DPC | December 7, 2007

Senate Oversight Highlights Week of November 15, 2007

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.…” — Woodrow Wilson

Congress has the Constitutional responsibility to perform oversight of the Executive Branch and matters of public interest. This report summarizes highlights from each week’s Senate oversight hearings.

Tuesday, November 13, 2007: Senate Select Committee on Intelligence

“Hearing on Congressional Oversight”

·Witnesses discussed the need for greater urgency in improving Congressional oversight of intelligence.

·Witnesses discussed how a lack of coordination between Congressional committees continues to stymie Congress’ efforts to oversee the intelligence community.

·Senators and witnesses discussed the Bush Administration’s refusal to share information and called on Congress to use the power of the purse to gain the cooperation of the White House on information-sharing.

Thursday, November 15, 2007: Senate Armed Services Committee
“Hearing to receive testimony on the state of the United States Army”

·General Casey testified that the Army is“out of balance” that current operational demands are limiting our ability to respond to other crises that could emerge at home or around the world.

·General Casey testified that roughly half of the Army brigades – those that are not in Iraqor Afghanistanor preparing to deploy – are currently rated as unready.

·The current pace of operations, which continues to require extended and repeated deployments and fails to provide for adequate time at home for necessary training and reset, has severely undermined the readiness of active-duty as well as Guard and Reserve forces.

Thursday, November 15, 2007: Senate Committee on Health, Education, Labor and Pensions

“Restoring Congressional Intent and Protections under the Americans with Disabilities Act”

·A bipartisan group of Senators and key disability experts expressed concerns that the Supreme Court has misinterpreted Congress’ intent in the Americans with Disabilities Act of 1990 (ADA), interpreting the legislation so narrowly that it has hindered the ability of disabled Americans to freely and fully participate in society, beginning in the workplace.

·Witnesses testified that Congress defined“disability” broadly in the ADAto include real and perceived mental and physical impairments. Moreover, Congress in no way intended to punish people who seek to mitigate their disability by placing them outside the scope of the ADA.

·The ADA’s goal of ending and preventing discrimination against disabled Americans is important to the success of not only the disabled community, but society at-large.

Thursday, November 15, 2007: Senate Special Committee on Aging

“Nursing Home Transparency and Improvement”

·Senators and witnesses highlighted the need for increased transparency and stronger enforcement of nursing home quality and safety.

·Senators Kohl and Grassley plan to introduce legislation to allow consumers timely access to accurate information on nursing homes and strengthen the government’s system of enforcement.

·Witnesses also testified about the need for disclosure of ownership and subsidiary operations of nursing home chains and facilities that have been purchased by private equity firms.

Witnesses discussed the need for greater urgency in improving Congressional oversight of intelligence.

HON. TIM ROEMER, MEMBER, 9/11 COMMISSION: …there have been some steps forward [on congressional oversight of intelligence since 9/11]. The House has created this intelligence panel. There have been steps forward on the Senate side with an investigative and audit subcommittee.

But I still think that, in my opinion, it would still be a D-plus. It's something that is not going hard enough. And when Congress is pointing its finger everywhere to the executive branch -- the FBI is not doing enough, the CIA needs to rebuild human intelligence, the Department of Homeland Security is not working well enough -- and they fail to do the one requirement in their book, that's not a good reflection on Congress.

…

AMY ZEGART, ASSOCIATE PROFESSOR, PUBLIC POLICY, UNIVERSITY OF CALIFORNIA, LOSANGELES: Mr. Chairman, when I last appeared before this committee it was August of 2004. The 9/11 Commission had just finished its report, and intelligence reform was in the air.

It's now three years later, six years after the worst terrorist attacks in our nation's history. And intelligence reform is progressing in a halting and disappointing fashion.

Congressional oversight, as we've heard this afternoon, is vital to American national security, but it is broken. And it has been broken for years.

Unless substantial changes are made to the current system, intelligence reforms will fail.

…

U.S.intelligence agencies have never been more important. The spread of weapons of mass destruction, the information revolution, the rise of transnational terrorist groups have created an unprecedented asymmetric threat environment.

For the first time in history, great power does not bring security. It is the weak who threaten the strong. And it is intelligence, not sheer military might, which provides our first and last line of defense, in a way that it has never been before. 

