The long-term care bill that 'everyone' likes - View on Washington - Elder Justice Act

Nursing Homes, June, 2003 by Michael J. Stoil

Perhaps you are one of the voters who chose President George W. Bush because of his promise to end the partisan stalemate in Congress. Many Americans had reportedly had enough of the two political parties blocking each other's initiatives in healthcare and other fields. Those hopes have since dimmed--the Bush administration has not ended the deadlock between the two political parties.

The election of a Republican president and slim Republican majorities in both houses of Congress have driven the Democrats to tighter party discipline. The White House, for its part, has been equally unwilling to compromise over its agenda, even when the opposition comes from moderate Republicans in the Senate. "Bipartisan cooperation" in Washington these days often means "finding one member of the opposing party who supports this bill."

There is, however, one piece of legislation that is enjoying truly bipartisan support, and it is related to long-term care. S 333, the Elder Justice Act, was introduced on February 10, 2003, by John B. Breaux of Louisiana, one of the more conservative Democrats in the U.S. Senate. Under consideration in the Senate Finance Committee as of press time, S 333 has a diverse group of cosponsors. They include conservatives like Rick Santorum (R-Penn.) and Orrin Hatch (R-Utah); moderates of both parties, such as Gordon Smith (R-Ore.) and Jeff Bingaman (D-N.Mex.); and a handful of social activist Democrats, including Dick Durbin (D-Ill.) and Jay Rockefeller (DW.Va.).

Credit for the broad bipartisan support of S 333 can be laid on its author. Breaux is one of the few remaining traditional legislative craftsmen, heir to a long tradition of senators and congressmen who could design a balanced bill with "something for everyone." In the case of the Elder Justice Act, Breaux and his staff have created a proposal that appeals to everyone concerned about aspects of long-term care quality and safety.

The centerpiece of S 333 is the establishment of a system to collect, maintain, and disseminate national data relating to the abuse and neglect of the elderly. Current statistics on abuse and neglect must be compiled from a variety of sources, including state and local police and social workers, as well as CMS-required surveys and inspections. Not surprisingly, these sources use different definitions of "abuse" and "neglect." The result is that no one has an objective measure of the scope and seriousness of these problems, or how they can be effectively reduced. This is why advocacy organizations and representatives of the long-term care industry disagree over whether the hundreds of state survey deficiencies arising from incomplete paperwork can be described as evidence of nursing home negligence or abuse.

The Elder Justice Act would go a long way toward reducing this confusion by establishing federal standards for defining elder abuse and neglect. The act would establish an Office of Elder Justice in both the Department of Health and Human Services (DHHS) and the Department of Justice (DOJ), and amend the federal criminal code to define criminal elder abuse and neglect. It would also establish a federal requirement for long-term care facilities to report crimes against residents to local law enforcement authorities. Of course, every adequately managed nursing home already reports such crimes, but the establishment of a federal standard would provide a new national measure that is independent from the often-misunderstood deficiency reports by state survey agencies.

Another provision of the Elder Justice Act is the establishment of grants for five Centers of Excellence nationwide that would specialize in research, best practice development, and training relating to elder abuse, neglect, and exploitation. "Centers of Excellence" are a current fad on Capitol Hill; they've been developed to address several social ills. Through them, federal agencies award large grants to universities, research firms, and other organizations to support vague knowledge-related functions. The grant amounts are not large enough to perform a major research effort but can be sufficient to inform clinicians, educators, and administrators about new developments in a given subject area. Potentially, a Center of Excellence on elder abuse and neglect could offer nursing home administrators helpful research-based advice on improving residents' and families' sense of security.

Some elements of S 333 provide more direct benefits to the long-term care field. Much of the legislation is concerned with the problem of adequate staffing for skilled nursing facilities, and offers such constructive proposals as a Work Opportunity Tax Credit for any facility hiring a new and qualified employee. Another provision would supplement CMS's consumer-related quality information with new quality data and reports administered by the more neutral Agency for Healthcare Research and Quality. Additionally, the bill would require CMS to provide quality improvement assistance to the long-term care industry, rather than simply swinging its regulatory ax.