To amend title XIX of the Social Security Act to improve the quality of care furnished in nursing homes.

July 30, 2001

Mr. WAXMAN (for himself, Mr. GEPHARDT, Mr. DINGELL, Mr. STARK, Mr. BROWN of Ohio, Mr. GEORGE MILLER of California, Mr. CARSON of Oklahoma, Ms. SCHAKOWSKY, Mr. RODRIGUEZ, Mr. BLAGOJEVICH, Mr. HOEFFEL, Mr. HOLT, Mr. LANTOS, Ms. LEE, Mrs. MALONEY of New York, Mr. WEXLER, Mr. CLAY, Ms. DELAURO, Mr. EDWARDS, Mr. EVANS, Mr. HINCHEY, Ms. KAPTUR, Mr. LAMPSON, Mr. MCGOVERN, Mr. MURTHA, Ms. NORTON, Mr. TIERNEY, Mr. UDALL of New Mexico, and Mr. WYNN) introduced the following bill; which was referred to the Committee on Energy and Commerce

To amend title XIX of the Social Security Act to improve the quality of care furnished in nursing homes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Nursing Home Quality Protection Act of 2001'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Increased resources.

Sec. 3. Increased nurse staffing.

Sec. 4. Increased sanctions.

Sec. 5. Increased public disclosure.

Sec. 6. Background checks.

Sec. 7. Clarification of applicability of protections.

Sec. 8. Financial accountability.

SEC. 2. INCREASED RESOURCES.

(a) PURPOSE- In 1997, Congress repealed the Boren amendment, which required that the States make reasonable and adequate payments to nursing homes and other health care facilities in order to provide quality care to residents. The purpose of this section is to restore the Boren amendment so that those facilities can provide better care to residents.

(b) 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).'.

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

SEC. 3. INCREASED NURSE STAFFING.

Section 1919(b)(4) of the Social Security Act (42 U.S.C. 1396r(b)(4)) is amended by adding at the end the following new subparagraph:

`(D) MINIMUM STAFFING LEVELS-

`(i) DEADLINE FOR COMPLIANCE WITH MINIMUM STANDARDS- With respect to nursing 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 nursing 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 nursing facilities. Such standards shall be established 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 subclauses (III) and (IV), standards promulgated under subclause (I) shall be, at a minimum, the Hartford staffing standards (as defined in clause (v)(I)).

`(III) ALTERNATIVE MINIMUM STANDARDS- Standards promulgated under subclause (I) may be lower than the standards described in subclause (II) if the Secretary determines that use of the staffing levels under those standards does not compromise the ability of facilities to meet the objectives of subsection (b)(2), but in no case may standards under this subclause be lower than the HHS staffing standards (as defined in clause (v)(II)).

`(IV) AUTHORITY TO PHASE IN FACILITY COMPLIANCE WITH STANDARDS- If the Secretary determines that compliance with the Hartford staffing standards 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 those Hartford staffing standards until such time as the Secretary determines such compliance is feasible. In the interim, facilities shall comply with standards promulgated by the Secretary, such standards in no case being lower than the HHS staffing standards.

`(V) EXPLANATION OF EXERCISE OF AUTHORITY- If the Secretary decides to exercise the authority under subclauses (III) or (IV), the Secretary shall submit to Congress a report describing the facts and circumstances of the decision, and shall include the data and assumptions used in making that decision and an assessment of the impact on resident care.

`(iii) FAILURE TO TIMELY PROMULGATE FINAL REGULATIONS- If the Secretary does not publish the final regulations under clause (ii) by the date required under that clause, effective for services furnished in nursing facilities on or after the date under clause (ii), such facilities, at a minimum, shall comply with the Hartford staffing standards.

`(iv) INCREASE IN PAYMENT RATE- Rates applicable to facilities under section 1902(a)(13) shall reflect appropriate adjustments for compliance with minimum standards under this subparagraph.

`(v) DEFINITIONS- In this subparagraph:

`(I) HARTFORD STAFFING STANDARDS- The term `Hartford staffing standards' means the staffing standards recommended in January 2000 by the Hartford Institute for Geriatric Nursing and the National Citizens Coalition for Nursing Home Reform, appropriately adjusted by the Secretary to account for resident case mix.

