[Congressional Record Volume 153, Number 91 (Thursday, June 7, 2007)]
[Senate]
[Pages S7353-S7360]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL (for himself, Mr. Domenici, Mrs. McCaskill, Ms. 
        Stabenow, Mrs. Lincoln, Mr. Levin, and Mrs. Clinton):
  S. 1577. A bill to amend titles XVIII and XIX of the Social Security 
Act to require screening, including national criminal history 
background checks, of direct patient access employees of skilled 
nursing facilities, nursing facilities, and other long-term facilities 
and providers, and to provide for nationwide expansion of the pilot 
program for national and State background checks on direct patient 
access employees of long-term care facilities or providers; to the 
Committee on Finance.
  Mr. KOHL. Mr. President, I rise today to introduce the Patient Safety 
and Abuse Prevention Act with Senators Domenici, McCaskill, Stabenow, 
Lincoln, Levin and Clinton.
  This bill is supported by the Elder Justice Coalition, the National 
Citizens' Coalition for Nursing Home Reform, the American Association 
of Homes and Services for the Aging, AARP and many other organizations 
dedicated to protecting our Nation's vulnerable citizens. If enacted, 
this legislation could help to prevent many of the tragic tales of 
physical and financial elder abuse that we hear about from our 
constituents and read about in our local newspapers. I strongly urge 
this Congress to do what the States cannot: create a nationwide system 
of background checks for workers who care for our Nation's frail elders 
and those who are living with disabilities.
  The vast majority of long-term care workers are selfless and 
dedicated. Yet there are a few with violent criminal histories who pose 
a clear threat to the defenseless individuals needing long-term care 
services. Under the disorganized, patchwork system of background checks 
that exists today, employers trying to hire caregivers do not always 
know which applicants have records of abuse or a history of committing 
violent crimes. As a result, predators are sometimes hired to take care 
of our most vulnerable citizens, allowing them to work in situations 
where they can cause enormous harm. For example, in just the last 6 
weeks, three stories of such elder abuse created headlines across the 
country:

       Last year, Pat Torano, at the age of 89, was partially 
     paralyzed by a stroke. He realized he no longer could care 
     for his 95-year-old wife, who by then was blind and suffering 
     from dementia. Intent on staying at home, the Toranos 
     contracted with Visiting Angels, a network of private home-
     care agencies that matches clients with caretakers. They 
     expected to find an honest professional to help them with 
     household chores and other non-medical needs. Instead they 
     got convicted felon Gina Treveno, who stole their house just 
     five months later by tricking the couple into placing the 
     deed in her name.
       Attorney General Andrew M. Cuomo today announced the 
     sentencing of William Morrison, a former aide at the Rome 
     Memorial Hospital Residential Health Care Facility, who was 
     convicted last month of raping and sexually assaulting a 90-
     year-old resident of the nursing home. . . . The background 
     check would have revealed that Morrison was previously 
     convicted for one felony drug offense in 1992 and several 
     misdemeanors in the 1990s.
       An 84-year-old man allegedly assaulted at a nursing home 
     last month is suing the facility, claiming it failed to 
     protect him from the employee accused of punching him in his 
     bed. Earl Gates of Bozeman claims Evergreen Bozeman Health 
     and Rehabilitation center didn't do a background check on his 
     accused attacker, Joshua Fowler, 23, who has a prior assault 
     conviction.

  The bill that I am introducing today with Senators Domenici, 
Stabenow, McCaskill, Lincoln, Levin, and Clinton proposes to take 
action to stop predators from working in all long-term care settings. 
It would close gaping loopholes in our current system of background 
checks through a nationwide expansion of a pilot program that Congress 
enacted as part of the Medicare Modernization Act of 2003.

[[Page S7354]]

  Under the MMA, the Centers for Medicare and Medicaid Services has 
been conducting a pilot program in seven states to implement efficient, 
equitable systems that cost-effectively screen out certain applicants 
for employment in long-term care facilities. Applicants excluded are 
those whose backgrounds include findings of substantiated abuse and/or 
a serious criminal history.
  The seven pilot States are Alaska, Idaho, Illinois, Michigan, Nevada, 
New Mexico and Wisconsin. These States have significant flexibility in 
several key areas under the grant. For example, each State establishes 
parameters for the definition of a ``direct patient access employee'' 
for workers who must be checked, and defines specific criteria for 
``disqualifying'' crimes that prohibit a long-term care employer from 
hiring workers with such histories.
  In other areas, the pilot States must meet Federal standards. They 
must cover a broad range of long-term care providers, including nursing 
homes, home health agencies and intermediate care facilities for the 
mentally retarded. States must require each applicant to submit a 
written statement disclosing any disqualifying information, and to 
authorize a State and national criminal record check.
  As is currently required under Federal law, providers must search any 
available registry that is likely to contain disqualifying information 
about an applicant. Forty-one States already require a criminal 
background check of some variety, mostly at the State level. The pilot 
States have integrated their systems to coordinate these checks in a 
single streamlined process and added a Federal background check through 
the FBI's Integrated Automated Fingerprint Identification System. 
Applicants who are subsequently found to have a record of substantiated 
abuse or a serious criminal history cannot be hired. But individuals 
who are denied employment can appeal the background check results. 
Finally, facilities can use the results of the background checks only 
for the purpose of determining suitability of employment.
  That is the basic structure of the pilot program that Congress 
enacted 4 years ago. Since then, we have learned important lessons from 
the pilot States' experiences. For example, federal funds have been 
used for a variety of purposes. States have used pilot funds to hire 
new staff to administer background checks; to purchase mobile digital 
scanners; to pay for the cost of fingerprint checks; to provide 
technical assistance to facilities; and to build online systems that 
applicants and providers can readily access, and which serve to 
integrate information from various registries and entities, and as 
storage and retrieval systems.

