1.This Act may be cited as the
Patient Safety and Abuse Prevention
Act of 2007
.
2.
(a)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)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.
3.Nationwide
expansion of pilot program for National and State background checks on direct
patient access employees of long-term care facilities or
providersSection 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)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)
(i)Newly
participating statesThe 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 statesThe 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 criteriaThe selection criteria required under
subsection (c)(3)(B) shall not apply.
(C)Required
fingerprint check as part of criminal history background
checkThe 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)
(i)Newly
participating states
(I)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)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)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)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 evaluationThere shall be no reservation of any portion of
the payment amount provided under clauses (i) or (ii) for conducting an
evaluation.
(E)
(i)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)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)
(A)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)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).
.
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)
(A)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)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 checksAs 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 establishedNothing 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)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)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)The
facility shall maintain direct on-site supervision of the employee during such
provisional period of employment.
(C)
(i)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 checksThe 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 certificateThe 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)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)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 checksA
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)
(i)
(I)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
participationIn 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 workerIn 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)In
this paragraph:
(i)Conviction for a
relevant crimeThe 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
informationThe 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 employeeThe 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)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 employeesBeginning 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)
(A)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)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 checksAs 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 establishedNothing 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)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)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)The
facility shall maintain direct on-site supervision of the employee during such
provisional period of employment.
(C)
(i)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 checksThe 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 certificateThe 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)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)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 checksA
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)
(i)
(I)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
participationIn 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 workerIn 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)In
this paragraph:
(i)Conviction for a
relevant crimeThe 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
informationThe 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
employeeThe 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)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 employeesBeginning 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)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)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 providerIn 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)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)The amendments made by this subsection shall take effect on
January 1, 2011.
(c)
(1)Procedures to
reimburse costs of national background check
(A)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 programThe 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 proportionIn 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 paymentsThe
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)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)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)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.
5.Background checks
provided by the Federal Bureau of Investigation
(a)Development of
rap back capabilities
(1)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 employeeIn 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 facilitiesThe 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.
1.This Act may be cited as the Patient
Safety and Abuse Prevention Act
.
2.
(a)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 the
potential to harm residents of long-term care facilities.
(4)In 2004, the staff 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.
(5)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)The
purposes of this Act are to—
(1)lay the foundation for 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 long-term care facilities in the United
States.
3.Nationwide program for
National and State background checks on direct patient access employees of
long-term care facilities and providers
(a)The Secretary of Health and Human Services (in this
section referred to as the Secretary
), shall establish a program
to identify efficient, effective, and economical procedures for long term care
facilities or providers to conduct background checks on prospective direct
patient access employees on a nationwide basis (in this subsection, such
program shall be referred to as the nationwide program
). Except
for the following modifications, the Secretary shall carry out the nationwide
program under similar terms and conditions as the pilot program under section
307 of the Medicare Prescription Drug, Improvement, and Modernization Act of
2003 (Public Law 108–173; 117 Stat. 2257), including the prohibition on hiring
abusive workers and the authorization of the imposition of penalties by a
participating State under subsection (b)(3)(A) and (b)(6), respectively, of
such section 307:
(1)
(A)Newly participating
statesThe Secretary shall enter into agreements with each
State—
(i)that the Secretary has
not entered into an agreement with under subsection (c)(1) of such section
307;
(ii)that agrees to conduct
background checks under the nationwide 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)Certain previously
participating statesThe Secretary shall enter into agreements
with each State—
(i)that the Secretary has
entered into an agreement with under such subsection (c)(1), but only in the
case where such agreement did not require the State to conduct background
checks under the program established under subsection (a) of such section 307
on a Statewide basis;
(ii)that agrees to conduct
background checks under the nationwide 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.
(2)Nonapplication of
selection criteriaThe selection criteria required under
subsection (c)(3)(B) of such section 307 shall not apply.
(3)Required fingerprint
check as part of criminal history background checkThe procedures
established under subsection (b)(1) of such section 307 shall—
(A)require that the
long-term care facility or provider (or the designated agent of the long-term
care facility or provider) obtain State and national criminal history
background checks on the prospective employee through such means as the
Secretary determines appropriate that utilize a search of State-based abuse and
neglect registries and databases, including the abuse and neglect registries of
another State in the case where a prospective employee previously resided in
that State, State criminal history records, the records of any proceedings in
the State that may contain disqualifying information about prospective
employees (such as proceedings conducted by State professional licensing and
disciplinary boards and State Medicaid Fraud Control Units), and Federal
criminal history records, including a fingerprint check using the Integrated
Automated Fingerprint Identification System of the Federal Bureau of
Investigation; and
(B)encourage States to test methods to reduce
duplicative fingerprinting, including providing for the development of
rap back
capability by the State such that, if a direct patient
access employee of a long-term care facility or provider 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 and the State will immediately inform the long-term care
facility or provider of such conviction.