`(II) HHS STAFFING STANDARDS- The term `HHS staffing standards' means the preferred minimum staffing levels identified in the report to Congress entitled `Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes' submitted by the Secretary in the summer of 2000, appropriately adjusted by the Secretary to account for resident case mix.'.

SEC. 4. INCREASED SANCTIONS.

(a) REFUND OF FEDERAL MONEYS FOR SUBSTANDARD NURSING CARE-

(1) IN GENERAL- Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended--

(A) by redesignating subsection (i) as subsection (j); and

(B) by inserting after subsection (h) the following new subsection:

`(i) REFUND OF FEDERAL MONEYS FOR SUBSTANDARD NURSING CARE-

`(1) IN GENERAL- From amounts paid under a State plan to a nursing facility, the nursing facility shall refund to the Secretary for deficiencies identified in a survey under subsection (g), the following amounts:

`(A) $2,000 for each deficiency that had the potential to cause more than minimal harm to a resident of the nursing facility.

`(B) $10,000 for each deficiency that caused actual harm to a resident of the nursing facility.

`(C) $25,000 for each deficiency that placed a resident of the nursing facility in immediate jeopardy.

Amounts under this subparagraph shall be adjusted annually to account for inflation in the manner provided for in section 1924(g).

`(2) DEADLINE FOR SUBSTANDARD CARE REFUND- Payment of the amounts payable by a nursing facility to the Secretary under paragraph (1) shall be made not later than 30 days after the nursing facility receives notice of the deficiencies and the amount of substandard care refund due.

`(3) WITHHOLDING OF PAYMENTS FOR FAILURE TO PAY A SUBSTANDARD CARE REFUND TO THE SECRETARY- In the case of a nursing facility that does not pay a substandard care refund required under paragraph (1), in order to ensure that payments under the State plan to the facility are reduced by the amount of substandard care refund due from the facility, the Secretary shall withhold from payments attributable to this section the amount of such substandard care refund, and the State shall withhold such amount from payments to that nursing facility.

`(4) APPEAL-

`(A) IN GENERAL- The Secretary shall establish a procedure for a nursing facility to appeal to the Secretary a substandard care refund paid or an amount withheld under this paragraph.

`(B) REPAYMENTS BY THE SECRETARY- If a nursing facility is successful on appeal, the Secretary shall pay to the nursing facility an amount equal to the amount of the substandard care refund paid under paragraph (1), or the amount withheld under paragraph (3), or both, if applicable, plus interest accruing on such amount at the rate applicable under section 1903(d)(5).

`(5) RELATION TO OTHER SANCTIONS-

`(A) IN GENERAL- A substandard care refund paid by or an amount withheld from a nursing facility for a deficiency under this paragraph--

`(i) shall not affect the authority of a State or the Secretary to take enforcement actions or impose sanctions against the nursing facility under any other provision of law with respect to the deficiency;

`(ii)(I) shall be deducted from civil money penalties otherwise assessed and collected by the Secretary with respect to

the deficiency under other provisions of this Act, and

`(II) with respect to the amounts so deducted under subclause (I), those amounts shall be used only in the same manner and for the same purposes as such civil money penalties otherwise assessed and collected; and

`(iii) shall not affect any remedy available to an individual at common law.

`(B) PRESERVING RIGHT TO APPEAL- The failure of a nursing facility to appeal a substandard care refund paid by or amount withheld from the facility for a deficiency under this paragraph shall have no effect on the right of the facility to appeal any enforcement action taken or sanction imposed by the Secretary with respect to the deficiency under other provisions of this Act.'.

(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply with respect to surveys conducted on or after the date that is one year after the date of the enactment of this Act, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

(b) GRANT PROGRAM TO IMPROVE QUALITY OF CARE FURNISHED IN NURSING HOMES- Section 1919 of the Social Security Act (42 U.S.C. 1396r), as amended by subsection (a), is further amended--

(1) by redesignating subsection (j) as subsection (k); and

(2) by inserting after subsection (i) the following new subsection:

`(j) NURSING FACILITY QUALITY IMPROVEMENT ACCOUNT-

`(1) ESTABLISHMENT OF NURSING FACILITY QUALITY IMPROVEMENT ACCOUNT-

`(A) IN GENERAL- There is hereby created on the books of the Treasury an expenditure account to be known as the `Nursing Facility Quality Improvement Account' (in this subsection referred to as the `Account').