  States have passed legislation under the pilot program that treat 
disqualifying crimes somewhat differently. For example, Michigan has 
created a tiered system, under which certain disqualifying crimes carry 
time-limited prohibitions on working in long-term care facilities. By 
comparison, Wisconsin has chosen to enact legislation defining 
disqualifying crimes as those that carry a lifetime ban only. Alaska 
has established a ``variance'' process to permit certain individuals to 
work who have committed crimes but who have subsequently shown evidence 
of recovery. Similarly, in Idaho, some disqualifying crimes result in 
an ``unconditional'' denial that carries a lifetime ban on working in 
long-term care settings, while others result in ``conditional'' denials 
that apply to less serious crimes that may be waived under certain 
circumstances, following an ``exemption review'' by the Department of 
Health and Welfare.
  The data on results from the pilot programs are impressive. Among the 
seven States, Michigan's information is the most complete. In the first 
year of operation, Michigan excluded more than 3,000 people with 
records of abuse or a disqualifying criminal history. As of April 30, 
2007, 625 of these were excluded through a fingerprint check. Twenty-
five percent of these exclusions were identified through an FBI check 
only, a fact that State officials believe indicates that these 
individuals committed crimes in other States, or have been avoiding 
prosecution within the State. Information for Nevada, while less 
complete, suggests similar results. As of last December, Nevada was 
identifying an even higher percentage of individuals with criminal 
histories on the basis of an FBI check only.
  The director of Michigan's workforce background check program, Orlene 
Christie, recently testified before the Special Committee on Aging 
about the State's program. ``The applicants that have been excluded 
from employment are not the types of people Michigan could ever allow 
to work with our most vulnerable citizens,'' she said. ``We have 
prevented hardened criminals that otherwise would have access to our 
vulnerable population from employment.''
  Ms. Christie also noted that ``of the criminal history reports 
examined, fraudulent activity and controlled substance violations 
account for 25 percent of all disqualifying crimes. Fraudulent activity 
includes such things as embezzlement, identity theft, and credit card 
fraud. This is particularly alarming giving the projected increase in 
financial abuse of the elderly.''
  Importantly, Michigan has implemented a ``rap back'' system where the 
Michigan State Police notifies the health agency of any subsequent 
arrest, which in turn notifies the employer. This is a key component of 
the bill we are introducing today. It will allow the States, as well as 
the FBI, to ensure that an employer will be automatically notified as 
soon as a worker's criminal history record is updated.
  To find out what providers think of the pilot program, Idaho 
conducted a survey of participating facilities, which found 87 percent 
believed the background checks were successfully screening out workers 
who shouldn't be hired. Additionally, 63 percent said that the quality 
of employees hired has improved since the pilot began.
  The pilot program demonstrates that participating States are 
successfully excluding individuals who have a history of abuse or a 
disqualifying criminal background. If this model is expanded, the 
resulting nationwide system would greatly enhance the probability of 
identifying individuals with criminal backgrounds who can now easily 
escape detection. If all States had parallel, multi-level, 
comprehensive systems in place, very few potentially abusive workers 
would be hired into positions of caring for the extremely vulnerable 
residents of our Nation's long-term care facilities.
  The MMA pilot program is scheduled to end this September. I urge the 
Senate not to let this initiative simply expire. Rather, I hope that we 
will take the logical step of expanding on the success of this program, 
and provide limited federal funding for all other States to create 
similar programs. The Patient Safety and Abuse Prevention Act also lays 
out sensible standards for creating a nationwide system that will 
prevent predators, who now go undetected, from being hired into 
positions where they can harm society's most vulnerable people. I 
sincerely hope that all of my colleagues will join me in this effort.
  I ask unanimous consent that the bill and supporting material be 
printed in the Record.
  There being no objection, material was ordered to be printed in the 
Record, as follows:

                                S. 1577

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Patient Safety and Abuse 
     Prevention Act of 2007''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress makes the following findings:
       (1) Frail elders are a highly vulnerable population who 
     often lack the ability to give consent or defend themselves. 
     Since the best predictor of future behavior is past behavior, 
     individuals with histories of abuse pose a definite risk to 
     patients and residents of long-term care facilities.
       (2) Every month, there are stories in the media of health 
     care employees who commit criminal misconduct on the job and 
     are later found, through a background check conducted after 
     the fact, to have a history of convictions for similar 
     crimes.
       (3) A 2006 study conducted by the Department of Health and 
     Human Services determined that--
       (A) criminal background checks are a valuable tool for 
     employers during the hiring process;
       (B) the use of criminal background checks during the hiring 
     process does not limit the pool of potential job applicants;
       (C) ``a correlation exists between criminal history and 
     incidences of abuse''; and
       (D) the long-term care industry supports the practice of 
     conducting background

