To amend the Social Security Act with respect to the employment of persons with criminal backgrounds by long-term care providers.

January 7, 2003

Mr. THOMPSON of California (for himself and Mr. RADANOVICH) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To amend the Social Security Act with respect to the employment of persons with criminal backgrounds by long-term care providers.

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 `Senior Safety Protection Act of 2003'.

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

Sec. 1. Short title; table of contents.

Sec. 2. Long-term care provider criminal background check.

Sec. 3. Expansion of state register to collect information about long-term care provider employees other than nurse aides.

Sec. 4. Inclusion of abusive workers in the database established as part of National Health Care Fraud and Abuse Data Collection Program.

Sec. 5. Prevention and training demonstration project.

Sec. 6. Improved background check system.

Sec. 7. State funding.

SEC. 2. LONG-TERM CARE PROVIDER CRIMINAL BACKGROUND CHECK.

(a) IN GENERAL- Title XI of the Social Security Act is amended by inserting after section 1134 the following new sections:

`SCREENING OF LONG-TERM CARE WORKERS

`SEC. 1134A. (a) BACKGROUND CHECKS ON APPLICANTS- Subject to subsection (b)(2), before hiring a long-term care worker, a long-term care provider shall--

`(1) give the worker written notice that the provider is required to perform background checks with respect to applicants;

`(2) require, as a condition of employment, that such worker--

`(A) provide a written statement disclosing any conviction for a relevant crime or finding of patient or resident abuse;

`(B) provide a statement signed by the worker authorizing the provider to request the search and exchange of criminal records;

`(C) provide a copy of the worker's fingerprints;

`(D) provide the worker's social security account number (or taxpayer identification number) and date of birth; and

`(E) provide any other identification information the Secretary may specify in regulation;

`(3) initiate a check of the registry under sections 1819(e)(2) and 1919(e)(2) in accordance with regulations promulgated by the Secretary to determine whether such system contains any disqualifying information with respect to such worker; and

`(4) if that system does not contain any such disqualifying information--

`(A) request that the State initiate a State and national criminal background check on such worker in accordance with the provisions of section 1134B; and

`(B) furnish to the State the information described in subparagraphs (B) through (D) of paragraph (2) not more than 7 working days after completion of the check against the system initiated under paragraph (3).

`(b) PROHIBITION ON HIRING OF ABUSIVE WORKERS-

`(1) IN GENERAL- A long-term care provider may not knowingly employ any long-term care worker who has any conviction for a relevant crime or with respect to whom a finding of patient or resident abuse has been made.

`(2) PROVISIONAL EMPLOYMENT-

`(A) IN GENERAL- After complying with the requirements of paragraph (1), (2), and (3) of subsection (a), a long-term care provider may provide for a provisional period of employment for a long-term care worker pending completion of the check against the data collection system described under subsection (a)(3) and the background check described under subsection (a)(4). Such provider shall maintain direct supervision (or, in the case of home health care settings, active monitoring or oversight) of the worker during the worker's provisional period of employment.

`(B) ACTIVE MONITORING OR OVERSIGHT DEFINED- For purposes of subparagraph (A),

the term `active monitoring or oversight' means a good faith effort by the home health agency supervisor to ensure the safety of the beneficiary through efforts such as making follow-up phone calls and unannounced visits.

`(3) LIMITATION OF LIABILITY-

`(A) IN GENERAL- A long-term care provider that, in denying employment for an applicant (including during the period described in subsection (b)(2)), reasonably relies upon information about such applicant provided by the State under section 1134B shall not be liable in any action brought by such applicant relating to the employment determination resulting from the use of such information.

`(B) DAMAGES ACTIONS- In a tort or other civil action for damages that is brought as the result of an injury, death, or loss to person or property caused by an individual who a long-term care provider employs in a position that involves providing direct care to older adults, the following shall apply:

`(i) If the long-term care provider employed the individual in good faith and reasonable reliance on the report of a criminal records check requested under this section, the provider shall not be found negligent solely because of its reliance on the report, even if the information in the report is determined later to have been incomplete or inaccurate.

`(ii) If the long-term care provider employed the individual in good faith on a provisional basis pursuant to subsection (b)(2), the provider shall not be found negligent solely because it employed the individual prior to receiving the report of a criminal records check requested under this section.

`(c) REPORTING REQUIREMENTS- A long-term care provider shall report to the State agency responsible for surveys and certification of such providers any instance in which the provider determines that a long-term care worker has committed an act of resident neglect or abuse or misappropriation of resident property in the course of employment by the provider.

