[Congressional Record Volume 144, Number 140 (Thursday, October 8, 1998)]
[Senate]
[Pages S12032-S12034]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         LONG-TERM CARE PATIENT PROTECTION ACT OF 1998--S. 2570

  The text of the bill (S. 2570), introduced on October 7, 1998, is as 
follows:

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SEC. 1. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF NURSING 
                   FACILITY RESIDENTS.

       (a) Nursing Facility and Skilled Nursing Facility 
     Requirements.--
       (1) Medicaid Program.--Section 1919(b), as amended by 
     section 2(a), is amended by adding after paragraph (8) the 
     following new paragraph:
       ``(9) Screening of nursing facility workers.--
       ``(A) Background checks on applicants.--Subject to 
     subparagraph (B)(ii), before hiring an individual, a nursing 
     facility shall--
       ``(i) give the individual written notice that the facility 
     is required to perform background checks with respect to 
     applicants;
       ``(ii) require, as a condition of employment, that such 
     individual--
       ``(I) provide a written statement disclosing any conviction 
     for a relevant crime or finding of patient or resident abuse;
       ``(II) provide a statement signed by the individual 
     authorizing the facility to request the search and exchange 
     of criminal records;
       ``(III) provide in person a copy of the individual's 
     fingerprints; and
       ``(IV) provide any other identification information the 
     Secretary may specify in regulation;
       ``(iii) initiate a check of the registry under section 
     1128F in accordance with regulations promulgated by the 
     Secretary to determine whether such registry contains any 
     disqualifying information with respect to such individual; 
     and
       ``(iv) if such registry does not contain any such 
     disqualifying information--
       ``(I) request that the State initiate a State and national 
     criminal background check on such individual in accordance 
     with the provisions of subsection (e)(9); and
       ``(II) furnish to the State the information described in 
     subclauses (II) through (IV) of clause (ii) not more than 7 
     days (excluding Saturdays, Sundays, and legal public holidays 
     under section 6103(a) of title 5, United States Code) after 
     completion of the check against the registry initiated under 
     clause (iii).
       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--A nursing facility may not knowingly 
     employ any individual who has any conviction for a relevant 
     crime or with respect to whom a finding of patient or 
     resident abuse has been made.
       ``(ii) Probationary employment.--After complying with the 
     requirements of clauses (i), (ii), and (iii) of subparagraph 
     (A), a nursing facility may provide for a probationary period 
     of employment (not to exceed 90 days) for an individual 
     pending completion of the check against the registry 
     described under subparagraph (A)(iii) and the background 
     check described under subparagraph (A)(iv). Such facility 
     shall maintain supervision of the individual during the 
     individual's probationary period of employment.
       ``(C) Reporting requirements.--A nursing facility shall 
     report to the State any instance in which the facility 
     determines that an individual has committed an act of 
     resident neglect or abuse or misappropriation of resident 
     property in the course of employment by the facility.
       ``(D) Use of information.--
       ``(i) In general.--A nursing facility that obtains 
     information about an individual pursuant to clauses (iii) and 
     (iv) of subparagraph (A) may use such information only for 
     the purpose of determining the suitability of the individual 
     for employment.
       ``(ii) Immunity from liability.--A nursing facility that, 
     in denying employment for an applicant, reasonably relies 
     upon information about an individual provided by the State 
     pursuant to subsection (e)(9) shall not be liable in any 
     action brought by the individual based on the employment 
     determination resulting from the incompleteness or inaccuracy 
     of the information.
       ``(iii) Criminal penalty.--Whoever knowingly violates the 
     provisions of subparagraph (D)(i) shall be fined in 
     accordance with title 18, United States Code, imprisoned for 
     not more than 2 years, or both.
       ``(E) Defintions.--As used in this paragraph--
       ``(i) the term `conviction for a relevant crime' means any 
     State or Federal criminal conviction for--
       ``(I) any offense described in paragraphs (1) through (4) 
     of section 1128(a); and
       ``(II) such other types of offenses as the Secretary may 
     specify in regulations;
       ``(ii) the term `finding of patient or resident abuse' 
     means any substantiated finding by a State agency under 
     subsection (g)(1)(C) or a Federal agency that an individual 
     has committed--
       ``(I) an act of patient or resident abuse or neglect or a 
     misappropriation of patient or resident property; or