[[Page S7355]]

     checks on potential employees in order to reduce the 
     likelihood of hiring someone who has potential to harm 
     residents.
       (4) In 2005, the Michigan Attorney General found that 10 
     percent of employees who were then providing services to 
     frail elders had criminal backgrounds.
       (5) In 2004, the staffs of State Adult Protective Services 
     agencies received more than 500,000 reports of elder and 
     vulnerable adult abuse, and an ombudsman report concluded 
     that more than 15,000 nursing home complaints involved abuse, 
     including nearly 4,000 complaints of physical abuse, more 
     than 800 complaints of sexual abuse, and nearly 1,000 
     complaints of financial exploitation;
       (6) The Department of Health and Human Services has 
     determined that while 41 States now require criminal 
     background checks on certified nurse aides prior to 
     employment, only half of those (22) require criminal 
     background checks at the Federal level.
       (b) Purposes.--The purposes of this Act are to--
       (1) create a coordinated, nationwide system of State 
     criminal background checks that would greatly enhance the 
     chances of identifying individuals with problematic 
     backgrounds who move across State lines;
       (2) stop individuals who have a record of substantiated 
     abuse, or a serious criminal record, from preying on helpless 
     elders and individuals with disabilities; and
       (3) provide assurance to long-term care employers and the 
     residents they care for that potentially abusive workers will 
     not be hired into positions of providing services to the 
     extremely vulnerable residents of our Nation's long-term care 
     facilities.

     SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR NATIONAL 
                   AND STATE BACKGROUND CHECKS ON DIRECT PATIENT 
                   ACCESS EMPLOYEES OF LONG-TERM CARE FACILITIES 
                   OR PROVIDERS.

       Section 307 of the Medicare Prescription Drug, Improvement, 
     and Modernization Act of 2003 (42 U.S.C. 1395aa note) is 
     amended by adding at the end the following new subsection:
       ``(h) Nationwide Expansion Program.--
       ``(1) In general.--Beginning on the date of enactment of 
     the Patient Safety and Abuse Prevention Act of 2007, the 
     Secretary shall expand the pilot program under this section 
     to be conducted on a nationwide basis (in this subsection, 
     such expanded pilot program shall be referred to as the 
     `nationwide expansion program'). Except for the following 
     modifications, the provisions of this section shall apply to 
     the nationwide expansion program:
       ``(A) Agreements.--
       ``(i) Newly participating states.--The Secretary shall 
     enter into agreements with each State--

       ``(I) that the Secretary has not entered into an agreement 
     with under subsection (c)(1);
       ``(II) that agrees to conduct background checks under the 
     nationwide expansion program on a Statewide basis; and
       ``(III) that submits an application to the Secretary 
     containing such information and at such time as the Secretary 
     may specify.

       ``(ii) Certain previously participating states.--The 
     Secretary shall enter into agreements with each State--

       ``(I) that the Secretary has entered into an agreement with 
     under subsection (c)(1) in the case where such agreement did 
     not require the State to conduct background checks under the 
     pilot program established under subsection (a) on a Statewide 
     basis;
       ``(II) that agrees to conduct background checks under the 
     nationwide expansion program on a Statewide basis; and
       ``(III) that submits an application to the Secretary 
     containing such information and at such time as the Secretary 
     may specify.

       ``(B) Nonapplication of selection criteria.--The selection 
     criteria required under subsection (c)(3)(B) shall not apply.
       ``(C) Required fingerprint check as part of criminal 
     history background check.--The procedures established under 
     subsection (b)(1) shall require that the facility or provider 
     obtain State and national criminal history background checks 
     on the prospective employee utilizing a search of State and 
     Federal criminal history records and including a fingerprint 
     check using the Integrated Automated Fingerprint 
     Identification System of the Federal Bureau of Investigation.
       ``(D) Payments.--
       ``(i) Newly participating states.--

       ``(I) In general.--As part of the application submitted by 
     a State under subparagraph (A)(i)(III), the State shall 
     guarantee, with respect to the costs to be incurred by the 
     State in carrying out the nationwide expansion program, that 
     the State will make available (directly or through donations 
     from public or private entities) a particular amount of non-
     Federal contributions.
       ``(II) Federal match.--The payment amount to each State 
     that the Secretary enters into an agreement with under 
     subparagraph (A)(i) shall be 3 times the amount that the 
     State guarantees to make available under subclause (I), 
     except that in no case may the payment amount exceed 
     $3,000,000.

       ``(ii) Previously participating states.--

       ``(I) In general.--As part of the application submitted by 
     a State under subparagraph (A)(ii)(III), the State shall 
     guarantee, with respect to the costs to be incurred by the 
     State in carrying out the nationwide expansion program, that 
     the State will make available (directly or through donations 
     from public or private entities) a particular amount of non-
     Federal contributions.
       ``(II) Federal match.--The payment amount to each State 
     that the Secretary enters into an agreement with under 
     subparagraph (A)(ii) shall be 3 times the amount that the 
     State guarantees to make available under subclause (I), 
     except that in no case may the payment amount exceed 
     $1,500,000.

       ``(iii) No reservation for evaluation.--There shall be no 
     reservation of any portion of the payment amount provided 
     under clauses (i) or (ii) for conducting an evaluation.
       ``(E) Evaluations and report.--
       ``(i) Evaluations.--The Inspector General of the Department 
     of Health and Human Services shall conduct an annual 
     evaluation of the nationwide expansion program in each of 
     calendar years 2008 and 2009.
       ``(ii) Reports.--Not later than 6 months after completion 
     of the second year of the nationwide expansion program, the 
     Inspector General of the Department of Health and Human 
     Services shall submit a report to Congress containing the 
     results of the annual evaluations conducted under clause (i), 
     together with recommendations for the implementation of the 
     requirements of sections 1819(b)(9) and 1919(b)(9) of the 
     Social Security Act, as added by section (3)(a) of the 
     Patient Safety and Abuse Prevention Act of 2007.
       ``(2) Funding.--
       ``(A) Notification.--The Secretary shall notify the 
     Secretary of the Treasury of the amount necessary to carry 
     out the nationwide expansion program under this subsection 
     for the period of fiscal years 2008 through 2010, except that 
     in no case shall such amount exceed $156,000,000.
       ``(B) Transfer of funds.--Out of any funds in the Treasury 
     not otherwise appropriated, the Secretary of the Treasury 
     shall provide for the transfer to the Secretary of the amount 
     specified as necessary to carry out the nationwide expansion 
     program under subparagraph (A).''.

     SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES 
                   OF LONG-TERM CARE FACILITIES AND PROVIDERS.

       (a) Screening of Skilled Nursing Facility and Nursing 
     Facility Employee Applicants.--
       (1) Medicare program.--
       (A) In general.--Section 1819(b) of the Social Security Act 
     (42 U.S.C. 1395i-3(b)) is amended by adding at the end the 
     following new paragraph:
       ``(9) Screening of direct patient access employees.--
       ``(A) Screening and criminal history background checks on 
     applicants.--
       ``(i) Screening.--Beginning on January 1, 2011, before 
     hiring a direct patient access employee, a skilled nursing 
     facility shall screen the employee for any disqualifying 
     information in accordance with such procedures as the State 
     shall establish through a search of--

       ``(I) State-based abuse and neglect registries and 
     databases, including the abuse and neglect registries and 
     databases of another State in the case where a prospective 
     employee previously resided in that State; and
       ``(II) criminal records and the records of any proceedings 
     that may contain disqualifying information about applicants, 
     such as proceedings conducted by State professional licensing 
     and disciplinary boards and State medicaid fraud control 
     units.

       ``(ii) Criminal history background checks.--As part of such 
     screening, the skilled nursing facility shall request that 
     the State agency designated under subsection (e)(6)(E) 
     oversee the coordination of a State and national criminal 
     history background check that utilizes a search of State and 
     Federal criminal history records and includes a fingerprint 
     check using the Integrated Automated Fingerprint 
     Identification System of the Federal Bureau of Investigation.
       ``(iii) Use of procedures previously established.--Nothing 
     in this paragraph shall be construed as preventing a State 
     from using procedures established for purposes of the pilot 
     program for National and State background checks on direct 
     patient access employees of long-term care facilities or 
     providers under section 307 of the Medicare Prescription 
     Drug, Improvement, and Modernization Act of 2003, or the 
     nationwide expansion program under subsection (h) of such 
     section, to satisfy the requirements of paragraph (6).
       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--Subject to clause (ii), a skilled 
     nursing facility may not knowingly employ any direct patient 
     access employee who has any disqualifying information (as 
     defined in subparagraph (F)(ii)).
       ``(ii) Provisional employment.--Subject to clause (iii), 
     the State may permit a skilled nursing facility to provide 
     for a provisional period of employment (not to exceed 30 
     days) for a direct patient access employee--

       ``(I) pending completion of the screening and background 
     check required under subparagraph (A); and
       ``(II) in the case where the employee has appealed the 
     results of such screening and background check, pending 
     completion of the appeals process.

       ``(iii) Supervision.--The facility shall maintain direct 
     on-site supervision of the employee during such provisional 
     period of employment.
       ``(C) Procedures.--

[[Page S7356]]

       ``(i) In general.--The procedures established by the State 
     under subparagraph (A) shall be designed to accomplish the 
     following:

       ``(I) Give a prospective direct patient access employee 
     notice that the skilled nursing facility is required to 
     perform background checks with respect to new employees, 
     including a fingerprint check as part of the national 
     criminal history background check conducted under 
     subparagraph (A)(ii) in the case of any new employee who does 
     not have a certificate indicating that a fingerprint check 
     has been completed and has not found any disqualifying 
     information (as described in subclause (V)).
       ``(II) Require, as a condition of employment, that the 
     employee--

       ``(aa) provide a written statement disclosing any 
     disqualifying information;
       ``(bb) provide a statement signed by the employee 
     authorizing the facility to request a background check that 
     includes a search of the registries and databases described 
     in clause (i)(I) of subparagraph (A) and the records 
     described in clause (i)(II) of such subparagraph and a 
     criminal history background check conducted in accordance 
     with clause (ii) of such subparagraph that includes a 
     fingerprint check using the Integrated Automated Fingerprint 
     System of the Federal Bureau of Investigation;
       ``(cc) provide the facility with a rolled set of the 
     employee's fingerprints or submit to being fingerprinted; and
       ``(dd) provide any other identification information the 
     State may require.

       ``(III) Require the skilled nursing facility to check any 
     available registries that would be likely to contain 
     disqualifying information about a prospective employee, 
     including the registries and databases described in subclause 
     (I) of subparagraph (A)(i) and the records described in 
     clause (II) of such subparagraph.
       ``(IV) Provide a prospective direct patient access employee 
     the opportunity to request a copy of the results of the 
     background check conducted with respect to such employee and 
     to correct any errors by providing appropriate documentation 
     to the State and the facility.
       ``(V) Upon completion of a fingerprint check as part of the 
     national criminal history background check conducted with 
     respect to a direct patient access employee under 
     subparagraph (A)(ii), provide the skilled nursing facility 
     and the direct patient access employee with a certificate 
     indicating that such fingerprint check has been completed and 
     no disqualifying information was found. Such certificate 
     shall--

