[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1577 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 1577

  To amend titles XVIII and XIX of the Social Security Act to require 
 screening, including national criminal history background checks, of 
direct patient access employees of skilled nursing facilities, nursing 
 facilities, and other long-term care facilities and providers, and to 
provide for nationwide expansion of the pilot program for national and 
State background checks on direct patient access employees of long-term 
                     care facilities or providers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 7, 2007

Mr. Kohl (for himself, Mr. Domenici, Mrs. McCaskill, Ms. Stabenow, Mrs. 
 Lincoln, Mr. Levin, and Mrs. Clinton) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To amend titles XVIII and XIX of the Social Security Act to require 
 screening, including national criminal history background checks, of 
direct patient access employees of skilled nursing facilities, nursing 
 facilities, and other long-term care facilities and providers, and to 
provide for nationwide expansion of the pilot program for national and 
State background checks on direct patient access employees of long-term 
                     care facilities or providers.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Patient Safety and Abuse Prevention 
Act of 2007''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) Frail elders are a highly vulnerable population who 
        often lack the ability to give consent or defend themselves. 
        Since the best predictor of future behavior is past behavior, 
        individuals with histories of abuse pose a definite risk to 
        patients and residents of long-term care facilities.
            (2) Every month, there are stories in the media of health 
        care employees who commit criminal misconduct on the job and 
        are later found, through a background check conducted after the 
        fact, to have a history of convictions for similar crimes.
            (3) A 2006 study conducted by the Department of Health and 
        Human Services determined that--
                    (A) criminal background checks are a valuable tool 
                for employers during the hiring process;
                    (B) the use of criminal background checks during 
                the hiring process does not limit the pool of potential 
                job applicants;
                    (C) ``a correlation exists between criminal history 
                and incidences of abuse''; and
                    (D) the long-term care industry supports the 
                practice of conducting background checks on potential 
                employees in order to reduce the likelihood of hiring 
                someone who has potential to harm residents.
            (4) In 2005, the Michigan Attorney General found that 10 
        percent of employees who were then providing services to frail 
        elders had criminal backgrounds.
            (5) In 2004, the staffs of State Adult Protective Services 
        agencies received more than 500,000 reports of elder and 
        vulnerable adult abuse, and an ombudsman report concluded that 
        more than 15,000 nursing home complaints involved abuse, 
        including nearly 4,000 complaints of physical abuse, more than 
        800 complaints of sexual abuse, and nearly 1,000 complaints of 
        financial exploitation;
            (6) The Department of Health and Human Services has 
        determined that while 41 States now require criminal background 
        checks on certified nurse aides prior to employment, only half 
        of those (22) require criminal background checks at the Federal 
        level.
    (b) Purposes.--The purposes of this Act are to--
            (1) create a coordinated, nationwide system of State 
        criminal background checks that would greatly enhance the 
        chances of identifying individuals with problematic backgrounds 
        who move across State lines;
            (2) stop individuals who have a record of substantiated 
        abuse, or a serious criminal record, from preying on helpless 
        elders and individuals with disabilities; and
            (3) provide assurance to long-term care employers and the 
        residents they care for that potentially abusive workers will 
        not be hired into positions of providing services to the 
        extremely vulnerable residents of our Nation's long-term care 
        facilities.

SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR NATIONAL AND STATE 
              BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF 
              LONG-TERM CARE FACILITIES OR PROVIDERS.

    Section 307 of the Medicare Prescription Drug, Improvement, and 
Modernization Act of 2003 (42 U.S.C. 1395aa note) is amended by adding 
at the end the following new subsection:
    ``(h) Nationwide Expansion Program.--
            ``(1) In general.--Beginning on the date of enactment of 
        the Patient Safety and Abuse Prevention Act of 2007, the 
        Secretary shall expand the pilot program under this section to 
        be conducted on a nationwide basis (in this subsection, such 
        expanded pilot program shall be referred to as the `nationwide 
        expansion program'). Except for the following modifications, 
        the provisions of this section shall apply to the nationwide 
        expansion program:
                    ``(A) Agreements.--
                            ``(i) Newly participating states.--The 
                        Secretary shall enter into agreements with each 
                        State--
                                    ``(I) that the Secretary has not 
                                entered into an agreement with under 
                                subsection (c)(1);
                                    ``(II) that agrees to conduct 
                                background checks under the nationwide 
                                expansion program on a Statewide basis; 
                                and
                                    ``(III) that submits an application 
                                to the Secretary containing such 
                                information and at such time as the 
                                Secretary may specify.
