[Congressional Record Volume 149, Number 63 (Wednesday, April 30, 2003)]
[Senate]
[Pages S5602-S5607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself, Mr. Reid, Mr. Nelson of Florida, Mr. 
        Rockefeller, Mrs. Lincoln, Ms. Landrieu, Mr. Bingaman, Mr. 
        Miller, and Mr. Breaux):
  S. 958. 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.
  Mrs. BOXER. Mr. President, I am pleased to introduce the ``Flight 
Attendant Certification Act.''
  Since September 11, flight attendants have become a last line of 
defense against terrorist attacks. As we all know, the terrorists 
hijacked four commercial jets--all of which were heading to California. 
That day forever changed air travel in this country, and in turn 
forever changed the security functions of flight attendants.
  No one can forget that it was a flight attendant who discovered that 
Richard Reid was trying to ignite a bomb on his shoe. If not for the 
aware flight attendant, the bomb could have gone off over the Atlantic 
and all the passengers and crew would have been lost.
  Today, I can say with certainty that air travel is more secure than 
it was a year and a half ago. But that does not mean that more should 
not be done. We must continue to take the appropriate steps to ensure 
that we are doing everything in our power to prevent terrorist attacks 
and protect the American people. That is why I am proud to offer this 
legislation.
  This bill would make American air travel safer by requiring that 
flight attendants be certified by the Federal Aviation Administration, 
FAA. Currently, flight attendants are not required to receive formal 
certification even though they have the responsibility for safety, 
security, and emergency response.
  In addition, the legislation would close the growing gap in the 
quality and content of training programs between airlines by creating a 
single training standard across the industry. This bill would require 
uniform training standards and establish a central approval process for 
certification of flight attendants at the FAA.
  The FAA already recognizes the training of other airline personnel by 
issuing certification to pilots, mechanics, air-traffic controllers and 
others. Flight attendants deserve the same recognition and 
certification.
  Mr. KOHL. Mr. President, I rise today to reintroduce the Patient 
Abuse Prevention Act, which will go a long way in protecting patients 
in long-term care from abuse and neglect. This legislation will 
establish a National Registry of abusive long-term care workers and 
require criminal background checks for potential employees. It is 
necessary so we can ensure that people with violent and abusive 
backgrounds cannot find work in nursing homes and home health and prey 
on our elderly relatives. After many years of refinement so that the 
background checks will run smoothly, and with the strong support of 
both patient advocates and the American Association of Homes and 
Services for the Aging, I sincerely hope that this is the year when we 
will finally take action and enact these common-sense protections.
  There is absolutely no excuse for abuse or neglect of the elderly and 
disabled at the hands of those who are supposed to care for them. Our 
parents and grandparents made our country what it is today, and they 
deserve to live with dignity and the highest quality care.
  Unfortunately, this is not always the case. We know that the majority 
of caregivers are dedicated, professional, and do their best under 
difficult circumstances. But it only takes a few abusive staff to cast 
a dark shadow over what should be a healing environment.
  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 aides 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

[[Page S5603]]

