[Congressional Record Volume 145, Number 107 (Tuesday, July 27, 1999)]
[Senate]
[Pages S9389-S9393]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself and Mr. REID):
  S. 1445. A bill to amend titles XVIII and XIX of the Social Security 
Act to prevent abuse of recipients of long-term care services under the 
Medicare and Medicaid programs; to the Committee on Finance.


                      patient abuse prevention act

  Mr. KOHL. Mr. President, I rise today to reintroduce the Patient 
Abuse Prevention Act. I am pleased to be joined in this effort by 
Senator Reid, who has worked tirelessly with me on this important 
legislation.
  This bill is the product of collaboration and input from the 
administration, the health care industry, patient and employee 
advocates--who all have the same goal I do: protecting patients in 
long-term care from abuse, neglect, and mistreatment.
  Last fall, the Department of Health and Human Services Office of 
Inspector General issued a report describing how easy it is for people 
with abusive and criminal backgrounds to find work in nursing homes. On 
September 14 of last year, the Senate Aging Committee held hearings on 
this disturbing problem, where we heard horrifying stories of elderly 
patients being abused by the very people who are charged with their 
care. While the vast majority of nursing home workers are dedicated and 
professional, even one instance of abuse is inexcusable. This should 
not be happening in a single nursing home in America.
  Mr. President, it is estimated that more than 43 percent of Americans 
over the age of 65 will likely spend time in a nursing home. The number 
of people needing long-term care services will continue to increase as 
the Baby Boom generation ages. The vast majority of nursing homes, home 
health agencies and hospices do an excellent job in caring for their 
patients. But it only takes a few abusive staff to cast a dark shadow 
over what should be a healing environment.
  A disturbing number of cases have been reported where workers with 
criminal backgrounds have been cleared to work in direct patient care, 
and have subsequently abused patients in their care. In 1997, the 
Milwaukee Journal-Sentinel ran a series of articles describing this 
problem, which led my home State of Wisconsin to pass a criminal 
background check law for health care workers. The legislation I 
introduce today follows their example and builds on their efforts.
  Why is it necessary to act? Because it is just far too easy for a 
worker with a history of abuse to find employment and prey on the most 
vulnerable patients. The OIG report found that 5 percent of nursing 
home employees in two States had prior criminal records. The OIG also 
found that between 15-20 percent of those convicted of patient abuse 
had prior criminal records. It is just too easy for known abusers to 
find work in health care and continue to prey on patients.
  Current state and national safeguards are inadequate to screen out 
abusive workers. All States are required to maintain registries of 
abusive nurse aides. But nurse aids are not the only workers involved 
in abuse, and other workers are not tracked at all. Even worse, there 
is no system to coordinate information about abusive nurse aides 
between States. A known abuser in Iowa would have little trouble moving 
to Wisconsin and continuing to work with patients there.
  In addition, there is no Federal requirement that long-term care 
facilities conduct criminal background checks on prospective employees. 
People with violent criminal backgrounds--people who have already been 
convicted of murder, rape, and assault--could easily get a job in a 
nursing home or other health care setting without their past ever being 
discovered.
  Our legislative will go a long way toward solving this problem. 
First, it will create a National Registry of abusive long-term care 
employees. States will be required to submit information from their 
current State registries to the National Registry. Facilities will be 
required to check the National Registry before hiring a prospective 
worker. Any worker with a substantiated finding of patient abuse will 
be prohibited from working in long-term care.
  Second, the bill provides a second line of defense to protect 
patients from violent criminals. If the National Registry does not 
contain information about a prospective worker, the facility is then 
required to initiate an FBI background check. Any conviction for 
patient abuse or a relevant violent crime would bar that applicant from 
working with patients.
  I realize that this legislation will not solve all instances of 
abuse. We still need to do more to stop abuse from occurring in the 
first place. But this bill will ensure that those who have already 
abused an elderly or disabled patient, and those who have committed 
violent crimes against people in the past, are kept away from 
vulnerable patients.
  Mr. President, I want to repeat that I strongly believe that most 
long-term care providers and their staff work hard to deliver the 
highest quality care. However, it is imperative that Congress act 
immediately to get rid of those that don't. When a patient checks into 
a nursing home or hospice, or receives home health care, they should 
not have to give up their right to be free from abuse, neglect, or 
mistreatment.
  Our nation's seniors made our country what it is today. It is our 
obligation to make sure we treat them with the dignity, care, and 
respect they deserve. I look forward to continuing to work with my 
colleagues, the administration, and the health care industry in this 
effort to protect patients. Our nation's seniors and disabled deserve 
nothing less than our full attention.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Record. I also ask unanimous consent that a letter of support for 
this legislation from the National Citizens' Coalition for Nursing Home 
Reform be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1445