                            ``(ii) Certain previously participating 
                        states.--The Secretary shall enter into 
                        agreements with each State--
                                    ``(I) that the Secretary has 
                                entered into an agreement with under 
                                subsection (c)(1) in the case where 
                                such agreement did not require the 
                                State to conduct background checks 
                                under the pilot program established 
                                under subsection (a) on a Statewide 
                                basis;
                                    ``(II) that agrees to conduct 
                                background checks under the nationwide 
                                expansion program on a Statewide basis; 
                                and
                                    ``(III) that submits an application 
                                to the Secretary containing such 
                                information and at such time as the 
                                Secretary may specify.
                    ``(B) Nonapplication of selection criteria.--The 
                selection criteria required under subsection (c)(3)(B) 
                shall not apply.
                    ``(C) Required fingerprint check as part of 
                criminal history background check.--The procedures 
                established under subsection (b)(1) shall require that 
                the facility or provider obtain State and national 
                criminal history background checks on the prospective 
                employee utilizing a search of State and Federal 
                criminal history records and including a fingerprint 
                check using the Integrated Automated Fingerprint 
                Identification System of the Federal Bureau of 
                Investigation.
                    ``(D) Payments.--
                            ``(i) Newly participating states.--
                                    ``(I) In general.--As part of the 
                                application submitted by a State under 
                                subparagraph (A)(i)(III), the State 
                                shall guarantee, with respect to the 
                                costs to be incurred by the State in 
                                carrying out the nationwide expansion 
                                program, that the State will make 
                                available (directly or through 
                                donations from public or private 
                                entities) a particular amount of non-
                                Federal contributions.
                                    ``(II) Federal match.--The payment 
                                amount to each State that the Secretary 
                                enters into an agreement with under 
                                subparagraph (A)(i) shall be 3 times 
                                the amount that the State guarantees to 
                                make available under subclause (I), 
                                except that in no case may the payment 
                                amount exceed $3,000,000.
                            ``(ii) Previously participating states.--
                                    ``(I) In general.--As part of the 
                                application submitted by a State under 
                                subparagraph (A)(ii)(III), the State 
                                shall guarantee, with respect to the 
                                costs to be incurred by the State in 
                                carrying out the nationwide expansion 
                                program, that the State will make 
                                available (directly or through 
                                donations from public or private 
                                entities) a particular amount of non-
                                Federal contributions.
                                    ``(II) Federal match.--The payment 
                                amount to each State that the Secretary 
                                enters into an agreement with under 
                                subparagraph (A)(ii) shall be 3 times 
                                the amount that the State guarantees to 
                                make available under subclause (I), 
                                except that in no case may the payment 
                                amount exceed $1,500,000.
                            ``(iii) No reservation for evaluation.--
                        There shall be no reservation of any portion of 
                        the payment amount provided under clauses (i) 
                        or (ii) for conducting an evaluation.
                    ``(E) Evaluations and report.--
                            ``(i) Evaluations.--The Inspector General 
                        of the Department of Health and Human Services 
                        shall conduct an annual evaluation of the 
                        nationwide expansion program in each of 
                        calendar years 2008 and 2009.
                            ``(ii) Reports.--Not later than 6 months 
                        after completion of the second year of the 
                        nationwide expansion program, the Inspector 
                        General of the Department of Health and Human 
                        Services shall submit a report to Congress 
                        containing the results of the annual 
                        evaluations conducted under clause (i), 
                        together with recommendations for the 
                        implementation of the requirements of sections 
                        1819(b)(9) and 1919(b)(9) of the Social 
                        Security Act, as added by section (3)(a) of the 
                        Patient Safety and Abuse Prevention Act of 
                        2007.
            ``(2) Funding.--
                    ``(A) Notification.--The Secretary shall notify the 
                Secretary of the Treasury of the amount necessary to 
                carry out the nationwide expansion program under this 
                subsection for the period of fiscal years 2008 through 
                2010, except that in no case shall such amount exceed 
                $156,000,000.
                    ``(B) Transfer of funds.--Out of any funds in the 
                Treasury not otherwise appropriated, the Secretary of 
                the Treasury shall provide for the transfer to the 
                Secretary of the amount specified as necessary to carry 
                out the nationwide expansion program under subparagraph 
                (A).''.

SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF LONG-
              TERM CARE FACILITIES AND PROVIDERS.

    (a) Screening of Skilled Nursing Facility and Nursing Facility 
Employee Applicants.--
            (1) Medicare program.--
                    (A) In general.--Section 1819(b) of the Social 
                Security Act (42 U.S.C. 1395i-3(b)) is amended by 
                adding at the end the following new paragraph:
            ``(9) Screening of direct patient access employees.--
                    ``(A) Screening and criminal history background 
                checks on applicants.--
                            ``(i) Screening.--Beginning on January 1, 
                        2011, before hiring a direct patient access 
                        employee, a skilled nursing facility shall 
                        screen the employee for any disqualifying 
                        information in accordance with such procedures 
                        as the State shall establish through a search 
                        of--
                                    ``(I) State-based abuse and neglect 
                                registries and databases, including the 
                                abuse and neglect registries and 
                                databases of another State in the case 
                                where a prospective employee previously 
                                resided in that State; and
                                    ``(II) criminal records and the 
                                records of any proceedings that may 
                                contain disqualifying information about 
                                applicants, such as proceedings 
                                conducted by State professional 
                                licensing and disciplinary boards and 
                                State medicaid fraud control units.