`(d) USE OF INFORMATION-

`(1) IN GENERAL- A long-term care provider that obtains information about a long-term care worker pursuant to paragraphs (3) and (4) of subsection (a) may use such information only for the purpose of determining the suitability of the worker for employment.

`(2) IMMUNITY FROM LIABILITY- A long-term care provider that, in denying employment for an applicant (including during the period described in subsection (b)(2)) reasonably relies upon information about such applicant provided by the State pursuant to section 1134B or section 1919(e)(2) shall not be liable in any action brought by such applicant based on the employment determination resulting from the information.

`(e) CIVIL PENALTY-

`(1) IN GENERAL- A long-term care provider that violates the provisions of this section shall be subject to a civil penalty in an amount not to exceed--

`(A) for the first such violation, $2,000; and

`(B) for the second and each subsequent violation within any 5-year period, $5,000.

`(2) KNOWING RETENTION OF WORKER- In addition to any civil penalty under paragraph (1), a long-term care provider that--

`(A) knowingly continues to employ a long-term care worker in violation of subsection (a) or (b); or

`(B) knowingly fails to report a long-term care worker under subsection (c),

shall be subject to a civil penalty in an amount not to exceed $5,000 for the first such violation, and $10,000 for the second and each subsequent violation within any 5-year period.

`(f) DEFINITIONS- In this section and section 1134B:

`(1) CONVICTION FOR A RELEVANT CRIME- The term `conviction for a relevant crime' means any Federal or State criminal conviction for--

`(A) any offense described in paragraphs (1) through (4) of section 1128(a); and

`(B) such other types of offenses as the Secretary may specify in regulations, taking into account the severity and relevance of such offenses and the time frame of when such an offense is committed and after consultation with representatives of long-term care providers, representatives of long-term care employees, consumer advocates, and appropriate Federal and State officials.

`(2) DISQUALIFYING INFORMATION- The term `disqualifying information' means information about a conviction for a relevant crime or a finding of patient or resident abuse.

`(3) FINDING OF PATIENT OR RESIDENT ABUSE- The term `finding of patient or resident abuse' means any substantiated finding by a State agency under section 1919(g)(1)(C) or a Federal agency that a long-term care worker has committed--

`(A) an act of patient or resident abuse or neglect or a misappropriation of patient or resident property; or

`(B) such other types of acts as the Secretary may specify in regulations.

`(4) LONG-TERM CARE PROVIDER- The term `long-term care provider' means--

`(A) a nursing facility (as defined in section 1919(a));

`(B) a skilled nursing facility (as defined in section 1819(a)), and includes a hospital-based skilled nursing facility;

`(C) a home health agency (as defined in section 1861(o));

`(D) a hospice program (as defined in section 1861(dd) and section 1905(o));

`(E) an assisted living facility (as defined under section 232(b)(6) of the National Housing Act (12 U.S.C. 1751w(b)(6)); and

`(F) any other facility (including any intermediate care facility for the mentally retarded) that provides, or is a provider of, long-term care services, hospice services, assisted living services, or home health services and that receives payment for such services under title XVIII or title XIX;

and includes an agency that provides under contract temporary staff to a long-term care provider.

`(5) LONG-TERM CARE WORKER- The term `long-term care worker' means any individual (other than a volunteer) that has direct access to a patient of a long-term care provider under an employment or other contract, or both, with such provider. Such term includes an individual who is licensed or certified by the State to provide such services, and a nonlicensed individual providing such services, as defined by the Secretary, including a nurse assistant, nurse aide, home health aide, and personal care worker and attendant.

`FEDERAL AND STATE REQUIREMENTS TO CONDUCT BACKGROUND CHECKS

`SEC. 1134B. (a) IN GENERAL- Upon receipt of a request by a long-term care provider pursuant to section 1134A that is accompanied by the information described in subparagraph (B) through (D) of section 1134A(a)(2), a State, after checking appropriate State records and finding no disqualifying information (as defined in section 1134A(f)(2)), shall submit such request and information to the Attorney General and shall request the Attorney General to conduct a search and exchange of records with respect to the individual as described in subsection (b).

`(b) SEARCH AND EXCHANGE OF RECORDS BY ATTORNEY GENERAL- Upon receipt of a submission pursuant to subsection (a), the Attorney General shall direct a search of the records of the Federal Bureau of Investigation for any criminal history records corresponding to the fingerprints and other positive identification information submitted. The Attorney General shall provide any corresponding information resulting from the search to the State.

