108th CONGRESS
1st Session
S. 958
To amend titles XVIII and XIX of the Social Security Act to prevent
abuse of recipients of long-term care services under the Medicare and Medicaid
programs.
IN THE SENATE OF THE UNITED STATES
April 30, 2003
Mr. KOHL (for himself, Mr. Reid, Mr. Nelson of Florida, Mr. Rockefeller,
Mrs. Lincoln, Ms. Landrieu, Mr. Bingaman, Mr. Miller, and Mr. Breaux) introduced
the following bill; which was read twice and referred to the Committee on
Finance
A BILL
To amend titles XVIII and XIX of the Social Security Act to prevent
abuse of recipients of long-term care services under the Medicare and Medicaid
programs.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Patient Abuse Prevention Act'.
SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF NURSING FACILITY RESIDENTS.
(a) SCREENING OF SKILLED NURSING FACILITY AND NURSING FACILITY EMPLOYEE APPLICANTS-
(1) MEDICARE PROGRAM- Section 1819(b) of the Social Security Act (42 U.S.C.
1395i-3(b)) is amended by adding at the end the following:
`(8) Screening of skilled nursing facility workers-
`(A) BACKGROUND CHECKS ON APPLICANTS- Subject to subparagraph (B)(ii),
before hiring a skilled nursing facility worker, a skilled nursing facility
shall--
`(i) give the worker written notice that the facility is required to
perform background checks with respect to applicants;
`(ii) require, as a condition of employment, that such worker--
`(I) provide a written statement disclosing any conviction for a relevant
crime or finding of patient or resident abuse;
`(II) provide a statement signed by the worker authorizing the facility
to request the search and exchange of criminal records;
`(III) provide in person to the facility a copy of the worker's fingerprints
or thumb print, depending upon available technology; and
`(IV) provide any other identification information the Secretary may
specify in regulation;
`(iii) initiate a check of the data collection system established under
section 1128E in accordance with regulations promulgated by the Secretary
to determine whether such system contains any disqualifying information
with respect to such worker; and
`(iv) if that system does not contain any such disqualifying information--
`(I) request through the appropriate State agency that the State initiate
a State and national criminal background check on such worker in accordance
with the provisions of subsection (e)(6); and
`(II) submit to such State agency the information described in subclauses
(II) through (IV) of clause (ii) not more than 7 days (excluding Saturdays,
Sundays, and legal public holidays under section 6103(a) of title
5, United States Code) after completion of the check against the system
initiated under clause (iii).
`(B) Prohibition on hiring of abusive workers-
`(i) IN GENERAL- A skilled nursing facility may not knowingly employ
any skilled nursing facility worker who has any conviction for a relevant
crime or with respect to whom a finding of patient or resident abuse
has been made.
`(ii) PROVISIONAL EMPLOYMENT- After complying with the requirements
of clauses (i), (ii), and (iii) of subparagraph (A), a skilled nursing
facility may provide for a provisional period of employment for a skilled
nursing facility worker pending completion of the check against the
data collection system described under subparagraph (A)(iii) and the
background check described under subparagraph (A)(iv). Such facility
shall maintain direct supervision of the covered individual during the
worker's provisional period of employment.
`(C) REPORTING REQUIREMENTS- A skilled nursing facility shall report to
the State any instance in which the facility determines that a skilled
nursing facility worker has committed an act of resident neglect or abuse
or misappropriation of resident property in the course of employment by
the facility.
`(i) IN GENERAL- A skilled nursing facility that obtains information
about a skilled nursing facility worker pursuant to clauses (iii) and
(iv) of subparagraph (A) may use such information only for the purpose
of determining the suitability of the worker for employment.
`(ii) IMMUNITY FROM LIABILITY- A skilled nursing facility that, in denying
employment for an applicant (including during the period described in
subparagraph (B)(ii)), reasonably relies upon information about such
applicant provided by the State pursuant to subsection (e)(6) or section
1128E shall not be liable in any action brought by such applicant based
on the
employment determination resulting from the information.
`(iii) CRIMINAL PENALTY- Whoever knowingly violates the provisions of
clause (i) shall be fined in accordance with title 18, United States
Code, imprisoned for not more than 2 years, or both.
`(i) IN GENERAL- A skilled nursing facility that violates the provisions
of this paragraph shall be subject to a civil penalty in an amount not
to exceed--
`(I) for the first such violation, $2,000; and
`(II) for the second and each subsequent violation within any 5-year
period, $5,000.