                            ``(ii) Criminal history background 
                        checks.--As part of such screening, the skilled 
                        nursing facility shall request that the State 
                        agency designated under subsection (e)(6)(E) 
                        oversee the coordination of a State and 
                        national criminal history background check that 
                        utilizes a search of State and Federal criminal 
                        history records and includes a fingerprint 
                        check using the Integrated Automated 
                        Fingerprint Identification System of the 
                        Federal Bureau of Investigation.
                            ``(iii) Use of procedures previously 
                        established.--Nothing in this paragraph shall 
                        be construed as preventing a State from using 
                        procedures established for purposes of the 
                        pilot program for National and State background 
                        checks on direct patient access employees of 
                        long-term care facilities or providers under 
                        section 307 of the Medicare Prescription Drug, 
                        Improvement, and Modernization Act of 2003, or 
                        the nationwide expansion program under 
                        subsection (h) of such section, to satisfy the 
                        requirements of paragraph (6).
                    ``(B) Prohibition on hiring of abusive workers.--
                            ``(i) In general.--Subject to clause (ii), 
                        a skilled nursing facility may not knowingly 
                        employ any direct patient access employee who 
                        has any disqualifying information (as defined 
                        in subparagraph (F)(ii)).
                            ``(ii) Provisional employment.--Subject to 
                        clause (iii), the State may permit a skilled 
                        nursing facility to provide for a provisional 
                        period of employment (not to exceed 30 days) 
                        for a direct patient access employee--
                                    ``(I) pending completion of the 
                                screening and background check required 
                                under subparagraph (A); and
                                    ``(II) in the case where the 
                                employee has appealed the results of 
                                such screening and background check, 
                                pending completion of the appeals 
                                process.
                            ``(iii) Supervision.--The facility shall 
                        maintain direct on-site supervision of the 
                        employee during such provisional period of 
                        employment.
                    ``(C) Procedures.--
                            ``(i) In general.--The procedures 
                        established by the State under subparagraph (A) 
                        shall be designed to accomplish the following:
                                    ``(I) Give a prospective direct 
                                patient access employee notice that the 
                                skilled nursing facility is required to 
                                perform background checks with respect 
                                to new employees, including a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted under subparagraph 
                                (A)(ii) in the case of any new employee 
                                who does not have a certificate 
                                indicating that a fingerprint check has 
                                been completed and has not found any 
                                disqualifying information (as described 
                                in subclause (V)).
                                    ``(II) Require, as a condition of 
                                employment, that the employee--
                                            ``(aa) provide a written 
                                        statement disclosing any 
                                        disqualifying information;
                                            ``(bb) provide a statement 
                                        signed by the employee 
                                        authorizing the facility to 
                                        request a background check that 
                                        includes a search of the 
                                        registries and databases 
                                        described in clause (i)(I) of 
                                        subparagraph (A) and the 
                                        records described in clause 
                                        (i)(II) of such subparagraph 
                                        and a criminal history 
                                        background check conducted in 
                                        accordance with clause (ii) of 
                                        such subparagraph that includes 
                                        a fingerprint check using the 
                                        Integrated Automated 
                                        Fingerprint System of the 
                                        Federal Bureau of 
                                        Investigation;
                                            ``(cc) provide the facility 
                                        with a rolled set of the 
                                        employee's fingerprints or 
                                        submit to being fingerprinted; 
                                        and
                                            ``(dd) provide any other 
                                        identification information the 
                                        State may require.
                                    ``(III) Require the skilled nursing 
                                facility to check any available 
                                registries that would be likely to 
                                contain disqualifying information about 
                                a prospective employee, including the 
                                registries and databases described in 
                                subclause (I) of subparagraph (A)(i) 
                                and the records described in clause 
                                (II) of such subparagraph.
                                    ``(IV) Provide a prospective direct 
                                patient access employee the opportunity 
                                to request a copy of the results of the 
                                background check conducted with respect 
                                to such employee and to correct any 
                                errors by providing appropriate 
                                documentation to the State and the 
                                facility.
                                    ``(V) Upon completion of a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted with respect to a 
                                direct patient access employee under 
                                subparagraph (A)(ii), provide the 
                                skilled nursing facility and the direct 
                                patient access employee with a 
                                certificate indicating that such 
                                fingerprint check has been completed 
                                and no disqualifying information was 
                                found. Such certificate shall--
                                            ``(aa) be valid for 2 
                                        years; and
                                            ``(bb) in the case where 
                                        such direct patient access 
                                        employee is hired by any other 
                                        skilled nursing facility 
                                        located in the State during 
                                        such 2-year period, satisfy the 
                                        requirement that such facility 
                                        have a fingerprint check 
                                        conducted as part of such 
                                        national criminal history 
                                        background check.
