[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 631 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 631

 To provide for nationwide expansion of the pilot program for national 
and State background checks on direct patient access employees of long-
                   term care facilities or providers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 18, 2009

    Mr. Kohl (for himself, Ms. Collins, Mr. Cochran, Mr. Kerry, Mr. 
   Whitehouse, Mr. Bingaman, Mr. Levin, Mr. Casey, Mrs. Lincoln, Ms. 
 Klobuchar, Ms. Stabenow, and Mr. Bayh) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 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 (22) 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 
                semi-colon; 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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