[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5565 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 5565

  To amend the Social Security Act with respect to the employment of 
     persons with criminal backgrounds by long-term care providers.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 7, 2002

Mr. Thompson of California (for himself, Mr. Radanovich, and Mr. Owens) 
 introduced the following bill; which was referred to the Committee on 
   Energy and 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 amend the Social Security Act with respect to the employment of 
     persons with criminal backgrounds by long-term care providers.

    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 ``Senior Safety 
Protection Act of 2002''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Long-term care provider criminal background check.
Sec. 3. Expansion of state register to collect information about long-
                            term care provider employees other than 
                            nurse aides.
Sec. 4. Inclusion of abusive workers in the database established as 
                            part of National Health Care Fraud and 
                            Abuse Data Collection Program.
Sec. 5. Prevention and training demonstration project.
Sec. 6. Improved background check system.
Sec. 7. State funding.

SEC. 2. LONG-TERM CARE PROVIDER CRIMINAL BACKGROUND CHECK.

    (a) In General.--Title XI of the Social Security Act is amended by 
inserting after section 1134 the following new sections:

                 ``screening of long-term care workers

    ``Sec. 1135. (a) Background Checks on Applicants.--Subject to 
subsection (b)(2), before hiring a long-term care worker, a long-term 
care provider shall--
            ``(1) give the worker written notice that the provider is 
        required to perform background checks with respect to 
        applicants;
            ``(2) require, as a condition of employment, that such 
        worker--
                    ``(A) provide a written statement disclosing any 
                conviction for a relevant crime or finding of patient 
                or resident abuse;
                    ``(B) provide a statement signed by the worker 
                authorizing the provider to request the search and 
                exchange of criminal records;
                    ``(C) provide a copy of the worker's fingerprints;
                    ``(D) provide the worker's social security account 
                number (or taxpayer identification number) and date of 
                birth; and
                    ``(E) provide any other identification information 
                the Secretary may specify in regulation;
            ``(3) initiate a check of the registry under sections 
        1819(e)(2) and 1919(e)(2) in accordance with regulations 
        promulgated by the Secretary to determine whether such system 
        contains any disqualifying information with respect to such 
        worker; and
            ``(4) if that system does not contain any such 
        disqualifying information--
                    ``(A) request that the State initiate a State and 
                national criminal background check on such worker in 
                accordance with the provisions of section 1135A; and
                    ``(B) furnish to the State the information 
                described in subparagraphs (B) through (D) of paragraph 
                (2) not more than 7 working days after completion of 
                the check against the system initiated under paragraph 
                (3).
    ``(b) Prohibition on Hiring of Abusive Workers.--
            ``(1) In general.--A long-term care provider may not 
        knowingly employ any long-term care worker who has any 
        conviction for a relevant crime or with respect to whom a 
        finding of patient or resident abuse has been made.
            ``(2) Provisional employment.--
                    ``(A) In general.--After complying with the 
                requirements of paragraph (1), (2), and (3) of 
                subsection (a), a long-term care provider may provide 
                for a provisional period of employment for a long-term 
                care worker pending completion of the check against the 
                data collection system described under subsection 
                (a)(3) and the background check described under 
                subsection (a)(4). Such provider shall maintain direct 
                supervision (or, in the case of home health care 
                settings, active monitoring or oversight) of the worker 
                during the worker's provisional period of employment.
                    ``(B) Active monitoring or oversight defined.--For 
                purposes of subparagraph (A), the term `active 
monitoring or oversight' means a good faith effort by the home health 
agency supervisor to ensure the safety of the beneficiary through 
efforts such as making follow-up phone calls and unannounced visits.
            ``(3) Limitation of liability.--
                    ``(A) In general.--A long-term care provider that, 
                in denying employment for an applicant (including 
                during the period described in subsection (b)(2)), 
                reasonably relies upon information about such applicant 
                provided by the State under section 1135A shall not be 
                liable in any action brought by such applicant relating 
                to the employment determination resulting from the use 
                of such information.
                    ``(B) Damages actions.--In a tort or other civil 
                action for damages that is brought as the result of an 
                injury, death, or loss to person or property caused by 
                an individual who a long-term care provider employs in 
                a position that involves providing direct care to older 
                adults, the following shall apply:
                            ``(i) If the long-term care provider 
                        employed the individual in good faith and 
                        reasonable reliance on the report of a criminal 