`(ii) KNOWING RETENTION OF WORKER- In addition to any civil penalty
under clause (i), a skilled nursing facility that--
`(I) knowingly continues to employ a skilled nursing facility worker
in violation of subparagraph (A) or (B); or
`(II) knowingly fails to report a skilled nursing facility worker
under subparagraph (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 paragraph:
`(i) CONVICTION FOR A RELEVANT CRIME- The term `conviction for a relevant
crime' means any Federal or State criminal conviction for--
`(I) any offense described in paragraphs (1) through (4) of section
1128(a); and
`(II) such other types of offenses as the Secretary may specify in
regulations, taking into account the severity and relevance of such
offenses, and after consultation with representatives of long-term
care providers, representatives of long-term care employees, consumer
advocates, and appropriate Federal and State officials.
`(ii) DISQUALIFYING INFORMATION- The term `disqualifying information'
means information about a conviction for a relevant crime or a finding
of patient or resident abuse.
`(iii) FINDING OF PATIENT OR RESIDENT ABUSE- The term `finding of patient
or resident abuse' means any substantiated finding by a State agency
under subsection (g)(1)(C) or a Federal agency that a skilled nursing
facility worker has committed--
`(I) an act of patient or resident abuse or neglect or a misappropriation
of patient or resident property; or
`(II) such other types of acts as the Secretary may specify in regulations.
`(iv) SKILLED NURSING FACILITY WORKER- The term `skilled nursing facility
worker' means any individual (other than a volunteer) that has access
to a patient of a skilled nursing facility under an employment or other
contract, or both, with such facility. Such term includes individuals
who are licensed or certified by the State to provide such services,
and nonlicensed individuals providing such services, as defined by the
Secretary, including nurse assistants, nurse aides, home health aides,
and personal care workers and attendants.'.
(2) MEDICAID PROGRAM- Section 1919(b) of the Social Security Act (42 U.S.C.
1396r(b)) is amended by adding at the end the following new paragraph:
`(8) Screening of nursing facility workers-
`(A) BACKGROUND CHECKS ON APPLICANTS- Subject to subparagraph (B)(ii),
before hiring a nursing facility worker, a nursing facility shall--
`(i) give the worker written notice that the facility is required to
perform background checks with respect to applicants;
`(ii) require, as a condition of employment, that such worker--
`(I) provide a written statement disclosing any conviction for a relevant
crime or finding of patient or resident abuse;
`(II) provide a statement signed by the worker authorizing the facility
to request the search and exchange of criminal records;
`(III) provide in person to the facility a copy of the worker's fingerprints
or thumb print, depending upon available technology; and
`(IV) provide any other identification information the Secretary may
specify in regulation;
`(iii) initiate a check of the data collection system established under
section 1128E in accordance with regulations promulgated by the Secretary
to determine whether such system contains any disqualifying information
with respect to such worker; and
`(iv) if that system does not contain any such disqualifying information--
`(I) request through the appropriate State agency that the State initiate
a State and national criminal background check on such worker in accordance
with the provisions of subsection (e)(8); and
`(II) submit to such State agency the information described in subclauses
(II) through (IV) of clause (ii) not more than 7 days (excluding Saturdays,
Sundays, and legal public holidays under section 6103(a) of title
5, United States Code) after completion of the check against the system
initiated under clause (iii).
`(B) Prohibition on hiring of abusive workers-
`(i) IN GENERAL- A nursing facility may not knowingly employ any nursing
facility worker who has any conviction for a relevant crime or with
respect to whom a finding of patient or resident abuse has been made.
`(ii) PROVISIONAL EMPLOYMENT- After complying with the requirements
of clauses (i), (ii), and (iii) of subparagraph (A), a nursing facility
may provide for a provisional period of employment for a
nursing facility worker pending completion of the check against the data
collection system described under subparagraph (A)(iii) and the background
check described under subparagraph (A)(iv). Such facility shall maintain direct
supervision of the worker during the worker's provisional period of employment.
`(C) REPORTING REQUIREMENTS- A nursing facility shall report to the State
any instance in which the facility determines that a nursing facility
worker has committed an act of resident neglect or abuse or misappropriation
of resident property in the course of employment by the facility.
`(i) IN GENERAL- A nursing facility that obtains information about a
nursing facility worker pursuant to clauses (iii) and (iv) of subparagraph
(A) may use such information only for the purpose of determining the
suitability of the worker for employment.
