110 HR 1476 IH: Senior Safety and Dignity Act of 2007 U.S. House of Representatives 2007-03-12 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 1st Session H. R. 1476 IN THE HOUSE OF REPRESENTATIVES March 12, 2007 Ms. Ginny Brown-Waite of Florida (for herself, Mr. Kirk, Mr. Feeney, Mr. Boustany, Mr. Shays, Mrs. Biggert, Mrs. Miller of Michigan, Mr. Porter, Mr. Gingrey, Mr. Chabot, Mr. Gilchrest, Mr. Bartlett of Maryland, Mr. Upton, and Mr. Roskam) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend titles XVIII and XIX of the Social Security Act to expand the nursing home patients’ bill of rights to include the right to receive care from a credible caregiver by requiring background checks on direct access employees and the right to a safe environment during an emergency or natural disaster by requiring nursing long-term care facilities to establish disaster emergency and evacuation plans.

1.

Short title

This Act may be cited as the Senior Safety and Dignity Act of 2007.

2.

Securing right to receive care from a credible caregiver by requiring performance of background checks on direct access employees of long-term care facilities or providers

(a)

Addition to nursing home patients’ bill of rights of right to receive care from a credible caregiver

Sections 1819(c)(1)(A) and 1919(c)(1)(A) of the Social Security Act (42 U.S.C. 1395i–3(c)(1)(A), 1396r(c)(1)(A)) are each amended— (1)by redesignating clause (xi) as clause (xiii); and (2)by inserting after clause (x) the following new clause: (xi)

Receipt of care from credible caregiver

The right to receive care from a credible caregiver.. (b)

Screening of skilled nursing facility and nursing facility employee applicants

(1)

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: (9)

Screening of skilled nursing facility workers

(A)

Background checks on applicants

Before hiring a skilled nursing facility worker, a skilled nursing facility shall conduct a background check on the employee in accordance with such procedures as the Secretary shall establish. (B)

Prohibition on hiring of abusive workers

(I)

In general

Subject to clause (ii), a skilled nursing facility may not knowingly employ any skilled nursing facility worker who has any disqualifying information (as defined in subparagraph (F)(ii)). (ii)

Provisional employment

A skilled nursing facility may provide for a provisional period of employment for a skilled nursing facility worker pending completion of the background check required under subparagraph (A). Such facility shall maintain direct supervision of the covered individual during the worker’s provisional period of employment. (C)

Procedures

The procedures established by the Secretary under subparagraph (A) shall— (I)provide a process by which a skilled nursing facility worker may appeal or dispute the accuracy of the information obtained in a background check conducted under this paragraph; (ii)take into account the needs of skilled nursing facilities that serve a low volume of patients (as determined by the Secretary) with respect to providing supervision for provisional employees who are awaiting the results of a background check conducted under this paragraph; and (iii)provide for the reimbursement of nursing facilities for 100 percent of the costs incurred by such facilities in complying with the requirements of this section. (D)

Immunity from liability

A skilled nursing facility that, in denying employment for an applicant, reasonably relies upon information about such applicant provided by the criminal background check shall not be liable in any action brought by such applicant based on the employment determination resulting from the information. (E)

Civil penalty

(I)

In general

A skilled nursing facility that violates the provisions of this paragraph shall be subject to a civil penalty in an amount not to exceed— (I)for the first such violation, $2,000; and (II)for the second and each subsequent violation within any 5-year period, $5,000. (ii)

Knowing retention of worker

In addition to any civil penalty under clause (I), a skilled nursing facility that knowingly continues to employ a skilled nursing facility worker in violation of subparagraph (A) or (B) 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 paragraph: (I)

Conviction for a relevant crime

The term conviction for a relevant crime means any Federal or State criminal conviction for— (I)any offense described in section 1128(a); and (II)such other types of offenses as the Secretary may specify in regulations. (ii)

Disqualifying information

The term disqualifying information means information about a conviction for a relevant crime or a finding of patient or resident abuse. (iii)

Skilled nursing facility worker

The term skilled nursing facility worker means any individual that has direct access to a patient of a skilled nursing facility under an employment or other contract, or both, with such facility. Such term includes individuals who are licensed or certified by the State to provide long-term care services, and nonlicensed individuals providing such services, as defined by the Secretary, including nurse assistants, nurse aides, home health aides, and personal care workers and attendants.. (2)

Medicaid program

Section 1919(b) of the Social Security Act (42 U.S.C. 1396r(b)) is amended by adding at the end the following new paragraph: (9)

Screening of nursing facility workers

(A)