(4)An agreement entered into under paragraph (1) shall
require that a participating State—
(A)be responsible for
monitoring compliance with the requirements of the nationwide program;
(B)have procedures in place
to—
(i)conduct screening and
criminal history background checks under the nationwide program in accordance
with the requirements of this section;
(ii)monitor compliance by
long-term care facilities and providers with the procedures and requirements of
the nationwide program;
(iii)as appropriate, provide
for a provisional period of employment by a long-term care facility or provider
of a direct patient access employee, not to exceed 30 days, pending completion
of the required criminal history background check and, in the case where the
employee has appealed the results of such background check, pending completion
of the appeals process, during which the employee shall be subject to direct
on-site supervision (in accordance with procedures established by the State to
ensure that a long-term care facility or provider furnishes such direct on-site
supervision);
(iv)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
the nationwide program, including the specification of criteria for appeals for
direct patient access employees found to have disqualifying information which
shall include consideration of the passage of time, extenuating circumstances,
demonstration of rehabilitation, and relevancy of the particular disqualifying
information with respect to the current employment of the individual;
(v)provide for the
designation of a single State agency as responsible for—
(I)overseeing the
coordination of any State and national criminal history background checks
requested by a long-term care facility or provider (or the designated agent of
the long-term care facility or provider) utilizing a search of State and
Federal criminal history records, including a fingerprint check of such
records;
(II)overseeing the design of
appropriate privacy and security safeguards for use in the review of 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 long-term care facility or provider that requested the criminal history
background check 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;
(vi)determine which
individuals are direct patient access employees (as defined in paragraph
(6)(B)) for purposes of the nationwide program;
(vii)as appropriate, specify
offenses, including convictions for violent crimes, for purposes of the
nationwide program; and
(viii)provide for the
development of rap back
capability such that, if a direct
patient access employee of a long-term care facility or provider 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—
(I)the department will
immediately inform the State agency designated under clause (v) and such agency
will immediately inform the facility or provider of such conviction; and
(II)the State will provide,
or will require the facility to provide, to the employee a copy of the results
of the criminal history background check conducted with respect to the employee
at no charge in the case where the individual requests such a copy.
(5)
(A)Newly participating
states
(i)As part of the application submitted by a State under
paragraph (1)(A)(iii), the State shall guarantee, with respect to the costs to
be incurred by the State in carrying out the nationwide program, that the State
will make available (directly or through donations from public or private
entities) a particular amount of non-Federal contributions, as a condition of
receiving the Federal match under clause (ii).
(ii)The payment amount to each State that the Secretary enters
into an agreement with under paragraph (1)(A) shall be 3 times the amount that
the State guarantees to make available under clause (i), except that in no case
may the payment amount exceed $3,000,000.
(B)Previously
participating states
(i)As part of the application submitted by a State under
paragraph (1)(B)(iii), the State shall guarantee, with respect to the costs to
be incurred by the State in carrying out the nationwide program, that the State
will make available (directly or through donations from public or private
entities) a particular amount of non-Federal contributions, as a condition of
receiving the Federal match under clause (ii).
(ii)The payment amount to each State that the Secretary enters
into an agreement with under paragraph (1)(B) shall be 3 times the amount that
the State guarantees to make available under clause (i), except that in no case
may the payment amount exceed $1,500,000.
(6)Under
the nationwide program:
(A)Long-Term care facility
or providerThe 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 skilled nursing
facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C.
1395i–3(a)).
(ii)A nursing facility (as
defined in section 1919(a) of such Act (42 U.S.C. 1396r(a)).
(iii)A home health
agency.
(iv)A provider of hospice
care (as defined in section 1861(dd)(1) of such 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 provider of adult day
care.
(viii)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.
(ix)An intermediate care
facility for the mentally retarded (as defined in section 1905(d) of such Act
(42 U.S.C. 1396d(d)).