`(B) DEPOSIT OF FUNDS IN THE ACCOUNT- The Secretary shall deposit in the Account--

`(i) all substandard care refunds from nursing facilities under subsection (i)(1), other than amounts described in subsection (i)(5)(A)(ii)(II) (relating to deductions from civil money penalties); and

`(ii) amounts withheld under subsection (i)(3), other than amounts described in subsection (i)(5)(A)(ii)(II) (relating to deductions from civil money penalties).

`(C) APPROPRIATED AMOUNTS FROM SUBSTANDARD CARE REFUNDS- There are hereby appropriated to the Account such amounts as the Secretary deposits to the Account under this paragraph.

`(2) GRANTS FOR IMPROVEMENT OF QUALITY OF CARE-

`(A) IN GENERAL- Subject to the succeeding provisions of this paragraph, from amounts available in the Account, the Secretary shall make grants to States for the purpose of improving the quality of care furnished in nursing facilities operating in the State.

`(B) USE OF GRANT FUNDS- Grants made available to States under subparagraph (A) may be used for any or all of the following specified purposes:

`(i) To enable a nursing facility to recruit additional nursing staff or to retain existing nursing staff (including through the use of financial incentives).

`(ii) To increase education and training of nursing staff, including through educational programs offered by community colleges and other institutions of higher education.

`(iii) To improve workplace safety for nursing staff.

`(C) TERMS AND CONDITIONS- The Secretary shall establish such terms and conditions as the Secretary determines to be appropriate for the receipt of grant funds under this paragraph. Such terms and conditions shall include the following requirements:

`(i) A State shall develop a plan for the use of grant funds.

`(ii)(I) In developing the plan required under clause (i), the State shall establish advisory councils comprised of representatives of nursing facility residents, of nursing facilities, of nursing staff, and of other interested parties.

`(II) Such councils shall participate in determining the manner in which grant funds are used under the plan, and shall give priority to proposals for the use of grant funds that are mutually agreed to by the representatives of facility residents, of nursing facilities, and of nursing staff.

`(iii) The State shall submit to the Secretary annual reports on the use of grant funds under the plan.

`(D) AGGREGATE AMOUNT OF GRANT FUNDS FOR STATES- The amount of a grant to a State under this subsection may not exceed the aggregate amount of substandard care refunds (under subsection (i)) from nursing facilities operating in the State.

`(E) NONPARTICIPATION BY STATES- Notwithstanding subparagraph (D), if a State does not receive a grant under this subsection, the Secretary may redistribute, in a manner consistent with section 2104(f), the substandard care refunds received from nursing facilities in that State to other States.

`(F) LIMITATIONS ON USE OF GRANT AMOUNTS- A State may not use amounts

made available under a grant under this paragraph--

`(i) to satisfy any requirement for the expenditure of non-Federal funds as a condition for the receipt of Federal funds; or

`(ii) to make payments to a nursing facility that is not in compliance with Federal labor and employment laws or that has a pattern of violations of such laws.

Amounts made available under a grant under this paragraph shall be in addition to, and may not be used to supplant, any funds that are or would otherwise be expended under any Federal, State, or local law by a State or local government.

`(G) DEFINITION- In this subsection and subsection (g)(5)(E), the term `nursing staff' means a registered professional nurse, a licensed practical or licensed vocational nurse, or a nurse aide.

`(3) ANNUAL AUDITS-

`(A) IN GENERAL- The Secretary shall conduct annual audits of the use of grant funds made available under paragraph (2). The Secretary shall assess the extent to which such funds have resulted in increased nursing staff, reduced nursing staff turnover, increased training of nursing staff, and improvements in the quality of care furnished in nursing facilities located in States receiving such grant funds.

`(B) ADDITIONAL TERMS FOR RECEIPT OF GRANT FUNDS- As a part of a plan under paragraph (2)(C), the State shall afford the Secretary access to any records or information relating to the plan for the purposes of an audit of the State's use of grant funds.

`(C) ANNUAL REPORT- The Secretary shall submit to Congress an annual report on the audits conducted under this paragraph.'.