Oversight is crucial to our intelligence system because it guards against two dangers.

The first is that our intelligence agencies will become too powerful, violating the laws and liberties and values that we Americans hold dear.

The second danger is that intelligence agencies will become too weak, too weak to protect American lives and American vital interests. 

Good oversight ensures that our agencies get the resources they need, provide strategic guidance to deploy those resources more effectively, and proactively evaluate what's working and what isn't, before disaster strikes, so that our intelligence agencies can adjust and improve. 

Witnesses discussed how a lack of coordination between Congressional committees continues to stymie Congress’ efforts to oversee the intelligence community.

MS. ZEGART: As you know well, oversight is fragmented and uncoordinated against the number of committees. I know Congressman Hamilton and Governor Kean wrote in the Washington Post that the Department of Homeland Security still reports to 86 different subcommittees and committees.

A system that's splintered is naturally prone to error and inefficiency. Individual programs, even crucial ones, can and do fall between the cracks, because oversight can always be seen as somebody else's job.

This is exactly what I found in the late '90s, when no congressional committee undertook a serious examination of the FBI's struggling counterterrorism reform efforts.

Why did this happen? In large part, because the Intelligence Committee thought it was a Judiciary Committee issue, and the Judiciary Committee thought it belonged in Intelligence. 

Fragmented jurisdictions also make it unlikely that any one panel will have an integrated view of an agencies activities or the trade-offs involved. Multiple committees are also more likely to give contradictory guidance and overload managers with too many uncoordinated hearings and reporting requirements. 

Senators and witnesses discussed how Congress’ ability to exercise effective oversight of intelligence continues to be undermined by the Bush Administration’s refusal to share information.

HON. LEE HAMILTON, VICE CHAIRMAN, 9/11 COMMISSION: You have a right to be angry about not getting access to information. You can't do the job unless there is trust between the executive and the legislative...

SEN. ROCKEFELLER: And there is not.

MR. HAMILTON: Trust is the coin of the realm. And no matter what kind of institutional structure you put into place, no matter what kind of organization you make, if you don't have that underlying trust, the system's not going to work very well. And part of underlying trust is whether or not they're willing to share information with you. 

I'm 100 percent with you on that. OK, they don't share information. What do you do about it? You only got one tool: If you don't give us this information, you're not going to get the money. That's it. 

Witnesses called on Congress to use the power of the purse to gain the cooperation of the White House on information-sharing.

SEN. FEINGOLD: Now, you both said, I understand, that Congress should use the power of the purse to compel information from the administration.

What would you advise Congress to do if the administration still refuses to provide the information and simply ignores Congress’ efforts to exert its power of the purse?

MR. HAMILTON: I'd withhold the money.

SEN. FEINGOLD: Mr. Roemer? 

MR. ROEMER: I agree with Mr. Hamilton, Senator.

I think, as you stated, the executive branch is the greatest impediment to Congress’ role in oversight. I would say that the battle is not so much with waterboarding, per se; or wire-tapping, per se; or Abu Ghraib, per se; or secret prisons, per se; or American rights, per se. 

It is for Congress to strengthen its ability to discover these things and debate these things where appropriate because of their difficulty over saying them and getting access to these programs with the executive branch. 

It's incumbent upon Congress to exert its power and authority here. There are activities that-- there are actions you can take, like creating this committee with dual appropriations and authorizing capabilities that will then have the power to say to the executive branch, "The money is not coming with your request. We're not having you run around the authorizers. We have the information, we know what we need and we have the power of the purse to withhold the money," and it's done within one committee. 

General Casey testified that the Army is “out of balance” that current operational demands are limiting our ability to respond to other crises that could emerge at home or around the world.

GEN. CASEY: …today's Army is out of balance. The current demand for our forces exceeds the sustainable supply. We're consumed with meeting the demands of the current fight and are unable to provide ready forces as rapidly as necessary for other contingencies. 

Our Reserve components are performing magnificently, but in an operational role for which they were neither organized or resourced. 

Our current operations requirements for forces in limited periods of time between the deployments necessitates a focus on counterinsurgency training at the expense of training for the full spectrum of operations. 

Soldiers, families, support systems and equipment are stressed by the demands of these repeated deployments. Overall, we're consuming our readiness as fast as we can build it.