`(ii) IMMUNITY FROM LIABILITY- A nursing facility that, in denying employment
for an applicant (including during the period described in subparagraph
(B)(ii)), reasonably relies upon information about such applicant provided
by the State pursuant to subsection (e)(8) or section 1128E shall not
be liable in any action brought by such applicant based on the employment
determination resulting from the information.
`(iii) CRIMINAL PENALTY- Whoever knowingly violates the provisions of
clause (i) shall be fined in accordance with title 18, United States
Code, imprisoned for not more than 2 years, or both.
`(i) IN GENERAL- A nursing facility that violates the provisions of
this paragraph shall be subject to a civil penalty in an amount not
to exceed--
`(I) for the first such violation, $2,000; and
`(II) for the second and each subsequent violation within any 5-year
period, $5,000.
`(ii) KNOWING RETENTION OF WORKER- In addition to any civil penalty
under clause (i), a nursing facility that--
`(I) knowingly continues to employ a nursing facility worker in violation
of subparagraph (A) or (B); or
`(II) knowingly fails to report a nursing facility worker under subparagraph
(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 paragraph:
`(i) CONVICTION FOR A RELEVANT CRIME- The term `conviction for a relevant
crime' means any Federal or State criminal conviction for--
`(I) any offense described in paragraphs (1) through (4) of section
1128(a); and
`(II) such other types of offenses as the Secretary may specify in
regulations, taking into account the severity and relevance of such
offenses, and after consultation with representatives of long-term
care providers, representatives of long-term care employees, consumer
advocates, and appropriate Federal and State officials.
`(ii) DISQUALIFYING INFORMATION- The term `disqualifying information'
means information about a conviction for a relevant crime or a finding
of patient or resident abuse.
`(iii) FINDING OF PATIENT OR RESIDENT ABUSE- The term `finding of patient
or resident abuse' means any substantiated finding by a State agency
under subsection (g)(1)(C) or a Federal agency that a nursing facility
worker has committed--
`(I) an act of patient or resident abuse or neglect or a misappropriation
of patient or resident property; or
`(II) such other types of acts as the Secretary may specify in regulations.
`(iv) NURSING FACILITY WORKER- The term `nursing facility worker' means
any individual (other than a volunteer) that has access to a patient
of a nursing facility under an employment or other contract, or both,
with such facility. Such term includes individuals who are licensed
or certified by the State to provide such services, and nonlicensed
individuals providing such services, as defined by the Secretary, including
nurse assistants, nurse aides, home health aides, and personal care
workers and attendants.'.
(3) FEDERAL RESPONSIBILITIES-
(A) DEVELOPMENT OF STANDARD FEDERAL AND STATE BACKGROUND CHECK FORM- The
Secretary of Health and Human Services, in consultation with the Attorney
General and representatives of appropriate State agencies, shall develop
a model form that an applicant for employment at a nursing facility may
complete and Federal and State agencies may use to conduct the criminal
background checks required under sections 1819(b)(8) and 1919(b)(8) of
the Social Security Act (42 U.S.C. 1395i-3(b), 1396r(b)) (as added by
this section).
(B) PERIODIC EVALUATION- The Secretary of Health and Human Services, in
consultation with the Attorney General, periodically shall evaluate the
background check system imposed under sections 1819(b)(8) and 1919(b)(8)
of the Social Security Act (42 U.S.C. 1395i-3(b), 1396r(b)) (as added
by this section) and shall implement changes, as necessary, based on available
technology, to make the background check system more efficient and able
to provide a more immediate response to long-term care providers using
the system.
(4) NO PREEMPTION OF STRICTER STATE LAWS- Nothing in section 1819(b)(8)
or 1919(b)(8) of the Social Security Act (42 U.S.C. 1395i-3(b)(8), 1396r(b)(8))
(as so added) shall be construed to supersede any provision of State law
that--
(A) specifies a relevant crime for purposes of prohibiting the employment
of an individual at a long-term care facility (as defined in section 1128E(g)(6)
of the Social Security Act (as added by section 3(f) of this Act) that
is not included in the list of such crimes specified in such sections
or in regulations promulgated by the Secretary of Health and Human Services
to carry out such sections; or
(B) requires a long-term care facility (as so defined) to conduct a background
check prior to employing an individual in an employment position that
is not included in the positions for which a background check is required
under such sections.