SEC. 5. INCREASED PUBLIC DISCLOSURE.

(a) INTERNET DISCLOSURE- Section 1919(g)(5) of the Social Security Act (42 U.S.C. 1396r(g)(5)) is amended by adding at the end the following new subparagraph:

`(E) PUBLICATION ON THE INTERNET OF NURSING FACILITY INFORMATION-

`(i) FACILITY-SPECIFIC INFORMATION- As soon as practicable, but in no case later than 1 year after the date of the enactment of this subparagraph, the Secretary shall make available to the public on the Internet site of the Department of Health and Human Services, and by such other means as the Secretary determines appropriate, the following information with respect to each nursing facility:

`(I) COMPLIANCE WITH FACILITY STANDARDS- A summary of the facility's compliance or noncompliance with Federal nursing facility standards.

`(II) COPIES OF RECENT SURVEYS- A copy of the three most recent surveys conducted of the nursing facility under subsection (g).

`(III) COMPLAINTS FILED AGAINST THE FACILITY- A summary of each substantiated complaint filed against the nursing facility during the three most recent years and a summary of the outcome or current status of the complaint.

`(IV) ENFORCEMENT ACTIONS AGAINST THE FACILITY- A summary of each enforcement action undertaken by the Secretary or a State during the three most recent years with respect to the facility and a summary of the outcome or current status of the action.

`(V) NURSE STAFFING RATIOS- Data on the nursing staff of the facility for each of the four previous calendar quarters, including the following ratios:

`(aa) The ratio of registered professional nurses to residents of the facility.

`(bb) The ratio of licensed practical or licensed vocational nurses to residents of the facility.

`(cc) The ratio of nurse aides to residents of the facility.

`(dd) The ratio of aggregate nursing staff to residents of the facility.

Such data shall include information on such ratios by shift. Such ratios shall be calculated by comparing the number of hours such staff expend providing nursing care to residents of

the facility to the number of residents in the facility.

`(VI) OWNERSHIP DISCLOSURE- The identity of the owner and operator of the nursing facility, including an identification of whether the facility is a part of a chain of nursing facilities, and if so, the identity of the chain and the number of facilities in such chain.

`(VII) LABOR VIOLATIONS- Violations of Federal labor and employment laws, and costs incurred for activities directly related to influencing employees with respect to unionization, during the three most recent years.

`(VIII) OTHER PERTINENT INFORMATION- Any other information that the Secretary determines appropriate to inform the public on conditions and quality of care furnished at the facility.

After the date of the enactment of this clause, the Secretary shall continuously update the information posted on such Internet site and shall ensure that such information is never more than 90 days out of date.

`(ii) ESTABLISHMENT AND PUBLICATION OF RATING SYSTEM- The Secretary shall establish and implement a rating system to compare the quality of care furnished to residents by nursing facilities. Such system shall be based on the information under clause (i), case mix of residents of the facility, and such other information as the Secretary determines appropriate to provide for meaningful ratings of quality of care furnished among facilities.'.

(b) POSTING OF STAFFING INFORMATION- Section 1919(c)(8) of the Social Security Act (42 U.S.C. 1396r(c)(8)) is amended by inserting before the period the following: `and the nurse staffing ratio information under subsection (g)(5)(E)(v)'.

(c) RECORDKEEPING AND REPORTING REQUIREMENTS- Section 1919(d) of the Social Security Act (42 U.S.C. 1396r(d)) is amended by adding at the end the following new paragraph:

`(5) RECORDKEEPING AND REPORTING REQUIREMENTS-

`(A) IN GENERAL- A nursing facility shall maintain such records and make such reports to the Secretary as the Secretary may require for the administration and enforcement of this section, including providing to the Secretary such information as the Secretary may require to implement subsection (g)(5)(E). The Secretary may specify the form and manner of any report required under this section, and shall establish a procedure for the electronic transmission of such records.

`(B) CERTIFICATION- A report required under this paragraph shall be certified by the administrator of the nursing facility as being true, accurate, and complete.'.

SEC. 6. BACKGROUND CHECKS.