                        records check requested under this section, the 
                        provider shall not be found negligent solely 
                        because of its reliance on the report, even if 
                        the information in the report is determined 
                        later to have been incomplete or inaccurate.
                            ``(ii) If the long-term care provider 
                        employed the individual in good faith on a 
                        provisional basis pursuant to subsection 
                        (b)(2), the provider shall not be found 
                        negligent solely because it employed the 
                        individual prior to receiving the report of a 
                        criminal records check requested under this 
                        section.
    ``(c) Reporting Requirements.--A long-term care provider shall 
report to the State agency responsible for surveys and certification of 
such providers any instance in which the provider determines that a 
long-term care worker has committed an act of resident neglect or abuse 
or misappropriation of resident property in the course of employment by 
the provider.
    ``(d) Use of Information.--
            ``(1) In general.--A long-term care provider that obtains 
        information about a long-term care worker pursuant to 
        paragraphs (3) and (4) of subsection (a) may use such 
        information only for the purpose of determining the suitability 
        of the worker for employment.
            ``(2) Immunity from liability.--A long-term care provider 
        that, in denying employment for an applicant (including during 
        the period described in subsection (b)(2)) reasonably relies 
        upon information about such applicant provided by the State 
        pursuant to section 1135A or section 1919(e)(2) shall not be 
        liable in any action brought by such applicant based on the 
        employment determination resulting from the information.
    ``(e) Civil Penalty.--
            ``(1) In general.--A long-term care provider that violates 
        the provisions of this section 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 long-term care provider 
        that--
                    ``(A) knowingly continues to employ a long-term 
                care worker in violation of subsection (a) or (b); or
                    ``(B) knowingly fails to report a long-term care 
                worker under subsection (c),
        shall be subject to a civil penalty in an amount not to exceed 
        $5,000 for the first such violation, and $10,000 for the second 
        and each subsequent violation within any 5-year period.
    ``(f) Definitions.--In this section and section 1135A:
            ``(1) Conviction for a relevant crime.--The term 
        `conviction for a relevant crime' means any Federal or State 
        criminal conviction for--
                    ``(A) any offense described in paragraphs (1) 
                through (4) of section 1128(a); and
                    ``(B) such other types of offenses as the Secretary 
                may specify in regulations, taking into account the 
                severity and relevance of such offenses and the time 
                frame of when such an offense is committed and after 
                consultation with representatives of long-term care 
                providers, representatives of long-term care employees, 
                consumer advocates, and appropriate Federal and State 
                officials.
            ``(2) Disqualifying information.--The term `disqualifying 
        information' means information about a conviction for a 
        relevant crime or a finding of patient or resident abuse.
            ``(3) Finding of patient or resident abuse.--The term 
        `finding of patient or resident abuse' means any substantiated 
        finding by a State agency under section 1919(g)(1)(C) or a 
        Federal agency that a long-term care worker has committed--
                    ``(A) an act of patient or resident abuse or 
                neglect or a misappropriation of patient or resident 
                property; or
                    ``(B) such other types of acts as the Secretary may 
                specify in regulations.
            ``(4) Long-term care provider.--The term `long-term care 
        provider' means--
                    ``(A) a nursing facility (as defined in section 
                1919(a));
                    ``(B) a skilled nursing facility (as defined in 
                section 1819(a)), and includes a hospital-based skilled 
                nursing facility;
                    ``(C) a home health agency (as defined in section 
                1861(o));
                    ``(D) a hospice program (as defined in section 
                1861(dd) and section 1905(o));
                    ``(E) an assisted living facility (as defined under 
                section 232(b)(6) of the National Housing Act (12 
                U.S.C. 1751w(b)(6)); and
                    ``(F) any other facility (including any 
                intermediate care facility for the mentally retarded) 
                that provides, or is a provider of, long-term care 
                services, hospice services, assisted living services, 
                or home health services and that receives payment for 
                such services under title XVIII or title XIX;
        and includes an agency that provides under contract temporary 
        staff to a long-term care provider.
            ``(5) Long-term care worker.--The term `long-term care 
        worker' means any individual (other than a volunteer) that has 
        direct access to a patient of a long-term care provider under 
        an employment or other contract, or both, with such provider. 
        Such term includes an individual who is licensed or certified 
        by the State to provide such services, and a nonlicensed 
        individual providing such services, as defined by the 
        Secretary, including a nurse assistant, nurse aide, home health 
        aide, and personal care worker and attendant.

