I 111th CONGRESS 2d Session H. R. 6261 IN THE HOUSE OF REPRESENTATIVES September 29, 2010 Ms. Roybal-Allard introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend titles XVIII and XIX of the Social Security Act to improve oversight of nursing facilities under the Medicare and Medicaid programs by ensuring adequate, trained surveyors, and for other purposes.

1.

Short title

This Act may be cited as the Nursing Home Patient Protection and Standards Act.

2.

Improving the rigor of testing for surveyors

(a)

Medicare

Section 1819(g)(2)(E)(iii) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)(E)(iii)) is amended by adding the following at the end: The testing program must be sufficiently rigorous (as determined by the Secretary) to ensure that surveyors are adequately prepared to survey and certify facilities in a consistent and accurate manner. (b)

Medicaid

Section 1919(g)(2)(E)(iii) of the Social Security Act (42 U.S.C. 1396r(g)(2)(E)(iii)) is amended by adding the following at the end: The testing program must be sufficiently rigorous (as determined by the Secretary) to ensure that surveyors are adequately prepared to survey and certify facilities in a consistent and accurate manner.

3.

Ensuring adequate staffing and training for State surveys of nursing homes

(a)

Medicare

Section 1819(g)(2)(E) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)(E)) is amended by adding at the end the following: (iv)

Adequate qualified staff for survey teams

The Secretary, in consultation with the advisory committee under subparagraph (F), shall establish requirements— (I)for the qualifications and compensation of members of a survey team under this subsection; and (II)that a State employs an adequate number of individuals as members of survey teams to ensure adequate oversight of skilled nursing facilities. (v)

Continuing education

In addition to the training and testing program required under clause (iii), the Secretary shall require that State and Federal surveyors regularly complete an adequate amount (as determined by the Secretary) of continuing education courses that meet requirements determined by the Secretary for content and the rigor of the material covered by such courses. An individual shall not serve as a member of a survey team unless the individual is in compliance with the requirements of this clause. . (b)

Medicaid

Section 1919(g)(2)(E) of the Social Security Act (42 U.S.C. 1396r(g)(2)(E)) is amended by adding at the end the following: (iv)

Adequate qualifed staff for survey teams

The Secretary, in consultation with the advisory committee under subparagraph (F), shall establish requirements— (I)for the qualifications and compensation of members of a survey team under this subsection; and (II)that a State employs an adequate number of individuals as members of survey teams to ensure adequate oversight of nursing facilities. (v)

Continuing education

In addition to the training and testing program required under clause (iii), the Secretary shall require that State and Federal surveyors regularly complete an adequate amount (as determined by the Secretary) of continuing education courses that meet requirements determined by the Secretary for content and the rigor of the material covered by such courses. No individual shall serve as a member of a survey team unless the individual is in compliance with the requirements of this clause. .

4.

Ensuring the independence and impartiality of surveyors

(a)

Whistle blower protections

(1)

Medicare

Section 1819(g) of the Social Security Act (42 U.S.C. 1395i–3(g)) is amended by adding the following at the end: (6)

Reporting of inaccuracies

(A)

Reporting requirement

A covered individual shall report to the Secretary any instance in which the individual suspects that— (i)a survey under this subsection fails to report or under reports an issue in a facility that could impact the safety or quality of care of the residents in such facility; or (ii)a member of the survey team or an employee of the State survey agency was inappropriately induced (through the offering of monetary awards or through undue pressure) to alter the results of the survey. (B)

Responses to report

If the Secretary receives a report under subparagraph (A), the Secretary shall take appropriate action, as determined by the Secretary, to ensure the accuracy of the survey. (C)

Whistle blower protections

With respect to a covered individual, a State may not— (i)discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to such individual, or in any other manner discriminate against an individual in the terms and conditions of employment because the individual submitted a report under subparagraph (A); or (ii)file a complaint or a report against the individual with the appropriate State professional disciplinary agency because the individual submitted a report under subparagraph (A). (D)

Remedy for violations

If the Secretary finds that a State has violated the prohibitions under subparagraph (C), the Secretary shall provide for an appropriate remedy. (E)

Requirement to post notice

Each State shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying the rights of covered individuals under this section. Such sign shall include a statement that a covered individual may file a complaint with the Secretary against the State for violating the provisions of this paragraph and information with respect to the manner of filing such a complaint. (F)

Covered individual defined

For purposes of this paragraph, the term covered individual means an individual— (i)who is a member of a State survey team under this subsection; or (ii)who is an employee of the State department or agency that conducts surveys under this section. . (2)

Medicaid

Section 1919(g) of the Social Security Act (42 U.S.C. 1396r(g)) is amended by adding the following at the end: (6)

Reporting of inaccuracies

(A)

Reporting requirement

A covered individual shall report to the Secretary any instance in which the individual suspects that— (i)a survey under this subsection fails to report or under reports an issue in a facility that could impact the safety or quality of care of the residents in such facility; or (ii)a member of the survey team or an employee of the State survey agency was inappropriately induced (through the offering of monetary awards or through undue pressure) to alter the results of the survey. (B)

Response to reports

If the Secretary receives a report under subparagraph (A), the Secretary shall take appropriate action, as determined by the Secretary, to ensure the accuracy of the survey. (C)

Whistle blower protections

With respect to a covered individual, a State may not— (i)discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to such individual, or in any other manner discriminate against an individual in the terms and conditions of employment because the individual submitted a report under subparagraph (A); or (ii)file a complaint or a report against the individual with the appropriate State professional disciplinary agency because the individual submitted a report under subparagraph (A). (D)

