Sometimes the system works (sort of).

Two months ago, this column described last fall's closing of Neponsit Health Care Center, where residents were hauled out of their rooms in the middle of the night. That, in fact, was only an echo of a similar tragedy that began in Florida five months earlier. The incident at the Rehabilitation and Healthcare Center of Tampa had a happier ending, though, and might result in important changes for all nursing homes. In fact, two congressmen crossed party lines to work on the issue - no small matter in these highly partisan times.

No doubt you've heard the story, but the details bear repeating in that they're fueling a potentially major development in nursing home reimbursement. Last April, 52 residents of the Rehabilitation and Healthcare Center were told that remodeling work on the facility required that they leave the nursing home. Nelson Mongiovi, son of one evicted resident, did not lack for clues that the "remodeling" story was a lie. The nursing home had just completed a renovation after its acquisition by Vencor, Inc.

Almost simultaneously, The Wall Street Journal printed a story in which Vencor officials described the removal of hundreds of Medicaid patients as their strategy. Michael Barr, chief operating officer, told Journal reporters that Vencor was losing money on Medicaid patients and planned to convert the facilities into subacute care adjuncts to its hospital business. According to the April 7th article, "In Florida, where the state attorney general has retained outside counsel to build a sweeping Medicaid fraud and abuse case against the entire industry, Vencor says it might withdraw all 21 of its homes from Medicaid as a defensive move."

Research by Mongiovi and The Tampa Tribune confirmed that all evicted residents in Tampa were indeed on Medicaid, including some who entered the home as private care patients and converted to Medicaid when their savings ran out.

Despite Vencor's initial claim that it was a coincidence that only Medicaid residents had been evicted, the Mongiovi family's attorneys quickly obtained an injunction against the move. Within days, the state attorney general, the state Agency for Health Care Administration, and the inspector general o f the federal Department of Health and Human Services all launched independent investigations. Before the week ended, Vencor claimed that it was abandoning its strategy of decertifying beds for Medicaid, and CEO W. Bruce Lunsford apologized "for any inconvenience or anxiety that our patients and their families may have suffered as a result of our decision." The evictions in Tampa were revoked.

As the scope of investigations expanded to probes of Vencor activity in Colorado and California, the company later announced that it plans to end participation in Medicaid for perhaps 35 of its more than 300 nursing homes, this time through attrition rather than eviction. In the meantime, freshman Congressman Jim Davis (D-FL) and Senator Bob Graham (D-FL) began to craft legislation designed to prevent a recurrence of the Tampa incident. At Davis's invitation, Vice-President Al Gore convened a community meeting in Tampa to discuss government proposals for long-term care spending; unfortunately, the Vice-President used the opportunity to expound on making it possible for more seniors to live at home longer rather than on fixing the financial problems confronting nursing home facilities.

Ironically, shortly before the Vice-President's arrival, Florida state officials banned new admissions at the Rehabilitation and Healthcare Center, charging that Vencor was interfering with residents' rights to apply for Medicaid. The January 4th moratorium was actually the second admissions ban imposed by Florida on Vencor in less than 30 days; a similar penalty had been imposed on Vencor's Abbey Rehabilitation and Nursing Center in St. Petersburg in December.

This second series of findings against Vencor proved to be decisive in mobilizing congressional action to address the absence of rules on voluntary Medicaid decertification. In January, Michael Bilirakis (R-FL), a veteran congressman from St. Petersburg, became chair of the House Subcommittee on Health and Environment. With his support, Davis introduced H.R. 540, the Nursing Home Resident Protection Amendments of 1999.

The two Tampa Bay area representatives quickly attracted an unusually diverse group of cosponsors for the legislation. Bilirakis recruited conservative Republicans such as Clay Shaw and Porter Goss, while Davis's efforts yielded the endorsements of a large number of influential Democrats, as well as that of Vermont's Bernard Sanders, the lone Independent Socialist in Congress. Davis's bill also received support from the American Health Care Association, which sent a Florida nursing home operator to testify on behalf of the legislation.

As noted by Ron Schwartz in this month's NH News Notes (p. 10), the bill's three provisions specify: 1) that a nursing facility's "voluntary withdrawal from participation [in Medicaid] is not an acceptable basis for the transfer or discharge of residents of the facility;" 2) after a facility withdraws from Medicaid, newly admitted residents must receive written and oral confirmation that the facility is not participating in Medicaid with respect to new residents, and the facility may transfer or discharge the resident for an inability to privately pay, Medicaid eligibility notwithstanding; 3) nursing homes must continue to accept Medicaid payments and state oversight for eligible residents who were in the facility and remained when it voluntarily withdrew from Medicaid.

States would continue to inspect and enforce OBRA in the nursing home until the last Medicaid recipient died or was legally discharged. Newly admitted residents cannot thereafter use Medicaid eligibility as a reason to remain in the home after they spend down their private resources.

There are pluses and minuses from all this. On the plus side, H.R.540 proves that Republicans and Democrats are willing to shed partisanship to make fixes in today's post-Boren era of Medicaid reimbursement. It shows, as an American success story, that a single individual like Nelson Mongiovi still can start the process that goes from a legal protest against a perceived injustice to a legislative remedy.

However, H.R.540 does not solve the immediate financial problems of a nursing home chain that had hoped to escape the obligations of caring for patients at Medicaid's low rates. Even more importantly, it does not solve the problems of Medicaid-eligible residents who cannot find appropriate facilities that will accept their state-financed reimbursements. As it happens, these issues are addressed legislatively - in H.R. 131, the Comprehensive Long-Term Care Act of 1999. Perhaps you've heard of it? It has virtually no sponsors other than its author, and no chance of passage.