       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 Abuse Prevention 
     Act''.

     SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE OF NURSING 
                   FACILITY RESIDENTS.

       (a) Nursing Facility and Skilled Nursing Facility 
     Requirements.--
       (1) Medicaid program.--Section 1919(b) of the Social 
     Security Act (42 U.S.C. 1396r(b)) is amended by adding at the 
     end the following:
       ``(8) Screening of nursing facility workers.--
       ``(A) Background checks on applicants.--Subject to 
     subparagraph (B)(ii), before hiring a nursing facility 
     worker, a nursing facility shall--
       ``(i) give the worker written notice that the facility is 
     required to perform background checks with respect to 
     applicants;
       ``(ii) require, as a condition of employment, that such 
     worker--

       ``(I) provide a written statement disclosing any conviction 
     for a relevant crime or finding of patient or resident abuse;

[[Page S9390]]

       ``(II) provide a statement signed by the worker authorizing 
     the facility to request the search and exchange of criminal 
     records;
       ``(III) provide in person a copy of the worker's 
     fingerprints; and
       ``(IV) provide any other identification information the 
     Secretary may specify in regulation;

       ``(iii) initiate a check of the data collection system 
     established under section 1128E in accordance with 
     regulations promulgated by the Secretary to determine whether 
     such system contains any disqualifying information with 
     respect to such worker; and
       ``(iv) if that system does not contain any such 
     disqualifying information--

       ``(I) request that the State initiate a State and national 
     criminal background check on such worker in accordance with 
     the provisions of subsection (e)(8); 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 system initiated under 
     clause (iii).

       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--A nursing facility may not knowingly 
     employ any nursing facility worker who has any conviction for 
     a relevant crime or with respect to whom a finding of patient 
     or resident abuse has been made.
       ``(ii) Provisional employment.--After complying with the 
     requirements of clauses (i), (ii), and (iii) of subparagraph 
     (A), a nursing facility may provide for a provisional period 
     of employment for a nursing facility worker pending 
     completion of the check against the data collection system 
     described under subparagraph (A)(iii) and the background 
     check described under subparagraph (A)(iv). Such facility 
     shall maintain direct supervision of the worker during the 
     worker's provisional period of employment.
       ``(C) Reporting requirements.--A nursing facility shall 
     report to the State any instance in which the facility 
     determines that a nursing facility worker 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 a nursing facility worker pursuant to 
     clauses (iii) and (iv) of subparagraph (A) may use such 
     information only for the purpose of determining the 
     suitability of the worker for employment.
       ``(ii) Immunity from liability.--A nursing facility that, 
     in denying employment for an applicant (including during the 
     period described in subparagraph (B)(ii)), reasonably relies 
     upon information about such applicant provided by the State 
     pursuant to subsection (e)(8) or section 1128E shall not be 
     liable in any action brought by such applicant based on the 
     employment determination resulting from the information.
       ``(iii) Criminal penalty.--Whoever knowingly violates the 
     provisions of clause (i) shall be fined in accordance with 
     title 18, United States Code, imprisoned for not more than 2 
     years, or both.
       ``(E) Civil penalty.--
       ``(i) In general.--A nursing facility that violates the 
     provisions of this paragraph shall be subject to a civil 
     penalty in an amount not to exceed--

       ``(I) for the first such violation, $2,000; and
       ``(II) for the second and each subsequent violation within 
     any 5-year period, $5,000.