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 legislation 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.
  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. Unfortunately, 
these news reports have tragically become commonplace over the years. 
In 1997, the Milwaukee Journal-Sentinel ran a series of articles 
describing this problem, including a Green Bay employee who was 
convicted of sexually assaulting a disabled woman, an Oshkosh employee 
who physically and emotionally abused nursing home residents, and a 
Milwaukee employee who charged more than $2,000 on a home health 
client's credit card. All had prior criminal convictions. A 1999 Bergen 
Record study of home health workers found that in nearly every county, 
criminals were working in the homes of the elderly and infirm. Many 
aides had committed offenses against patients in their care, but they 
were still listed as certified and eligible for work in State records. 
Most recently, the Chicago Sun-Times ran an article on November 1, 
2002, in which a home care aide beat his disabled client to death with 
a hammer. That caregiver had previously been convicted of shooting a 
man in the face.
  In 1998, at my request, the Senate Special Committee on Aging held a 
hearing that focused on how easy it is for known abusers to find work 
in long-term care and continue to prey on patients. At that hearing, 
the HHS Inspector General presented a report which found that, in the 
two States they studied, between 5 to 10 percent of employees currently 
working in nursing homes had serious criminal convictions in their 
past. They also found that among aides who had abused patients, 15 to 
20 percent of them had at least one conviction in their past.
  In 1998, I offered an amendment which became law that allowed long-
term care providers to voluntarily use the FBI system for background 
checks. So far, 7 percent of those checks have come back with criminal 
convictions, including rape and kidnapping.
  And on July 30, 2001, the House Government Reform Committee's Special 
Investigations Division of the Minority staff issued a report which 
found that in the past two years, over 30 percent of nursing homes in 
the U.S. were cited for a physical, sexual, or verbal abuse violation 
that had the potential to harm residents. Even more striking, the 
report found that nearly 10 percent of nursing homes had violations 
that caused actual harm to residents.
  Let me say again that despite this evidence, I know that the vast 
majority of caregivers in nursing homes and home health care do an 
excellent job and have their patients' best interests at heart. But 
clearly, a national background check system is a critical tool that all 
long-term care providers should have--after all, they don't want 
abusive caregivers working for them any more than families do. I am 
pleased that the nursing home industry has worked with me over the 
years to refine this legislation, and I greatly appreciate their 
continued support of the bill. This bill reflects their input and will 
help ensure a smooth transition to an efficient, accurate background 
check system. This is a common-sense, cost-effective step we can and 
should take to protect patients by helping long-term care providers 
thoroughly screen potential caregivers.
  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.
  I want to repeat again 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.
  This bill is the product of collaboration and input from the health 
care industry, patient and employee advocates--who all have the same 
goal I do: protecting patients in long-term care. I look forward to 
continuing to work with my colleagues, the Administration, and the 
health care industry in this effort. Protecting our nation's seniors 
and disabled deserves our full attention.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 958

       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) Screening of Skilled Nursing Facility and Nursing 
     Facility Employee Applicants.--
       (1) 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 to the facility a copy of the 
     worker's fingerprints or thumb print, depending upon 
     available technology; 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 through the appropriate State agency 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) submit to such State agency 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

[[Page S5604]]

     (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:
       ``(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 a 
     volunteer) that has 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.''.
       (2) 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 new paragraph:
       ``(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;
       ``(II) provide a statement signed by the worker authorizing 
     the facility to request the search and exchange of criminal 
     records;
       ``(III) provide in person to the facility a copy of the 
     worker's fingerprints or thumb print, depending upon 
     available technology; 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 through the appropriate State agency 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) submit to such State agency 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 a volunteer) that 
     has 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.''.
       (3) Federal responsibilities.--
       (A) Development of standard federal and state background 
     check form.--The Secretary of Health and Human Services, in 
     consultation with the Attorney General and representatives of 
     appropriate State agencies, shall develop a model form that 
     an applicant for employment at a nursing facility may 
     complete and Federal and State agencies may use to conduct 
     the criminal background checks required under sections 
     1819(b)(8) and 1919(b)(8) of the Social Security Act (42 
     U.S.C. 1395i-3(b), 1396r(b)) (as added by this section).

[[Page S5605]]

       (B) Periodic evaluation.--The Secretary of Health and Human 
     Services, in consultation with the Attorney General, 
     periodically shall evaluate the background check system 
     imposed under sections 1819(b)(8) and 1919(b)(8) of the 
     Social Security Act (42 U.S.C. 1395i-3(b), 1396r(b)) (as 
     added by this section) and shall implement changes, as 
     necessary, based on available technology, to make the 
     background check system more efficient and able to provide a 
     more immediate response to long-term care providers using the 
     system.
       (4) No preemption of stricter state laws.--Nothing in 
     section 1819(b)(8) or 1919(b)(8) of the Social Security Act 
     (42 U.S.C. 1395i-3(b)(8), 1396r(b)(8)) (as so added) shall be 
     construed to supersede any provision of State law that--
       (A) specifies a relevant crime for purposes of prohibiting 
     the employment of an individual at a long-term care facility 
     (as defined in section 1128E(g)(6) of the Social Security Act 
     (as added by section 3(f) of this Act) that is not included 
     in the list of such crimes specified in such sections or in 
     regulations promulgated by the Secretary of Health and Human 
     Services to carry out such sections; or
       (B) requires a long-term care facility (as so defined) to 
     conduct a background check prior to employing an individual 
     in an employment position that is not included in the 
     positions for which a background check is required under such 
     sections.
       (5) Technical amendments.--Effective as if included in the 
     enactment of section 941 of the Medicare, Medicaid, and SCHIP 
     Benefits Improvement and Protection Act of 2000 (114 Stat. 
     2763A-585), as enacted into law by section 1(a)(6) of Public 
     Law 106-554, sections 1819(b) and 1919(b) of the Social 
     Security Act (42 U.S.C. 1395i-3(b), 1396r(b)), as amended by 
     such section 941 (as so enacted into law) are each amended by 
     redesignating the paragraph (8) added by such section as 
     paragraph (9).
       (b) Federal and State Requirements Concerning Background 
     Checks.--
       (1) Medicare.--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 immediately 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 and 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) immediately report to the skilled nursing facility 
     in writing 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.''.
       (2) Medicaid.--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 immediately 
     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 and 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) immediately report to the nursing facility in 
     writing 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

