[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2677 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 2677
To amend title XIX of the Social Security Act to improve the quality of
care furnished in nursing homes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 30, 2001
Mr. Waxman (for himself, Mr. Gephardt, Mr. Dingell, Mr. Stark, Mr.
Brown of Ohio, Mr. George Miller of California, Mr. Carson of Oklahoma,
Ms. Schakowsky, Mr. Rodriguez, Mr. Blagojevich, Mr. Hoeffel, Mr. Holt,
Mr. Lantos, Ms. Lee, Mrs. Maloney of New York, Mr. Wexler, Mr. Clay,
Ms. DeLauro, Mr. Edwards, Mr. Evans, Mr. Hinchey, Ms. Kaptur, Mr.
Lampson, Mr. McGovern, Mr. Murtha, Ms. Norton, Mr. Tierney, Mr. Udall
of New Mexico, and Mr. Wynn) introduced the following bill; which was
referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To amend title XIX of the Social Security Act to improve the quality of
care furnished in nursing homes.
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 ``Nursing Home
Quality Protection Act of 2001''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Increased resources.
Sec. 3. Increased nurse staffing.
Sec. 4. Increased sanctions.
Sec. 5. Increased public disclosure.
Sec. 6. Background checks.
Sec. 7. Clarification of applicability of protections.
Sec. 8. Financial accountability.
SEC. 2. INCREASED RESOURCES.
(a) Purpose.--In 1997, Congress repealed the Boren amendment, which
required that the States make reasonable and adequate payments to
nursing homes and other health care facilities in order to provide
quality care to residents. The purpose of this section is to restore
the Boren amendment so that those facilities can provide better care to
residents.
(b) Reinstitution of Boren Amendment Payment Methodology.--
(1) In general.--Section 1902(a)(13) of the Social Security
Act (42 U.S.C. 1396a(a)(13)) is amended to read as follows:
``(13) provide for payment of services through the use of
rates determined pursuant to the criteria under this paragraph
as in effect on August 1, 1997;''.
(2) Establishment of safe harbor rates.--Section 1902 of
such Act (42 U.S.C. 1396a) is amended by adding at the end the
following: ``The Secretary may, by regulation, promulgate
standards or methodologies for determining rates that comply
with paragraph (13), and a State that pays rates that meet such
standards or methodologies is deemed to be in compliance with
paragraph (13).''.
(c) Effective Date.--The amendment made by subsection (b) shall
apply to services furnished on or after the date that is one year after
the date of the enactment of this Act.
SEC. 3. INCREASED NURSE STAFFING.
Section 1919(b)(4) of the Social Security Act (42 U.S.C.
1396r(b)(4)) is amended by adding at the end the following new
subparagraph:
``(D) Minimum staffing levels.--
``(i) Deadline for compliance with minimum
standards.--With respect to nursing facility
services provided after the date that is the
end of the 2-year period beginning on the date
of the enactment of this subparagraph, a
nursing facility shall comply with the minimum
staffing levels promulgated by the Secretary
under clause (ii).
``(ii) Final regulations.--
``(I) In general.--Not later than 1
year after the date of the enactment of
this subparagraph, and consistent with
the provisions of this clause, the
Secretary shall promulgate standards
for minimum staffing levels for nursing
facilities. Such standards shall be
established to ensure that residents of
nursing facilities receive the level of
care necessary to meet the objectives
of subsection (b)(2), and shall provide
for appropriate adjustments to account
for resident case mix.
``(II) Minimum standards.--Subject
to subclauses (III) and (IV), standards
promulgated under subclause (I) shall
be, at a minimum, the Hartford staffing
standards (as defined in clause
(v)(I)).
``(III) Alternative minimum
standards.--Standards promulgated under
subclause (I) may be lower than the
standards described in subclause (II)
if the Secretary determines that use of
the staffing levels under those
standards does not compromise the
ability of facilities to meet the
objectives of subsection (b)(2), but in
no case may standards under this
subclause be lower than the HHS
staffing standards (as defined in
clause (v)(II)).
``(IV) Authority to phase in
facility compliance with standards.--If
the Secretary determines that
compliance with the Hartford staffing
standards is not feasible for nursing
facilities by the end of the 2-year
period applicable under clause (i), the
Secretary may delay the implementation
of those Hartford staffing standards
until such time as the Secretary
determines such compliance is feasible.
In the interim, facilities shall comply
with standards promulgated by the
Secretary, such standards in no case
being lower than the HHS staffing
standards.