       ``(ii) Knowing retention of worker.--In addition to any 
     civil penalty under clause (i), a nursing facility that--

       ``(I) knowingly continues to employ a nursing facility 
     worker in violation of subparagraph (A) or (B); or
       ``(II) knowingly fails to report a nursing facility worker 
     under subparagraph (C);

     shall be subject to a civil penalty in an amount not to 
     exceed $5,000 for the first such violation, and $10,000 for 
     the second and each subsequent violation within any 5-year 
     period.
       ``(F) Definitions.--In this paragraph:
       ``(i) Conviction for a relevant crime.--The term 
     `conviction for a relevant crime' means any Federal or State 
     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, taking into account the severity and 
     relevance of such offenses, and after consultation with 
     representatives of long-term care providers, representatives 
     of long-term care employees, consumer advocates, and 
     appropriate Federal and State officials.

       ``(ii) Disqualifying information.--The term `disqualifying 
     information' means information about a conviction for a 
     relevant crime or a finding of patient or resident abuse.
       ``(iii) Finding of patient or resident abuse.--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 a nursing facility worker 
     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.

       ``(iv) Nursing facility worker.--The term `nursing facility 
     worker' means any individual (other than any volunteer) that 
     has direct access to a patient of a nursing facility under an 
     employment or other contract, or both, with such facility. 
     Such term includes individuals who are licensed or certified 
     by the State to provide such services, and nonlicensed 
     individuals providing such services, as defined by the 
     Secretary, including nurse assistants, nurse aides, home 
     health aides, and personal care workers and attendants.''.
       (2) Medicare program.--Section 1819(b) of the Social 
     Security Act (42 U.S.C. 1395i-3(b)) is amended by adding at 
     the end the following:
       ``(8) Screening of skilled nursing facility workers.--
       ``(A) Background checks on applicants.--Subject to 
     subparagraph (B)(ii), before hiring a skilled nursing 
     facility worker, a skilled nursing facility shall--
       ``(i) give the worker written notice that the facility is 
     required to perform background checks with respect to 
     applicants;
       ``(ii) require, as a condition of employment, that such 
     worker--

       ``(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 worker authorizing 
     the facility to request the search and exchange of criminal 
     records;
       ``(III) provide in person a copy of the worker's 
     fingerprints; and
       ``(IV) provide any other identification information the 
     Secretary may specify in regulation;

       ``(iii) initiate a check of the data collection system 
     established under section 1128E in accordance with 
     regulations promulgated by the Secretary to determine whether 
     such system contains any disqualifying information with 
     respect to such worker; and
       ``(iv) if that system does not contain any such 
     disqualifying information--

       ``(I) request that the State initiate a State and national 
     criminal background check on such worker in accordance with 
     the provisions of subsection (e)(6); 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 system initiated under 
     clause (iii).

       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--A skilled nursing facility may not 
     knowingly employ any skilled nursing facility worker who has 
     any conviction for a relevant crime or with respect to whom a 
     finding of patient or resident abuse has been made.
       ``(ii) Provisional employment.--After complying with the 
     requirements of clauses (i), (ii), and (iii) of subparagraph 
     (A), a skilled nursing facility may provide for a provisional 
     period of employment for a skilled nursing facility worker 
     pending completion of the check against the data collection 
     system described under subparagraph (A)(iii) and the 
     background check described under subparagraph (A)(iv). Such 
     facility shall maintain direct supervision of the covered 
     individual during the worker's provisional period of 
     employment.
       ``(C) Reporting requirements.--A skilled nursing facility 
     shall report to the State any instance in which the facility 
     determines that a skilled nursing facility worker 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 a skilled nursing facility worker pursuant 
     to clauses (iii) and (iv) of subparagraph (A) may use such 
     information only for the purpose of determining the 
     suitability of the worker for employment.
       ``(ii) Immunity from liability.--A skilled nursing facility 
     that, in denying employment for an applicant (including 
     during the period described in subparagraph (B)(ii)), 
     reasonably relies upon information about such applicant 
     provided by the State pursuant to subsection (e)(6) or 
     section 1128E shall not be liable in any action brought by 
     such applicant based on the employment determination 
     resulting from the information.
       ``(iii) Criminal penalty.--Whoever knowingly violates the 
     provisions of clause (i) shall be fined in accordance with 
     title 18, United States Code, imprisoned for not more than 2 
     years, or both.
       ``(E) Civil penalty.--
       ``(i) In general.--A skilled nursing facility that violates 
     the provisions of this paragraph shall be subject to a civil 
     penalty in an amount not to exceed--