Penalties for retaliation

If the Secretary finds that a State has violated the prohibitions under subparagraph (C), the Secretary shall provide for a reduction of the payment otherwise made to the State under section 1903(a)(7), with respect to a quarter, equal to 5 percent. A State that is dissatisfied with the Secretary’s findings under this subparagraph may obtain reconsideration and review of the findings under section 1116 in the same manner as a State may seek reconsideration and review under that section of the Secretary’s determination under section 1116(a)(1). (E)

Requirement to post notice

Each State shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying the rights of covered individuals under this section. Such sign shall include a statement that a covered individual may file a complaint with the Secretary against the State for violating the provisions of this paragraph and information with respect to the manner of filing such a complaint. (F)

Covered individual defined

For purposes of this paragraph, the term covered individual means an individual— (i)who is a member of a State survey team under this subsection; or (ii)who is an employee of the State department or agency that conducts surveys under this section. . (b)

Penalties for inappropriately influencing a surveyor

(1)

Medicare

Section 1819(g)(2)(E) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)(E)), as amended by section 3(a), is further amended by adding the following at the end: (vi)

Penalties for inappropriately influencing a surveyor

Any individual (including an employee of a skilled nursing facility or any affiliated corporate entity, a representative of the skilled nursing facility industry, a member of a State survey team, an employee of the State department or agency that conducts surveys under this section, or an elected official) who attempts to inappropriately influence, as determined by the Secretary through regulations, the results of a survey under this subsection or the actions of a member of a survey team or an employee of a survey agency under this subsection shall be subject to a civil money penalty not to exceed $10,000. The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). . (2)

Medicaid

Section 1919(g)(2)(E) of the Social Security Act (42 U.S.C. 1396r(g)(2)(E)), as amended by section 3(b), is further amended by adding at the end the following: (vi)

Penalties for inappropriately influencing a surveyor

Any individual (including an employee of a nursing facility or any affiliated corporate entity, a representative of the nursing facility industry, a member of a State survey team, an employee of the State department or agency that conducts surveys under this section, or an elected official) who attempts to inappropriately influence, as determined by the Secretary through regulations, the results of a survey under this subsection or the actions of a member of a survey team or an employee of a survey agency under this subsection shall be subject to a civil money penalty not to exceed $10,000. The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). . (3)

Conforming amendments

(A)Section 1819(f)(2)(B)(iii)(I)(c) of the Social Security Act is amended by inserting , a civil monetary penalty described in section 1919(g)(2)(E)(vi) of not less than $10,000 after of not less than $5,000. (B)Section 1919(f)(2)(B)(iii)(I)(c) of the Social Security Act is amended by inserting , a civil monetary penalty described in (g)(2)(E)(vi) of not less than $10,000 after of not less than $5,000.

5.

Advisory committee

(a)

Medicare

Section 1819(g)(2) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)) is amended by adding at the end the following: (F)

Advisory Committee

(i)

Establishment

The Secretary shall establish an advisory committee on surveys under this paragraph. (ii)

Membership

The membership of the advisory committee under clause (i) shall include advocates for residents of skilled nursing facilities, members of survey teams under this subsection, and nursing home administrators, directors of nursing, registered nurses, and other skilled nursing facility stakeholders. (iii)

Recommended standards

The advisory committee under clause (i) shall make recommendations to the Secretary on standards for— (I)the adequate staffing of survey teams under this subsection; (II)the training of members of such teams; and (III)disclosing any contact between such members and individuals associated with skilled nursing facilities, and limiting such contact to prevent inappropriate influence of such members by such individuals. (iv)

Other recommendations

The advisory committee under clause (i) may also make recommendations to the Secretary on any other issue that would improve the survey process under this paragraph. . (b)

Medicaid

Section 1919(g)(2) of the Social Security Act (42 U.S.C. 1396r(g)(2)) is amended by adding at the end the following: (F)

Advisory Committee

(i)

Establishment

The Secretary shall establish an advisory committee on surveys under this paragraph. (ii)

Membership

The membership of the advisory committee under clause (i) shall include advocates for residents of nursing facilities, members of survey teams under this subsection, and nursing home administrators. (iii)

Recommended standards

The advisory committee under clause (i) shall make recommendations to the Secretary on standards for— (I)the adequate staffing of survey teams under this subsection; (II)the training of members of such teams; and (III)disclosing any contact between such members and individuals associated with nursing facilities, and limiting such contact to prevent inappropriate influence of such members by such individuals. (iv)

Other recommendations

The advisory committee under clause (i) may also make recommendations to the Secretary on any other issue that would improve the survey process under this paragraph. .

6.

Review of surveys

(a)

Medicare

Section 1819(g)(2)(D) of the Social Security Act (42 U.S.C. 1395i–3(g)(2)(D)) is amended— (1)by striking Each State and inserting the following: (i)

In general

Each State ; and (2)by adding at the end the following new clause: (ii)

Review of surveys

The supervisors of the survey teams shall review each survey conducted under this subsection to ensure that any issues that impact quality of care that are identified by such surveys are consistently and appropriately described and rated by the survey teams. . (b)

Medicaid

Section 1919(g)(2)(D) of the Social Security Act (42 U.S.C. 1396r(g)(2)(D)) is amended— (1)by striking Each State and inserting the following: (i)

In general

Each State ; and (2)by adding at the end the following new clause: (ii)

Review of surveys

The supervisors of the survey teams shall review each survey conducted under this subsection to ensure that any issues that impact quality of care that are identified by such surveys are consistently and appropriately described and rated by the survey teams. .