``(V) Explanation of exercise of
authority.--If the Secretary decides to
exercise the authority under subclauses
(III) or (IV), the Secretary shall
submit to Congress a report describing
the facts and circumstances of the
decision, and shall include the data
and assumptions used in making that
decision and an assessment of the
impact on resident care.
``(iii) Failure to timely promulgate final
regulations.--If the Secretary does not publish
the final regulations under clause (ii) by the
date required under that clause, effective for
services furnished in nursing facilities on or
after the date under clause (ii), such
facilities, at a minimum, shall comply with the
Hartford staffing standards.
``(iv) Increase in payment rate.--Rates
applicable to facilities under section
1902(a)(13) shall reflect appropriate
adjustments for compliance with minimum
standards under this subparagraph.
``(v) Definitions.--In this subparagraph:
``(I) Hartford staffing
standards.--The term `Hartford staffing
standards' means the staffing standards
recommended in January 2000 by the
Hartford Institute for Geriatric
Nursing and the National Citizens
Coalition for Nursing Home Reform,
appropriately adjusted by the Secretary
to account for resident case mix.
``(II) HHS staffing standards.--The
term `HHS staffing standards' means the
preferred minimum staffing levels
identified in the report to Congress
entitled `Appropriateness of Minimum
Nurse Staffing Ratios in Nursing Homes'
submitted by the Secretary in the
summer of 2000, appropriately adjusted
by the Secretary to account for
resident case mix.''.
SEC. 4. INCREASED SANCTIONS.
(a) Refund of Federal Moneys for Substandard Nursing Care.--
(1) In general.--Section 1919 of the Social Security Act
(42 U.S.C. 1396r) is amended--
(A) by redesignating subsection (i) as subsection
(j); and
(B) by inserting after subsection (h) the following
new subsection:
``(i) Refund of Federal Moneys for Substandard Nursing Care.--
``(1) In general.--From amounts paid under a State plan to
a nursing facility, the nursing facility shall refund to the
Secretary for deficiencies identified in a survey under
subsection (g), the following amounts:
``(A) $2,000 for each deficiency that had the
potential to cause more than minimal harm to a resident
of the nursing facility.
``(B) $10,000 for each deficiency that caused
actual harm to a resident of the nursing facility.
``(C) $25,000 for each deficiency that placed a
resident of the nursing facility in immediate jeopardy.
Amounts under this subparagraph shall be adjusted annually to
account for inflation in the manner provided for in section
1924(g).
``(2) Deadline for substandard care refund.--Payment of the
amounts payable by a nursing facility to the Secretary under
paragraph (1) shall be made not later than 30 days after the
nursing facility receives notice of the deficiencies and the
amount of substandard care refund due.
``(3) Withholding of payments for failure to pay a
substandard care refund to the secretary.--In the case of a
nursing facility that does not pay a substandard care refund
required under paragraph (1), in order to ensure that payments
under the State plan to the facility are reduced by the amount
of substandard care refund due from the facility, the Secretary
shall withhold from payments attributable to this section the
amount of such substandard care refund, and the State shall
withhold such amount from payments to that nursing facility.
``(4) Appeal.--
``(A) In general.--The Secretary shall establish a
procedure for a nursing facility to appeal to the
Secretary a substandard care refund paid or an amount
withheld under this paragraph.
``(B) Repayments by the secretary.--If a nursing
facility is successful on appeal, the Secretary shall
pay to the nursing facility an amount equal to the
amount of the substandard care refund paid under
paragraph (1), or the amount withheld under paragraph
(3), or both, if applicable, plus interest accruing on
such amount at the rate applicable under section
1903(d)(5).
``(5) Relation to other sanctions.--
``(A) In general.--A substandard care refund paid
by or an amount withheld from a nursing facility for a
deficiency under this paragraph--
``(i) shall not affect the authority of a
State or the Secretary to take enforcement
actions or impose sanctions against the nursing
facility under any other provision of law with
respect to the deficiency;
``(ii)(I) shall be deducted from civil
money penalties otherwise assessed and
collected by the Secretary with respect to the
deficiency under other provisions of this Act, and
``(II) with respect to the amounts so
deducted under subclause (I), those amounts
shall be used only in the same manner and for
the same purposes as such civil money penalties
otherwise assessed and collected; and
``(iii) shall not affect any remedy
available to an individual at common law.