     ``federal and state requirements to conduct background checks

    ``Sec. 1135A. (a) In General.--Upon receipt of a request by a long-
term care provider pursuant to section 1135 that is accompanied by the 
information described in subparagraph (B) through (D) of section 
1135(a)(2), a State, after checking appropriate State records and 
finding no disqualifying information (as defined in section 
1135(f)(2)), 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 
subsection (b).
    ``(b) Search and Exchange of Records by Attorney General.--Upon 
receipt of a submission pursuant to subsection (a), the Attorney 
General shall direct a search of the records of the Federal Bureau of 
Investigation for any criminal history records corresponding to the 
fingerprints and other positive identification information submitted. 
The Attorney General shall provide any corresponding information 
resulting from the search to the State.
    ``(c) State Reporting of Information to Long-Term Care Provider.--
Upon receipt of the information provided by the Attorney General 
pursuant to subsection (b), the State shall--
            ``(1) review the information to determine whether the 
        individual has any conviction for a relevant crime (as defined 
        section 1135(f)(1)) or has a finding of patient or resident 
        abuse;
            ``(2) report to the long-term care provider the results in 
        writing of such review by indicating whether a long-term care 
        worker has any conviction for a relevant crime or has a finding 
        of patient or resident abuse; and
            ``(3) in the case of an individual with a conviction for a 
        relevant crime, report the existence of such conviction of such 
        individual to the registry referred to in sections 1818(e)(2) 
        and 1919(e)(2).
    ``(d) Fees for Performance of Criminal Background Checks.--
            ``(1) No charge to providers or workers.--A State shall not 
        charge a long-term care provider or a prospective long-term 
        care worker a fee for initiating the criminal background check 
        under this section or section 1135, including fees charged by 
        the Attorney General, and for performing the review and report 
        required by subsection (c).
            ``(2) Funding.--A State may apply under section 7 of the 
        Senior Safety Protection Act of 2002 for funding to perform 
        criminal background checks.
    ``(e) Regulations.--
            ``(1) In general.--In addition to the Secretary's authority 
        to promulgate regulations under this title, the Attorney 
        General, in consultation with the Secretary, may promulgate 
        such regulations as are necessary to carry out the Attorney 
        General's responsibilities under this section and section 1135, 
        including regulations regarding the security, confidentiality, 
        accuracy, use, destruction, and dissemination of information, 
        audits and recordkeeping, and the imposition of fees.
            ``(2) Appeal procedures.--The Attorney General, in 
        consultation with the Secretary, shall promulgate such 
        regulations as are necessary to establish procedures by which 
        an applicant or employee may appeal or dispute the accuracy of 
        the information obtained in a background check conducted under 
        this section or section 1135. Appeals shall be limited to 
        instances in which an applicant or employee is incorrectly 
        identified as the subject of the background check, or when 
        information about the applicant or employee has not been 
        updated to reflect changes in the applicant's or employee's 
        criminal record.
    ``(f) Report.--Not later than 2 years after the date of enactment 
of this section, the Secretary shall submit a report to Congress on--
            ``(1) the number of requests for searches and exchanges of 
        records made under this section;
            ``(2) the disposition of such requests; and
            ``(3) the cost of responding to such requests.''.
    ``(g) Limitation on Preemption of State Law.--
            ``(1) In general.--Subject to paragraph (2), the 
        requirements under this section and section 1135 shall not 
        preempt existing State laws that are in effect on the date of 
        the enactment of this section.
            ``(2) National floor.--Notwithstanding paragraph (1), 
        States shall work with the Attorney General to avoid 
        duplicative requirements under this section and section 
        1135.''.
    (b) Effective Date.--The amendments made by this section shall 
apply to any individual applying for employment or hired for such 
employment by any long-term care provider on or after the date which is 
the later of--
            (1) 6 months after the date of the enactment of this Act; 
        or
            (2) upon implementation by the State of the requirements 
        under this Act.

