[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4789 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4789

  To require criminal and abusive work history background checks for 
direct care employees in nursing facilities, home health agencies, and 
  hospice programs under the Medicare and Medicaid Programs, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 10, 1998

  Mr. Weller (for himself and Mr. Ney) introduced the following bill; 
which was referred to the Committee on 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

_______________________________________________________________________

                                 A BILL


 
  To require criminal and abusive work history background checks for 
direct care employees in nursing facilities, home health agencies, and 
  hospice programs under the Medicare and Medicaid Programs, and for 
                            other purposes.

    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 ``Elderly and 
Disabled Protection Act of 1998''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Requiring background checks for direct care employees in 
                            nursing facilities, home health agencies, 
                            and hospice programs.
Sec. 3. Expanded role of State direct care employee registries; 
                            national registry coordination system; 
                            procedures for background checks.
Sec. 4. Definitions.

SEC. 2. REQUIRING BACKGROUND CHECKS FOR DIRECT CARE EMPLOYEES IN 
              NURSING FACILITIES, HOME HEALTH AGENCIES, AND HOSPICE 
              PROGRAMS.

    (a) Requirements.--
            (1) In general.--A covered facility in a State--
                    (A) may not employ (directly or through an agency) 
                any individual as a direct care employee unless the 
                facility has requested from the State direct care 
                employee registry a background check;
                    (B) may not employ such an individual or continue 
                such employment if the report on such background check 
                reveals that the individual has been convicted of a 
                disqualifying crime; and
                    (C) shall report to such registry documented 
                findings of patient abuse by a direct care employee.
            (2) Employment pending report.--Nothing in this subsection 
        shall be construed as preventing a covered facility from--
                    (A) seeking a background check on prospective 
                direct care employees before they are employed; or
                    (B) employing direct care employees during the 
                period in which a background check has been sought 
                under paragraph (1)(A) and before a report on such 
                check has been provided to the facility under paragraph 
                (1)(B).
    (b) Penalties.--In addition to any other sanctions provided under 
law--
            (1) In general.--A covered facility that violates 
        subsection (a)(1)(A) 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 covered facility that--
                    (A) knowingly continues to employ a direct care 
                employee in violation of subsection (a)(1)(B); or
                    (B) knowingly fails to submit a report required 
                under subsection (a)(1)(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.
    (c) Enforcement Through Medicare and Medicaid Programs.--
            (1) Nursing facilities.--
                    (A) 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 new paragraph:
            ``(8) Requirement for background checks for direct care 
        personnel.--A skilled nursing facility shall comply with the 
        requirements of section 2(a) of the Elderly and Disabled 
        Protection Act of 1998 with respect to any direct care employee 
        it employs.''.
                    (B) Medicaid program.--Section 1919(b) of such Act 
                (42 U.S.C. 1396r(b)) is amended by adding at the end 
                the following new paragraph:
            ``(8) Requirement for background checks for direct care 
        personnel.--A nursing facility shall comply with the 
        requirements of section 2(a) of the Elderly and Disabled 
        Protection Act of 1998 with respect to any direct care employee 
        it employs.''.
            (2) Home health agencies and hospice programs.--
                    (A) Medicare program.--
                            (i) Home health agencies.--Section 1891(a) 
                        of such Act (42 U.S.C. 1395bbb(a)) is amended 
                        by adding at the end the following:
            ``(7) The agency complies with the requirements of section 
        2(a) of the Elderly and Disabled Protection Act of 1998 with 
        respect to any direct care employee it employs.''.
                            (ii) Hospice programs.--Section 
                        1861(dd)(2)(G) of such Act (42 U.S.C. 
                        1395x(dd)(2)(G)) is amended by inserting before 
                        the period at the end the following: ``, 
                        including compliance with the requirements of 
                        section 2(a) of the Elderly and Disabled 
                        Protection Act of 1998 with respect to any 
                        direct care employee it employs''.
                    (B) Medicaid program.--Section 1902(a)(57) of such 
                Act (42 U.S.C. 1396a(a)(57)) is amended--
                            (i) by inserting ``(A)'' after ``(57)''; 
                        and
                            (ii) by adding at the end the following:
            ``(B) provide that each provider of home health care or 
        personal care services and each hospice program receiving funds 
        under the plan shall comply with the requirements of section 
        2(a) of the Elderly and Disabled Protection Act of 1998 with 
        respect to any direct care employee it employs;''.
    (d) Effective Dates.--The requirements of subsection (a) shall 
apply with respect to a covered facility--
            (1) beginning as of such date (specified by the Secretary 
        and not later than 60 days after the date the Secretary has 
        established the national registry coordination system under 
        section 3(b)), with respect to the hiring of individuals as a 
        direct care employee by the facility on and after such date; 
        and
            (2) as of 1 year after the date described in paragraph (1), 
        with respect to individuals first employed as such an employee 
        before the date described in such paragraph.