``(B) Preserving right to appeal.--The failure of a
nursing facility to appeal a substandard care refund
paid by or amount withheld from the facility for a
deficiency under this paragraph shall have no effect on
the right of the facility to appeal any enforcement
action taken or sanction imposed by the Secretary with
respect to the deficiency under other provisions of
this Act.''.
(2) Effective date.--The amendments made by paragraph (1)
shall apply with respect to surveys conducted on or after the
date that is one year after the date of the enactment of this
Act, without regard to whether or not final regulations to
carry out such amendments have been promulgated by such date.
(b) Grant Program To Improve Quality of Care Furnished in Nursing
Homes.--Section 1919 of the Social Security Act (42 U.S.C. 1396r), as
amended by subsection (a), is further amended--
(1) by redesignating subsection (j) as subsection (k); and
(2) by inserting after subsection (i) the following new
subsection:
``(j) Nursing Facility Quality Improvement Account.--
``(1) Establishment of nursing facility quality improvement
account.--
``(A) In general.--There is hereby created on the
books of the Treasury an expenditure account to be
known as the `Nursing Facility Quality Improvement
Account' (in this subsection referred to as the
`Account').
``(B) Deposit of funds in the account.--The
Secretary shall deposit in the Account--
``(i) all substandard care refunds from
nursing facilities under subsection (i)(1),
other than amounts described in subsection
(i)(5)(A)(ii)(II) (relating to deductions from
civil money penalties); and
``(ii) amounts withheld under subsection
(i)(3), other than amounts described in
subsection (i)(5)(A)(ii)(II) (relating to
deductions from civil money penalties).
``(C) Appropriated amounts from substandard care
refunds.--There are hereby appropriated to the Account
such amounts as the Secretary deposits to the Account
under this paragraph.
``(2) Grants for improvement of quality of care.--
``(A) In general.--Subject to the succeeding
provisions of this paragraph, from amounts available in
the Account, the Secretary shall make grants to States
for the purpose of improving the quality of care
furnished in nursing facilities operating in the State.
``(B) Use of grant funds.--Grants made available to
States under subparagraph (A) may be used for any or
all of the following specified purposes:
``(i) To enable a nursing facility to
recruit additional nursing staff or to retain
existing nursing staff (including through the
use of financial incentives).
``(ii) To increase education and training
of nursing staff, including through educational
programs offered by community colleges and
other institutions of higher education.
``(iii) To improve workplace safety for
nursing staff.
``(C) Terms and conditions.--The Secretary shall
establish such terms and conditions as the Secretary
determines to be appropriate for the receipt of grant
funds under this paragraph. Such terms and conditions
shall include the following requirements:
``(i) A State shall develop a plan for the
use of grant funds.
``(ii)(I) In developing the plan required
under clause (i), the State shall establish
advisory councils comprised of representatives
of nursing facility residents, of nursing
facilities, of nursing staff, and of other
interested parties.
``(II) Such councils shall participate in
determining the manner in which grant funds are
used under the plan, and shall give priority to
proposals for the use of grant funds that are
mutually agreed to by the representatives of
facility residents, of nursing facilities, and
of nursing staff.
``(iii) The State shall submit to the
Secretary annual reports on the use of grant
funds under the plan.
``(D) Aggregate amount of grant funds for states.--
The amount of a grant to a State under this subsection
may not exceed the aggregate amount of substandard care
refunds (under subsection (i)) from nursing facilities
operating in the State.
``(E) Nonparticipation by states.--Notwithstanding
subparagraph (D), if a State does not receive a grant
under this subsection, the Secretary may redistribute,
in a manner consistent with section 2104(f), the
substandard care refunds received from nursing
facilities in that State to other States.
``(F) Limitations on use of grant amounts.--A State
may not use amounts made available under a grant under
this paragraph--
``(i) to satisfy any requirement for the
expenditure of non-Federal funds as a condition
for the receipt of Federal funds; or
``(ii) to make payments to a nursing
facility that is not in compliance with Federal
labor and employment laws or that has a pattern
of violations of such laws.
Amounts made available under a grant under this
paragraph shall be in addition to, and may not be used
to supplant, any funds that are or would otherwise be
expended under any Federal, State, or local law by a
State or local government.
``(G) Definition.--In this subsection and
subsection (g)(5)(E), the term `nursing staff' means a
registered professional nurse, a licensed practical or
licensed vocational nurse, or a nurse aide.