(x)Any other facility or
provider of long-term care services under such titles as the participating
State determines appropriate.
(B)Direct patient access
employeeThe term
direct patient access employee means any individual who has access
to a patient or resident of a long-term care facility or provider through
employment or through a contract with such facility or provider and has duties
that involve (or may involve) one-on-one contact with a patient or resident of
the facility or provider, as determined by the State for purposes of the
nationwide program. 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 long-term care facility or provider.
(7)
(A)The
Inspector General of the Department of Health and Human Services shall conduct
an evaluation of the nationwide program.
(B)Not
later than 180 days after the completion of the nationwide program, the
Inspector General of the Department of Health and Human Services shall submit a
report to Congress containing the results of the evaluation conducted under
subparagraph (A).
(b)
(1)The
Secretary of Health and Human Services shall notify the Secretary of the
Treasury of the amount necessary to carry out the nationwide program under this
section for the period of fiscal years 2009 through 2011, except that in no
case shall such amount exceed $160,000,000.
(2)Out of any funds in the Treasury not otherwise
appropriated, the Secretary of the Treasury shall provide for the transfer to
the Secretary of Health and Human Services of the amount specified as necessary
to carry out the nationwide program under paragraph (1). Such amount shall
remain available until expended.
4.Mandatory State use of
national correct coding initiative
(a)Section 1903(r) of
the Social Security Act (42 U.S.C. 1396b(r)) is amended—
(1)in paragraph
(1)(B)—
(A)in clause (ii), by striking
and
at the end;
(B)in clause (iii), by
adding and
after the semi-colon; and
(C)by adding at the end the
following new clause:
(iv)effective for claims
filed on or after October 1, 2009, incorporate compatible methodologies of the
National Correct Coding Initiative administered by the Secretary (or any
successor initiative to promote correct coding and to control improper coding
leading to inappropriate payment) and such other methodologies of that
Initiative (or such other national correct coding methodologies) as the
Secretary identifies in accordance with paragraph
(3);
;
and
(2)by adding at the end the
following new paragraph:
(3)Not later than September
1, 2009, the Secretary shall do the following:
(A)Identify those
methodologies of the National Correct Coding Initiative administered by the
Secretary (or any successor initiative to promote correct coding and to control
improper coding leading to inappropriate payment) which are compatible to
claims filed under this title.
(B)Identify those
methodologies of such Initiative (or such other national correct coding
methodologies) that should be incorporated into claims filed under this title
with respect to items or services for which States provide medical assistance
under this title and no national correct coding methodologies have been
established under such Initiative with respect to title XVIII.
(C)Notify States of—
(i)the methodologies
identified under subparagraphs (A) and (B) (and of any other national correct
coding methodologies identified under subparagraph (B)); and
(ii)how States are to
incorporate such methodologies into claims filed under this title.
(D)Submit a report to
Congress that includes the notice to States under subparagraph (C) and an
analysis supporting the identification of the methodologies made under
subparagraphs (A) and
(B).
.
(b)Extension for state law
amendmentIn the case of a State plan under title XIX of the
Social Security Act (42 U.S.C. 1396 et seq.) which the Secretary of Health and
Human Services determines requires State legislation in order for the plan to
meet the additional requirements imposed by the amendment made by subsection
(a)(1)(C), the State plan shall not be regarded as failing to comply with the
requirements of such title solely on the basis of its failure to meet these
additional requirements before the first day of the first calendar quarter
beginning after the close of the first regular session of the State legislature
that begins after the date of enactment of this Act. For purposes of the
previous sentence, in the case of a State that has a 2-year legislative
session, each year of the session is considered to be a separate regular
session of the State legislature.
5.Funding for the medicare
improvement fundSection
1898(b)(1) of the Social Security Act, as added by section 7002(a) of the
Supplemental Appropriations Act, 2008 (Public Law 110–252) and amended by
section 188(a)(2) of the Medicare Improvements for Patients and Providers Act
of 2008 (Public Law 110–275), is amended to read as follows:
(1)There shall be available to the Fund, for expenditures
from the Fund for services furnished during—
(A)fiscal year 2014,
$2,220,000,000; and
(B)fiscal years 2014 through
2017,
$20,200,000,000.
.
Amend the title so as to read:
A bill 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.
.
September 22 (legislative day, September 17),
2008
Reported with an amendment and an amendment to the
title