SEC. 3. EXPANDED ROLE OF STATE DIRECT CARE EMPLOYEE REGISTRIES; 
              NATIONAL REGISTRY COORDINATION SYSTEM; PROCEDURES FOR 
              BACKGROUND CHECKS.

    (a) Expanded Role of Registry.--
            (1) In general.--Each State shall expand its direct care 
        employee registry established under sections 1819(e)(2) and 
        1919(e)(2) of the Social Security Act to carry out the 
        following functions:
                    (A) Receipt of requests.--The registry shall 
                provide for the receipt of requests for background 
                checks described in section 2(a)(1).
                    (B) Conduct of background checks.--Upon receipt of 
                such a request with respect to an individual, the 
                registry, in coordination with the national registry 
                coordination system established by the Secretary under 
                subsection (b) and in accordance with this section, 
                shall provide for the performance of (or the collection 
                of information concerning) a background check 
                (including a criminal background check and an abusive 
                work history background check) requested under section 
                2(a) and for the submittal of a background check report 
                (as defined in paragraph (2)) on such check to the 
                requesting facility.
                    (C) Provision of information to national registry 
                coordination system.--The registry shall provide for 
                the reporting to the national registry coordination 
                system of--
                            (i) a criminal background check summary (as 
                        defined in paragraph (3)) on any individual on 
                        whom it obtains a criminal background check 
                        under subsection (c)(3); and
                            (ii) the identity of any individual for 
                        whom the registry has documented findings of 
                        patient abuse and such additional information 
                        as the State registry involved may disclose 
                        concerning such findings.
            (2) Background check report defined.--For purposes of this 
        section, the term ``background check report'' means, with 
        respect to a background check concerning an individual, a 
        statement containing the following:
                    (A) Whether the individual has been convicted of a 
                disqualifying crime.
                    (B) Whether there are documented findings of 
                patient abuse by the individual in a State direct care 
                employee registry and, if so, such additional 
                information as the State registry involved may disclose 
                concerning such findings.
        Such report shall not include information from the criminal 
        background check other than the information described in 
        subparagraph (A).
            (3) Criminal background check summary defined.--For 
        purposes of this section, the term ``criminal background check 
        summary'' means, with respect to a criminal background check 
        concerning an individual, the following information:
                    (A) The identity of the individual.
                    (B) The date of the criminal background check.
                    (C) Whether the check revealed that--
                            (i) the individual had not been convicted 
                        of any crime,
                            (ii) the individual has been convicted of a 
                        national disqualifying crime, or
                            (iii) the individual has been convicted of 
                        a crime that is not a national disqualifying 
                        crime.
            (4) Conforming medicare and medicaid amendments.--Sections 
        1819(e)(2) and 1919(e)(2) of the Social Security Act (42 U.S.C. 
        1395i-3(e)(2), 1396r(e)(2)) are each amended--
                    (A) in subparagraph (C), by striking ``A State'' 
                and inserting ``Subject to section 3(e) of the Elderly 
                and Disabled Protection Act of 1998, a State'', and
                    (B) by adding at the end the following new 
                subparagraph:
                    ``(D) Expanded functions.--Effective not later than 
                90 days after the date of the establishment of the 
                national registry coordination system under section 
                3(b) of the Elderly and Disabled Protection Act of 
                1998, the State shall--
                            ``(i) modify the operations of its registry 
                        so it performs the functions required under 
                        section 3(a) of such Act; and
                            ``(ii) provide for the specification of a 
                        State agency that is separate from the registry 
                        and that will be responsible for the 
                        performance of criminal background checks under 
                        such section.''.
    (b) National Registry Coordination System.--
            (1) Establishment.--The Secretary shall establish methods 
        by which State direct care registries can pool and share 
        information regarding individuals concerning criminal 
        background check summaries and the existence of documented 
        findings of patient abuse.
            (2) Deadline for establishing system.--The Secretary shall 
        provide for the establishment of the national registry 
        coordination system by not later than 1 year after the date of 
        the enactment of this Act.
            (3) Consultation with fbi on criminal background checks.--
        In carrying out this Act with respect to criminal background 
        checks, the Secretary shall consult with the Director of the 
        Federal Bureau of Investigation.
    (c) Procedures for Criminal Background Checks.--A registry shall 