                            ``(ii) Elimination of unnecessary checks.--
                        The procedures established by the State under 
                        subparagraph (A) shall permit a skilled nursing 
                        facility to terminate the background check at 
                        any stage at which the facility obtains 
                        disqualifying information regarding a 
                        prospective direct patient access employee.
                            ``(iii) Development of model form of 
                        certificate.--The Secretary shall develop a 
                        model form of the certificate described in 
                        clause (i)(V) that States may use to satisfy 
                        the requirements of such clause.
                    ``(D) Use of information; immunity from 
                liability.--
                            ``(i) Use of information.--A skilled 
                        nursing facility that obtains information about 
                        a direct patient access employee pursuant to 
                        screening or a criminal history background 
                        check shall use such information only for the 
                        purpose of determining the suitability of the 
                        employee for employment.
                            ``(ii) Immunity from liability.--A skilled 
                        nursing facility that, in denying employment 
                        for an applicant, reasonably and in good faith 
                        relies upon credible information about such 
                        applicant provided by a criminal history 
                        background check shall not be liable in any 
                        action brought by such applicant based on the 
                        employment determination resulting from the 
                        information.
                            ``(iii) Prohibition on charging employees 
                        fees for conducting background checks.--A 
                        skilled nursing facility shall not charge a 
                        prospective direct patient access employee a 
                        fee for the screening or criminal history 
                        background check conducted under this 
                        paragraph.
                    ``(E) Penalties.--
                            ``(i) In general.--
                                    ``(I) State penalties.--Subject to 
                                subclause (II), a skilled nursing 
                                facility that violates the provisions 
                                of this paragraph shall be subject to 
                                such penalties as the State determines 
                                appropriate to enforce the requirements 
                                of this paragraph. A skilled nursing 
                                facility shall report to the Secretary 
                                on a quarterly basis any penalties 
                                imposed by the State under the 
                                preceding sentence.
                                    ``(II) Exclusion from 
                                participation.--In any case where the 
                                Secretary determines that a State is 
                                not sufficiently enforcing the 
                                requirements of this paragraph, the 
                                Secretary may exclude a skilled nursing 
                                facility located within the State that 
                                violates the provisions of this 
                                paragraph from participating in the 
                                programs under this title and title XIX 
                                (in accordance with the procedures of 
                                section 1128).
                            ``(ii) Knowing retention of worker.--In 
                        addition to any penalty under clause (i), a 
                        skilled nursing facility that knowingly 
                        continues to employ a direct patient access 
                        employee 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, including violent crimes, as 
                                the State may specify.
                            ``(ii) Disqualifying information.--The term 
                        `disqualifying information' means information 
                        about a conviction for a relevant crime or a 
                        finding of substantiated patient or resident 
                        abuse.
                            ``(iii) Direct patient access employee.--
                        The term `direct patient access employee' means 
                        any individual who has access to a patient or 
                        resident of a skilled nursing facility through 
                        employment or through a contract with such 
                        facility and has duties that involve (or may 
                        involve) one-on-one contact with a patient or 
                        resident of the facility, as determined by the 
                        State for purposes of this paragraph. Such term 
                        does not include a volunteer unless the 
                        volunteer has duties that are equivalent to the 
                        duties of a direct patient access employee and 
                        those duties involve (or may involve) one-on-
                        one contact with a patient or resident of the 
                        facility.''.