       ``(aa) be valid for 2 years; and
       ``(bb) in the case where such direct patient access 
     employee is hired by any other skilled nursing facility 
     located in the State during such 2-year period, satisfy the 
     requirement that such facility have a fingerprint check 
     conducted as part of such national criminal history 
     background check.
       ``(ii) Elimination of unnecessary checks.--The procedures 
     established by the State under subparagraph (A) shall permit 
     a skilled nursing facility to terminate the background check 
     at any stage at which the facility obtains disqualifying 
     information regarding a prospective direct patient access 
     employee.
       ``(iii) Development of model form of certificate.--The 
     Secretary shall develop a model form of the certificate 
     described in clause (i)(V) that States may use to satisfy the 
     requirements of such clause.
       ``(D) Use of information; immunity from liability.--
       ``(i) Use of information.--A skilled nursing facility that 
     obtains information about a direct patient access employee 
     pursuant to screening or a criminal history background check 
     shall use such information only for the purpose of 
     determining the suitability of the employee for employment.
       ``(ii) Immunity from liability.--A skilled nursing facility 
     that, in denying employment for an applicant, reasonably and 
     in good faith relies upon credible information about such 
     applicant provided by a criminal history background check 
     shall not be liable in any action brought by such applicant 
     based on the employment determination resulting from the 
     information.
       ``(iii) Prohibition on charging employees fees for 
     conducting background checks.--A skilled nursing facility 
     shall not charge a prospective direct patient access employee 
     a fee for the screening or criminal history background check 
     conducted under this paragraph.
       ``(E) Penalties.--
       ``(i) In general.--

       ``(I) State penalties.--Subject to subclause (II), a 
     skilled nursing facility that violates the provisions of this 
     paragraph shall be subject to such penalties as the State 
     determines appropriate to enforce the requirements of this 
     paragraph. A skilled nursing facility shall report to the 
     Secretary on a quarterly basis any penalties imposed by the 
     State under the preceding sentence.
       ``(II) Exclusion from participation.--In any case where the 
     Secretary determines that a State is not sufficiently 
     enforcing the requirements of this paragraph, the Secretary 
     may exclude a skilled nursing facility located within the 
     State that violates the provisions of this paragraph from 
     participating in the programs under this title and title XIX 
     (in accordance with the procedures of section 1128).

       ``(ii) Knowing retention of worker.--In addition to any 
     penalty under clause (i), a skilled nursing facility that 
     knowingly continues to employ a direct patient access 
     employee in violation of subparagraph (A) or (B) 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 section 1128(a); and
       ``(II) such other types of offenses, including violent 
     crimes, as the State may specify.

       ``(ii) Disqualifying information.--The term `disqualifying 
     information' means information about a conviction for a 
     relevant crime or a finding of substantiated patient or 
     resident abuse.
       ``(iii) Direct patient access employee.--The term `direct 
     patient access employee' means any individual who has access 
     to a patient or resident of a skilled nursing facility 
     through employment or through a contract with such facility 
     and has duties that involve (or may involve) one-on-one 
     contact with a patient or resident of the facility, as 
     determined by the State for purposes of this paragraph. Such 
     term does not include a volunteer unless the volunteer has 
     duties that are equivalent to the duties of a direct patient 
     access employee and those duties involve (or may involve) 
     one-on-one contact with a patient or resident of the 
     facility.''.
       (B) Conforming amendment.--Section 1819(e) of the Social 
     Security Act (42 U.S.C. 1395i-3(e)) is amended by adding at 
     the end the following new paragraph:
       ``(6) Screening of direct patient access employees.--
     Beginning on January 1, 2011, the State must--
       ``(A) have procedures in place for the conduct of screening 
     and criminal history background checks under subparagraph (A) 
     of subsection (b)(9), in accordance with the requirements of 
     subparagraph (C) of such subsection;
       ``(B) be responsible for monitoring compliance with the 
     procedures and requirements of such subsection;
       ``(C) as appropriate, provide for a provisional period of 
     employment of a direct patient access employee under clause 
     (ii) of subparagraph (B) of such subsection, including 
     procedures to ensure that a skilled nursing facility provides 
     direct on-site supervision of the employee in accordance with 
     clause (iii) of such subparagraph;
       ``(D) provide an independent process by which a provisional 
     employee or an employee may appeal or dispute the accuracy of 
     the information obtained in a background check performed 
     under such subsection; and
       ``(E) designate a single State agency as responsible for--
       ``(i) overseeing the coordination of any State and national 
     criminal history background checks requested by a skilled 
     nursing facility utilizing a search of State and Federal 
     criminal history records, including a fingerprint check of 
     such records;
       ``(ii) reviewing, using appropriate privacy and security 
     safeguards, the results of any State or national criminal 
     history background checks conducted regarding a prospective 
     direct patient access employee to determine whether the 
     employee has any conviction for a relevant crime;
       ``(iii) immediately reporting to the skilled nursing 
     facility that requested the criminal history background 
     checks the results of such review; and
       ``(iv) in the case of an employee with a conviction for a 
     relevant crime that is subject to reporting under section 
     1128E of the Social Security Act (42 U.S.C. 1320a-7e), 
     reporting the existence of such conviction to the database 
     established under that section;
       ``(F) have a system in place for determining and levying 
     appropriate penalties for violations of the provisions of 
     such subsection;
       ``(G) have a system in place for determining which 
     individuals are direct patient access employees for purposes 
     of subparagraph (F)(iii) of such subsection;
       ``(H) as appropriate, specify offenses, including violent 
     crimes, for purposes of subparagraph (F)(i)(II) of such 
     subsection; and
       ``(I) develop `rap back' capability such that, if a direct 
     patient access employee of a skilled nursing facility is 
     convicted of a crime following the initial criminal history 
     background check conducted with respect to such employee, and 
     the employee's fingerprints match the prints on file with the 
     State law enforcement department, the department will 
     immediately inform the State agency designated under 
     subparagraph (E).''.
       (2) Medicaid program.--
       (A) In general.--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:
       ``(9) Screening of direct patient access employees.--
       ``(A) Screening and criminal history background checks on 
     applicants.--
       ``(i) Screening.--Beginning on January 1, 2011, before 
     hiring a direct patient access employee, a nursing facility 
     shall screen the employee for any disqualifying information 
     in accordance with such procedures as the State shall 
     establish through a search of--