The Administration’s decision to go to war in Iraqwithout adequate equipment has contributed to the current readiness crisis.

SEN. LEVIN: Would you agree that the following statement, General, that the Army went to war in Iraq with insufficient body armor, insufficient armor on wheeled vehicles, insufficient radios, machine guns, insufficient aviation survivability equipment -- would you agree, to begin with, with that? 

And if you do agree, can you tell us what we are doing to overcome those shortfalls and how we're factoring in the lessons that are learned from current operations to preclude or to minimize those kind of problems in the future? 

But first, would you agree with that, what I said at the beginning? 

GEN. CASEY: I do. I believe those are facts. 

General Casey testified that roughly half of the Army brigades – those that are not in Iraq or Afghanistan or preparing to deploy– are currently rated as unready.

SEN. REED: General Casey, published reports suggest that except for the brigades in Iraq and those -- and Afghanistan, and those preparing to deploy, that the remaining brigades of the Army are -- very few, if any, are C-1. 

They're either C-3 because of training, equipment or personnel. Is that a fair estimate of your situation? 

GEN. CASEY: It is. And that's what I said -- that's one of the main elements of being out of balance. 

SEN. REED: So roughly one-half of the brigades in the United States Army are not ready, according to your own measures. 

GEN. CASEY: That's true. 

The current pace of operations, which continues to require extended and repeated deployments and fails to provide for adequate time at home for necessary training and reset, has severely undermined the readiness of active-duty as well as Guard and Reserve forces.

GEN. CASEY: …the demand for [current military operations] exceeds our sustainable supply. Everyone's either going or getting -- or there or getting ready to go. 

And so because they're turning so quickly, they have time to do counterinsurgency training and not full-spectrum training.And I think as you know, we rate ourselves on our ability to do full- spectrum training.

…

SEC. GEREN: With the short period of time that they're home today, the ability to train up for multiple specialties is challenging. And as we see the time at home grow,the training piece of the readiness indicators will improve.

But when you're home for 12 months, and getting ready to go back for COIN operations, it limits the other type of training that you can take on and be competent at. So that's an issue that will get better as the deployment schedule gets more back in balance.

…

GEN. CASEY: I can tell you that for the Guard and Reserve, much like for the active, we're not meeting our objective goals for deployment to dwell ratios.

And the Guard and Reserve are running about 1:3.5, and obviously there are some, like the 29th, that are less than that. And again, this is part of putting ourselves back in balance.

General Casey testified that the Army will not be able to implement a sustainable deployment schedule for active duty forces until 2011.

GEN. CASEY: For active duty to sustain. Now, we're not going to get there any time in the near future, so 1:2 is our short-term goal.

SEN. WEBB: When would you expect to see that?

GEN. CASEY: One of the key elements of putting the Army back in balance is to get there by about 2011, and to do that we have to increase our supply, which we'll do by about ten brigade combat teams... 

General Casey again highlighted that the situation in Iraq requires a political, not military, solution.

GEN. CASEY: Senator, I think the better way to say it is what we have all said, that the solution in Iraq is ultimately not a military solution, and it's a political solution. 

SecretaryGeren testified that funding for the Iraq war through the regular budgetary process, rather than emergency supplementals, would better serve our military. 

SEN. BEN NELSON: You know, part of the problem we have here with the funding is just fundamental. And that is that so much of the funding of this war and resetting and repairing is coming in the form of a supplemental as opposed to being within the general budget to begin with. We've talked to Secretary Gates about this, and I understand that there are some things that are not predictable. I know you want predictable funding. I think if we can make sure that more of this funding is in the budget that we deal with and authorization and appropriations in the ordinary course of what we do here, we'll be a lot better off and I think the military will be a lot better off as well.

… What are your thoughts, Secretary Geren?

SEC. GEREN: …And go through the normal process as you're... set up for considering it. I think that would be an improvement. 

A bipartisan group of Senators and key disability experts expressed concerns that the Supreme Court has misinterpreted Congress’ intent in the Americans with Disabilities Act of 1990 (ADA), interpreting the legislation so narrowly that it has hindered the ability of disabled Americans to freely and fully participate in society, beginning in the workplace. 