SEC. 3. EXPANSION OF STATE REGISTER TO COLLECT INFORMATION ABOUT LONG-
              TERM CARE PROVIDER EMPLOYEES OTHER THAN NURSE AIDES.

    (a) Medicaid Program.--Section 1919 of the Social Security Act (42 
U.S.C. 1396r) is amended--
            (1) in subsection (e)(2)--
                    (A) in the paragraph heading, by striking ``Nurse 
                aide registry'' and inserting ``Long-term care 
                registry'';
                    (B) 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 other long-term care provider 
                        employees with respect to whom the State has 
                        made a finding described in subparagraph (B)'';
                    (C) in subparagraph (B), by striking ``involving an 
                individual listed in the registry'' and inserting 
                ``involving a long-term care employee''; and
                    (D) in subparagraph (C), by striking ``nurse aide'' 
                and inserting ``long-term care employee or applicant 
                for employment''; and
            (2) in subsection (g)(1)--
                    (A) in subparagraph (C)--
                            (i) in the first sentence, by striking 
                        ``nurse aide'' and inserting ``long-term care 
                        employee''; and
                            (ii) in the third sentence, by striking 
                        ``nurse aide'' and inserting ``long-term care 
                        employee'' each place it appears; and
                    (B) in subparagraph (D)--
                            (i) in the heading, by striking ``Nurse 
                        aide registry'' and inserting ``Long-term care 
                        provider registry''; and
                            (ii) by striking ``nurse aide'' and 
                        inserting ``long-term care provider employee'' 
                        each place it appears.
    (b) Medicare Program.--Section 1819 of the Social Security Act (42 
U.S.C. 1395i-3) is amended--
            (1) in subsection (e)(2)--
                    (A) in the paragraph heading, by striking ``Nurse 
                aide registry'' and inserting ``Long-term care employee 
                registry'';
                    (B) 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 other long-term care employees 
                        with respect to whom the State has made a 
                        finding described in subparagraph (B)'';
                    (C) in subparagraph (B), by striking ``involving an 
                individual listed in the registry'' and inserting 
                ``involving a long-term care employee''; and
                    (D) in subparagraph (C), by striking ``nurse aide'' 
                and inserting ``skilled long-term care provider 
                employee or applicant for employment''; and
            (2) in subsection (g)(1)--
                    (A) in subparagraph (C)--
                            (i) in the first sentence, by striking 
                        ``nurse aide'' and inserting ``skilled long-
                        term care employee''; and
                            (ii) in the third sentence, by striking 
                        ``nurse aide'' and inserting ``long-term care 
                        employee'' each place it appears; and
                    (B) in subparagraph (D)--
                            (i) in the heading, by striking ``Nurse 
                        aide registry'' and inserting ``Long-term care 
                        employee registry''; and
                            (ii) by striking ``nurse aide'' and 
                        inserting ``long-term care employee'' each 
                        place it appears.