                    (B) Conforming amendment.--Section 1819(e) of the 
                Social Security Act (42 U.S.C. 1395i-3(e)) is amended 
                by adding at the end the following new paragraph:
            ``(6) Screening of direct patient access employees.--
        Beginning on January 1, 2011, the State must--
                    ``(A) have procedures in place for the conduct of 
                screening and criminal history background checks under 
                subparagraph (A) of subsection (b)(9), in accordance 
                with the requirements of subparagraph (C) of such 
                subsection;
                    ``(B) be responsible for monitoring compliance with 
                the procedures and requirements of such subsection;
                    ``(C) as appropriate, provide for a provisional 
                period of employment of a direct patient access 
                employee under clause (ii) of subparagraph (B) of such 
                subsection, including procedures to ensure that a 
                skilled nursing facility provides direct on-site 
                supervision of the employee in accordance with clause 
                (iii) of such subparagraph;
                    ``(D) provide an independent process by which a 
                provisional employee or an employee may appeal or 
                dispute the accuracy of the information obtained in a 
                background check performed under such subsection; and
                    ``(E) designate a single State agency as 
                responsible for--
                            ``(i) overseeing the coordination of any 
                        State and national criminal history background 
                        checks requested by a skilled nursing facility 
                        utilizing a search of State and Federal 
                        criminal history records, including a 
                        fingerprint check of such records;
                            ``(ii) reviewing, using appropriate privacy 
                        and security safeguards, the results of any 
                        State or national criminal history background 
                        checks conducted regarding a prospective direct 
                        patient access employee to determine whether 
                        the employee has any conviction for a relevant 
                        crime;
                            ``(iii) immediately reporting to the 
                        skilled nursing facility that requested the 
                        criminal history background checks the results 
                        of such review; and
                            ``(iv) in the case of an employee with a 
                        conviction for a relevant crime that is subject 
                        to reporting under section 1128E of the Social 
                        Security Act (42 U.S.C. 1320a-7e), reporting 
                        the existence of such conviction to the 
                        database established under that section;
                    ``(F) have a system in place for determining and 
                levying appropriate penalties for violations of the 
                provisions of such subsection;
                    ``(G) have a system in place for determining which 
                individuals are direct patient access employees for 
                purposes of subparagraph (F)(iii) of such subsection;
                    ``(H) as appropriate, specify offenses, including 
                violent crimes, for purposes of subparagraph (F)(i)(II) 
                of such subsection; and
                    ``(I) develop `rap back' capability such that, if a 
                direct patient access employee of a skilled nursing 
                facility is convicted of a crime following the initial 
                criminal history background check conducted with 
                respect to such employee, and the employee's 
                fingerprints match the prints on file with the State 
                law enforcement department, the department will 
                immediately inform the State agency designated under 
                subparagraph (E).''.
            (2) Medicaid program.--
                    (A) In general.--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 direct patient access employees.--
                    ``(A) Screening and criminal history background 
                checks on applicants.--
                            ``(i) Screening.--Beginning on January 1, 
                        2011, before hiring a direct patient access 
                        employee, a nursing facility shall screen the 
                        employee for any disqualifying information in 
                        accordance with such procedures as the State 
                        shall establish through a search of--
                                    ``(I) State-based abuse and neglect 
                                registries and databases, including the 
                                abuse and neglect registries and 
                                databases of another State in the case 
                                where a prospective employee previously 
                                resided in that State; and
                                    ``(II) criminal records and the 
                                records of any proceedings that may 
                                contain disqualifying information about 
                                applicants, such as proceedings 
                                conducted by State professional 
                                licensing and disciplinary boards and 
                                State medicaid fraud control units.
                            ``(ii) Criminal history background 
                        checks.--As part of such screening, the nursing 
                        facility shall request that the State agency 
                        designated under subsection (e)(6)(E) oversee 
                        the coordination of a State and national 
                        criminal history background check that utilizes 
                        a search of State and Federal criminal history 
                        records and includes a fingerprint check using 
                        the Integrated Automated Fingerprint 
                        Identification System of the Federal Bureau of 
                        Investigation.
                            ``(iii) Use of procedures previously 
                        established.--Nothing in this paragraph shall 
                        be construed as preventing a State from using 
                        procedures established for purposes of the 
                        pilot program for National and State background 
                        checks on direct patient access employees of 
                        long-term care facilities or providers under 
                        section 307 of the Medicare Prescription Drug, 
                        Improvement, and Modernization Act of 2003, or 
                        the nationwide expansion program under 
                        subsection (h) of such section, to satisfy the 
                        requirements of paragraph (6).
                    ``(B) Prohibition on hiring of abusive workers.--
                            ``(i) In general.--Subject to clause (ii), 
                        a nursing facility may not knowingly employ any 
                        direct patient access employee who has any 
                        disqualifying information (as defined in 
                        subparagraph (F)(ii)).
                            ``(ii) Provisional employment.--Subject to 
                        clause (iii), the State may permit a nursing 
                        facility to provide for a provisional period of 
                        employment (not to exceed 30 days) for a direct 
                        patient access employee--
                                    ``(I) pending completion of the 
                                screening and background check required 
                                under subparagraph (A); and
                                    ``(II) in the case where the 
                                employee has appealed the results of 
                                such screening and background check, 
                                pending completion of the appeals 
                                process.
                            ``(iii) Supervision.--The facility shall 
                        maintain direct on-site supervision of the 
                        employee during such provisional period of 
                        employment.
                    ``(C) Procedures.--
                            ``(i) In general.--The procedures 
                        established by the State under subparagraph (A) 
                        shall be designed to accomplish the following:
                                    ``(I) Give a prospective direct 
                                patient access employee notice that the 
                                nursing facility is required to perform 
                                background checks with respect to new 
                                employees, including a fingerprint 
                                check as part of the national criminal 
                                history background check conducted 
                                under subparagraph (A)(ii) in the case 
                                of any new employee who does not have a 
                                certificate indicating that a 
                                fingerprint check has been completed 
                                and has not found any disqualifying 
                                information (as described in subclause 
                                (V)).