`(c) STATE REPORTING OF INFORMATION TO LONG-TERM CARE PROVIDER- Upon receipt of the information provided by the Attorney General pursuant to subsection (b), the State shall--

`(1) review the information to determine whether the individual has any conviction for a relevant crime (as defined section 1134A(f)(1)) or has a finding of patient or resident abuse;

`(2) report to the long-term care provider the results in writing of such review by indicating whether a long-term care worker has any conviction for a relevant crime or has a finding of patient or resident abuse; and

`(3) in the case of an individual with a conviction for a relevant crime, report the existence of such conviction of such individual to the registry referred to in sections 1818(e)(2) and 1919(e)(2).

`(d) FEES FOR PERFORMANCE OF CRIMINAL BACKGROUND CHECKS-

`(1) NO CHARGE TO PROVIDERS OR WORKERS- A State shall not charge a long-term care provider or a prospective long-term care worker a fee for initiating the criminal background check under this section or section 1134A, including fees charged by the Attorney General, and for performing the review and report required by subsection (c).

`(2) FUNDING- A State may apply under section 7 of the Senior Safety Protection Act of 2003 for funding to perform criminal background checks.

`(e) REGULATIONS-

`(1) IN GENERAL- In addition to the Secretary's authority to promulgate regulations under this title, the Attorney General, in consultation with the Secretary, may promulgate such regulations as are necessary to carry out the Attorney General's responsibilities under this section and section 1134A, including regulations regarding the security, confidentiality, accuracy, use, destruction, and dissemination of information, audits and recordkeeping, and the imposition of fees.

`(2) APPEAL PROCEDURES- The Attorney General, in consultation with the Secretary, shall promulgate such regulations as are necessary to establish procedures by which an applicant or employee may appeal or dispute the accuracy of the information obtained in a background check conducted under this section or section 1134A. Appeals shall be limited to instances in which an applicant or employee is incorrectly identified as the subject of the background check, or when information about the applicant or employee has not been updated to reflect changes in the applicant's or employee's criminal record.

`(f) REPORT- Not later than 2 years after the date of enactment of this section, the Secretary shall submit a report to Congress on--

`(1) the number of requests for searches and exchanges of records made under this section;

`(2) the disposition of such requests; and

`(3) the cost of responding to such requests.'

`(g) LIMITATION ON PREEMPTION OF STATE LAW-

`(1) IN GENERAL- Subject to paragraph (2), the requirements under this section and section 1134A shall not preempt existing State laws that are in effect on the date of the enactment of this section.

`(2) NATIONAL FLOOR- Notwithstanding paragraph (1), States shall work with the Attorney General to avoid duplicative requirements under this section and section 1134A.'.

(b) EFFECTIVE DATE- The amendments made by this section shall apply to any individual applying for employment or hired for such employment by any long-term care provider on or after the date which is the later of--

(1) 6 months after the date of the enactment of this Act; or

(2) upon implementation by the State of the requirements under this Act.

SEC. 3. EXPANSION OF STATE REGISTER TO COLLECT INFORMATION ABOUT LONG-TERM CARE PROVIDER EMPLOYEES OTHER THAN NURSE AIDES.

(a) MEDICAID PROGRAM- Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended--

(1) in subsection (e)(2)--

(A) in the paragraph heading, by striking `NURSE AIDE REGISTRY' and inserting `LONG-TERM CARE REGISTRY';

(B) in subparagraph (A)--

(i) by striking `By not later than January 1, 1989, the' and inserting `The';---

(ii) by striking `a registry of all individuals' and inserting `a registry of (i) all individuals'; and

(iii) by inserting before the period `, and (ii) all other long-term care provider employees with respect to whom the State has made a finding described in subparagraph (B)';

(C) in subparagraph (B), by striking `involving an individual listed in the registry' and inserting `involving a long-term care employee'; and

(D) in subparagraph (C), by striking `nurse aide' and inserting `long-term care employee or applicant for employment'; and

(2) in subsection (g)(1)--

(A) in subparagraph (C)--

(i) in the first sentence, by striking `nurse aide' and inserting `long-term care employee'; and

(ii) in the third sentence, by striking `nurse aide' and inserting `long-term care employee' each place it appears; and

(B) in subparagraph (D)--

(i) in the heading, by striking `NURSE AIDE REGISTRY' and inserting `LONG-TERM CARE PROVIDER REGISTRY'; and

(ii) by striking `nurse aide' and inserting `long-term care provider employee' each place it appears.