Dick Thornburgh, Counsel, Kirkpatrick and Lockhart, Preston, Gates Ellis, L.L.P.; former Attorney General of the United States; former governor of the COMMONWEALTH of pennsylvania:Make no mistake about it - the passage of the ADA17 years ago was the result of strong, bipartisan work... Together, the Bush Administration and Congress - both the Senate and the House, Republicans and Democrats - as well as the business community and the disability community - worked together to get this important civil rights legislation passed. All of us worked together with one goal in mind - to break down the barriers to people with disabilities, and to open the social and economic door to the mainstream of American life. Today I remain proud of the tremendous strides we have made in the empowerment of people with disabilities since the enactment of this important civil rights legislation. Many more people with disabilities have greater opportunities than ever before. We see greater numbers of children and adults with disabilities around us, partaking of the diverse benefits our society has to offer. We can feel the impact of improved accessibility. Moreover, the [ADA] has become a beacon and a model for disability policy reform throughout the world. 

Yet despite this substantial progress, the ADA has not been as effective as intended in protecting some individuals with disabilities from employment discrimination. This problem is the direct result of judicial interpretation - or misinterpretation - of the definition of who qualifies as an ``individual with a disability`` under the statute.

…

Chai Feldblum, Director, Federal Legislation Clinic; Professor of Law, Georgetown University Law Center: The Supreme Court has narrowed coverage under the ADA in three primary ways: (A) In 1999, by requiring that courts take into account mitigating measures when determining whether a person is “substantially limited in a major life activity”; (B) Also in 1999, by requiring people who allege that they are regarded as being substantially limited in the major life activity of working (because an employer has refused to hire them for a job based on an actual or perceived impairment) show that the discriminating employer believed them incapable of performing not just the one job they had been denied, but also a broad range of jobs; and (C) In 2002, by requiring that the term “substantially limited” be applied in a very strict manner and that the term “major life activity” be understood as covering only activities that are of “central importance” to most people’s lives.

… 

John D. Kemp, attorney, Powers, Pyles, Sutter and Verville, P.C.: The Supreme Court’s rulings have created an untenable situation for individuals who are taking self-help steps to control their illnesses or mitigate the effects of their impairments. If they avail themselves of treatment that improves their condition and prolongs their health and life, they are no longer “covered” by the protections of the ADA, and cannot challenge discriminatory treatment under the Act. These opinions, and their progeny, create a bizarre legal scenario in which an employer can refuse to hire or terminate an individual expressly because of their disability, and then - when challenged - argue that the individual is not “disabled enough” to fall within the protections of the ADA. Thus, while the employer’s practices may be overtly discriminatory on the front end, those practices cannot be challenged “on the back end” under the ADA. If this sounds confusing to you - or nonsensical - that’s because it is.

… 

Recent studies show that plaintiffs lose more than 90 percent of cases brought under the ADA, primarily on the grounds that they are not disabled enough. Thus, the courts never reach the question of discrimination under the ADA, and these matters are dismissed on the basis that the complainant does not qualify as “disabled” under the Supreme Court’s narrow and strict definition. 

Witnesses testified that Congress defined“disability” broadly in the ADAto include real and perceived mental and physical impairments. 

professor Feldblum: When writing the [Americans with Disabilities Act of 1990 (ADA),]… Congress borrowed the definition of “disability” from … the Rehabilitation Act of 1973, a predecessor civil rights statute for people with disabilities... For purposes of Title V of the Rehabilitation Act,“handicap” was defined as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. For fifteen years, the courts had interpreted this definition to cover a wide range of physical and mental impairments, including epilepsy, diabetes, intellectual and developmental disabilities, multiple sclerosis, PTSD, and HIV infection. Indeed, in School Board of Nassau County v. Arline the Supreme Court explicitly acknowledged that … [the] “definition of handicap is broad,” and that by extending the definition to cover those “regarded as” handicapped, Congress intended to cover those who are not limited by an actual impairment but are instead limited by “society’s accumulated myths and fears about disability and disease.”

… 

[During consideration of the ADA,] the Committee reports specifically referenced the breadth of the interpretation offered by the Supreme Court in the Arline decision with regard to the third prong of the definition of disability, the “regarded as”prong... As the Court explained: “Congress plainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived) that substantially limited one's ability to work.” And, as the Court went on to explain: “Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.”

