[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4592 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4592

To amend titles XI and XVIII of the Social Security Act to establish a 
 program to ensure that home health agencies do not employ individuals 
who have a history of patient or resident abuse or have been convicted 
                           of certain crimes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 17, 1998

  Mr. Stark introduced the following bill; which was referred to the 
   Committee on Ways and Means, and in addition to the Committee on 
Commerce, 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

_______________________________________________________________________

                                 A BILL


 
To amend titles XI and XVIII of the Social Security Act to establish a 
 program to ensure that home health agencies do not employ individuals 
who have a history of patient or resident abuse or have been convicted 
                           of certain crimes.

    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 ``Home Health Patient Protection Act 
of 1998''.

SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF HOME HEALTH 
              PATIENTS.

    (a) Home Health Agency Requirements.--
            (1) Medicare program.--Section 1891(a) of the Social 
        Security Act (42 U.S.C. 1395bbb(a)) is amended by adding at the 
        end the following:
            ``(7) Screening of home health agency workers.--
                    ``(A) Background checks on applicants.--Subject to 
                subparagraph (B)(ii), before hiring an individual, a 
                home health agency--
                            ``(i) gives the individual written notice 
                        that the agency is required to perform 
                        background checks with respect to applicants;
                            ``(ii) requires, as a condition of 
                        employment, that such individual--
                                    ``(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 individual authorizing the 
                                agency to request the search and 
                                exchange of criminal records;
                                    ``(III) provide in person a copy of 
                                the individual's fingerprints; and
                                    ``(IV) provide any other 
                                identification information the 
                                Secretary may specify in regulation;
                            ``(iii) initiates a check of the registry 
                        under section 1128F in accordance with 
                        regulations promulgated by the Secretary to 
                        determine whether such registry contains any 
                        disqualifying information with respect to such 
                        individual; and
                            ``(iv) if such registry does not contain 
                        any such disqualifying information--
                                    ``(I) requests that the State 
                                initiate a State and national criminal 
                                background check on such individual in 
                                accordance with the provisions of 
                                subsection (e)(7); and
                                    ``(II) furnishes to the State the 
                                information described in subclauses 
                                (II) through (IV) of clause (ii) not 
                                later 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 registry initiated under clause (iii).
                    ``(B) Prohibition on hiring of abusive workers.--
                            ``(i) In general.--The home health agency 
                        does not knowingly employ any individual who 
                        has any conviction for a relevant crime or with 
                        respect to whom a finding of patient or 
                        resident abuse has been made.
                            ``(ii) Probationary employment.--After 
                        complying with the requirements of clauses (i), 
                        (ii), and (iii) of subparagraph (A), a home 
                        health agency may provide for a probationary 
                        period of employment (not to exceed 90 days) 
                        for an individual pending completion of the 
                        check against the registry described under 
                        subparagraph (A)(iii) and the background check 
                        described under subparagraph (A)(iv). Such 
                        agency shall maintain supervision of the 
                        individual during the individual's probationary 
                        period of employment.
                    ``(C) Reporting requirements.--The home health 
                agency reports to the State any instance in which the 
                agency determines that an individual has committed an 
                act of patient neglect or abuse or misappropriation of 
                patient property in the course of employment by the 
                agency.
                    ``(D) Use of information.--
                            ``(i) In general.--A home health agency 
                        that obtains information about an individual 
                        pursuant to clauses (iii) and (iv) of 
                        subparagraph (A) may use such information only 
                        for the purpose of determining the suitability 
                        of the individual for employment.
                            ``(ii) Immunity from liability.--A home 
                        health agency that, in denying employment for 
                        an applicant, reasonably relies upon 
                        information about an individual provided by the 
                        State pursuant to subsection (e)(7) shall not 
                        be liable in any action brought by the 
                        individual based on the employment 
                        determination resulting from the incompleteness 
                        or inaccuracy of 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.
                    ``(E) Definitions.--For purposes of this paragraph:
                            ``(i) Conviction for a relevant crime.--The 
                        term `conviction for a relevant crime' means 
                        any State or Federal 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.
                            ``(ii) 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)(E)(i) 
                        or a Federal agency that an individual has 
                        committed--
                                    ``(I) an act of patient or resident 
                                abuse or neglect or a misappropriation 
                                of patient property; or
                                    ``(II) such other types of acts as 
                                the Secretary may specify in 
                                regulations.
                            ``(iii) Disqualifying information.--The 
                        term `disqualifying information' means 
                        information about a conviction for a relevant 
                        crime or a finding of patient or resident 
                        abuse.''.
    (b) Expansion of State Nursing Registries To Collect Information 
About Home Health Agency Workers.--
            (1) Medicare program.--Section 1819 of the Social Security 
        Act (42 U.S.C. 1395i-3) is amended--
                    (A) in subsection (e)(2)--
                            (i) in the paragraph heading, by striking 
                        ``Nurse aide registry'' and inserting ``Nurse 
                        aide and home health worker registry'';