(b) MEDICARE PROGRAM- Section 1819 of the Social Security Act (42 U.S.C. 1395i-3) is amended--

(1) in subsection (e)(2)--

(A) in the paragraph heading, by striking `NURSE AIDE REGISTRY' and inserting `LONG-TERM CARE EMPLOYEE REGISTRY';

(B) in subparagraph (A)--

(i) by striking `By not later than January 1, 1989, the' and inserting `The';

(ii) by striking `a registry of all individuals' and inserting `a registry of (i) all individuals'; and

(iii) by inserting before the period `, and (ii) all other long-term care employees with respect to whom the State has made a finding described in subparagraph (B)';

(C) in subparagraph (B), by striking `involving an individual listed in the registry' and inserting `involving a long-term care employee'; and

(D) in subparagraph (C), by striking `nurse aide' and inserting `skilled long-term care provider employee or applicant for employment'; and

(2) in subsection (g)(1)--

(A) in subparagraph (C)--

(i) in the first sentence, by striking `nurse aide' and inserting `skilled long-term care employee'; and

(ii) in the third sentence, by striking `nurse aide' and inserting `long-term care employee' each place it appears; and

(B) in subparagraph (D)--

(i) in the heading, by striking `NURSE AIDE REGISTRY' and inserting `LONG-TERM CARE EMPLOYEE REGISTRY'; and

(ii) by striking `nurse aide' and inserting `long-term care employee' each place it appears.

SEC. 4. INCLUSION OF ABUSIVE WORKERS IN THE DATABASE ESTABLISHED AS PART OF NATIONAL HEALTH CARE FRAUD AND ABUSE DATA COLLECTION PROGRAM.

(a) COVERAGE OF LONG-TERM CARE WORKERS- Section 1128E(g)(2) of the Social Security Act (42 U.S.C. 1320a-7e(g)(2)) is amended by adding at the end the following: `Such term also includes any individual of a long-term care provider (other than a volunteer) that has direct access to a patient or resident of such a provider under an employment or other contract, or both, with the provider (including individuals who are licensed or certified by the Secretary to provide services at or through the provider, and non-licensed individuals, as defined by the Secretary, providing services at or through the provider, including nurse assistants, nurse aides, home health aides, and personal care workers and attendants)'.

(b) MANDATORY CHECK OF DATABASE BY LONG-TERM CARE FACILITIES OR PROVIDERS- Section 1134A of the Social Security Act, as added by section 2(a), is amended by adding at the end the following new subsection:

`(g) MANDATORY CHECK OF DATABASE BY LONG-TERM CARE FACILITIES OR PROVIDERS- A long-term care provider shall check the registry maintained under sections 1818(e)(2) and 1919(e)(2) prior to hiring under an employment or other contract, or both, any individual as an employee of such a provider who will have direct access to a patient or resident of the provider (including individuals who are licensed or certified by the State to provide services at or through the provider, and nonlicensed individuals, as defined by the Secretary, that will provide services at or through the provider, including nurse assistants, nurse aides, home health aides, and personal care workers and attendants).'.

(c) DEFINITION OF LONG-TERM CARE PROVIDER- Section 1128E(g) of the Social Security Act (42 U.S.C. 1320a-7e(g)) is amended by adding at the end the following:

`(6) LONG-TERM CARE PROVIDER- The term `long-term care provider' has the meaning given such term in section 1134A(f)(4).'.

SEC. 5. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

(a) ESTABLISHMENT- The Secretary of Health and Human Services shall establish a demonstration program to provide grants to develop information on best practices in patient abuse prevention training (including behavior training and interventions) for managers and staff of long-term care facilities.

(b) ELIGIBILITY- To be eligible to receive a grant under subsection (a), an entity shall be a public or private entity and prepare and submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require.

(c) USE OF FUNDS- Amounts received under a grant under this section shall be used to--

(1) examine ways to improve collaboration between State health care survey and provider certification agencies, long-term care ombudsman programs, the long-term care industry, and local community members;

(2) examine patient care issues relating to regulatory oversight, community involvement, and provider staffing and management with a focus on staff training, staff stress management, and staff supervision;

(3) examine the use of patient abuse prevention training programs by long-term care entities, including the training program developed by the National Association of Attorneys General, and the extent to which such programs are used; and

(4) identify and disseminate best practices for preventing and reducing patient abuse.

(d) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this section.

SEC. 6. IMPROVED BACKGROUND CHECK SYSTEM.

(a) THE ESTABLISHMENT- The Secretary of Health and Human Services and the Attorney General shall establish a more efficient background check system that provides for a more immediate determination of criminal status.

(b) IMPLEMENTATION- The Secretary of Health and Human Services and the Attorney General shall implement such more efficient background check system under subsection (a) not later than 5 years after the date of the enactment of this Act.

(c) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to carry out this section.

SEC. 7. STATE FUNDING.

(a) IN GENERAL- The Secretary of Health and Human Services, upon application by a State, may provide an annual grant to carry out the provisions of this Act.

(b) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated to carry out the provisions of this Act (other than sections 5 and 6) $50,000,000 in each of fiscal years 2004 through 2008.

END