… 

PROFESSOR Feldblum: [T]he committee reports explicitly stated that mitigating measures should not be taken into account in determining whether a person has a “disability” for purposes of the ADA. As the Senate Committee on Labor and Human Resources put it: A person is considered an individual with a disability for purposes of the first prong of the definition when the individual’s important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. . . . [W]hether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids. 

Witnesses testified in support of S. 1881, the Americans with Disabilities ActRestoration Actandurged Congress to legislatively overrule the Supreme Court’s narrowing of the statute by clarify their original intent under the ADA to provide greater protections for disabled Americans.

PROFESSOR Feldblum: The National Council on Disability, relying upon the expertise of a range of lawyers provided over a period of time, has suggested that the best way to fix the problems encountered in the courts is to change the language of the ADA so that it forces court to focus on the reason an adverse action has been taken, rather than on the specifics of a person’s physical or mental condition. In this way, litigation under the ADAwould mirror litigation under Title VII of the Civil Rights Act - in which a plaintiff must prove that discrimination occurred because of race, sex, religion, or national origin, but is not required to get into the specifics of his or her race, sex, religion, or national origin. One can achieve this result with two basic changes to the language of the ADA… S. 1881, the Americans with Disabilities Act Restoration Act, would make these changes in the law.

The ADA’s goal of ending and preventing discrimination against disabled Americans is important to the success of not only the disabled community, but society at-large. 

mr. Kemp: Discrimination on the basis of disability in employment not only limits dreams and encourages alienation and economic dependence[;] it weakens our nation as a whole. As President George H.W. Bush stated in 1991, “No nation, no matter how wealthy, has ever been able to afford the waste of human talent and potential. That is particularly true today,“ he wrote, “as the world economy continues to grow in size and sophistication.”

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According to some statistics, the employment rate for people with disabilities has remained in the vicinity of 35 percent since World War II. Nearly 2/3 of people with disabilities are unemployed. Since 1995, the employment rate for women who are not disabled has been 80.06 percent, for women with disabilities the employment rate is 33.06 percent. Since 1995, the employment rate for men who are not disabled has been 94.96 percent, and for men with disabilities the employment rate is 36.21 percent. For college graduates (male and female) without disabilities, the employment rate is 89.9 percent. For college graduates with disabilities, the employment rate is 50.6 percent. The median household income for women with disabilities has been $13,974; for disabled men, the median household income has been $15,275. These numbers - which infer an unemployment rate for people with disabilities of roughly 65 percent, are alarming.

… 

According to surveys conducted by the DuPont Corporation and other companies, employees with disabilities have lower turnover rates, lower absenteeism, and high productivity. Successive studies by DuPont showed, consistently, that 90 percent of employees with disabilities were considered average or better than average in job performance. And there is talent out there to perform jobs at all levels of enterprise - from senior executives with disabilities to mid-level employees to entry-level candidates.

  

Senators and witnesses highlighted the need for nursing home residents and their families to have better access to information about nursing homes. 

SEN. KOHL: [t]oday's hearing is about moving forward and taking the next big step in improving our nation's nursing homes. To do so, we've been working -- I've been with my colleague, Senator Grassley -- on our proposal to improve nursing home quality by increasing transparency as well as strengthening enforcement…. We believe that Americans should have access to as much information about a nursing home as possible, including the results of government inspections, the number of staff employed at a home, as well as information about the home's ownership. The government should ensure that consumers can obtain this information in a clear, timely, and accurate manner so that they can make the right decision about where to place a loved one.

…

I do honestly believe that more nursing homes will come back into compliance for good if they have the court of public opinion and the power of market forces as encouragement. At the same time, we acknowledge that our goal is not to close a home, but to fix the home because that is often what is best for the residents.

DAVID ZIMMERMAN, PROFESSOR OF HEALTH SYSTEMS ENGINEERING AND DIRECTOR, CENTERFOR RESEARCH SYSTEMS AND ANALYSIS AT THE UNIVERSITY OF WISCONSIN, MADISON: [S]taffing information for every nursing home should be reported in a standardized format to the federal government. In other words, there should be transparency on the staffing in nursing homes so the purchaser of care can know the labor resources that are being devoted to this task. Nursing home care is what we call a high-touch industry. The labor resources need to be known.