[[Page S5606]]

     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 Home Health or 
     Long-Term Care Services.--
       (1) 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 HOME HEALTH OR 
                        LONG-TERM CARE SERVICES

       ``Sec. 1897. (a) In General.--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 home health 
     services, hospice care (including routine home care and other 
     services included in hospice care under this title), or 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 (in this section 
     referred to as a `medicare beneficiary').
       ``(b) Supervision of Provisional Employees.--
       ``(1) In general.--With respect to an entity that provides 
     home health services, such entity shall be considered to have 
     satisfied the requirements of section 1819(b)(8)(B)(ii) or 
     1919(b)(8)(B)(ii) if the entity meets such requirements for 
     supervision of provisional employees of the entity as the 
     Secretary shall, by regulation, specify in accordance with 
     paragraph (2).
       ``(2) Requirements.--The regulations required under 
     paragraph (1) shall provide the following:
       ``(A) Supervision of a provisional employee shall consist 
     of ongoing, good faith, verifiable efforts by the supervisor 
     of the provisional employee to conduct monitoring and 
     oversight activities to ensure the safety of a medicare 
     beneficiary.
       ``(B) For purposes of subparagraph (A), monitoring and 
     oversight activities may include (but are not limited to) the 
     following:
       ``(i) Follow-up telephone calls to the medicare 
     beneficiary.
       ``(ii) Unannounced visits to the medicare beneficiary's 
     home while the provisional employee is serving the medicare 
     beneficiary.
       ``(iii) To the extent practicable, limiting the provisional 
     employee's duties to serving only those medicare 
     beneficiaries in a home or setting where another family 
     member or resident of the home or setting of the medicare 
     beneficiary is present.''.
       (2) Medicaid.--Section 1902(a) of the Social Security Act 
     (42 U.S.C. 1396a) is amended--
       (A) in paragraph (64), by striking ``and'' at the end;
       (B) in paragraph (65), by striking the period and inserting 
     ``; and''; and
       (C) by inserting after paragraph (65) the following:
       ``(66) provide that any entity that is eligible to be paid 
     under the State plan for providing home health services, 
     hospice care (including routine home care and other services 
     included in hospice care under title XVIII), or 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 and section 1897(b) (in the same 
     manner as such section applies to a medicare beneficiary).''.
       (3) Expansion of State Nurse Aide Registry.--
       (A) Medicare.--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 ``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 the following: ``, (ii) 
     all other skilled nursing facility employees with respect to 
     whom the State has made a finding described in subparagraph 
     (B), and (iii) any employee of any provider of services or 
     any other entity that is eligible to be paid under this title 
     for providing home health services, hospice care (including 
     routine home care and other services included in hospice care 
     under this title), or long-term care services and with 
     respect to whom the entity has reported to the State a 
     finding of patient neglect or abuse or a misappropriation of 
     patient property''; and

       (III) in subparagraph (C), by striking ``a nurse aide'' and 
     inserting ``an individual''; and

       (ii) in subsection (g)(1)--

       (I) by striking the first sentence of subparagraph (C) and 
     inserting the following: ``The State shall provide, through 
     the agency responsible for surveys and certification of 
     skilled nursing facilities under this subsection, for a 
     process for the receipt and timely review and investigation 
     of allegations of neglect and abuse and misappropriation of 
     resident property by a nurse aide or a skilled nursing 
     facility employee of a resident in a skilled nursing 
     facility, by another individual used by the facility in 
     providing services to such a resident, or by an individual 
     described in subsection (e)(2)(A)(iii).'';
       (II) in the fourth sentence of subparagraph (C), by 
     inserting ``or described in subsection (e)(2)(A)(iii)'' after 
     ``used by the facility'';
       (III) in subparagraph (D)--