                            (ii) 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 home health 
                                agency workers with respect to whom the 
                                State has made a finding described in 
                                subparagraph (B)'';
                            (iii) in subparagraph (B)--
                                    (I) by inserting ``and for the 
                                inclusion of findings by the State 
                                under subsection (g)(1)(E)(i) 
                                concerning any conviction for a 
                                relevant crime or finding of patient or 
                                resident abuse or misappropriation of 
                                resident or patient funds by a home 
                                health agency worker'' after 
                                ``individual listed in the registry''; 
                                and
                                    (II) by inserting ``or patient'' 
                                after ``resident'' each place it 
                                appears; and
                            (iv) in subparagraph (C), by inserting ``or 
                        home health care worker'' after ``nurse aide''; 
                        and
                    (B) in subsection (g)(1)--
                            (i) by redesignating subparagraph (E) as 
                        subparagraph (F), and
                            (ii) by inserting after subparagraph (D) 
                        the following new subparagraph:
                    ``(E) Investigations and removal-of-name 
                authorities for home health agency workers.--
                            ``(i) Investigations.--The State shall 
                        provide, through an appropriate agency with 
                        responsibility for licensing or approval of 
                        home health agencies (as described in section 
                        1861(o)(4)), for a process for the receipt and 
                        timely review and investigation of allegations 
                        of neglect and abuse and misappropriation of 
                        patient property by a home health agency worker 
                        used by a home health agency in providing 
                        services to such a patient. The State shall, 
                        after providing the individual involved with a 
                        written notice of the allegations (including a 
                        statement of the availability of a hearing for 
                        the individual to rebut the allegations) and 
                        the opportunity for a hearing on the record, 
                        make a written finding as to the accuracy of 
                        the allegations. If the State finds that a home 
                        health agency worker has neglected or abused a 
                        patient or misappropriated patient property, 
                        the State shall notify the worker and the 
                        registry of such finding and, if applicable, 
                        the appropriate licensure authority. A State 
                        shall not make a finding that an individual has 
                        neglected a patient if the individual 
                        demonstrates that such neglect was caused by 
                        factors beyond the control of the individual.
                            ``(ii) Removal of name from registry.--In 
                        the case of a finding of neglect under clause 
                        (i), the State shall establish a procedure to 
                        permit a worker to petition the State to have 
                        his or her name removed from the registry upon 
                        a determination by the State that--
                                    ``(I) the employment and personal 
                                history of the worker does not reflect 
                                a pattern of abusive behavior or 
                                neglect; and
                                    ``(II) the neglect involved in the 
                                original finding was a singular 
                                occurrence.
                            ``(iii) Timing of determination.--In no 
                        case shall a determination on a petition 
                        submitted under clause (ii) be made prior to 
                        the expiration of the 1-year period beginning 
                        on the date on which the name of the petitioner 
                        was added to the registry under clause (i).''.
    (c) State and Federal Requirement To Conduct Background Checks.--
            (1) Medicare provision.--Section 1819(e) of such Act is 
        amended by adding at the end the following new paragraph:
            ``(7) State and federal requirements concerning criminal 
        background checks on home health agency employees.--
                    ``(A) In general.--Upon receipt of a request by a 
                home health agency pursuant to section 1891(a)(7) that 
                is accompanied by the information described in 
                subclauses (II) through (IV) of section 
                1891(a)(7)(A)(ii), a State, after checking appropriate 
                State records and finding no disqualifying information 
                (as defined in section 1891(a)(7)(E)), 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 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 or 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 section 
                        1891(a)(7)(E)); and
                            ``(ii) report to the home health agency the 
                        results of such review.
                    ``(D) Fees for performance of criminal background 
                checks.--
                            ``(i) Authority to charge fees.--
                                    ``(I) Attorney general.--The 
                                Attorney General may charge a 
                                reasonable fee, not to exceed $50 per 
                                request, to any State requesting a 
                                search and exchange of records pursuant 
                                to this paragraph and section 
                                1891(a)(7) for conducting the search 
                                and providing the records. 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 
                                home health agency a fee for initiating 
                                the criminal background check under 
                                this paragraph and section 1891(a)(7), 
                                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) Treatment of fees for purposes of 
                        cost reports.--An entity may not include a fee 
                        assessed pursuant to this subparagraph as an 
                        allowable item on a cost report under this 
                        title or title XIX.
                    ``(E) Regulations.--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 section 
                1891(a)(7), including regulations regarding the 
                security, confidentiality, accuracy, use, destruction, 
                and dissemination of information, audits and 
                recordkeeping, and the imposition of fees.
                    ``(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 the number 
                of requests for searches and exchanges of records made 
                under this paragraph and the disposition of such 
                requests.''.
    (d) Establishment of National Registry of Abusive Home Health 
Workers.--Title XI of the Social Security Act is amended by adding 
after section 1128E (42 U.S.C. 1320a-7e) the following new section:

           ``national registry of abusive home health workers

    ``Sec. 1128F. (a) In General.--The Secretary shall establish a 
national data collection program for the reporting of information 
described in subsection (b), with access as set forth in subsection 
(c), and shall maintain a database of the information collected under 
this section.
    ``(b) Reporting of Information.--Each State shall report the 
information collected pursuant to sections 1819(e)(2)(B) with respect 
to home health workers in such form and manner as the Secretary may 
prescribe by regulation.
    ``(c) Access to Reported Information.--
            ``(1) Availability.--The information in the database 
        maintained under this section shall be available, pursuant to 
        procedures maintained under this section, to--
                    ``(A) Federal and State government agencies;
                    ``(B) home health agencies participating in the 
                program under title XVIII;
                    ``(C) such other persons as the Secretary may 
                specify by regulation,
        but only for the purpose of determining the suitability for 
        employment by a home health agency.
            ``(2) Information.--The information in the database shall 
        be exempt from disclosure under section 552 of title 5, United 
        States Code.
            ``(3) Fees for disclosure.--
                    ``(A) In general.--The Secretary may establish or 
                approve reasonable fees for the disclosure of 
                information in such database. The amount of such a fee 
                shall be sufficient to recover the full costs of 
                operating the database. Such fees shall be available to 
                the Secretary or, in the Secretary's discretion, to the 
                agency designated under this section to cover such 
                costs.
                    ``(B) Availability of fees.--Fees collected 
                pursuant to this subsection shall remain available 
                until expended, in the amounts provided in 
                appropriation acts, for necessary expenses related to 
                the purposes for which the fees were assessed.
                    ``(C) Treatment of fees for purposes of cost 
                reports.--An entity may not include a fee assessed 
                pursuant to this subsection as an allowable item on a 
                cost report under this title.''.
    (e) Effective Date.--The amendments made by this section take 
effect on the date of the enactment of this Act, without regard to 
whether implementing regulations are in effect as of such date.
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