carry out its responsibilities under subsection (a)(1)(B), in relation 
to a criminal background check with respect to an individual, in a 
manner consistent with the following:
            (1) Determination of whether recent criminal background 
        check done.--The registry shall determine whether the registry 
        (or, through the national registry coordination system, the 
        direct care employee registry of another State) has obtained a 
        criminal background check on the individual within the previous 
        year.
            (2) Use of previous background check.--If there has been 
        such a check done within such period, if the check revealed 
        that--
                    (A) the individual had not been convicted of any 
                crime, the registry need not request a new criminal 
                background check and may assume that the individual has 
                not been convicted of any disqualifying crime;
                    (B) the individual has been convicted of a national 
                or state disqualifying crime, the registry need not 
                request a new criminal background check and shall treat 
                the individual as having been convicted of a 
                disqualifying crime; or
                    (C) the individual has been convicted of a crime 
                that is not a national or state disqualifying crime and 
                the State has disqualifying crimes that are other than 
                national disqualifying crimes, the registry shall 
                request a criminal background check as provided under 
                paragraph (3).
            (3) Requesting state criminal background check agency to 
        obtain criminal background check.--If there has not been such a 
        check done within such period or in the case described in 
        paragraph (2)(C), the registry shall request the State criminal 
        background check agency of the State--
                    (A) to perform a criminal background check on the 
                individual;
                    (B) to determine, on the basis of such check, 
                whether the individual--
                            (i) has not been convicted of any crime;
                            (ii) has been convicted of a national 
                        disqualifying crime; or
                            (iii) has been convicted of a crime that is 
                        a State disqualifying crime; and
                    (C) to submit to the registry a criminal background 
                check summary on the individual.
            (4) Application of certain procedures for criminal 
        background checks.--Under regulations of the Secretary, the 
        following provisions in section 3 of the National Child 
        Protection Act of 1993 (Public Law 103-209) shall apply to 
        criminal background checks required of a direct care employee 
        with respect to a covered facility to be performed under this 
        Act in the same manner as they apply to providers with respect 
        to qualified entities:
                    (A) Subsection (a)(2) (relating to access to 
                records and timeliness of response).
                    (B) Subsection (b) (relating to guidelines on 
                background checks), other than paragraph (1)(B), except 
                that denial of unsupervised access under paragraph 
                (1)(E) shall be treated for purposes of this section as 
                a denial of unsupervised access to patients in covered 
                facilities and determinations under paragraph (4) shall 
                be made only with respect to crimes relating to patient 
                abuse.
                    (C) Subsection (c) (relating to authority of 
                Attorney General).
                    (D) Subsection (d) (relating to limitation on 
                liability).
    (d) Procedures for Abusive Work History Background Checks.--A 
registry shall carry out its responsibilities under subsection 
(a)(1)(B), in relation to abusive work history background check with 
respect to an individual, in a manner consistent with the following:
            (1) Inclusion of information on documented findings of 
        patient abuse.--The registry shall maintain a list of all 
        individuals in the State who are (or were) direct care 
        employees and with respect to whom there are specific 
        documented findings of patient abuse, as well as any brief 
        statement of the individual disputing the findings. Such 
        findings shall be made available in the same manner as findings 
        described in sections 1819(c)(2)(B) and 1919(c)(2)(B) of the 
        Social Security Act.
            (2) Forwarding information on individuals with documented 
        findings of patient abuse.--If the registry has a documented 
        finding described in paragraph (1) with respect to an 
        individual, the registry--
                    (A) shall provide the national registry 
                coordination system with--
                            (i) information on the identity of the 
                        individual and the State;
                            (ii) information on the fact that such a 
                        finding was made; and
                            (iii) such additional information 
                        respecting the finding as the Secretary may 
                        require; and
                    (B) shall provide, to another State direct care 
                employee registry that requests information on an 
                individual for whom such a documented finding has been 
                made through the system, information respecting the 
                finding.
    (e) Fees.--A State may assess a covered facility a fee for the 
conduct of a background check under section 2(a) in an amount that does 
not exceed the actual cost to the State of obtaining the criminal 
background check and the abusive work history background check on an 
individual. Such a facility may recover all of the fee from the 
individual involved.