       ``(I) for the first such violation, $2,000; and
       ``(II) for the second and each subsequent violation within 
     any 5-year period, $5,000.

       ``(ii) Knowing retention of worker.--In addition to any 
     civil penalty under clause (i), a skilled nursing facility 
     that--

       ``(I) knowingly continues to employ a skilled nursing 
     facility worker in violation of subparagraph (A) or (B); or
       ``(II) knowingly fails to report a skilled nursing facility 
     worker under subparagraph (C);

     shall be subject to a civil penalty in an amount not to 
     exceed $5,000 for the first such violation, and $10,000 for 
     the second and each subsequent violation within any 5-year 
     period.
       ``(F) Definitions.--In this paragraph:

[[Page S9391]]

       ``(i) Conviction for a relevant crime.--The term 
     `conviction for a relevant crime' means any Federal or State 
     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, taking into account the severity and 
     relevance of such offenses, and after consultation with 
     representatives of long-term care providers, representatives 
     of long-term care employees, consumer advocates, and 
     appropriate Federal and State officials.

       ``(ii) Disqualifying information.--The term `disqualifying 
     information' means information about a conviction for a 
     relevant crime or a finding of patient or resident abuse.
       ``(iii) Finding of patient or resident abuse.--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 a skilled nursing facility 
     worker 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.

       ``(iv) Skilled nursing facility worker.--The term `skilled 
     nursing facility worker' means any individual (other than any 
     volunteer) that has direct access to a patient of a skilled 
     nursing facility under an employment or other contract, or 
     both, with such facility. Such term includes individuals who 
     are licensed or certified by the State to provide such 
     services, and nonlicensed individuals providing such 
     services, as defined by the Secretary, including nurse 
     assistants, nurse aides, home health aides, and personal care 
     workers and attendants.''.
       (b) State Requirements.--
       (1) Medicaid program.--
       (A) Expansion of state registry to collect information 
     about nursing facility employees other than nurse aides.--
     Section 1919 of the Social Security Act (42 U.S.C. 1396r) 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) Federal and state requirement to conduct background 
     checks.--Section 1919(e) of the Social Security Act (42 
     U.S.C. 1396r(e)) is amended by adding at the end the 
     following:
       ``(8) Federal and state 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)(8) that is accompanied by 
     the information described in subclauses (II) through (IV) of 
     subsection (b)(8)(A)(ii), a State, after checking appropriate 
     State records and finding no disqualifying information (as 
     defined in subsection (b)(8)(F)(ii)), 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)(8)(F)(i));
       ``(ii) report to the nursing facility the results of such 
     review; and
       ``(iii) in the case of an individual with a conviction for 
     a relevant crime, report the existence of such conviction of 
     such individual to the database established under section 
     1128E.
       ``(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)(8) 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)(8), 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) 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.--
       ``(i) In general.--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)(8), including regulations regarding the 
     security, confidentiality, accuracy, use, destruction, and 
     dissemination of information, audits and recordkeeping, and 
     the imposition of fees.
       ``(ii) Appeal procedures.--The Attorney General, in 
     consultation with the Secretary, shall promulgate such 
     regulations as are necessary to establish procedures by which 
     an applicant or employee may appeal or dispute the accuracy 
     of the information obtained in a background check conducted 
     under this paragraph. Appeals shall be limited to instances 
     in which an applicant or employee is incorrectly identified 
     as the subject of the background check, or when information 
     about the applicant or employee has not been updated to 
     reflect changes in the applicant's or employee's criminal 
     record.
       ``(F) Report.--Not later than 2 years after the date of 
     enactment of this paragraph, the Attorney General shall 
     submit a report to Congress on--
       ``(i) the number of requests for searches and exchanges of 
     records made under this section;
       ``(ii) the disposition of such requests; and
       ``(iii) the cost of responding to such requests.''.
       (2) Medicare program.--
       (A) Expansion of state registry to collect information 
     about skilled nursing facility employees other than nurse 
     aides.--Section 1819 of the Social Security Act (42 U.S.C. 
     1395i-3) is amended--
       (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) Federal and state requirement to conduct background 
     checks.--Section 1819(e) of the Social Security Act (42 
     U.S.C. 1395i-3(e)) is amended by adding at the end the 
     following:
       ``(6) Federal and state 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)(8) that is 
     accompanied by the information described in subclauses (II) 
     through (IV) of subsection (b)(8)(A)(ii), a State, after 
     checking appropriate State records and finding no 
     disqualifying information (as defined in subsection 
     (b)(8)(F)(ii)), 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