       ``(I) State-based abuse and neglect registries and 
     databases, including the abuse and neglect registries and 
     databases of another State in the case where a prospective

[[Page S7357]]

     employee previously resided in that State; and
       ``(II) criminal records and the records of any proceedings 
     that may contain disqualifying information about applicants, 
     such as proceedings conducted by State professional licensing 
     and disciplinary boards and State medicaid fraud control 
     units.

       ``(ii) Criminal history background checks.--As part of such 
     screening, the nursing facility shall request that the State 
     agency designated under subsection (e)(6)(E) oversee the 
     coordination of a State and national criminal history 
     background check that utilizes a search of State and Federal 
     criminal history records and includes a fingerprint check 
     using the Integrated Automated Fingerprint Identification 
     System of the Federal Bureau of Investigation.
       ``(iii) Use of procedures previously established.--Nothing 
     in this paragraph shall be construed as preventing a State 
     from using procedures established for purposes of the pilot 
     program for National and State background checks on direct 
     patient access employees of long-term care facilities or 
     providers under section 307 of the Medicare Prescription 
     Drug, Improvement, and Modernization Act of 2003, or the 
     nationwide expansion program under subsection (h) of such 
     section, to satisfy the requirements of paragraph (6).
       ``(B) Prohibition on hiring of abusive workers.--
       ``(i) In general.--Subject to clause (ii), a nursing 
     facility may not knowingly employ any direct patient access 
     employee who has any disqualifying information (as defined in 
     subparagraph (F)(ii)).
       ``(ii) Provisional employment.--Subject to clause (iii), 
     the State may permit a nursing facility to provide for a 
     provisional period of employment (not to exceed 30 days) for 
     a direct patient access employee--

       ``(I) pending completion of the screening and background 
     check required under subparagraph (A); and
       ``(II) in the case where the employee has appealed the 
     results of such screening and background check, pending 
     completion of the appeals process.

       ``(iii) Supervision.--The facility shall maintain direct 
     on-site supervision of the employee during such provisional 
     period of employment.
       ``(C) Procedures.--
       ``(i) In general.--The procedures established by the State 
     under subparagraph (A) shall be designed to accomplish the 
     following:

       ``(I) Give a prospective direct patient access employee 
     notice that the nursing facility is required to perform 
     background checks with respect to new employees, including a 
     fingerprint check as part of the national criminal history 
     background check conducted under subparagraph (A)(ii) in the 
     case of any new employee who does not have a certificate 
     indicating that a fingerprint check has been completed and 
     has not found any disqualifying information (as described in 
     subclause (V))
       ``(II) Require, as a condition of employment, that the 
     employee--

       ``(aa) provide a written statement disclosing any 
     disqualifying information;
       ``(bb) provide a statement signed by the employee 
     authorizing the facility to request a background check that 
     includes a search of the registries and databases described 
     in clause (i)(I) of subparagraph (A) and the records 
     described in clause (i)(II) of such subparagraph and a 
     criminal history background check conducted in accordance 
     with clause (ii) of such subparagraph that includes a 
     fingerprint check using the Integrated Automated Fingerprint 
     System of the Federal Bureau of Investigation;
       ``(cc) provide the facility with a rolled set of the 
     employee's fingerprints or submit to being fingerprinted; and
       ``(dd) provide any other identification information the 
     State may require.

       ``(III) Require the nursing facility to check any available 
     registries that would be likely to contain disqualifying 
     information about a prospective employee, including the 
     registries and databases described in subclause (I) of 
     subparagraph (A)(i) and the records described in clause (II) 
     of such subparagraph.
       ``(IV) Provide a prospective direct patient access employee 
     the opportunity to request a copy of the results of the 
     background check conducted with respect to such employee and 
     to correct any errors by providing appropriate documentation 
     to the State and the nursing facility.
       ``(V) Upon completion of a fingerprint check as part of the 
     national criminal history background check conducted with 
     respect to a direct patient access employee under 
     subparagraph (A)(ii), provide the nursing facility and the 
     direct patient access employee with a certificate indicating 
     that such fingerprint check has been completed and no 
     disqualifying information was found. Such certificate shall--