       (aa) in the subparagraph heading, by striking ``nurse 
     aide'';
       (bb) in clause (i), in the matter preceding subclause (I), 
     by striking ``a nurse aide'' and inserting ``an individual''; 
     and
       (cc) in clause (i)(I), by striking ``nurse aide'' and 
     inserting ``individual''.
       (B) Medicaid.--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 ``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 the following: ``, (ii) 
     all other nursing facility employees with respect to whom the 
     State has made a finding described in subparagraph (B), and 
     (iii) any employee of an entity that is eligible to be paid 
     under the State plan for providing home health services, 
     hospice care (including routine home care and other services 
     included in hospice care under title XVIII), or long-term 
     care services and with respect to whom the entity has 
     reported to the State a finding of patient neglect or abuse 
     or a misappropriation of patient property''; and

       (III) in subparagraph (C), by striking ``a nurse aide'' and 
     inserting ``an individual''; and

       (ii) in subsection (g)(1)--

       (I) by striking the first sentence of subparagraph (C) and 
     inserting the following: ``The State shall provide, through 
     the agency responsible for surveys and certification of 
     nursing facilities under this subsection, for a process for 
     the receipt and timely review and investigation of 
     allegations of neglect and abuse and misappropriation of 
     resident property by a nurse aide or a nursing facility 
     employee of a resident in a nursing facility, by another 
     individual used by the facility in providing services to such 
     a resident, or by an individual described in subsection 
     (e)(2)(A)(iii).''; and
       (II) in the fourth sentence of subparagraph (C), by 
     inserting ``or described in subsection (e)(2)(A)(iii)'' after 
     ``used by the facility''; and
       (III) in subparagraph (D)--

       (aa) in the subparagraph heading, by striking ``nurse 
     aide''; and
       (bb) in clause (i), in the matter preceding subclause (I), 
     by striking ``a nurse aide'' and inserting ``an individual''; 
     and
       (cc) in clause (i)(I), by striking ``nurse aide'' and 
     inserting ``individual''.
       (d) Reimbursement of Costs for Background Checks.--The 
     Secretary of Health and Human Services shall reimburse 
     nursing facilities, skilled nursing facilities, and other 
     entities for costs incurred by the facilities and entities in 
     order to comply with the requirements imposed under sections 
     1819(b)(8) and 1919(b)(8) of such Act (42 U.S.C. 1395i-
     3(b)(8), 1396r(b)(8)), as added by this section.

     SEC. 3. INCLUSION OF ABUSIVE 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 or Provider.--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 or Provider 
     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 or 
     provider (other than any volunteer) that has access to a 
     patient or resident of such a facility under an employment or 
     other contract, or both, with the facility or provider 
     (including individuals who are licensed or certified by the 
     State to provide services at the facility or through the 
     provider, and nonlicensed individuals, as defined by the 
     Secretary, providing services at the facility or through the 
     provider, including nurse assistants, nurse aides, home 
     health aides, individuals who provide home care, and personal 
     care workers and attendants)'' before the period.
       (c) Reporting by Long-Term Care Facilities or Providers.--
       (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 or provider''.

[[Page S5607]]

       (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 or provider''.
       (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 or providers''.
       (e) Mandatory Check of Database by Long-Term Care 
     Facilities or Providers.--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 or providers.--A long-term care facility or 
     provider 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 or provider who will have access to a patient or 
     resident of the facility or provider (including individuals 
     who are licensed or certified by the State to provide 
     services at the facility or through the provider, and 
     nonlicensed individuals, as defined by the Secretary, that 
     will provide services at the facility or through the 
     provider, including nurse assistants, nurse aides, home 
     health aides, individuals who provide home care, and personal 
     care workers and attendants).''.
       (f) Definition of Long-Term Care Facility or Provider.--
     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 or provider.--The term `long-
     term care facility or provider' 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 
     provider of hospice care (as defined in section 1861(dd)(1)), 
     a long-term care hospital (as described in section 
     1886(d)(1)(B)(iv)), an intermediate care facility for the 
     mentally retarded (as defined in section 1905(d)), or any 
     other facility or entity that provides, or is a provider of, 
     long-term care services, home health services, or hospice 
     care (including routine home care and other services included 
     in hospice care under title XVIII), 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 2003.

     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 sums as may be necessary to carry out 
     this section.

     SEC. 5. EFFECTIVE DATE.

       This Act and the amendments made by the Act shall take 
     effect on the date that is 6 months after the effective date 
     of final regulations promulgated to carry out this Act and 
     such amendments.
                                 ______