[[Page S9392]]

     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 skilled 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)(8)(F)(i));
       ``(ii) report to the skilled nursing facility the results 
     of such review; and
       ``(iii) in the case of an individual with a conviction for 
     a relevant crime, report the existence of such conviction of 
     such individual to the database established under section 
     1128E.
       ``(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)(8) 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)(8), 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) 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.--
       ``(i) In general.--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.
       ``(ii) Appeal procedures.--The Attorney General, in 
     consultation with the Secretary, shall promulgate such 
     regulations as are necessary to establish procedures by which 
     an applicant or employee may appeal or dispute the accuracy 
     of the information obtained in a background check conducted 
     under this paragraph. Appeals shall be limited to instances 
     in which an applicant or employee is incorrectly identified 
     as the subject of the background check, or when information 
     about the applicant or employee has not been updated to 
     reflect changes in the applicant's or employee's criminal 
     record.
       ``(F) Report.--Not later than 2 years after the date of 
     enactment of this paragraph, the Attorney General shall 
     submit a report to Congress on--
       ``(i) the number of requests for searches and exchanges of 
     records made under this section;
       ``(ii) the disposition of such requests; and
       ``(iii) the cost of responding to such requests.''.
       (c) Application to Other Entities Providing Long-Term Care 
     Services.--
       (1) Medicaid.--Section 1902(a) of the Social Security Act 
     (42 U.S.C. 1396a) is amended--
       (A) in paragraph (65), by striking the period and inserting 
     ``; and''; and
       (B) by inserting after paragraph (65) the following:
       ``(66) provide that any entity that is eligible to be paid 
     under the State plan for providing long-term care services 
     for which medical assistance is available under the State 
     plan to individuals requiring long-term care complies with 
     the requirements of subsections (b)(8) and (e)(8) of section 
     1919.''.
       (2) Medicare.--Part D of title XVIII of the Social Security 
     Act (42 U.S.C. 1395x et seq.) is amended by adding at the end 
     the following:


 ``APPLICATION OF SKILLED NURSING FACILITY PREVENTIVE ABUSE PROVISIONS 
 TO ANY PROVIDER OF SERVICES OR OTHER ENTITY PROVIDING LONG-TERM CARE 
                                SERVICES

       ``Sec. 1897. The requirements of subsections (b)(8) and 
     (e)(6) of section 1819 shall apply to any provider of 
     services or any other entity that is eligible to be paid 
     under this title for providing long-term care services to an 
     individual entitled to benefits under part A or enrolled 
     under part B (including an individual provided with a 
     Medicare+Choice plan offered by a Medicare+Choice 
     organization under part C).''.
       (d) Reimbursement of Reasonable Costs for Background 
     Checks.--The Secretary of Health and Human Services shall 
     factor into any payment system under titles XVIII and XIX of 
     the Social Security Act the reasonable costs of the 
     requirements of sections 1819(b)(8) and 1919(b)(8) of such 
     Act, as added by this section, incurred by any entity subject 
     to such requirements.

