[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2570 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2570

           ``Long-Term Care Patient Protection Act of 1998''.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

              October 7 (legislative day, October 2), 1998

  Mr. Kohl (for himself, Mr. Reid, and Mrs. Feinstein) introduced the 
 following bill; which was read twice and referred to the Committee on 
                                Finance

_______________________________________________________________________

                                 A BILL


 
           ``Long-Term Care Patient Protection Act of 1998''.

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

SECTION 1. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF NURSING 
              FACILITY RESIDENTS.

    (a) Nursing Facility and Skilled Nursing Facility Requirements.--
            (1) Medicaid program.--Section 1919(b), as amended by 
        section 2(a), is amended by adding after paragraph (8) the 
        following new paragraph:
            ``(9) Screening of nursing facility workers.--
                    ``(A) Background checks on applicants.--Subject to 
                subparagraph (B)(ii), before hiring an individual, a 
                nursing facility shall--
                            ``(i) give the individual written notice 
                        that the facility is required to perform 
                        background checks with respect to applicants;
                            ``(ii) require, 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 
                                facility 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) initiate 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) request that the State 
                                initiate a State and national criminal 
                                background check on such individual in 
                                accordance with the provisions of 
                                subsection (e)(9); and
                                    ``(II) furnish to the State 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 registry 
                                initiated under clause (iii).
                    ``(B) Prohibition on hiring of abusive workers.--
                            ``(i) In general.--A nursing facility may 
                        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 nursing 
                        facility 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 
                        facility shall maintain supervision of the 
                        individual during the individual's probationary 
                        period of employment.
                    ``(C) Reporting requirements.--A nursing 
facility shall report to the State any instance in which the facility 
determines that an individual has committed an act of resident neglect 
or abuse or misappropriation of resident property in the course of 
employment by the facility.
                    ``(D) Use of information.--
                            ``(i) In general.--A nursing facility 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 nursing 
                        facility that, in denying employment for an 
                        applicant, reasonably relies upon information 
                        about an individual provided by the State 
                        pursuant to subsection (e)(9) 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 
                        subparagraph (D)(i) shall be fined in 
                        accordance with title 18, United States Code, 
                        imprisoned for not more than 2 years, or both.
                    ``(E) Definitions.--As used in this paragraph--
                            ``(i) 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) 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 an individual 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; and
                            ``(iii) the term `disqualifying 
                        information' means information about a 
                        conviction for a relevant crime or a finding of 
                        patient or resident abuse.''.
            (2) Medicare program.--Section 1819(b), as amended by 
        section 2(b), is amended by adding after paragraph (8) the 
        following new paragraph:
            ``(9) Screening of nursing facility workers.--
                    ``(A) Background checks on applicants.--Subject to 
                subparagraph (B)(ii), before hiring an individual, a 
                skilled nursing facility shall--
                            ``(i) give the individual written notice 
                        that the facility is required to perform 
                        background checks with respect to applicants;
                            ``(ii) require, 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 
                                facility 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) initiate 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) request 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) furnish to the State 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 registry 
                                initiated under clause (iii).
                    ``(B) Prohibition on hiring of abusive workers.--
                            ``(i) In general.--A skilled nursing 
                        facility may 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 skilled 
                        nursing facility 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 
                        facility shall maintain supervision of the 
                        individual during the individual's probationary 
                        period of employment.
                    ``(C) Reporting requirements.--A skilled nursing 
                facility shall report to the State any instance in 
                which the facility determines that an individual has 
                committed an act of resident neglect or abuse or 
                misappropriation of resident property in the course of 
                employment by the facility.
                    ``(D) Use of information.--
                            ``(i) In general.--A skilled nursing 
                        facility 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 skilled 
                        nursing facility that, in denying employment 
                        for an applicant, reasonably relies upon 
                        information about an individual provided by the 
                        State pursuant to subsection (e)(9) 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 
                        subparagraph (D)(i) shall be fined in 
                        accordance with title 18, United States Code, 
                        imprisoned for not more than 2 years, or both.
                    ``(E) Definitions.--As used in this paragraph--
                            ``(i) 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) 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 an individual 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; and
                            ``(iii) the term `disqualifying 
                        information' means information about a 
                        conviction for a relevant crime or a finding of 
                        patient or resident abuse.''.
    ``(b) State Requirements.--
            ``(1) Medicaid program.--
                    ``(A) Expansion of state registry to collect 
                information about nursing facility employees other than 
                nurse aides.--Section 1919, as amended by section 2(a), 
                is amended--
                            ``(i) in subsection (e)(2)--
                                    ``(I) in the paragraph heading, by 
                                striking ``Nurse aide registry'' and 
                                inserting ``Nursing facility 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 ``, and (II) all 
                                        other nursing facility 
                                        employees with respect to whom 
                                        the State has made a finding 
                                        described in subparagraph 
                                        (B)'';
                                    ``(III) in subparagraph (B), by 
                                striking ``involving an individual 
                                listed in the registry'' and inserting 
                                ``involving a nursing facility 
                                employee''; and
                                    ``(IV) in subparagraph (C), by 
                                striking ``nurse aide'' and inserting 
                                ``nursing facility employee or 
                                applicant for employment''; and
                            ``(ii) in subsection (g)(1)--
                                    ``(I) in subparagraph (C)--