       ``(aa) be valid for 2 years; and
       ``(bb) in the case where such direct patient access 
     employee is hired by any other nursing facility located in 
     the State during such 2-year period, satisfy the requirement 
     that such facility have a fingerprint check conducted as part 
     of such national criminal history background check.
       ``(ii) Elimination of unnecessary checks.--The procedures 
     established by the State under subparagraph (A) shall permit 
     a nursing facility to terminate the background check at any 
     stage at which the facility obtains disqualifying information 
     regarding a prospective direct patient access employee.
       ``(iii) Development of model form of certificate.--The 
     Secretary shall develop a model form of the certificate 
     described in clause (i)(V) that States may use to satisfy the 
     requirements of such clause.
       ``(D) Use of information; immunity from liability.--
       ``(i) Use of information.--A nursing facility that obtains 
     information about a direct patient access employee pursuant 
     to screening or a criminal history background check shall use 
     such information only for the purpose of determining the 
     suitability of the employee for employment.
       ``(ii) Immunity from liability.--A nursing facility that, 
     in denying employment for an applicant, reasonably and in 
     good faith relies upon credible information about such 
     applicant provided by a criminal history background check 
     shall not be liable in any action brought by such applicant 
     based on the employment determination resulting from the 
     information.
       ``(iii) Prohibition on charging employees fees for 
     conducting background checks.--A nursing facility shall not 
     charge a prospective direct patient access employee a fee for 
     the screening or criminal history background check conducted 
     under this paragraph.
       ``(E) Penalties.--
       ``(i) In general.--

       ``(I) State penalties.--Subject to subclause (II), a 
     nursing facility that violates the provisions of this 
     paragraph shall be subject to such penalties as the State 
     determines appropriate to enforce the requirements of this 
     paragraph. A nursing facility shall report to the Secretary 
     on a quarterly basis any penalties imposed by the State under 
     the preceding sentence.
       ``(II) Exclusion from participation.--In any case where the 
     Secretary determines that a State is not sufficiently 
     enforcing the requirements of this paragraph, the Secretary 
     may exclude a nursing facility located within the State that 
     violates the provisions of this paragraph from participating 
     in the programs under this title and title XVIII (in 
     accordance with the procedures of section 1128).

       ``(ii) Knowing retention of worker.--In addition to any 
     penalty under clause (i), a nursing facility that knowingly 
     continues to employ a direct patient access employee in 
     violation of subparagraph (A) or (B) 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 section 1128(a); and
       ``(II) such other types of offenses, including violent 
     crimes, as the State may specify.

       ``(ii) Disqualifying information.--The term `disqualifying 
     information' means information about a conviction for a 
     relevant crime or a finding of substantiated patient or 
     resident abuse.
       ``(iii) Direct patient access employee.--The term `direct 
     patient access employee' means any individual who has access 
     to a patient or resident of a nursing facility through 
     employment or through a contract with such facility and has 
     duties that involve (or may involve) one-on-one contact with 
     a patient or resident of the facility, as determined by the 
     State for purposes of this paragraph. Such term does not 
     include a volunteer unless the volunteer has duties that are 
     equivalent to the duties of a direct patient access employee 
     and those duties involve (or may involve) one-on-one contact 
     with a patient or resident of the facility.''.
       (B) Conforming amendment.--Section 1919(e) of the Social 
     Security Act (42 U.S.C. 1396r(e)) is amended by adding at the 
     end the following new paragraph:
       ``(8) Screening of direct patient access employees.--
     Beginning on January 1, 2011, the State must--
       ``(A) have procedures in place for the conduct of screening 
     and criminal history background checks under subparagraph (A) 
     of subsection (b)(9), in accordance with the requirements of 
     subparagraph (C) of such subsection;
       ``(B) be responsible for monitoring compliance with the 
     procedures and requirements of such subsection;
       ``(C) as appropriate, provide for a provisional period of 
     employment of a direct patient access employee under clause 
     (ii) of subparagraph (B) of such subsection, including 
     procedures to ensure that a nursing facility provides direct 
     on-site supervision of the employee in accordance with clause 
     (iii) of such subparagraph;
       ``(D) provide an independent process by which a provisional 
     employee or an employee may appeal or dispute the accuracy of 
     the information obtained in a background check performed 
     under such subsection; and
       ``(E) designate a single State agency as responsible for--
       ``(i) overseeing the coordination of any State and national 
     criminal history background checks requested by a nursing 
     facility utilizing a search of State and Federal criminal 
     history records, including a fingerprint check of such 
     records;
       ``(ii) reviewing, using appropriate privacy and security 
     safeguards, the results of any State or national criminal 
     history background checks conducted regarding a prospective 
     direct patient access employee to

[[Page S7358]]

     determine whether the employee has any conviction for a 
     relevant crime;
       ``(iii) immediately reporting to the nursing facility that 
     requested the criminal history background checks the results 
     of such review; and
       ``(iv) in the case of an employee with a conviction for a 
     relevant crime that is subject to reporting under section 
     1128E of the Social Security Act (42 U.S.C. 1320a-7e), 
     reporting the existence of such conviction to the database 
     established under that section;
       ``(F) have a system in place for determining and levying 
     appropriate penalties for violations of the provisions of 
     such subsection;
       ``(G) have a system in place for determining which 
     individuals are direct patient access employees for purposes 
     of subparagraph (F)(iii) of such subsection;
       ``(H) as appropriate, specify offenses, including violent 
     crimes, for purposes of subparagraph (F)(i)(II) of such 
     subsection; and
       ``(I) develop `rap back' capability such that, if a direct 
     patient access employee of a nursing facility is convicted of 
     a crime following the initial criminal history background 
     check conducted with respect to such employee, and the 
     employee's fingerprints match the prints on file with the 
     State law enforcement department, the department will 
     immediately inform the State agency designated under 
     subparagraph (E).''.
       (b) Application to Other Long-Term Care Facilities or 
     Providers.--
       (1) Medicare.--Part E 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 LONG-TERM CARE FACILITIES AND PROVIDERS