SEC. 4. INCLUSION OF ABUSIVE WORKERS IN THE DATABASE ESTABLISHED AS 
              PART OF NATIONAL HEALTH CARE FRAUD AND ABUSE DATA 
              COLLECTION PROGRAM.

    (a) Coverage of Long-Term Care Workers.--Section 1128E(g)(2) of the 
Social Security Act (42 U.S.C. 1320a-7e(g)(2)) is amended by adding at 
the end the following: ``Such term also includes any individual of a 
long-term care provider (other than a volunteer) that has direct access 
to a patient or resident of such a provider under an employment or 
other contract, or both, with the provider (including individuals who 
are licensed or certified by the Secretary to provide services at or 
through the provider, and non-licensed individuals, as defined by the 
Secretary, providing services at or through the provider, including 
nurse assistants, nurse aides, home health aides, and personal care 
workers and attendants)''.
    (b) Mandatory Check of Database by Long-Term Care Facilities or 
Providers.--Section 1135 of the Social Security Act, as added by 
section 2(a), is amended by adding at the end the following new 
subsection:
    ``(g) Mandatory Check of Database by Long-Term Care Facilities or 
Providers.--A long-term care provider shall check the registry 
maintained under sections 1818(e)(2) and 1919(e)(2) prior to hiring 
under an employment or other contract, or both, any individual as an 
employee of such a provider who will have direct access to a patient or 
resident of the provider (including individuals who are licensed or 
certified by the State to provide services at or through the provider, 
and nonlicensed individuals, as defined by the Secretary, that will 
provide services at or through the provider, including nurse 
assistants, nurse aides, home health aides, and personal care workers 
and attendants).''.
    (c) Definition of Long-Term Care Provider.--Section 1128E(g) of the 
Social Security Act (42 U.S.C. 1320a-7e(g)) is amended by adding at the 
end the following:
            ``(6) Long-term care provider.--The term `long-term care 
        provider' has the meaning given such term in section 
        1135(f)(4).''.

SEC. 5. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

    (a) Establishment.--The Secretary of Health and Human Services 
shall establish a demonstration program to provide grants to develop 
information on best practices in patient abuse prevention training 
(including behavior training and interventions) for managers and staff 
of long-term care facilities.
    (b) Eligibility.--To be eligible to receive a grant under 
subsection (a), an entity shall be a public or private entity and 
prepare and submit to the Secretary an application at such time, in 
such manner, and containing such information as the Secretary may 
require.
    (c) Use of Funds.--Amounts received under a grant under this 
section shall be used to--
            (1) examine ways to improve collaboration between State 
        health care survey and provider certification agencies, long-
        term care ombudsman programs, the long-term care industry, and 
        local community members;
            (2) examine patient care issues relating to regulatory 
        oversight, community involvement, and provider staffing and 
        management with a focus on staff training, staff stress 
        management, and staff supervision;
            (3) examine the use of patient abuse prevention training 
        programs by long-term care entities, including the training 
        program developed by the National Association of Attorneys 
        General, and the extent to which such programs are used; and
            (4) identify and disseminate best practices for preventing 
        and reducing patient abuse.
    (d) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 6. IMPROVED BACKGROUND CHECK SYSTEM.

    (a) The Establishment.--The Secretary of Health and Human Services 
and the Attorney General shall establish a more efficient background 
check system that provides for a more immediate determination of 
criminal status.
    (b) Implementation.--The Secretary of Health and Human Services and 
the Attorney General shall implement such more efficient background 
check system under subsection (a) not later than 5 years after the date 
of the enactment of this Act.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 7. STATE FUNDING.

    (a) In General.--The Secretary of Health and Human Services, upon 
application by a State, may provide an annual grant to carry out the 
provisions of this Act.
    (b) Authorization of Appropriations.--There are authorized to be 
appropriated to carry out the provisions of this Act (other than 
sections 5 and 6) $50,000,000 in each of fiscal years 2003 through 
2007.
                                 <all>