SARAH SLOCUM, LONG–TERM CARE OMBUDSMAN FOR THE STATE OF MICHIGAN: All enforcement actions should be published by facility name on the [CMS] Nursing Home Compare Web site. Actions such as denial of payment for new admissions, civil money penalties, directed plans of correction, mandatory temporary management, monitors, terminations, and special focus facilities should all be clearly listed on the Web site. Plain English explanations of these terms must be included.

Residents of facilities, their loved ones, and the community at large should be notified of enforcement action. For too many residents and families, the termination action is their first notification of the facility's problem. Information on enforcement actions would help individuals make informed decisions in choosing a nursing home and would give residents and familiesinformation about areas that require vigilance in their home.

The complete text of the survey results, the 2567 form, should be published on Nursing Home Compare. The descriptive text found in these reports helps consumers get a better idea of what violations are cited and what is needed to correct these problems.

…

Congress should enact safe and clearly enforceable staffing requirements…. The amount and type of nursing staff, R.N.s, LPNsand CNAs serving residents in each nursing facility should be posted on Nursing Home Compare. Substantiated complaints about staffing levels should also be listed.

BONNIE ZABEL, REPRESENTATIVE, AmericanAssociation of Homes and Services for the Aging: Families are in crisis when they hear that admission to a nursing home is needed. If they have time to choose, they don't know what to look for. Nursing Home Compare is written in industry language and only tells consumers about problems in facilities, not about what to look for in quality…. Consumers should be looking for places that provide person-directed care. But Nursing Home Compare doesn't give you the tools to do this or even say that this is an important element of quality.

Senators and witnesses also emphasized the need to strengthen the government’s system of enforcement.

SEN. KOHL: Our bill will strengthen the government system of enforcement. Under the current system, nursing homes that are not providing good care or even worse, are putting their residents in harm's way, can escape penalty from the government while they slip in and out of compliance with federal regulations.And, of course, that's not acceptable. We need the threat of sanctions to mean something. And under the bill that I'm working on with Senator Grassley, they will mean something. We also need to make sure that regulators are able to intervene quickly in order to protect the safety of residents.

SEN. GRASSLEY: In the nursing home industry, the vast majority of homes provide quality care on a consistent basis. They provide an invaluable service to our older and disabled. And we applaud them for that service. But as in many sectors, this industry is given a bad name by a few bad apples that spoil the barrel. A critical tool in confronting these bad actors is the sanctions that CMS can place on homes for failure to meet certain standards of care. Yet too often, nursing homes are able to yo-yo in and out of compliance, temporarily correcting deficiencies and having the sanctions rescinded, only then to fall back into non-compliance.

…

The current system provides incentives to correct problems only temporarily and allows homes to avoid regulatory sanctions while continuing to deliver substandard care to residents. This system must be fixed. In ongoing correspondence that I've had with Kerry Weems, who is here and is acting administrator of CMS, and you will be hearing from him, that agency has requested the statutory authority to collect civil monetary penalties sooner and hold them in escrow pending appeal. I think that's a good start.

Penalties should also be meaningful. Too often, they are assessed at the lowest possible amount, if at all. Penalties should be more than merely the cost of doing business. They should be collected in a reasonable timeframe and should not be rescinded so easily. These changes will help prod the industry and particularly, the bad actors to get their act together or get out of business.

PROFESSOR ZIMMERMAN: [T]here needs to be greater use of intermediate corrective measures, as several speakers have talked about earlier. There have been calls for broader and more innovative ways to incentivize, exhort, and pressure providers into taking better and more systematic corrective actions to improve care and sustain that higher care level. Care problems need to be identified earlier and addressed in meaningful ways more promptly and with more ingenuity and commitment.

There needs to be increased scrutiny on providers at both the facility and corporate network level who have not demonstrated the ability to adequately self-identify a problem and fix it and then keep it fixed. One measure that has demonstrated success in both process and outcomes is the use of monitors to provide additional scrutiny on the care provided in problematic facilities, as well as the systems put in place to correctly identify problems and sustain that fix, including systems that actually have their origin in the corporation itself as opposed to just the facility.

