. Rep. Henry Waxman, the ranking minority member of the Committee on Government Reform who has worked for years to push nursing home reform legislation through the House, said efforts since Pepper's reign have failed because of "the power of special interests in Congress." "Unlike powerful corporations, nursing home residents don't have a fleet of lobbyists on Capitol Hill pressing their cause, pushing for legislation and using their influence to make sure that issue is placed on the legislative agenda," said Waxman, a California Democrat. "There hasn't been one hearing in the House since 1995 on problems in nursing homes. That's an outrage." It is a common belief that America's elderly are a potent force on Capitol Hill when it comes to lobbying for issues of concern to them. "Not when it comes to nursing homes," said Toby Edelman, a senior attorney for the Center for Medicare Advocacy. "Most of the groups supporting reform are small, underfunded and almost powerless. The larger, more powerful, organizations like the American Association of Retired Persons don't see nursing homes as a major issue. At the national level, nursing homes are not on their radar screen. Their attention is directed toward elderly who are healthly and who want to go on cruises rather than nursing homes." Waxman calls the elder lobby "diverse." "The larger groups focus on prescription drugs, Social Security, campign finance and non-legislative issues like travel and leisure," he said. "The size and strength of groups that focus primarily on nursing homes pales in comparison to that of organized big business." AARP's national state coordinator, John Luehrs, said the group has been "very active in more than a dozen states." But he added, "Nursing homes have not been a big focus for our national agenda." Senators target "a massive problem" The Senate's renewed concerns about mistreatment of the elderly surfaced in 1998 under Iowa Sen. Chuck Grassley, then chairman of the Senate Aging Committee. "We received very serious and credible allegations to the effect that some thousands of people in California nursing homes had died due to neglect over several years," said Grassley, the state's senior Republican. "I had to address those allegations. No one in a position to do anything could face an elderly nursing home resident suffering malnutrition, dehydration or physical or sexual abuse and walk away." Said Breaux, who now heads the Aging Committee: "We can no longer believe that the maltreatment of our elderly is not a massive problem. The effort to end this abuse and neglect must be made now. It is the responsibility of those elected to office to take action." Breaux's Elder Justice Act calls for the development of an organization, structure and resources to protect and treat residents, and, when necessary, prosecute those who create conditions that allow neglect and abuse of the elderly. "With 84 percent of the incidents of neglect, abuse and financial exploitation never reported, this bill will elevate crimes against seniors to the national stage," Breaux said. The proposed legislation calls for: Creation of two Offices of Elder Justice in the departments of Justice and Health and Human Services. Establishment of a national data repository to collect comprehensive information on elderly neglect and abuse and to provide the facts to law enforcement, regulators, consumers, researchers and others. Increased prosecution of criminal neglect and abuse by providing training and technical and investigative coordination to law enforcement. Development of a forensic program, which would use science and technology to investigate criminal elder neglect and abuse. Similar programs already exist for child abuse. The new program also would train health professionals in aspects of forensic pathology and geriatrics. Political differences can be set aside On Capitol Hill, party differences appear to have been set aside when it comes to protecting elderly patients. For example, Missouri's senators - Republican Christopher "Kit" Bond and Democrat Jean Carnahan - co-sponsored the elder justice bill introduced by Democrat Breaux and Republican Hatch. Bipartisan efforts also can be found in the day-by-day work of members of Congress to thwart attempts by federal agencies to weaken government monitoring of nursing homes. Last November, the Centers for Medicare and Medicaid Services, formerly called the Health Care Financing Administration, released a plan that would comply with a desire by the Bush White House to cut regulation of the nursing home industry. It called for reducing annual government inspections of nursing homes from once a year to once every three years. CMS also proposed that the industry be allowed to "self-report" on traditional indicators of bad care, such as the number of residents with potentially life-threatening bedsores, dehydration and significant weight loss. Almost immediately, Waxman and Grassley, a congressman and a senator from different parties, wrote CMS Administrator Thomas Scully, strongly denouncing the plan. Two days later, CMS said it was just a proposal and didn't mean anything. In February, the pair did it again. Waxman and Grassley released a report concluding that CMS's Web site of nursing home violations was providing an incomplete picture of the performance of many nursing homes. Investigators found that the Web site on which the agency spent $30 million advertising failed to include more than 25,000 reports of deaths, serious injuries and other problems that had been uncovered by state inspectors. Soon after, the department said that it would begin including information about the serious complaint investigations on its Web site. Many members have demanded greater accountability from CMS for nursing home problems in their own states as well. Sen. Bond, for example, has been as persistent in attacking CMS' transgressions under President George W. Bush as he was under President Bill Clinton's leadership. An examination of Bond's correspondence shows strong letters written to Scully, just as there were to his Democratic predecessor, demanding attention to deficiencies in Missouri's nursing homes. "This cannot be a partisan issue," Bond said. "Legislators throughout America need to dig deep into their souls and summon up their political will and courage to confront the raw realities of the situation. "They must commit to do whatever is necessary
to end the neglect and abuse committed upon the old, the sick and the defenseless."
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