                                            ``(aa) in the first 
                                        sentence, by striking ``nurse 
                                        aide'' and inserting ``nursing 
                                        facility employee''; and
                                            ``(bb) in the third 
                                        sentence, by striking ``nurse 
                                        aide'' each place it appears 
                                        and inserting ``nursing 
                                        facility employee''; and
                                    ``(II) in subparagraph (D), by 
                                striking ``nurse aide'' each place it 
                                appears and inserting ``nursing 
                                facility employee''.
                    ``(B) State and federal requirement to conduct 
                background checks.--Section 1919(e), as amended by 
                section 2(a), is amended by adding at the end the 
                following new paragraph:
            ``(9) State and federal 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)(9) that is 
                accompanied by the information described in subclauses 
                (II) through (IV) of subsection (b)(9)(A)(ii), a State, 
                after checking appropriate State records and finding no 
                disqualifying information (as defined in subsection 
                (b)(9)(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 subsection 
                        (b)(9)(E)); and
                            ``(ii) report to the nursing facility 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 fee to 
                                any State requesting a search and 
                                exchange of records pursuant to this 
                                paragraph and subsection (b)(9) 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)(9), 
                                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 XVIII.
                            ``(iii) 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.
                    ``(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 subsection 
                (b)(9), 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 the ``Long-Term Care Patient 
                Protection Act of 1998'', the Attorney General shall 
                submit a report to Congress on the number of requests 
                for searches and exchanges of records made under this 
                section and the disposition of such requests.''.
            (2) Medicare program.--
                    (A) Expansion of state registry to collect 
                information about skilled nursing facility employees 
                other than nurse aides.--Section 1819, as amended by 
                section 2(b), is amended--
                            (i) in subsection (e)(2)--
                                    (I) in the paragraph heading, by 
                                striking ``Nurse aide registry'' and 
                                inserting ``Skilled nursing care 
                                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 ``, and (II) all 
                                        other skilled nursing facility 
                                        employees with respect to whom 
                                        the State has made a finding 
                                        described in subparagraph 
                                        (B)'';
                                    (III) in subparagraph (B), by 
                                striking ``involving an individual 
                                listed in the registry'' and inserting 
                                ``involving a skilled nursing facility 
                                employee''; and
                                    (IV) in subparagraph (C), by 
                                striking ``nurse aide'' and inserting 
                                ``skilled nursing facility employee or 
                                applicant for employment''; and
                            (ii) in subsection (g)(1)--
                                    (I) in subparagraph (C)--
                                            (aa) in the first sentence, 
                                        by striking ``nurse aide'' and 
inserting ``skilled nursing facility employee''; and
                                            (bb) in the third sentence, 
                                        by striking ``nurse aide'' each 
                                        place it appears and inserting 
                                        ``skilled nursing facility 
                                        employee''; and
                                    (II) in subparagraph (D), by 
                                striking ``nurse aide'' each place it 
                                appears and inserting ``skilled nursing 
                                facility employee''.
                    (B) State and federal requirement to conduct 
                background checks.--Section 1819(e), as amended by 
                section 2(b), is amended by adding at the end the 
                following new paragraph:
            ``(7) State and federal 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)(9) 
                that is accompanied by the information described in 
                subclauses (II) through (IV) of subsection 
                (b)(9)(A)(ii), a State, after checking appropriate 
                State records and finding no disqualifying information 
                (as defined in subsection (b)(9)(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 subsection 
                        (b)(9)(E)); and
                            ``(ii) report to the skilled nursing 
                        facility 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 fee to 
                                any State requesting a search and 
                                exchange of records pursuant to this 
                                paragraph and subsection (b)(9) 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)(9), 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.
                            ``(iii) 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.
                    ``(E) Regulations.--In addition to the Secretary's 
                authority to promulgate regulations under this title, 
                the Attorney General, 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.
                    ``(F) Report.--Not later than 2 years after the 
                date of enactment of the ``Long-Term Care Patient 
                Protection Act of 1998'', the Attorney General shall 
                submit a report to Congress on the number of requests 
                for searches and exchanges of records made under this 
                section and the disposition of such requests.''.
    ``(c) Establishment of National Registry of Abusive Nursing 
Facility Workers.--Title XI of the Social Security Act is amended by 
adding after section 1128E the following new section:

        ``national registry of abusive nursing facility 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 
the section.
    ``(b) Reporting of Information.--Each State shall report the 
information collected pursuant to sections 1819(e)(2)(B) and 
1919(e)(2)(B) 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 
        producers maintained under this section, to--
                    ``(A) Federal and State government agencies;
                    ``(B) nursing facilities participating in the 
                program under title XIX and skilled nursing facilities 
                participating in a program under title XVIII; and
                    ``(C) such other persons as the Secretary may 
                specify by regulations,
but only for the purpose of determining the suitability for employment 
in a nursing facility or skilled nursing facility.
            ``(2) Information.--The information in the database shall 
        be exempt from disclosure under 5 U.S.C. 552.
            ``(3) Fees for disclosure.--
                    ``(A) In general.--The Secretary may establish or 
                approve reasonable fees for the disclosure of 
                information in such data base. 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 or title XIX.
                    ``(D) Prohibition on charging applicants or 
                employees.--An entity may not impose on an applicant 
                for employment or an employee any charges relating to 
                the registry established and maintained under this 
                section.''.

SEC. 2. EFFECTIVE DATE.

    The provisions of and amendments made by the Act shall be effective 
on and after the date of enactment, without regard to whether 
implementing regulations are in effect.
                                 <all>