[[Page S12033]]

       ``(II) such other types of acts as the Secretary may 
     specify in regulations; and
       ``(iii) the term `disqualifying information' means 
     information about a conviction for a relevant crime or a 
     finding of patient or resident abuse.''.
       (2) Medicare program.--Section 1819(b), as amended by 
     section 2(b), is amended by adding after paragraph (8) the 
     following new paragraph:
       ``(9) Screening of nursing facility workers.--
       ``(A) Background checks on applicants.--Subject to 
     subparagraph (B)(ii), before hiring an individual, a skilled 
     nursing facility shall--
       ``(i) give the individual written notice that the facility 
     is required to perform background checks with respect to 
     applicants;
       ``(ii) require, as a condition of employment, that such 
     individual--
       ``(I) provide a written statement disclosing any conviction 
     for a relevant crime or finding of patient or resident abuse;
       ``(II) provide a statement signed by the individual 
     authorizing the facility to request the search and exchange 
     of criminal records;
       ``(III) provide in person a copy of the individual's 
     fingerprints; and
       ``(IV) provide any other identification information the 
     Secretary may specify in regulation;
       ``(iii) initiate a check of the registry under section 
     1128F in accordance with regulations promulgated by the 
     Secretary to determine whether such registry contains any 
     disqualifying information with respect to such individual; 
     and
       ``(iv) if such registry does not contain any such 
     disqualifying information--
       ``(I) request that the State initiate a State and national 
     criminal background check on such individual in accordance 
     with the provisions of subsection (e)(7); and
       ``(II) furnish to the State the information described in 
     subclauses (II) through (IV) of clause (ii) not more than 7 
     days (excluding Saturdays, Sundays, and legal public holidays 
     under section 6103(a) of title 5, United States Code) after 
     completion of the check against the registry initiated under 
     clause (iii).
       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--A skilled nursing facility may not 
     knowingly employ any individual who has any conviction for a 
     relevant crime or with respect to whom a finding of patient 
     or resident abuse has been made.
       ``(ii) Probationary employment.--After complying with the 
     requirements of clauses (i), (ii), and (iii) of subparagraph 
     (A), a skilled nursing facility may provide for a 
     probationary period of employment (not to exceed 90 days) for 
     an individual pending completion of the check against the 
     registry described under subparagraph (A)(iii) and the 
     background check described under subparagraph (A)(iv). Such 
     facility shall maintain supervision of the individual during 
     the individual's probationary period of employment.
       ``(C) Reporting requirements.--A skilled nursing facility 
     shall report to the State any instance in which the facility 
     determines that an individual has committed an act of 
     resident neglect or abuse or misappropriation of resident 
     property in the course of employment by the facility.
       ``(D) Use of information.--
       ``(i) In general.--A skilled nursing facility that obtains 
     information about an individual pursuant to clauses (iii) and 
     (iv) of subparagraph (A) may use such information only for 
     the purpose of determining the suitability of the individual 
     for employment.
       ``(ii) Immunity from liability.--A skilled nursing facility 
     that, in denying employment for an applicant, reasonably 
     relies upon information about an individual provided by the 
     State pursuant to subsection (e)(9) shall not be liable in 
     any action brought by the individual based on the employment 
     determination resulting from the incompleteness or inaccuracy 
     of the information.
       ``(iii) Criminal penalty.--Whoever knowingly violates the 
     provisions of subparagraph (D)(i) shall be fined in 
     accordance with title 18, United States Code, imprisoned 
     for not more than 2 years, or both.
       ``(E) Definitions.--As used in this paragraph--
       ``(i) the term `conviction for a relevant crime' means any 
     State or Federal criminal conviction for--
       ``(I) any offense described in paragraphs (1) through (4) 
     of section 1128(a); and
       ``(II) such other types of offenses as the Secretary may 
     specify in regulations;
       ``(ii) the term `finding of patient or resident abuse' 
     means any substantiated finding by a State agency under 
     subsection (g)(1)(C) or a Federal agency that an individual 
     has committed--
       ``(I) an act of patient or resident abuse or neglect or a 
     misappropriation of patient or resident property; or
       ``(II) such other types of acts as the Secretary may 
     specify in regulations; and
       ``(iii) the term `disqualifying information' means 
     information about a conviction for a relevant crime or a 
     finding of patient or resident abuse.''.
       ``(b) State Requirements.--
       ``(1) Medicaid programs.--
       ``(A) Expansion of state registry to collect information 
     about nursing facility employees other than nurse aides.--
     Section 1919, as amended by section 2(a), is amended--
       ``(i) in subsection (e)(2)--
       ``(I) in the paragraph heading, by striking ``Nurse aide 
     registry'' and inserting ``Nursing facility employee 
