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)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)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.
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)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)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)
(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 2010 through 2012, 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)), 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 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.