``(3) Annual audits.--
``(A) In general.--The Secretary shall conduct
annual audits of the use of grant funds made available
under paragraph (2). The Secretary shall assess the
extent to which such funds have resulted in increased
nursing staff, reduced nursing staff turnover,
increased training of nursing staff, and improvements
in the quality of care furnished in nursing facilities
located in States receiving such grant funds.
``(B) Additional terms for receipt of grant
funds.--As a part of a plan under paragraph (2)(C), the
State shall afford the Secretary access to any records
or information relating to the plan for the purposes of
an audit of the State's use of grant funds.
``(C) Annual report.--The Secretary shall submit to
Congress an annual report on the audits conducted under
this paragraph.''.
SEC. 5. INCREASED PUBLIC DISCLOSURE.
(a) Internet Disclosure.--Section 1919(g)(5) of the Social Security
Act (42 U.S.C. 1396r(g)(5)) is amended by adding at the end the
following new subparagraph:
``(E) Publication on the internet of nursing
facility information.--
``(i) Facility-specific information.--As
soon as practicable, but in no case later than
1 year after the date of the enactment of this
subparagraph, the Secretary shall make
available to the public on the Internet site of
the Department of Health and Human Services,
and by such other means as the Secretary
determines appropriate, the following
information with respect to each nursing
facility:
``(I) Compliance with facility
standards.--A summary of the facility's
compliance or noncompliance with
Federal nursing facility standards.
``(II) Copies of recent surveys.--A
copy of the three most recent surveys
conducted of the nursing facility under
subsection (g).
``(III) Complaints filed against
the facility.--A summary of each
substantiated complaint filed against
the nursing facility during the three
most recent years and a summary of the
outcome or current status of the
complaint.
``(IV) Enforcement actions against
the facility.--A summary of each
enforcement action undertaken by the
Secretary or a State during the three
most recent years with respect to the
facility and a summary of the outcome
or current status of the action.
``(V) Nurse staffing ratios.--Data
on the nursing staff of the facility
for each of the four previous calendar
quarters, including the following
ratios:
``(aa) The ratio of
registered professional nurses
to residents of the facility.
``(bb) The ratio of
licensed practical or licensed
vocational nurses to residents
of the facility.
``(cc) The ratio of nurse
aides to residents of the
facility.
``(dd) The ratio of
aggregate nursing staff to
residents of the facility.
Such data shall include information on
such ratios by shift. Such ratios shall
be calculated by comparing the number
of hours such staff expend providing
nursing care to residents of the
facility to the number of residents in the facility.
``(VI) Ownership disclosure.--The
identity of the owner and operator of
the nursing facility, including an
identification of whether the facility
is a part of a chain of nursing
facilities, and if so, the identity of
the chain and the number of facilities
in such chain.
``(VII) Labor violations.--
Violations of Federal labor and
employment laws, and costs incurred for
activities directly related to
influencing employees with respect to
unionization, during the three most
recent years.
``(VIII) Other pertinent
information.--Any other information
that the Secretary determines
appropriate to inform the public on
conditions and quality of care
furnished at the facility.
After the date of the enactment of this clause,
the Secretary shall continuously update the
information posted on such Internet site and
shall ensure that such information is never
more than 90 days out of date.
``(ii) Establishment and publication of
rating system.--The Secretary shall establish
and implement a rating system to compare the
quality of care furnished to residents by
nursing facilities. Such system shall be based
on the information under clause (i), case mix
of residents of the facility, and such other
information as the Secretary determines
appropriate to provide for meaningful ratings
of quality of care furnished among
facilities.''.
(b) Posting of Staffing Information.--Section 1919(c)(8) of the
Social Security Act (42 U.S.C. 1396r(c)(8)) is amended by inserting
before the period the following: ``and the nurse staffing ratio
information under subsection (g)(5)(E)(v)''.
(c) Recordkeeping and Reporting Requirements.--Section 1919(d) of
the Social Security Act (42 U.S.C. 1396r(d)) is amended by adding at
the end the following new paragraph:
``(5) Recordkeeping and reporting requirements.--
``(A) In general.--A nursing facility shall
maintain such records and make such reports to the
Secretary as the Secretary may require for the
administration and enforcement of this section,
including providing to the Secretary such information
as the Secretary may require to implement subsection
(g)(5)(E). The Secretary may specify the form and
manner of any report required under this section, and
shall establish a procedure for the electronic
transmission of such records.
``(B) Certification.--A report required under this
paragraph shall be certified by the administrator of
the nursing facility as being true, accurate, and
complete.''.