     registry'''
       ``(II) in subparagraph (A)--
       ``(aa) by striking ``By not later than January 1, 1989, 
     the'' and inserting ``The'';
       ``(bb) by striking ``a registry of all individuals'' and 
     inserting ``a registry of (I) all individuals''; and
       ``(cc) by inserting before the period ``, and (II) all 
     other nursing facility employees with respect to whom the 
     State has made a finding described in subparagraph (B)'';
       ``(III) in subparagraph (B), by striking ``involving an 
     individual listed in the registry'' and inserting ``involving 
     a nursing facility employee''; and
       ``(IV) in subparagraph (C), by striking ``nurse aide'' and 
     inserting ``nursing facility employee or applicant for 
     employment''; and
       ``(ii) in subsection (g)(1)--
       ``(I) in subparagraph (C)--
       ``(aa) in the first sentence, by striking ``nurse aide'' 
     and inserting ``nursing facility employee''; and
       ``(bb) in the third sentence, by striking ``nurse aide'' 
     each place it appears and inserting ``nursing facility 
     employee''; and
       ``(II) in subparagraph (D), by striking ``nurse aide'' each 
     place it appears and inserting ``nursing facility employee''.
       ``(B) State and federal requirement to conduct background 
     checks.--Section 1919(e), as amended by section 2(a), is 
     amended by adding at the end the following new paragraph:
       ``(9) State and federal requirements concerning criminal 
     background checks on nursing facility employees.--
       ``(A) In general.--Upon receipt of a request by a nursing 
     facility pursuant to subsection (b)(9) that is accompanied by 
     the information described in subclauses (II) through (IV) of 
     subsection (b)(9)(A)(ii), a State, after checking appropriate 
     State records and finding no disqualifying information (as 
     defined in subsection (b)(9)(E)), shall submit such request 
     and information to the Attorney General and shall request the 
     Attorney General to conduct a search and exchange of records 
     with respect to the individual as described in subparagraph 
     (B).
       ``(B) Search and exchange of records by attorney general.--
     Upon receipt of a submission pursuant to subparagraph (A), 
     the Attorney General shall direct a search of the records of 
     the Federal Bureau of Investigation for any criminal history 
     records corresponding to the fingerprints or other positive 
     identification information submitted. The Attorney General 
     shall provide any corresponding information resulting from 
     the search to the State.
       ``(C) State reporting of information to nursing facility.--
     Upon receipt of the information provided by the Attorney 
     General pursuant to subparagraph (B), the State shall--
       ``(i) review the information to determine whether the 
     individual has any conviction for a relevant crime (as 
     defined in subsection (b)(9)(E)); and
       ``(iii) report to the nursing facility the results of such 
     review.
       ``(D) Fees for performance of criminal background checks.--
       ``(i) Authority to charge fees.--
       ``(I) Attorney general.--The Attorney General may charge a 
     fee to any State requesting a search and exchange of records 
     pursuant to this paragraph and subsection (b)(9) for 
     conducting the search and providing the records. The amount 
     of such fee shall not exceed the lesser of the actual cost of 
     such activities or $50. Such fees shall be available to the 
     Attorney General, or, in the Attorney General's discretion, 
     to the Federal Bureau of Investigation, until expended.
       ``(II) State.--A State may charge a nursing facility a fee 
     for initiating the criminal background check under this 
     paragraph and subsection (b)(9), including fees charged by 
     the Attorney General, and for performing the review and 
     report required by subparagraph (C). The amount of such fee 
     shall not exceed the actual cost of such activities.
       ``(ii) Treatment of fees for purposes of cost reports.--An 
     entity may not include a fee assessed pursuant to this 
     subparagraph as an allowable item on a cost report under this 
     title or title XVIII.
       ``(iii) Prohibition on charging applicants or employees.--
     An entity may not impose on an applicant for employment or an 
     employee any charges relating to the performance of a 
     background check under this paragraph.
       ``(E) Regulations.--In addition to the Secretary's 
     authority to promulgate regulations under this title, the 
     Attorney General, in consultation with the Secretary, may 
     promulgate such regulations as are necessary to carry out the 
     Attorney General's responsibilities under this paragraph and 
     subsection (b)(9), including regulations regarding the 
     security, confidentiality, accuracy, use, destruction, and 
     dissemination of information, audits and recordkeeping and 
     the imposition of fees.
       ``(F) Report.--Not later than 2 years after the date of 
     enactment of the ``Long-Term Care Patient Protection Act of 
     1998'', the Attorney General shall submit a report to 
     Congress on the number of requests for searches and exchanges 
     of records made under this section and the disposition of 
     such requests.''.
       (2) Medicare program.--
       (A) Expansion of state registry to collect information 
     about skilled nursing facility employees other than nurse 
     aides.--Section 1819, as amended by section 2(b), is 
     amended--