(a) IN GENERAL- Section 1919(d) of the Social Security Act (42 U.S.C. 1396r(d)) is amended by adding at the end the following new paragraph:

`(5) PROHIBITION ON EMPLOYMENT OF CERTAIN INDIVIDUALS-

`(A) BACKGROUND CHECK ON EMPLOYEES- Beginning 1 year after the date of the enactment of this paragraph, each nursing facility shall conduct a background check on each covered employee hired by the facility. The background check shall include a check of all relevant Federal and State databases that contain information on--

`(i) violations of Federal or State criminal law,

`(ii) abuse of residents of nursing facilities, or misappropriation of resident property,

`(iii) abuse of hospital patients, or any other group of patients that the Secretary may specify, or misappropriation of patient property, and

`(iv) abuse of children.

`(B) PROHIBITION ON EMPLOYMENT-

`(i) IN GENERAL- A nursing facility may not knowingly hire a covered employee--

`(I) who has been convicted of a felony under Federal or State law for any offense described in paragraphs (1) through (4) of section 1128(a);

`(II) with respect to whom a Federal or State department or agency has made a specific documented finding of resident or patient abuse, misappropriation of resident or patient property, or child abuse; or

`(III) who has been found to have committed any other offense that the Secretary specifies in regulations.

`(ii) AUTHORITY FOR EXCEPTIONS FOR SPECIFIC FACTORS- The Secretary may provide for limited exceptions to the prohibition under clause (i) based on the severity of the offense or finding or the period of time that has elapsed since the offense or finding occurred and the conduct of the background check.

`(C) EMPLOYEE APPEAL- A covered employee, or a candidate for employment, may appeal (under a procedure similar to petitions under subsection (g)(1)(D)) to the State in which the facility is located a decision of a nursing facility to terminate, or deny, employment of the covered employee or candidate in

the facility based on erroneous information revealed in the background check.

`(D) PROHIBITION ON CHARGING EMPLOYEE FOR COST OF BACKGROUND CHECK- A nursing facility that conducts a background check on a covered employee, or a candidate for employment, may not directly or indirectly recoup the cost of performing such background check from the employee or candidate.

`(E) DEFINITION- In this paragraph, the term `covered employee' means any individual who under an employment contract or arrangement with a nursing facility furnishes health care items and services, or furnishes other services in the facility in areas of the facility where residents are present, and who is hired on or after the date that is one year before the date of the enactment of this paragraph.'.

(b) PROCEDURE FOR BACKGROUND CHECKS- The Secretary of Health and Human Services shall, by regulation, establish uniform procedures--

(1) for a nursing facility receiving payments under a State plan under title XIX of the Social Security Act to conduct background checks under subparagraph (A) of section 1919(d)(5) of such Act, as added by subsection (a); and

(2) for a covered employee, or a candidate for employment, to appeal under subparagraph (C) of that section an employment action of a nursing facility to the State in which the facility is located.

SEC. 7. CLARIFICATION OF APPLICABILITY OF PROTECTIONS.

(a) SURVEY AND CERTIFICATION- Section 1919(g) of the Social Security Act (42 U.S.C. 1396r(g)) is amended by adding at the end the following new paragraph:

`(6) APPLICABILITY OF PROTECTIONS TO ALL RESIDENTS- The provisions of this subsection shall apply to all residents of a nursing facility, without regard to whether--

`(A) the resident is entitled to have payment made for nursing facility services under the State plan or under any other provision of this Act, or

`(B) the facility is a distinct part of an institution under subsection (a).'.

(b) ENFORCEMENT- Section 1919(h) of such Act (42 U.S.C. 1396r(h)) is amended by adding at the end the following new paragraph:

`(10) APPLICABILITY OF PROTECTIONS TO ALL RESIDENTS- The provisions of this subsection shall apply to all residents of a nursing facility, without regard to whether--

`(A) the resident is entitled to have payment made for nursing facility services under the State plan or under any other provision of this Act, or

`(B) the facility is a distinct part of an institution under subsection (a).'.

SEC. 8. FINANCIAL ACCOUNTABILITY.

(a) IN GENERAL- Section 1919(g)(2) of the Social Security Act (42 U.S.C. 1396r(g)(2)) is amended--

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

(2) 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.'.

(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to surveys conducted on or after the date of the enactment of this Act.

END