Background checks on applicants

Before hiring a nursing facility worker, a nursing facility shall conduct a background check on the employee in accordance with such procedures as the Secretary shall establish. (B)

Prohibition on hiring of abusive workers

(I)

In general

Subject to clause (ii), a nursing facility may not knowingly employ any nursing facility worker who has any disqualifying information (as defined in subparagraph (F)(ii)). (ii)

Provisional employment

A nursing facility may provide for a provisional period of employment for a nursing facility worker pending completion of the background check required under subparagraph (A). Such facility shall maintain direct supervision of the covered individual during the worker’s provisional period of employment. (C)

Procedures

The procedures established by the Secretary under subparagraph (A) shall— (I)provide a process by which a nursing facility worker may appeal or dispute the accuracy of the information obtained in a background check conducted under this paragraph; (ii)take into account the needs of nursing facilities that serve a low volume of patients (as determined by the Secretary) with respect to providing supervision for provisional employees who are awaiting the results of a background check conducted under this paragraph; and (iii)provide for the reimbursement of nursing facilities for 100 percent of the costs incurred by such facilities in complying with the requirements of this section. (D)

Immunity from liability

A nursing facility that, in denying employment for an applicant, reasonably relies upon information about such applicant provided by the criminal background check shall not be liable in any action brought by such applicant based on the employment determination resulting from the information. (E)

Civil penalty

(I)

In general

A nursing facility that violates the provisions of this paragraph shall be subject to a civil penalty in an amount not to exceed— (I)for the first such violation, $2,000; and (II)for the second and each subsequent violation within any 5-year period, $5,000. (ii)

Knowing retention of worker

In addition to any civil penalty under clause (I), a nursing facility that knowingly continues to employ a nursing facility worker in violation of subparagraph (A) or (B) 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 paragraph: (I)

Conviction for a relevant crime

The term conviction for a relevant crime means any Federal or State criminal conviction for— (I)any offense described in section 1128(a); and (II)such other types of offenses as the Secretary may specify in regulations. (ii)

Disqualifying information

The term disqualifying information means information about a conviction for a relevant crime or a finding of patient or resident abuse. (iii)

Nursing facility worker

The term nursing facility worker means any individual that has direct access to a patient of a nursing facility under an employment or other contract, or both, with such facility. Such term includes individuals who are licensed or certified by the State to provide long-term care services, and nonlicensed individuals providing such services, as defined by the Secretary, including nurse assistants, nurse aides, home health aides, and personal care workers and attendants.. (3)

Effective date

The amendments made by this subsection and subsection (a) shall take effect on the date that is 1 year after the date on which the evaluation is completed under subsection (d)(1). (c)

Application to other long-term care facilities or providers

(1)

Medicare

Part E of title XVIII of the Social Security Act (42 U.S.C. 1395x et seq.) is amended by adding at the end the following:

1898.

Application of skilled nursing facility preventive abuse provisions to long-term care facilities and providers

(a)

In general

The provisions of section 1819(b)(9) shall apply to a long-term care facility or provider (as defined in subsection (b)) in the same manner as such provisions apply to a skilled nursing facility. (b)

Long-term care facility or provider

In this section, the term long-term care facility or provider means the following facilities or providers which receive payment for services under this title or title XIX: (1)A home health agency. (2)A provider of hospice care. (3)A long-term care hospital. (4)A provider of personal care services. (5)A residential care provider that arranges for, or directly provides, long-term care services. (6)An intermediate care facility for the mentally retarded (as defined in section 1905(d)).

. (2)

Medicaid

Section 1902(a) of the Social Security Act (42 U.S.C. 1396a) is amended— (A)in paragraph (69), by striking and at the end; (B)in paragraph (70), by striking the period and inserting ; and; and (C)by inserting after paragraph (70) the following: (71)provide that the provisions of section 1919(b)(9) apply to a long-term care facility or provider (as defined in section 1898(b)) in the same manner as such provisions apply to a nursing facility.. (3)

Effective date

The amendments made by this subsection shall take effect on the date that is 1 year after the date on which the evaluation is completed under subsection (d)(1). (d)

National criminal background check program

(1)

Completion of pilot program evaluation

Not later than the date that is 6 months after the completion of the pilot program for national and State background checks on direct patient access employees of long-term care facilities or providers established under section 307 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108–173), the Secretary shall complete the evaluation required under subsection (e) of such section of such Act. (2)

Establishment

(A)