(5) TECHNICAL AMENDMENTS- Effective as if included in the enactment of section
941 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection
Act of 2000 (114 Stat. 2763A-585), as enacted into law by section 1(a)(6)
of Public Law 106-554, sections 1819(b) and 1919(b) of the Social Security
Act (42 U.S.C. 1395i-3(b), 1396r(b)), as amended by such section 941 (as
so enacted into law) are each amended by redesignating the paragraph (8)
added by such section as paragraph (9).
(b) FEDERAL AND STATE REQUIREMENTS CONCERNING BACKGROUND CHECKS-
(1) MEDICARE- Section 1819(e) of the Social Security Act (42 U.S.C. 1395i-3(e))
is amended by adding at the end the following:
`(6) Federal and state requirements concerning criminal background checks
on skilled nursing facility employees-
`(A) IN GENERAL- Upon receipt of a request by a skilled nursing facility
pursuant to subsection (b)(8) that is accompanied by the information described
in subclauses (II) through (IV) of subsection (b)(8)(A)(ii), a State,
after checking appropriate State records and finding no disqualifying
information (as defined in subsection (b)(8)(F)(ii)), shall immediately
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 subparagraph (B).
`(B) SEARCH AND EXCHANGE OF RECORDS BY ATTORNEY GENERAL- Upon receipt
of a submission pursuant to subparagraph (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 SKILLED NURSING FACILITY- Upon
receipt of the information provided by the Attorney General pursuant to
subparagraph (B), the State shall--
`(i) review the information to determine whether the individual has
any conviction for a relevant crime (as defined in subsection (b)(8)(F)(i));
`(ii) immediately report to the skilled nursing facility in writing
the results of such review; and
`(iii) in the case of an individual with a conviction for a relevant
crime, report the existence of such conviction of such individual to
the database established under section 1128E.
`(D) Fees for performance of criminal background checks-
`(i) Authority to charge fees-
`(I) ATTORNEY GENERAL- The Attorney General may charge a fee to any
State requesting a search and exchange of records pursuant to this
paragraph and subsection (b)(8) for conducting the search and providing
the records. The amount of such fee shall not exceed the lesser of
the actual cost of such activities or $50. Such fees shall be available
to the Attorney General, or, in the Attorney General's discretion,
to the Federal Bureau of Investigation until expended.
`(II) STATE- A State may charge a skilled nursing facility a fee for
initiating the criminal background check under this paragraph and
subsection (b)(8), including fees charged by the Attorney General,
and for performing the review and report required by subparagraph
(C). The amount of such fee shall not exceed the actual cost of such
activities.
`(ii) PROHIBITION ON CHARGING APPLICANTS OR EMPLOYEES- An entity may
not impose on an applicant for employment or an employee any charges
relating to the
performance of a background check under this paragraph.
`(i) 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 paragraph
and subsection (b)(9), including regulations regarding the security
confidentiality, accuracy, use, destruction, and dissemination of information,
audits and recordkeeping, and the imposition of fees.
`(ii) 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 paragraph. 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
paragraph, the Attorney General shall submit a report to Congress on--
`(i) the number of requests for searches and exchanges of records made
under this section;
`(ii) the disposition of such requests; and
`(iii) the cost of responding to such requests.'.
(2) MEDICAID- Section 1919(e) of the Social Security Act (42 U.S.C. 1396r(e))
is amended by adding at the end the following:
`(8) Federal and state requirements concerning criminal background checks
on nursing facility employees-
`(A) IN GENERAL- Upon receipt of a request by a nursing facility pursuant
to subsection (b)(8) that is accompanied by the information described
in subclauses (II) through (IV) of subsection (b)(8)(A)(ii), a State,
after checking appropriate State records and finding no disqualifying
information (as defined in subsection (b)(8)(F)(ii)), shall immediately
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 subparagraph (B).
`(B) SEARCH AND EXCHANGE OF RECORDS BY ATTORNEY GENERAL- Upon receipt
of a submission pursuant to subparagraph (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 NURSING FACILITY- Upon receipt
of the information provided by the Attorney General
pursuant to subparagraph (B), the State shall--
`(i) review the information to determine whether the individual has
any conviction for a relevant crime (as defined in subsection (b)(8)(F)(i));
`(ii) immediately report to the nursing facility in writing the results
of such review; and
`(iii) in the case of an individual with a conviction for a relevant
crime, report the existence of such conviction of such individual to
the database established under section 1128E.