                                    ``(II) Require, as a condition of 
                                employment, that the employee--
                                            ``(aa) provide a written 
                                        statement disclosing any 
                                        disqualifying information;
                                            ``(bb) provide a statement 
                                        signed by the employee 
                                        authorizing the facility to 
                                        request a background check that 
                                        includes a search of the 
                                        registries and databases 
                                        described in clause (i)(I) of 
                                        subparagraph (A) and the 
                                        records described in clause 
                                        (i)(II) of such subparagraph 
                                        and a criminal history 
                                        background check conducted in 
                                        accordance with clause (ii) of 
                                        such subparagraph that includes 
                                        a fingerprint check using the 
                                        Integrated Automated 
                                        Fingerprint System of the 
                                        Federal Bureau of 
                                        Investigation;
                                            ``(cc) provide the facility 
                                        with a rolled set of the 
                                        employee's fingerprints or 
                                        submit to being fingerprinted; 
                                        and
                                            ``(dd) provide any other 
                                        identification information the 
                                        State may require.
                                    ``(III) Require the nursing 
                                facility to check any available 
                                registries that would be likely to 
                                contain disqualifying information about 
                                a prospective employee, including the 
                                registries and databases described in 
                                subclause (I) of subparagraph (A)(i) 
                                and the records described in clause 
                                (II) of such subparagraph.
                                    ``(IV) Provide a prospective direct 
                                patient access employee the opportunity 
                                to request a copy of the results of the 
                                background check conducted with respect 
                                to such employee and to correct any 
                                errors by providing appropriate 
                                documentation to the State and the 
                                nursing facility.
                                    ``(V) Upon completion of a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted with respect to a 
                                direct patient access employee under 
                                subparagraph (A)(ii), provide the 
                                nursing facility and the direct patient 
                                access employee with a certificate 
                                indicating that such fingerprint check 
                                has been completed and no disqualifying 
                                information was found. Such certificate 
                                shall--
                                            ``(aa) be valid for 2 
                                        years; and
                                            ``(bb) in the case where 
                                        such direct patient access 
                                        employee is hired by any other 
                                        nursing facility located in the 
                                        State during such 2-year 
                                        period, satisfy the requirement 
                                        that such facility have a 
                                        fingerprint check conducted as 
                                        part of such national criminal 
                                        history background check.
                            ``(ii) Elimination of unnecessary checks.--
                        The procedures established by the State under 
                        subparagraph (A) shall permit a nursing 
                        facility to terminate the background check at 
                        any stage at which the facility obtains 
                        disqualifying information regarding a 
                        prospective direct patient access employee.
                            ``(iii) Development of model form of 
                        certificate.--The Secretary shall develop a 
                        model form of the certificate described in 
                        clause (i)(V) that States may use to satisfy 
                        the requirements of such clause.
                    ``(D) Use of information; immunity from 
                liability.--
                            ``(i) Use of information.--A nursing 
                        facility that obtains information about a 
                        direct patient access employee pursuant to 
                        screening or a criminal history background 
                        check shall use such information only for the 
                        purpose of determining the suitability of the 
                        employee for employment.
                            ``(ii) Immunity from liability.--A nursing 
                        facility that, in denying employment for an 
                        applicant, reasonably and in good faith relies 
                        upon credible information about such applicant 
                        provided by a criminal history background check 
                        shall not be liable in any action brought by 
                        such applicant based on the employment 
                        determination resulting from the information.
                            ``(iii) Prohibition on charging employees 
                        fees for conducting background checks.--A 
                        nursing facility shall not charge a prospective 
                        direct patient access employee a fee for the 
                        screening or criminal history background check 
                        conducted under this paragraph.
                    ``(E) Penalties.--
                            ``(i) In general.--
                                    ``(I) State penalties.--Subject to 
                                subclause (II), a nursing facility that 
                                violates the provisions of this 
                                paragraph shall be subject to such 
                                penalties as the State determines 
                                appropriate to enforce the requirements 
                                of this paragraph. A nursing facility 
                                shall report to the Secretary on a 
                                quarterly basis any penalties imposed 
                                by the State under the preceding 
                                sentence.
                                    ``(II) Exclusion from 
                                participation.--In any case where the 
                                Secretary determines that a State is 
                                not sufficiently enforcing the 
                                requirements of this paragraph, the 
                                Secretary may exclude a nursing 
                                facility located within the State that 
                                violates the provisions of this 
                                paragraph from participating in the 
                                programs under this title and title 
                                XVIII (in accordance with the 
                                procedures of section 1128).
                            ``(ii) Knowing retention of worker.--In 
                        addition to any penalty under clause (i), a 
                        nursing facility that knowingly continues to 
                        employ a direct patient access employee 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, including violent crimes, as 
                                the State may specify.