     SEC. 3. INCLUSION OF ABUSIVE NURSING FACILITY WORKERS IN THE 
                   DATABASE ESTABLISHED AS PART OF NATIONAL HEALTH 
                   CARE FRAUD AND ABUSE DATA COLLECTION PROGRAM.

       (a) Inclusion of Abusive Acts Within a Long-Term Care 
     Facility.--Section 1128E(g)(1)(A) of the Social Security Act 
     (42 U.S.C. 1320a-7e(g)(1)(A)) is amended--
       (1) by redesignating clause (v) as clause (vi); and
       (2) by inserting after clause (iv), the following:
       ``(v) A finding of abuse or neglect of a patient or a 
     resident of a long-term care facility, or misappropriation of 
     such a patient's or resident's property.''.
       (b) Coverage of Long-Term Care Facility Employees.--Section 
     1128E(g)(2) of the Social Security Act (42 U.S.C. 1320a-
     7e(g)(2)) is amended by inserting ``, and includes any 
     individual of a long-term care facility (other than any 
     volunteer) that has direct access to a patient or resident of 
     such a facility under an employment or other contract, or 
     both, with the facility (including individuals who are 
     licensed or certified by the State to provide services at the 
     facility, and nonlicensed individuals, as defined by the 
     Secretary, providing services at the facility, including 
     nurse assistants, nurse aides, home health aides, and 
     personal care workers and attendants)'' before the period.
       (c) Reporting by Long-Term Care Facilities.--
       (1) In general.--Section 1128E(b)(1) of the Social Security 
     Act (42 U.S.C. 1320a-7e(b)(1)) is amended by striking ``and 
     health plan'' and inserting ``, health plan, and long-term 
     care facility''.
       (2) Correction of information.--Section 1128E(c)(2) of the 
     Social Security Act (42 U.S.C. 1320a-7e(c)(2)) is amended by 
     striking ``and health plan'' and inserting ``, health plan, 
     and long-term care facility''.
       (d) Access to Reported Information.--Section 1128E(d)(1) of 
     the Social Security Act (42 U.S.C. 1320a-7e(d)(1)) is amended 
     by striking ``and health plans'' and inserting ``, health 
     plans, and long-term care facilities''.
       (e) Mandatory Check of Database by Long-Term Care 
     Facilities.--Section 1128E(d) of the Social Security Act (42 
     U.S.C. 1320a-7e(d)) is amended by adding at the end the 
     following:
       ``(3) Mandatory check of database by long-term care 
     facilities.--A long-term care facility shall check the 
     database maintained under this section prior to hiring under 
     an employment or other contract, or both, any individual as 
     an employee of such a facility who will have direct access to 
     a patient or resident of the facility (including individuals 
     who are licensed or certified by the State to provide 
     services at the facility, and nonlicensed individuals, as 
     defined by the Secretary, that will provide services at the 
     facility, including nurse assistants, nurse aides, home 
     health aides, and personal care workers and attendants).''.
       (f) Definition of Long-Term Care Facility.--Section 
     1128E(g) of the Social Security Act (42 U.S.C. 1320a-7e(g)) 
     is amended by adding at the end the following:
       ``(6) Long-term care facility.--The term `long-term care 
     facility' means a skilled nursing facility (as defined in 
     section 1819(a)), a nursing facility (as defined in section 
     1919(a)), a home health agency, a hospice facility, an 
     intermediate care facility for the mentally retarded (as 
     defined in section 1905(d)), or any other facility that 
     provides long-term care services and receives payment for 
     such services under the medicare program under title XVIII or 
     the medicaid program under title XIX.''.
       (g) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out the amendments made by this 
     section, $10,200,000 for fiscal year 2000.