`(D) Fees for performance of criminal background checks-
`(i) Authority to charge fees-
`(I) ATTORNEY GENERAL- The Attorney General may charge a fee to any
State requesting a search and exchange of records pursuant to this
paragraph and subsection (b)(8) for conducting the search and providing
the records. The amount of such fee shall not exceed the lesser of
the actual cost of such activities or $50. Such fees shall be available
to the Attorney General, or, in the Attorney General's discretion,
to the Federal Bureau of Investigation, until expended.
`(II) STATE- A State may charge a nursing facility a fee for initiating
the criminal background check under this paragraph and subsection
(b)(8), including fees charged by the Attorney General, and for performing
the review and report required by subparagraph (C). The amount of
such fee shall not exceed the actual cost of such activities.
`(ii) PROHIBITION ON CHARGING APPLICANTS OR EMPLOYEES- An entity may
not impose on an applicant for employment or an employee any charges
relating to the performance of a background check under this paragraph.
`(i) 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 paragraph
and subsection (b)(8), including regulations regarding the security,
confidentiality, accuracy, use, destruction, and dissemination of information,
audits and recordkeeping, and the imposition of fees.
`(ii) 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 paragraph. 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
paragraph, the Attorney General shall submit a report to Congress on--
`(i) the number of requests for searches and exchanges of records made
under this section;
`(ii) the disposition of such requests; and
`(iii) the cost of responding to such requests.'.
(c) APPLICATION TO OTHER ENTITIES PROVIDING HOME HEALTH OR LONG-TERM CARE
SERVICES-
(1) MEDICARE- Part D of title XVIII of the Social Security Act (42 U.S.C.
1395x et seq.) is amended by adding at the end the following:
`APPLICATION OF SKILLED NURSING FACILITY PREVENTIVE ABUSE PROVISIONS TO
ANY PROVIDER OF SERVICES OR OTHER ENTITY PROVIDING HOME HEALTH OR LONG-TERM
CARE SERVICES
`SEC. 1897. (a) IN GENERAL- The requirements of subsections (b)(8) and (e)(6)
of section 1819 shall apply to any provider of services or any other entity
that is eligible to be paid under this title for providing home health services,
hospice care (including routine home care and other services included in hospice
care under this title), or long-term care services to an individual entitled
to benefits under part A or enrolled under part B, including an individual
provided with a Medicare+Choice plan offered by a Medicare+Choice organization
under part C (in this section referred to as a `medicare beneficiary').
`(b) SUPERVISION OF PROVISIONAL EMPLOYEES-
`(1) IN GENERAL- With respect to an entity that provides home health services,
such entity shall be considered to have satisfied the requirements of section
1819(b)(8)(B)(ii) or 1919(b)(8)(B)(ii) if the entity meets such requirements
for supervision of provisional employees of the entity as the Secretary
shall, by regulation, specify in accordance with paragraph (2).
`(2) REQUIREMENTS- The regulations required under paragraph (1) shall provide
the following:
`(A) Supervision of a provisional employee shall consist of ongoing, good
faith, verifiable efforts by the supervisor of the provisional employee
to conduct monitoring and oversight activities to ensure the safety of
a medicare beneficiary.
`(B) For purposes of subparagraph (A), monitoring and oversight activities
may include (but are not limited to) the following:
`(i) Follow-up telephone calls to the medicare beneficiary.
`(ii) Unannounced visits to the medicare beneficiary's home while the
provisional employee is serving the medicare beneficiary.
`(iii) To the extent practicable, limiting the provisional employee's
duties to serving only those medicare beneficiaries in a home or setting
where another family member or resident of the home or setting of the
medicare beneficiary is present.'.
(2) MEDICAID- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a)
is amended--
(A) in paragraph (64), by striking `and' at the end;
(B) in paragraph (65), by striking the period and inserting `; and'; and
(C) by inserting after paragraph (65) the following:
`(66) provide that any entity that is eligible to be paid under the State
plan for providing home
health services, hospice care (including routine home care and other services
included in hospice care under title XVIII), or long-term care services for
which medical assistance is available under the State plan to individuals
requiring long-term care complies with the requirements of subsections (b)(8)
and (e)(8) of section 1919 and section 1897(b) (in the same manner as such
section applies to a medicare beneficiary).'.