SEC. 6. BACKGROUND CHECKS.
(a) In General.--Section 1919(d) of the Social Security Act (42
U.S.C. 1396r(d)) is amended by adding at the end the following new
paragraph:
``(5) Prohibition on employment of certain individuals.--
``(A) Background check on employees.--Beginning 1
year after the date of the enactment of this paragraph,
each nursing facility shall conduct a background check
on each covered employee hired by the facility. The
background check shall include a check of all relevant
Federal and State databases that contain information
on--
``(i) violations of Federal or State
criminal law,
``(ii) abuse of residents of nursing
facilities, or misappropriation of resident
property,
``(iii) abuse of hospital patients, or any
other group of patients that the Secretary may
specify, or misappropriation of patient
property, and
``(iv) abuse of children.
``(B) Prohibition on employment.--
``(i) In general.--A nursing facility may
not knowingly hire a covered employee--
``(I) who has been convicted of a
felony under Federal or State law for
any offense described in paragraphs (1)
through (4) of section 1128(a);
``(II) with respect to whom a
Federal or State department or agency
has made a specific documented finding
of resident or patient abuse,
misappropriation of resident or patient
property, or child abuse; or
``(III) who has been found to have
committed any other offense that the
Secretary specifies in regulations.
``(ii) Authority for exceptions for
specific factors.--The Secretary may provide
for limited exceptions to the prohibition under
clause (i) based on the severity of the offense
or finding or the period of time that has
elapsed since the offense or finding occurred
and the conduct of the background check.
``(C) Employee appeal.--A covered employee, or a
candidate for employment, may appeal (under a procedure
similar to petitions under subsection (g)(1)(D)) to the
State in which the facility is located a decision of a
nursing facility to terminate, or deny, employment of
the covered employee or candidate in the facility based
on erroneous information revealed in the background check.
``(D) Prohibition on charging employee for cost of
background check.--A nursing facility that conducts a
background check on a covered employee, or a candidate
for employment, may not directly or indirectly recoup
the cost of performing such background check from the
employee or candidate.
``(E) Definition.--In this paragraph, the term
`covered employee' means any individual who under an
employment contract or arrangement with a nursing
facility furnishes health care items and services, or
furnishes other services in the facility in areas of
the facility where residents are present, and who is
hired on or after the date that is one year before the
date of the enactment of this paragraph.''.
(b) Procedure for Background Checks.--The Secretary of Health and
Human Services shall, by regulation, establish uniform procedures--
(1) for a nursing facility receiving payments under a State
plan under title XIX of the Social Security Act to conduct
background checks under subparagraph (A) of section 1919(d)(5)
of such Act, as added by subsection (a); and
(2) for a covered employee, or a candidate for employment,
to appeal under subparagraph (C) of that section an employment
action of a nursing facility to the State in which the facility
is located.
SEC. 7. CLARIFICATION OF APPLICABILITY OF PROTECTIONS.
(a) Survey and Certification.--Section 1919(g) of the Social
Security Act (42 U.S.C. 1396r(g)) is amended by adding at the end the
following new paragraph:
``(6) Applicability of protections to all residents.--The
provisions of this subsection shall apply to all residents of a
nursing facility, without regard to whether--
``(A) the resident is entitled to have payment made
for nursing facility services under the State plan or
under any other provision of this Act, or
``(B) the facility is a distinct part of an
institution under subsection (a).''.
(b) Enforcement.--Section 1919(h) of such Act (42 U.S.C. 1396r(h))
is amended by adding at the end the following new paragraph:
``(10) Applicability of protections to all residents.--The
provisions of this subsection shall apply to all residents of a
nursing facility, without regard to whether--
``(A) the resident is entitled to have payment made
for nursing facility services under the State plan or
under any other provision of this Act, or
``(B) the facility is a distinct part of an
institution under subsection (a).''.
SEC. 8. FINANCIAL ACCOUNTABILITY.
(a) In General.--Section 1919(g)(2) of the Social Security Act (42
U.S.C. 1396r(g)(2)) is amended--
(1) by redesignating subparagraphs (C), (D), and (E) as
subparagraphs (D), (E), and (F); and
(2) by inserting after subparagraph (B) the following new
subparagraph:
``(C) Financial accountability.--A standard or an
extended survey may include an examination of the
financial records of a facility to determine whether
payments made to the facility under this section for
services furnished to residents are being used in a
manner consistent with this section.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to surveys conducted on or after the date of the enactment of
this Act.
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