     SEC. 4. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

       (a) Establishment.--The Secretary of Health and Human 
     Services shall establish a demonstration program to provide 
     grants to develop information on best practices in patient 
     abuse prevention training (including behavior training and 
     interventions) for managers and staff of hospital and health 
     care facilities.
       (b) Eligibility.--To be eligible to receive a grant under 
     subsection (a), an entity shall be a public or private 
     nonprofit entity and prepare and submit to the Secretary of 
     Health and Human Services an application at such time, in 
     such manner, and containing such information as the Secretary 
     may require.
       (c) Use of Funds.--Amounts received under a grant under 
     this section shall be used to--
       (1) examine ways to improve collaboration between State 
     health care survey and provider certification agencies, long-
     term care ombudsman programs, the long-term care industry, 
     and local community members;
       (2) examine patient care issues relating to regulatory 
     oversight, community involvement, and facility staffing and 
     management with a focus on staff training, staff stress 
     management, and staff supervision;
       (3) examine the use of patient abuse prevention training 
     programs by long-term care entities, including the training 
     program developed by the National Association of Attorneys 
     General, and the extent to which such programs are used; and
       (4) identify and disseminate best practices for preventing 
     and reducing patient abuse.
       (d) Authorization of Appropriations.--There is authorized 
     to be appropriated such

[[Page S9393]]

     sums as may be necessary to carry out this section.

     SEC. 5. EFFECTIVE DATE.

       The provisions of and amendments made by the Act shall 
     apply, without regard to whether implementing regulations are 
     in effect, to any individual applying for employment or hired 
     for such employment--
       (1) by any skilled nursing facility (as defined in section 
     1819(a) of the Social Security Act) or any nursing facility 
     (as defined in section 1919(a) of such Act), on or after the 
     date which is 6 months after the date of enactment of this 
     Act,
       (2) by any home health agency, on or after the date which 
     is 12 months after such date of enactment, and
       (3) by any hospice facility, any intermediate care facility 
     for the mentally retarded (as defined in section 1905(d) of 
     the Social Security Act), or any other facility that provides 
     long-term care services and receives payment for such 
     services under the medicare program under title XVIII of such 
     Act or the medicaid program under title XIX of such Act, on 
     or after the date which is 18 months after such date of 
     enactment.
                                  ____

                                  National Citizens' Coalition for


                                          Nursing Home Reform,

                                    Washington, DC, July 21, 1999.
     Hon. Herbert Kohl,
     U.S. Senate, Washington, DC.
       Dear Senator Kohl: The National Citizens' Coalition for 
     Nursing Home Reform (NCCNHR) commends you and your staff for 
     your initiative in seeking to improve care and conditions in 
     long-term care facilities. NCCNHR is a non-profit consumer 
     organization whose mission is to improve the quality of care 
     and life for long term care residents. Our organization 
     represents residents and their advocates. We work closely 
     with the nation's long-term care ombudsmen and house the 
     National Long Term Care Ombudsman Resource Center.
       We strongly support your proposed legislation cited as the 
     Patient Abuse Prevention Act, which would require criminal 
     background checks for nursing home workers. This legislation 
     would provide residents protection from individuals with a 
     history of committing crimes against residents. It would also 
     create a much needed National Registry for long-term care 
     employees with a history of abuse, to be used by nursing 
     homes hiring employees for their facilities.
       In particular, NCCNHR applauds your revisions to last 
     year's bill, the ``Long-Term Care Patient Protection Act of 
     1998'' to include (1) a requirement that criminal background 
     checks of employees will be conducted in all facilities 
     (including specifically, nursing homes, home health, and 
     hospices); (2) that applicants may not be charged for the 
     costs of the checks; (3) that applicants who challenge the 
     accuracy of the background check will also be able to appeal 
     the decision and (4) that there is no longer a prohibition on 
     Medicare and Medicaid reimbursement for the costs of 
     conducting background checks.
       We strongly urge, however, that the legislation also expand 
     its language to provide criminal background checks on all 
     long-term care workers and not just employees who have direct 
     access to residents. Considering the vulnerability of long-
     term care residents, criminal background checks should be 
     conducted on all workers, including contract workers, in all 
     health care settings, including home care, and assisted 
     living.
       Again, NCCNHR congratulates you, Senator Kohl, on your 
     persistence and foresight. If you need further information, 
     contact me or Ana Rivas-Beck, J.D., Law and Policy 
     Specialist.
           Sincerely,
                                                      Elma Holder,
                                                          Founder.