(3) EXPANSION OF STATE NURSE AIDE REGISTRY-
(A) MEDICARE- Section 1819 of the Social Security Act (42 U.S.C. 1395i-3)
is amended--
(i) in subsection (e)(2)--
(I) in the paragraph heading, by striking `NURSE AIDE REGISTRY' and
inserting `EMPLOYEE REGISTRY';
(II) in subparagraph (A)--
(aa) by striking `By not later than January 1, 1989, the' and inserting
`The';
(bb) by striking `a registry of all individuals' and inserting `a
registry of (i) all individuals'; and
(cc) by inserting before the period the following: `, (ii) all other
skilled nursing facility employees with respect to whom the State has made
a finding described in subparagraph (B), and (iii) any employee of any provider
of services or any other entity that is eligible to be paid under this title
for providing home health services, hospice care (including routine home care
and other services included in hospice care under this title), or long-term
care services and with respect to whom the entity has reported to the State
a finding of patient neglect or abuse or a misappropriation of patient property';
and
(III) in subparagraph (C), by striking `a nurse aide' and inserting
`an individual'; and
(ii) in subsection (g)(1)--
(I) by striking the first sentence of subparagraph (C) and inserting
the following: `The State shall provide, through the agency responsible
for surveys and certification of skilled nursing facilities under
this subsection, for a process for the receipt and timely review and
investigation of allegations of neglect and abuse and misappropriation
of resident property by a nurse aide or a skilled nursing facility
employee of a resident in a skilled nursing facility, by another individual
used by the facility in providing services to such a resident, or
by an individual described in subsection (e)(2)(A)(iii).';
(II) in the fourth sentence of subparagraph (C), by inserting `or
described in subsection (e)(2)(A)(iii)' after `used by the facility';
(III) in subparagraph (D)--
(aa) in the subparagraph heading, by striking `NURSE AIDE';
(bb) in clause (i), in the matter preceding subclause (I), by striking
`a nurse aide' and inserting `an individual'; and
(cc) in clause (i)(I), by striking `nurse aide' and inserting `individual'.
(B) MEDICAID- Section 1919 of the Social Security Act (42 U.S.C. 1396r)
is amended--
(i) in subsection (e)(2)--
(I) in the paragraph heading, by striking `NURSE AIDE REGISTRY' and
inserting `EMPLOYEE REGISTRY';
(II) in subparagraph (A)--
(aa) by striking `By not later than January 1, 1989, the' and inserting
`The';
(bb) by striking `a registry of all individuals' and inserting `a
registry of (i) all individuals'; and
(cc) by inserting before the period the following: `, (ii) all other
nursing facility employees with respect to whom the State has made a finding
described in subparagraph (B), and (iii) any employee of an entity that is
eligible to be paid under the State plan for providing home health services,
hospice care (including routine home care and other services included in hospice
care under title XVIII), or long-term care services and with respect to whom
the entity has reported to the State a finding of patient neglect or abuse
or a misappropriation of patient property'; and
(III) in subparagraph (C), by striking `a nurse aide' and inserting
`an individual'; and
(ii) in subsection (g)(1)--
(I) by striking the first sentence of subparagraph (C) and inserting
the following: `The State shall provide, through the agency responsible
for surveys and certification of nursing facilities under this subsection,
for a process for the receipt and timely review and investigation
of allegations of neglect and abuse and misappropriation of resident
property by a nurse aide or a nursing facility employee of a resident
in a nursing facility, by another individual used by the facility
in providing services to such a resident, or by an individual described
in subsection (e)(2)(A)(iii).'; and
(II) in the fourth sentence of subparagraph (C), by inserting `or
described in subsection (e)(2)(A)(iii)' after `used by the facility';
and
(III) in subparagraph (D)--
(aa) in the subparagraph heading, by striking `NURSE AIDE'; and
(bb) in clause (i), in the matter preceding subclause (I), by striking
`a nurse aide' and inserting `an individual'; and
(cc) in clause (i)(I), by striking `nurse aide' and inserting `individual'.
(d) REIMBURSEMENT OF COSTS FOR BACKGROUND CHECKS- The Secretary of Health
and Human Services shall reimburse nursing facilities, skilled nursing facilities,
and other entities for costs incurred by the facilities and entities in order
to comply with the requirements imposed under sections 1819(b)(8) and 1919(b)(8)
of such Act (42 U.S.C. 1395i-3(b)(8), 1396r(b)(8)), as added by this section.