Acting Administrator of the Centers for Medicare and Medicaid Services (CMS) testified about a CMS program that deals with those nursing homes exhibiting a consistent history of providing poor care to residents.

KERRY WEEMS, ACTING ADMINISTRATOR, CMS: I'll now turn to a particular CMS effort that I understand is of interest to the committee, the special focus facility initiative. Facilities we target for special focus consistently provide poor quality care. Yet oftentimes they pass isolated surveys by just fixing the number of problems to enable them to satisfy the survey. They then fail the next survey, often for many problems that they had ostensibly fixed.

Of course, this in and out or yo-yo compliance does not address the homes' underlying systematic problems. The special focus facility program is designed to put an end to fluctuating compliance. Once a facility is placed on the special focus program, CMS applies a progressive enforcement until the nursing home takes one of three paths: graduates from the program because it has made significant long-lasting improvements; is terminated from participation in the Medicare or Medicaid programs; or is given more time because we see potential for improvement such as the sale of the nursing home to a new owner with a better track record of providing quality care.

…

We currently have 62 facilities, the names of which we'll be prepared to put on the [CMS] website on or before December the 1st.

Senators and witnesses also testified about the need for disclosure of ownership and subsidiary operations of nursing home chains and facilities that have been purchased by private equity firms.

SEN. GRASSLEY: I want to touch on an issue that has garnered a lot of attention lately, that of the purchase of nursing homes by private equity groups. Recent news reports have highlighted concerns over decreasing quality of care, decreasing staffing, and decreased budgets at nursing homes purchased by private equity groups.... In response to these concerns, Senator Baucus and I have launched an inquiry into private equity firms and their ownership of nursing homes. Last month, we sent letters to five private equity firms asking for detailed information about their purchases and impending purchases of nursing facilities. In private equity ownership if that ownership is, in fact, having the effect of decreasing staffing, decreased budgets, and, in turn, decreased care, then something must be done about it.

SEN. SALAZAR: I'll make just a comment about the private equity issue and the ownership matter…. You know, it's an issue that has been raised with legitimate concerns. And I do think that we need to take a look at it from the point of view that in the context of trying to create wealth within a private equity firm that we are not somehow displacing the quality of service that ought to be provided to seniors who are being served in these homes. So I think it is a very important inquiry that has been raised here.

ARVID MUELLER, DIRECTOR OF RESEARCH, SERVICE EMPLOYEES INTERNATIONAL UNION: [A] new breed of nursing home operator, private equity, has entered the nursing home markets. And for the companies we analyzed, had a clearly negative effect on care. Private equity firms take on a lot of debt,have ownership structures that are particularly complex and a business model that is based on buying and selling businesses within a relatively short period of time. This private equity model lacks transparency and accountability and may be exacerbating the care problems we find in the overall industry.

PROFESSOR ZIMMERMAN: There has been increasing attention focused on the quality of nursing home care, most recently because of the rise in the number of ownership transactions between nursing home corporations and the tendency for these transactions to involve a transfer of ownership from a public corporation to entities commonly referred to as private equity firms. At the heart of this debate and scrutiny over this particular phenomenon, I believe that the single most important issue that we need to face, and soon, is the issue of transparency.

…

[T]here should be complete transparency on full ownership of every nursing home, including both the operating entity and the landlord. The federal government, which spends billions of dollars on nursing home care every year, should have the right to know the complete ownership structure of every nursing home participating in the Medicare and Medicaid program no matter which or what type of entity owns them. The complete ownership structure of all entities involved in the provision and administration of resident care should be fully reported to CMS as a matter and a condition of participation in the Medicare and Medicaid program.

Senator Grassley and Acting Administrator Weems also discussed the need to improve fire safety.

SEN. GRASSLEY: Another pressing issue is that of fire safety…. Despite the fact that a multiple-death fire has never occurred in a sprinkleredhome, there are approximately 2,773 homes still without full sprinkle systems….In October of 2006, CMS began to move in this direction and expects to issue a final rule in the summer of 2008.

ACTING ADMINISTRATOR WEEMS: Senator Grassley mentioned a final CMS regulation on fire safety protection, which would require all nursing homes to be fully sprinkled by a defined phase-in period. And it's currently expected to be released in August of 2008.

DPC