SEC. 4. DEFINITIONS.

    For purposes of this Act:
            (1) Background check; criminal background check; abusive 
        work history background check.--
                    (A) Background check.--The term ``background 
                check'' includes a criminal background check and an 
                abusive work history background check.
                    (B) Criminal background check.--The term ``criminal 
                background check'' means a check of the criminal 
                history record system maintained by the Federal Bureau 
                of Investigation based on fingerprint identification or 
                any other method of positive identification for the 
                purpose of determining whether an individual has been 
                convicted of a disqualifying crime.
                    (C) Abusive work history background check.--The 
                term ``abusive work history background check'' means, 
                with respect to an individual, a check of State direct 
                care employee registries for the purpose of determining 
                whether there is a documented finding that the 
                individual was involved in patient abuse.
            (2) Covered facility.--The term ``covered facility'' means 
        a nursing facility (including a skilled nursing facility), home 
        health agency, or hospice program which receives payment under 
        any federally funded program.
            (3) Direct care employee.--
                    (A) In general.--The term ``direct care employee'' 
                means a nurse aide, home health care aide, personal 
                care assistant, private duty nurse aide, day attendant, 
                housekeeper, library attendant, laundry assistant, or 
                similar worker who performs nursing or related tasks 
                involving direct patient care in a covered facility.
                    (B) Exclusions.--Such term does not include an 
                individual--
                            (i) who is a physician, physician 
                        assistant, nurse practitioner, physical, 
                        speech, or occupational therapist, physical or 
                        occupational therapy assistant, registered 
                        professional nurse, licensed practical nurse, 
                        or licensed or certified social worker, or 
                        registered dietitian;
                            (ii) who volunteers to provide such 
                        services without monetary compensation; or
                            (iii) who meets such other requirements as 
                        the Secretary may specify.
            (4) Disqualifying crime; national disqualifying crime; 
        state disqualifying crime.--
                    (A) Disqualifying crime.--The term ``disqualifying 
                crime'' means, with respect to an individual applying 
                for employment in a State, a criminal offense that is a 
                national disqualifying crime or a State disqualifying 
                crime in that State.
                    (B) National disqualifying crime.--The term 
                ``national disqualifying crime'' means--
                            (i) a criminal offense described in section 
                        1128(a) of the Social Security Act; or
                            (ii) felony homicide, battery, or assault 
                        (including sexual assault),
                regardless of the date of conviction for the crime.
                    (C) State disqualifying crime.--The term ``State 
                disqualifying crime'' means, with respect to a State, 
                such criminal offenses (other than national 
                disqualifying crimes) as the State may under law treat 
                as a State disqualifying crime for purposes of this Act 
                and for such period of time as the State may provide.
            (5) National registry coordination system.--The term 
        ``national registry coordination system'' means a system 
        established under section 3(b).
            (6) Patient abuse.--The term ``patient abuse'' means such 
        incidence of abuse, neglect, mistreatment, or misappropriation 
        of property of an individual receiving services in a covered 
        facility as the Secretary shall specify in regulations.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (8) State criminal background check agency.--The term 
        ``State criminal background check agency'' means, with respect 
        to a State, the State agency specified by the State to provide 
        for the conduct of criminal background checks under this Act.
            (9) State direct care employee registry.--The term ``State 
        direct care employee registry'' means a nurse aide registry 
        that is established under sections 1819(e)(2)(A) and 
        1919(e)(2)(A) of the Social Security Act and that provides for 
        functions required of such a registry under section 3 of this 
        Act.
                                 <all>