In general

Not later than the date that is 1 year after the completion of the evaluation of the program described in paragraph (1), the Secretary, in consultation with the Attorney General, shall establish a national criminal background check program in order to prevent abuse of nursing facility and skilled nursing facility residents and individuals receiving home health care services and other long-term care services under the medicare or medicaid programs, taking into account the findings and recommendations contained in the evaluation. (B)

Use in conducting required background checks

The national criminal background check program shall be made available to a long-term care facility or provider for the purpose of conducting criminal background checks, including the criminal background checks required under sections 1819(b)(9) and 1919(b)(9) of the Social Security Act (42 U.S.C. 1395i–3(b), 1396r(b)) (as added by subsection (a)). (C)

Conduct of background checks by the Federal Bureau of Investigation

The Secretary, in consultation with the Attorney General, shall establish procedures for the background checks to be conducted by the Federal Bureau of Investigation, in cooperation with appropriate State and Federal agencies. (D)

Consultation

In establishing the national criminal background check program, the Secretary shall consult with appropriate interested parties, including— (I)representatives of long-term care facilities or providers; (ii)representatives of employees of long-term care facilities or providers; (iii)consumers of long-term care services; (iv)consumer advocates; and (v)appropriate Federal and State officials. (3)

Definitions

In this subsection: (A)

Long-term care facility or provider

The term long-term care facility or provider means the following facilities or providers which receive payment for services under title XVIII or XIX of the Social Security Act: (I)A nursing facility (as defined in subparagraph (B)). (ii)A skilled nursing facility (as defined in subparagraph ©)). (iii)A home health agency. (iv)A provider of hospice care (as defined in section 1861(dd)(1) of the Social Security Act) (42 U.S.C. 1395x(dd)(1)). (v)A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act) (42 U.S.C. 1395ww(d)(1)(B)(iv)). (vi)A provider of personal care services. (vii)A residential care provider that arranges for, or directly provides, long-term care services. (viii)An intermediate care facility for the mentally retarded (as defined in section 1905(d) of such Act) (42 U.S.C. 1396d(d)). (B)

Nursing facility

The term nursing facility has the meaning given such term in section 1919(a) of the Social Security Act (42 U.S.C. 1396r(a)). (C)

Skilled nursing facility

The term skilled nursing facility has the meaning given such term in 1819(a) of the Social Security Act (42 U.S.C. 1395i–3(a)).

3.

Securing the right to a safe environment in long-term care facilities during an emergency or natural disaster by requiring these facilities to establish disaster emergency and evacuation plans

(a)

Addition to nursing home patients’ bill of rights of right to a safe environment during an emergency or natural disaster

Sections 1819(c)(1)(A) and 1919(c)(1)(A) of the Social Security Act (42 U.S.C. 1395i–3(c)(1)(A), 1396r(c)(1)(A)), as amended by section 2(a), are each amended by inserting after clause (xi) the following new clause: (xii)

Safe environment during emergency or natural disaster

The right to a safe environment during an emergency or natural disaster.. (b)

Application under Medicare

Section 1819(d)(4) of such Act (42 U.S.C. 1395i–3(d)(4)) is amended— (1)by redesignating subparagraph (B) as subparagraph (C); and (2)by inserting after subparagraph (A) the following new subparagraph: (B)

Disaster emergency and evacuation plans

A skilled nursing facility must— (I)have a clear and pre-established disaster plan to ensure the safety of all its patients during an emergency or natural disaster and possible evacuation; and (ii)inform residents and next-of-kin regarding such plan and the location of possible evacuation in case of an emergency or disaster.. (c)

Medicaid

Section 1919(d)(4) of such Act (42 U.S.C. 1396r(d)(4)) is amended— (1)by redesignating subparagraph (B) as subparagraph (C); and (2)by inserting after subparagraph (A) the following new subparagraph: (B)

Disaster emergency and evacuation plans

A nursing facility must— (I)have a clear and pre-established disaster plan to ensure the safety of all its patients during an emergency or natural disaster and possible evacuation; and (ii)inform residents and next-of-kin regarding such plan and the location of possible evacuation in case of an emergency or disaster.. (d)

Application to other long-term care facilities

(1)

Medicare

Section 1898(a) of such Act, as added by section 2(c)(1), is amended by inserting and section 1819(d)(4)(B) after section 1819(b)(9). (2)

Medicaid

Section 1902(a)(71) of such Act, as inserted by section 2(c)(2)(C), is amended by inserting and section 1919(d)(4)(B) after section 1919(b)(9). (e)

Effective date

The amendments made by this section shall apply as of the date that is one year after the date of the enactment of this Act.