[[Page S12034]]

       (i) in subsection (e)(2)--
       (I) in the paragraph heading, by striking ``Nurse aide 
     registry'' and inserting ``Skilled nursing care employee 
     registry'';
       (II) in subparagraph (A)--
       (aa) by striking ``By not later than January 1, 1989, the'' 
     and inserting ``The'';
       (bb) by striking ``a registry of all individuals'' and 
     inserting ``a registry of (I) all individuals''; and
       (cc) by inserting before the period ``, and (II) all other 
     skilled nursing facility employees with respect to whom the 
     State has made a finding described in subparagraph (B)'';
       (III) in subparagraph (B), by striking ``involving an 
     individual listed in the registry'' and inserting ``involving 
     a skilled nursing facility employee''; and
       (IV) in subparagraph (C), by striking ``nurse aide'' and 
     inserting ``skilled nursing facility employee or applicant 
     for employment''; and
       (ii) in subsection (g)(1)--
       (I) in subparagraph (C)--
       (aa) in the first sentence, by striking ``nurse aide'' and 
     inserting ``skilled nursing facility employee''; and
       (bb) in the third sentence, by striking ``nurse aide'' each 
     place it appears and inserting ``skilled nursing facility 
     employee''; and
       (II) in subparagraph (D), by striking ``nurse aide'' each 
     place it appears and inserting ``skilled nursing facility 
     employee''.
       (B) State and federal requirement to conduct background 
     checks.--Section 1819(e), as amended by section 2(b), is 
     amended by adding at the end the following new paragraph:
       ``(7) State and federal requirements concerning criminal 
     background checks on skilled nursing facility employees.--
       ``(A) In general.--Upon receipt of a request by a skilled 
     nursing facility pursuant to subsection (b)(9) that is 
     accompanied by the information described in subclauses (II) 
     through (IV) of subsection (b)(9)(A)(ii), a State, after 
     checking appropriate State records and finding no 
     disqualifying information (as defined in subsection 
     (b)(9)(E)), shall submit such request and information to the 
     Attorney General and shall request the Attorney General to 
     conduct a search and exchange of records with respect to the 
     individual as described in subparagraph (B).
       ``(B) Search and exchange of records by attorney general.--
     Upon receipt of a submission pursuant to subparagraph (A), 
     the Attorney General shall direct a search of the records of 
     the Federal Bureau of Investigation for any criminal history 
     records corresponding to the fingerprints or other positive 
     identification information submitted. The Attorney General 
     shall provide any corresponding information resulting from 
     the search to the State.
       ``(C) State reporting of information to nursing facility.--
     Upon receipt of the information provided by the Attorney 
     General pursuant to subparagraph (B), the State shall--
       ``(i) review the information to determine whether the 
     individual has any conviction for a relevant crime (as 
     defined in subsection (b)(9)(E)); and
       ``(ii) report to the skilled nursing facility the results 
     of such review.
       ``(D) Fees for performance of criminal background checks.--
       ``(i) Authority to charge fees.--
       ``(I) Attorney general.--The Attorney General may charge a 
     fee to any State requesting a search and exchange of 
     records pursuant to this paragraph and subsection (b)(9) 
     for conducting the search and providing the records. The 
     amount of such fee shall not exceed the lesser of the 
     actual cost of such activities or $50. Such fees shall be 
     available to the Attorney General, or, in the Attorney 
     General's discretion, to the Federal Bureau of 
     Investigation until expended.
       ``(II) State.--A State may charge a skilled nursing 
     facility a fee for initiating the criminal background check 
     under this paragraph and subsection (b)(9), including fees 
     charged by the Attorney General, and for performing the 
     review and report required by subparagraph (C). The amount of 
     such fee shall not exceed the actual cost of such activities.
       ``(ii) Treatment of fees for purposes of cost reports.--An 
     entity may not include a fee assessed pursuant to this 
     subparagraph as an allowable item on a cost report under this 
     title or title XIX.
       ``(iii) Prohibition on charging applicants or employess.--
     An entity may not impose on an applicant for employment or an 
     employee any charges relating to the performance of a 
     background check under this paragraph.
       ``(E) Regulations.--In addition to the Secretary's 
     authority to promulgate regulations under this title, the 
     Attorney General, consultation with the Secretary, may 
     promulgate such regulations as are necessary to carry out the 
     Attorney General's responsibilities under this paragraph and 
     subsection (b)(9), including regulations regarding the 
     Security confidentiality, accuracy, use, destruction, and 
     dissemination of information, audits and recordkeeping, and 
     the imposition of fees.
       ``(F) Report.--Not later than 2 years after the date of 
     enactment of the ``Long-Term Care Patient Protection Act of 
     1998'', the Attorney General shall submit a report to 
     Congress on the number of requests for searches and exchanges 
     of records made under this section and the disposition of 
     such requests.''.
       ``(c) Establishment of National Registry of Abusive Nursing 
     Facility Workers.--Title XI of the Social Security Act is 
     amended by adding after section 1128E the following new 
     section:


        ``NATIONAL REGISTRY OF ABUSIVE NURSING FACILITY WORKERS

       ``Sec. 1128F. (a) In General.--The Secretary shall 
     establish a national data collection program for the 
     reporting of information described in subsection (b), with 
     access as set forth in subsection (c), and shall maintain a 
     database of the information collected under the section.
       ``(b) Reporting of Information.--Each State shall report 
     the information collected pursuant to sections 1819(e)(2)(B) 
     and 1919(e)(2)(B) in such form and manner as the Secretary 
     may prescribe by regulation.
       ``(c) Access to Reported Information.--
       ``(1) Availability.--The information in the database 
     maintained under this section shall be available, pursuant to 
     producers maintained under this section, to--
       ``(A) Federal and State government agencies;
       ``(B) nursing facilities participating in the program under 
     title XIX and skilled nursing facilities participating in a 
     program under title XVIII; and
       ``(C) such other persons as the Secretary may specify by 
     regulations,

     but only for the purpose of determining the suitability for 
     employment in a nursing facility or skilled nursing facility.
       ``(2) Information.--The information in the database shall 
     be exempt from disclosure under 5 U.S.C. 552.
       ``(3) Fees for Disclosure.--
       ``(A) In general.--The Secretary may establish or approve 
     reasonable fees for the disclosure of information in such 
     data base. The amount of such a fee shall be sufficient to 
     recover the full costs of operating the database. Such fees 
     shall be available to the Secretary or, in the Secretary's 
     discretion, to the agency designated under this section to 
     cover such costs.
       ``(B) Availability of fees.--Fees collected pursuant to 
     this subsection shall remain available until expended, in the 
     amounts provided in appropriation acts, for necessary 
     expenses related to the purposes for which the fees were 
     assessed.
       ``(C) Treatment of fees for purposes of cost reports.--An 
     entity may not include a fee assessed pursuant to this 
     subsection as an allowable item on a cost report under this 
     title or title XIX.
       ``(D) Prohibition on charging applicants or employees.--An 
     entity may not impose on an applicant for employment or an 
     employee any charges relating to the registry established and 
     maintained under this section.''.

     SEC. 2. EFFECTIVE DATA.

       The provisions of and amendments made by the Act shall be 
     effective on and after the date of enactment, without regard 
     to whether implementing regulations are in effect.

                          ____________________