SEC. 3. INCLUSION OF ABUSIVE WORKERS IN THE DATABASE ESTABLISHED AS PART
OF NATIONAL HEALTH CARE FRAUD AND ABUSE DATA COLLECTION PROGRAM.
(a) INCLUSION OF ABUSIVE ACTS WITHIN A LONG-TERM CARE FACILITY OR PROVIDER-
Section 1128E(g)(1)(A) of the Social Security Act (42 U.S.C. 1320a-7e(g)(1)(A))
is amended--
(1) by redesignating clause (v) as clause (vi); and
(2) by inserting after clause (iv), the following:
`(v) A finding of abuse or neglect of a patient or a resident of a long-term
care facility, or misappropriation of such a patient's or resident's
property.'.
(b) COVERAGE OF LONG-TERM CARE FACILITY OR PROVIDER EMPLOYEES- Section 1128E(g)(2)
of the Social Security Act (42 U.S.C. 1320a-7e(g)(2)) is amended by inserting
`, and includes any individual of a long-term care facility or provider (other
than any volunteer) that has access to a patient or resident of such a facility
under an employment or other contract, or both, with the facility or provider
(including individuals who are licensed or certified by the State to provide
services at the facility or through the provider, and nonlicensed individuals,
as defined by the Secretary, providing services at the facility or through
the provider, including nurse assistants, nurse aides, home health aides,
individuals who provide home care, and personal care workers and attendants)'
before the period.
(c) REPORTING BY LONG-TERM CARE FACILITIES OR PROVIDERS-
(1) IN GENERAL- Section 1128E(b)(1) of the Social Security Act (42 U.S.C.
1320a-7e(b)(1)) is amended by striking `and health plan' and inserting `,
health plan, and long-term care facility or provider'.
(2) CORRECTION OF INFORMATION- Section 1128E(c)(2) of the Social Security
Act (42 U.S.C. 1320a-7e(c)(2)) is amended by striking `and health plan'
and inserting `, health plan, and long-term care facility or provider'.
(d) ACCESS TO REPORTED INFORMATION- Section 1128E(d)(1) of the Social Security
Act (42 U.S.C. 1320a-7e(d)(1)) is amended by striking `and health plans' and
inserting `, health plans, and long-term care facilities or providers'.
(e) MANDATORY CHECK OF DATABASE BY LONG-TERM CARE FACILITIES OR PROVIDERS-
Section 1128E(d) of the Social Security Act (42 U.S.C. 1320a-7e(d)) is amended
by adding at the end the following:
`(3) MANDATORY CHECK OF DATABASE BY LONG-TERM CARE FACILITIES OR PROVIDERS-
A long-term care facility or provider shall check the database maintained
under this section prior to hiring under an employment or other contract,
or both, any individual as an employee of such a facility or provider who
will have access to a patient or resident of the facility or provider (including
individuals who are licensed or certified by the State to provide services
at the facility or through the provider, and nonlicensed individuals, as
defined by the Secretary, that will provide services at the facility or
through the provider, including nurse assistants, nurse aides, home health
aides, individuals who provide home care, and personal care workers and
attendants).'.
(f) DEFINITION OF LONG-TERM CARE FACILITY OR 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 FACILITY OR PROVIDER- The term `long-term care facility
or provider' means a skilled nursing facility (as defined in section 1819(a)),
a nursing facility (as defined in section 1919(a)), a home health agency,
a provider of hospice care (as defined in section 1861(dd)(1)), a long-term
care hospital (as described in section 1886(d)(1)(B)(iv)), an intermediate
care facility for the mentally retarded (as defined in section 1905(d)),
or any other facility or entity that provides, or is a provider of, long-term
care services, home health services, or hospice care (including routine
home care and other services included in hospice care under title XVIII),
and receives payment for such services under the medicare program under
title XVIII or the medicaid program under title XIX.'.
(g) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
to carry out the amendments made by this section, $10,200,000 for fiscal year
2003.
SEC. 4. 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 hospital and health care facilities.
(b) ELIGIBILITY- To be eligible to receive a grant under subsection (a), an
entity shall be a public or private nonprofit entity and prepare and submit
to the Secretary of Health and Human Services 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 facility 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 is authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 5. EFFECTIVE DATE.
This Act and the amendments made by the Act shall take effect on the date
that is 6 months after the effective date of final regulations promulgated
to carry out this Act and such amendments.
END
