[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2223 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2223
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 HOUSE OF REPRESENTATIVES
April 30, 2009
Mr. Sestak (for himself, Mr. Ehlers, Ms. Kilpatrick of Michigan, Mr.
Courtney, Mrs. Tauscher, and Mr. Upton) introduced the following bill;
which was referred to the Committee on Energy and Commerce, and in
addition to the Committee on Ways and Means, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To 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''.
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 the potential to harm residents of
long-term care facilities.
(4) A national survey of State Adult Protective Services
agencies identified more than 500,000 reports of elder and
vulnerable adult abuse in 2004, and a national 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 require criminal background checks at the
Federal level.
(b) Purposes.--The purposes of this Act are to--
(1) lay the foundation for a coordinated, nationwide system
of comprehensive State registry and criminal background checks
that would greatly enhance the chances of identifying
individuals with problematic backgrounds who change jobs
frequently and move across State lines to avoid detection;
(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 abusive workers will not be hired
into positions that give them access to extremely vulnerable
individuals receiving long-term care services in health care
settings across the United States.
SEC. 3. NATIONWIDE PROGRAM FOR NATIONAL AND STATE BACKGROUND CHECKS ON
DIRECT PATIENT ACCESS EMPLOYEES OF LONG-TERM CARE
FACILITIES AND PROVIDERS.
(a) In General.--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) Agreements.--
(A) 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) 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 states.--The
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 criteria.--The 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 check.--The 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) require States to describe and test methods
that 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 which employs the direct patient access
employee of such conviction.
(4) State requirements.--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) describe and test methods that
reduce duplicative fingerprinting, including
providing 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 which employs the direct
patient access employee 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) Payments.--
(A) Newly participating states.--
(i) In general.--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) Federal match.--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) In general.--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) Federal match.--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) Definitions.--Under the nationwide program:
(A) Long-term care facility or provider.--The term
``long-term care facility or provider'' means the
following facilities or providers which receive payment
for services under title XVIII or XIX of the Social
Security Act:
(i) A 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 employee.--The 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) Evaluation and report.--
(A) Evaluation.--The Inspector General of the
Department of Health and Human Services shall conduct
an evaluation of the nationwide program.
(B) Report.--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) Funding.--
(1) Notification.--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 2010 through 2012,
except that in no case shall such amount exceed $160,000,000.
(2) 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 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.
SEC. 4. MANDATORY STATE USE OF NATIONAL CORRECT CODING INITIATIVE.
(a) In General.--Section 1903(r) of the Social Security Act (42
U.S.C. 1396b(r)), as amended by section 3(a) of the QI Program
Supplemental Funding Act of 2008 (Public Law 110-379), 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
semicolon; and
(C) by adding at the end the following new clause:
``(iv) effective for claims filed on or
after October 1, 2010, 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 (4);''; and
(2) by adding at the end the following new paragraph:
``(4) Not later than September 1, 2010, 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 Amendment.--In 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.
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