                            ``(ii) Disqualifying information.--The term 
                        `disqualifying information' means information 
                        about a conviction for a relevant crime or a 
                        finding of substantiated patient or resident 
                        abuse.
                            ``(iii) Direct patient access employee.--
                        The term `direct patient access employee' means 
                        any individual who has access to a patient or 
                        resident of a nursing facility through 
                        employment or through a contract with such 
                        facility and has duties that involve (or may 
                        involve) one-on-one contact with a patient or 
                        resident of the facility, as determined by the 
                        State for purposes of this paragraph. Such term 
                        does not include a volunteer unless the 
                        volunteer has duties that are equivalent to the 
                        duties of a direct patient access employee and 
                        those duties involve (or may involve) one-on-
                        one contact with a patient or resident of the 
                        facility.''.
                    (B) Conforming amendment.--Section 1919(e) of the 
                Social Security Act (42 U.S.C. 1396r(e)) is amended by 
                adding at the end the following new paragraph:
            ``(8) Screening of direct patient access employees.--
        Beginning on January 1, 2011, the State must--
                    ``(A) have procedures in place for the conduct of 
                screening and criminal history background checks under 
                subparagraph (A) of subsection (b)(9), in accordance 
                with the requirements of subparagraph (C) of such 
                subsection;
                    ``(B) be responsible for monitoring compliance with 
                the procedures and requirements of such subsection;
                    ``(C) as appropriate, provide for a provisional 
                period of employment of a direct patient access 
                employee under clause (ii) of subparagraph (B) of such 
                subsection, including procedures to ensure that a 
                nursing facility provides direct on-site supervision of 
                the employee in accordance with clause (iii) of such 
                subparagraph;
                    ``(D) provide an independent process by which a 
                provisional employee or an employee may appeal or 
                dispute the accuracy of the information obtained in a 
                background check performed under such subsection; and
                    ``(E) designate a single State agency as 
                responsible for--
                            ``(i) overseeing the coordination of any 
                        State and national criminal history background 
                        checks requested by a nursing facility 
                        utilizing a search of State and Federal 
                        criminal history records, including a 
                        fingerprint check of such records;
                            ``(ii) reviewing, using appropriate privacy 
                        and security safeguards, the results of any 
                        State or national criminal history background 
                        checks conducted regarding a prospective direct 
                        patient access employee to determine whether 
                        the employee has any conviction for a relevant 
                        crime;
                            ``(iii) immediately reporting to the 
                        nursing facility that requested the criminal 
                        history background checks the results of such 
                        review; and
                            ``(iv) in the case of an employee with a 
                        conviction for a relevant crime that is subject 
                        to reporting under section 1128E of the Social 
                        Security Act (42 U.S.C. 1320a-7e), reporting 
                        the existence of such conviction to the 
                        database established under that section;
                    ``(F) have a system in place for determining and 
                levying appropriate penalties for violations of the 
                provisions of such subsection;
                    ``(G) have a system in place for determining which 
                individuals are direct patient access employees for 
                purposes of subparagraph (F)(iii) of such subsection;
                    ``(H) as appropriate, specify offenses, including 
                violent crimes, for purposes of subparagraph (F)(i)(II) 
                of such subsection; and
                    ``(I) develop `rap back' capability such that, if a 
                direct patient access employee of a nursing facility is 
                convicted of a crime following the initial criminal 
                history background check conducted with respect to such 
                employee, and the employee's fingerprints match the 
                prints on file with the State law enforcement 
                department, the department will immediately inform the 
                State agency designated under subparagraph (E).''.
    (b) 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:

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

    ``Sec. 1898.  (a) 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 provider of adult day care.
            ``(6) A residential care provider that arranges for, or 
        directly provides, long-term care services, including an 
        assisted living facility that provides a level of care 
        established by the Secretary.
            ``(7) 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)(B)(iv), by striking the 
                period at the end and inserting ``; and''; and
                    (C) by inserting after paragraph (70)(B)(iv) 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 January 1, 2011.
    (c) Payments.--
            (1) Procedures to reimburse costs of national background 
        check.--
                    (A) In general.--The Secretary of Health and Human 
                Services shall establish procedures to reimburse the 
                costs of conducting national criminal history 
                background checks under sections 1819(b)(9), 
                1919(b)(9), 1898, and 1902(a)(71) of the Social 
                Security Act, as added by subsections (a)(1), (a)(2), 
                (b)(1), and (b)(2), respectively, through the following 
                mechanisms, in such proportion as the Secretary 
                determines appropriate:
                            (i) By providing payments to skilled 
                        nursing facilities and long-term care 
                        facilities or providers for costs incurred as 
                        are attributable to the conduct of such 
                        national criminal history background checks 
                        under such section 1819(b)(9).
                            (ii) By making a payment, from sums 
                        appropriated therefore, under section 1903(a) 
                        of the Social Security Act (42 U.S.C. 1396b(a)) 
                        to each State which has a plan approved under 
                        title XIX of the Social Security Act (42 U.S.C. 