  Mr. REID. Mr. President, I rise today to join my colleague, Senator 
Kohl, in introducing the ``Patient Abuse Prevention Act.'' This 
legislation would help protect our nation's most vulnerable citizens by 
keeping workers with criminal and abusive backgrounds out of our long-
term care facilities.
  It is simply too easy for workers with criminal or abusive histories 
to gain employment in long-term care facilities. A report released last 
year by the Office of the Inspector General at the Department of Health 
and Human Services (HHS) confirmed that current regulations were not 
sufficient to protect the frail and elderly from being placed in the 
hands of known abusers and criminals. If we do not take steps to keep 
workers with criminal and abusive backgrounds out of our long-term care 
facilities, the growing number of reports of abuse and theft in these 
facilities will only continue to increase.
  The ``Patient Abuse Prevention Act'' would give employers the tools 
they need to weed out potential employees who are unfit to provide care 
to the elderly because of abusive or criminal backgrounds. Our bill 
would create a national registry of abusive workers within an existing 
database at HHS. It would also expand existing State nurse aide 
registries to include substantiated findings of abuse by all facility 
employees, not just nurse aides. States would submit any existing or 
newly acquired information contained in the State registries to the 
national registry. This would ensure that once an employee is added to 
the national registry, the offender will not be able to simply cross 
state lines and find employment in another facility where he may 
continue to prey on the frail and elderly.
  Our bill would require all long-term care facilities to initiate a 
search of the national registry of abusive workers when considering a 
potential employee. If the prospective employee is not listed on the 
registry, the facility would then conduct a State and national criminal 
background check on the individual through the Federal Bureau of 
Investigations.
  The Inspector General for the Department of Health and Human Services 
reports that 46 percent of facilities believe that incidents of abuse 
are under-reported. Our bill would require long-term care facilities to 
report all instances of resident neglect, abuse, or theft by an 
employee to the State. This would ensure that offenders are reported 
and added to the national registry before they have the opportunity to 
strike again.
  Over the past few years, Senator Kohl and I have worked to ensure 
that our frail and elderly are not placed in the hands of criminals. 
During the 105th Congress, we introduced similar legislation and 
conducted hearings through the Senate Special Committee on Aging. This 
bill is a culmination of our efforts to institute greater protections 
for all residents of long-term care facilities.
  One of the most difficult times for any individual or family is when 
they must make the decision to rely upon the support and services of a 
long-term care facility. Families should not have to live with the fear 
that their loved one is being left in the hands of a criminal. Last 
year, Richard Meyer testified before the Senate Aging Committee about 
the sexual assault of his 92-year-old mother by a male certified 
nursing assistant who had previously been charged and convicted for 
sexually assaulting a young girl. This legislation would prevent 
tragedies like this one from occurring in the future.
  I have visited countless long-term care facilities in my home state 
of Nevada. During these visits, I have always been impressed by the 
compassion and dedication of the staff. Most nurse aides and health 
care workers are professional, honest, and dedicated. Unfortunately, it 
only takes one abusive staff member to terrorize the lives of the 
residents. That is why we must work to weed out the ``bad apples'' who 
do not have the best interest of the residents in mind. I urge you to 
join Senator Kohl and me in our efforts to provide greater protections 
for all residents of long-term care facilities.
                                 ______