To amend titles XVIII and XIX of the Social Security Act to establish minimum requirements for nurse staffing in nursing facilities receiving payments under the Medicare or Medicaid Program.

December 9, 2003

Mr. DASCHLE (for Mr. EDWARDS) introduced the following bill; which was read twice and referred to the Committee on Finance

To amend titles XVIII and XIX of the Social Security Act to establish minimum requirements for nurse staffing in nursing facilities receiving payments under the Medicare or Medicaid Program.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; PURPOSE.

(a) SHORT TITLE- This Act may be cited as the `Nursing Home Staffing Act of 2003'.

(b) PURPOSE- The purpose of this Act is to improve the quality of care received by residents of nursing facilities through the implementation of the minimum nurse staffing levels identified by the Secretary of Health and Human Services in a report to Congress submitted on March 21, 2002.

SEC. 2. IMPLEMENTATION OF NURSE STAFFING STANDARDS.

(a) IN GENERAL- Sections 1819(b)(4) and 1919(b)(4) of the Social Security Act (42 U.S.C. 1395i-3(b)(4); 1396r(b)(4)) are each amended by adding at the end the following new subparagraph:

`(D) MINIMUM STAFFING REQUIREMENTS-

`(i) DEADLINE FOR COMPLIANCE WITH MINIMUM STANDARDS- With respect to facility services provided after the date that is the end of the 2-year period beginning on the date of the enactment of this subparagraph, a facility shall comply with the minimum staffing levels promulgated by the Secretary under clause (ii).

`(ii) FINAL REGULATIONS-

`(I) IN GENERAL- Not later than 1 year after the date of the enactment of this subparagraph, and consistent with the provisions of this clause, the Secretary shall promulgate standards for minimum staffing levels for facilities. Such standards shall provide for sufficient staffing levels during day, evening, and night shifts to ensure that residents of nursing facilities receive the level of care necessary to meet the objectives of subsection (b)(2), and shall provide for appropriate adjustments to account for resident case mix.

`(II) MINIMUM STANDARDS- Subject to subclause (III), standards promulgated under subclause (I) shall be, at a minimum, the HHS minimum nurse staffing ratios (as defined in clause (iii)).

`(III) AUTHORITY TO PHASE IN FACILITY COMPLIANCE WITH STANDARDS- If the Secretary determines that compliance with the HHS minimum nurse staffing ratios is not feasible for nursing facilities by the end of the 2-year period applicable under clause (i), the Secretary may delay the implementation of the HHS minimum nurse staffing ratios until the date that is the end of the 5-year period that begins on the date of the enactment of this subparagraph. If the Secretary delays implementation of the HHS minimum nurse staffing ratios under the previous sentence, the Secretary shall phase in over such 5-year period alternative minimum staffing standards that gradually increase in each of the years of the phase-in until the such standards meet the HHS minimum nurse staffing ratios.

`(IV) COUNTING- In determining compliance with the staffing levels under this subparagraph, an individual may not be counted while performing services that are not direct nursing care, such as administrative services, food preparation, housekeeping, laundry, maintenance services, or other activities that are not direct nursing care.

`(iii) HHS MINIMUM NURSE STAFFING RATIOS- The term `HHS minimum nurse staffing ratios' means the minimum staffing levels identified in the report to Congress entitled `Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, Report to Congress: Phase II Final' submitted by the Secretary on March 21, 2002, which require--

`(I) from 2.4 to 2.8 hours of care per resident per day by a certified nurse aide, and

`(II) from 1.15 to 1.3 hours of care per resident per day by a licensed practical nurse, a licensed vocational nurse, or a registered nurse, of which from 0.55 to 0.75 hours of care per resident per day shall be provided by a registered nurse.

`(iv) CONSTRUCTION-

`(I) NONPREEMPTION- Nothing in this subparagraph shall be construed as prohibiting the Secretary or a State (in the case of title XIX) from imposing higher minimum staffing levels on facilities than those imposed under this subparagraph.

`(II) MINIMUM STANDARDS ONLY- Compliance with the staffing requirements imposed under this subparagraph alone shall not be construed as complying with the requirement under paragraph (2) to provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.

`(III) SUPPLEMENTARY REQUIREMENTS- The staffing requirements of this subparagraph are in addition to the requirements of subparagraph (C).'.

(b) POSTING OF STAFFING INFORMATION-

(1) IN GENERAL- The first sentence of subparagraph (A) of sections 1819(b)(8) and 1919(b)(8) of the Social Security Act (42 U.S.C. 1395i-3(b)(8); 1396r(b)(8)) are each amended by inserting before the period the following: `, a description of the minimum staffing requirements under paragraph (4)(D), and the average number of hours of nursing care that residents of the facility have received for each of the four previous calendar quarters'.

(2) REPORTS- Such sections are each amended by adding at the end the following new subparagraph:

`(C) REPORTS OF STAFFING DATA- A facility shall maintain records on nurse staffing, and shall submit such reports of such records to the Secretary as the Secretary may require for the administration and enforcement of this section. Such records shall be reviewed for accuracy as part of a standard survey required under subsection (g)(2)(A).'.

SEC. 3. INCREASED RESOURCES.

(a) REINSTITUTION OF BOREN AMENDMENT PAYMENT METHODOLOGY-

(1) IN GENERAL- Section 1902(a)(13) of the Social Security Act (42 U.S.C. 1396a(a)(13)) is amended to read as follows:

`(13) provide for payment of services through the use of rates determined pursuant to the criteria under this paragraph as in effect on August 1, 1997;'.

(2) ESTABLISHMENT OF SAFE HARBOR RATES- Section 1902 of such Act (42 U.S.C. 1396a) is amended by adding at the end the following: `The Secretary may, by regulation, promulgate standards or methodologies for determining rates that comply with paragraph (13), and a State that pays rates that meet such standards or methodologies is deemed to be in compliance with paragraph (13).'.

(3) EFFECTIVE DATE- The amendment made by this subsection shall apply to services furnished on or after the date that is one year after the date of the enactment of this Act.

(b) Permanent 1.5 Percent Increase of Medicaid FMAP Beginning With Fiscal Year 2004- Section 1905(b) of the Social Security Act (42 U.S.C. 1396d(b)) is amended by adding at the end the following: `With respect to calendar quarters beginning after October 1, 2003, the Federal medical assistance percentage for a State determined under the first sentence shall be increased by 1.50 percentage points.'.

(c) FINANCIAL ACCOUNTABILITY-

(1) IN GENERAL- Sections 1819(g)(2) and 1919(g)(2) of the Social Security Act (42 U.S.C. 1395i-3(g)(2); 1396r(g)(2)) are each amended--

(A) by redesignating subparagraphs (C), (D), and (E) as subparagraphs (D), (E), and (F); and

(B) by inserting after subparagraph (B) the following new subparagraph:

`(C) FINANCIAL ACCOUNTABILITY- A standard or an extended survey may include an examination of the financial records of a facility to determine whether payments made to the facility under this section for services furnished to residents are being used in a manner consistent with this section.'.

(2) COMPOSITION OF MULTIDISCIPLINARY TEAM- Sections 1819(g)(2)(E)(i) and 1919(g)(2)(E)(i) of the Social Security Act (42 U.S.C. 1395i-3(g)(2)(E)(i); 1396r(g)(2)(E)(i)) are each amended by inserting after the period the following: `This multidisciplinary team may include professionals trained in financial accounting and auditing.'

(3) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to surveys conducted on or after the date of the enactment of this Act.

END