                        1396 et seq.), for each quarter, beginning with 
                        the quarter commencing on January 1, 2011, in 
                        an amount equal to 90 percent of the sums 
                        expended with respect to costs incurred during 
                        such quarter as are attributable to the conduct 
                        of such national criminal history background 
                        checks under such section 1919(b)(9).
                    (B) Funding for payments for costs incurred under 
                medicare program.--The Secretary of Health and Human 
                Services shall provide for the transfer, in appropriate 
                part from the Federal Hospital Insurance Trust Fund 
                established under section 1817 of the Social Security 
                Act (42 U.S.C. 1395i) and the Federal Supplementary 
                Insurance Trust Fund established under section 1841 of 
                such Act (42 U.S.C. 1395t), of such funds as are 
                necessary to make payments under subparagraph (A)(i) 
                for fiscal year 2011 and each fiscal year thereafter.
                    (C) Determination of appropriate proportion.--In 
                establishing the procedures under subparagraph (A), the 
                Secretary of Health and Human Services shall determine 
                what proportion of payments using the mechanisms 
                described in such subparagraph would result in an 
                equitable allocation of the costs of such reimbursement 
                between the Medicare program under title XVIII of the 
                Social Security Act and the Medicaid program under 
                title XIX of such Act.
            (2) Ensuring no duplicative payments.--The procedures 
        established under paragraph (1)(A) shall ensure that no 
        duplicative payments are made for the costs of conducting such 
        national criminal history background checks, including any 
        duplication of payments made under the pilot program for 
        national and State background checks on direct patient access 
        employees of long-term care facilities or providers under 
        section 307 of the Medicare Prescription Drug, Improvement, and 
        Modernization Act of 2007, including the nationwide expansion 
        program under subsection (h) of such section, as added by 
        section 3.
            (3) Submission of costs incurred by facilities in 
        performing checks.--
                    (A) In general.--The procedures established under 
                paragraph (1)(A) shall provide a process, such as 
                through submission of a bill, by which a skilled 
                nursing facility, a nursing facility, and a long-term 
                care facility or provider may submit information 
                regarding the costs incurred by such facility in 
                conducting national criminal history background checks 
                under sections 1819(b)(9), 1919(b)(9), 1898, and 
                1902(a)(71) of the Social Security Act, as added by 
                subsections (a)(1), (a)(2), (b)(1), and (b)(2), 
                respectively.
                    (B) Model forms.--The Secretary of Health and Human 
                Services shall develop model forms that may be used by 
                a skilled nursing facility, a nursing facility, and a 
                long-term care facility or provider to submit a claim 
                for reimbursement of the costs described in paragraph 
                (1)(A) that contains the information described in 
                subparagraph (A).
            (4) Regulations.--Not later than 3 years after the date of 
        enactment of this Act, the Secretary of Health and Human 
        Services shall promulgate regulations to carry out this 
        subsection.

SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FEDERAL BUREAU OF 
              INVESTIGATION.

    (a) Development of Rap Back Capabilities.--
            (1) In general.--Not later than January 1, 2011, the 
        Director of the Federal Bureau of Investigation (in this 
        section referred to as the ``Director'') shall ensure that the 
        Integrated Automated Fingerprint Identification System of the 
        Federal Bureau of Investigation has the capacity to store and 
        retrieve fingerprints from its database.
            (2) Notification of conviction of direct patient access 
        employee.--In the case where a direct patient access employee 
        (as defined in subparagraph (F)(iii) of sections 1819(b)(9) and 
        1919(b)(9) of the Social Security Act, as added by section 
        4(a)) is convicted of a crime following the initial national 
        criminal history background check conducted with respect to 
        such employee under such sections 1819(b)(9) and 1919(b)(9), 
        and the employee's fingerprint matches the prints on file with 
        the Federal Bureau of Investigation, the Bureau shall inform 
        the State law enforcement department, in order for the State to 
        inform the skilled nursing facility, nursing facility, or long-
        term care facility or provider of such conviction in accordance 
        with the requirements of sections 1819(e)(6)(I) and 
        1919(e)(8)(I) of the Social Security Act, as added by section 
        4(a).
    (b) Reasonable Fee for National Criminal History Background Checks 
Conducted on Employees of Long-Term Care Facilities.--The Director may 
charge a reasonable fee, in consultation with the Secretary of Health 
and Human Services, for a national criminal history background check 
using the Integrated Automated Fingerprint Identification System of the 
Federal Bureau of Investigation that is conducted under section 
1819(b)(9), 1919(b)(9), 1898, or 1902(a)(71) of the Social Security 
Act, as added by subsections (a)(1), (a)(2), (b)(1), and (b)(2) of 
section 4, respectively, that represents the actual cost of conducting 
such national criminal history background check.
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