       ``Sec. 1898.  (a) The provisions of section 1819(b)(9) 
     shall apply to a long-term care facility or provider (as 
     defined in subsection (b)) in the same manner as such 
     provisions apply to a skilled nursing facility.
       ``(b) Long-Term Care Facility or Provider.--In this 
     section, the term `long-term care facility or provider' means 
     the following facilities or providers which receive payment 
     for services under this title or title XIX:
       ``(1) A home health agency.
       ``(2) A provider of hospice care.
       ``(3) A long-term care hospital.
       ``(4) A provider of personal care services.
       ``(5) A provider of adult day care.
       ``(6) A residential care provider that arranges for, or 
     directly provides, long-term care services, including an 
     assisted living facility that provides a level of care 
     established by the Secretary.
       ``(7) An intermediate care facility for the mentally 
     retarded (as defined in section 1905(d)).''.
       (2) Medicaid.--Section 1902(a) of the Social Security Act 
     (42 U.S.C. 1396a) is amended--
       (A) in paragraph (69), by striking ``and'' at the end;
       (B) in paragraph (70)(B)(iv), by striking the period at the 
     end and inserting ``; and''; and
       (C) by inserting after paragraph (70)(B)(iv) the following:
       ``(71) provide that the provisions of section 1919(b)(9) 
     apply to a long-term care facility or provider (as defined in 
     section 1898(b)) in the same manner as such provisions apply 
     to a nursing facility.''.
       (3) Effective date.--The amendments made by this subsection 
     shall take effect on January 1, 2011.
       (c) Payments.--
       (1) Procedures to reimburse costs of national background 
     check.--
       (A) In general.--The Secretary of Health and Human Services 
     shall establish procedures to reimburse the costs of 
     conducting national criminal history background checks under 
     sections 1819(b)(9), 1919(b)(9), 1898, and 1902(a)(71) of the 
     Social Security Act, as added by subsections (a)(1), (a)(2), 
     (b)(1), and (b)(2), respectively, through the following 
     mechanisms, in such proportion as the Secretary determines 
     appropriate:
       (i) By providing payments to skilled nursing facilities and 
     long-term care facilities or providers for costs incurred as 
     are attributable to the conduct of such national criminal 
     history background checks under such section 1819(b)(9).
       (ii) By making a payment, from sums appropriated therefore, 
     under section 1903(a) of the Social Security Act (42 U.S.C. 
     1396b(a)) to each State which has a plan approved under title 
     XIX of the Social Security Act (42 U.S.C. 1396 et seq.), for 
     each quarter, beginning with the quarter commencing on 
     January 1, 2011, in an amount equal to 90 percent of the sums 
     expended with respect to costs incurred during such quarter 
     as are attributable to the conduct of such national criminal 
     history background checks under such section 1919(b)(9).
       (B) Funding for payments for costs incurred under medicare 
     program.--The Secretary of Health and Human Services shall 
     provide for the transfer, in appropriate part from the 
     Federal Hospital Insurance Trust Fund established under 
     section 1817 of the Social Security Act (42 U.S.C. 1395i) and 
     the Federal Supplementary Insurance Trust Fund established 
     under section 1841 of such Act (42 U.S.C. 1395t), of such 
     funds as are necessary to make payments under subparagraph 
     (A)(i) for fiscal year 2011 and each fiscal year thereafter.
       (C) Determination of appropriate proportion.--In 
     establishing the procedures under subparagraph (A), the 
     Secretary of Health and Human Services shall determine what 
     proportion of payments using the mechanisms described in such 
     subparagraph would result in an equitable allocation of the 
     costs of such reimbursement between the Medicare program 
     under title XVIII of the Social Security Act and the Medicaid 
     program under title XIX of such Act.
       (2) Ensuring no duplicative payments.--The procedures 
     established under paragraph (1)(A) shall ensure that no 
     duplicative payments are made for the costs of conducting 
     such national criminal history background checks, including 
     any duplication of payments made under the pilot program for 
     national and State background checks on direct patient access 
     employees of long-term care facilities or providers under 
     section 307 of the Medicare Prescription Drug, Improvement, 
     and Modernization Act of 2007, including the nationwide 
     expansion program under subsection (h) of such section, as 
     added by section 3.
       (3) Submission of costs incurred by facilities in 
     performing checks.--
       (A) In general.--The procedures established under paragraph 
     (1)(A) shall provide a process, such as through submission of 
     a bill, by which a skilled nursing facility, a nursing 
     facility, and a long-term care facility or provider may 
     submit information regarding the costs incurred by such 
     facility in conducting national criminal history background 
     checks under sections 1819(b)(9), 1919(b)(9), 1898, and 
     1902(a)(71) of the Social Security Act, as added by 
     subsections (a)(1), (a)(2), (b)(1), and (b)(2), respectively.
       (B) Model forms.--The Secretary of Health and Human 
     Services shall develop model forms that may be used by a 
     skilled nursing facility, a nursing facility, and a long-term 
     care facility or provider to submit a claim for reimbursement 
     of the costs described in paragraph (1)(A) that contains the 
     information described in subparagraph (A).
       (4) Regulations.--Not later than 3 years after the date of 
     enactment of this Act, the Secretary of Health and Human 
     Services shall promulgate regulations to carry out this 
     subsection.

     SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FEDERAL BUREAU OF 
                   INVESTIGATION.

       (a) Development of Rap Back Capabilities.--
       (1) In general.--Not later than January 1, 2011, the 
     Director of the Federal Bureau of Investigation (in this 
     section referred to as the ``Director'') shall ensure that 
     the Integrated Automated Fingerprint Identification System of 
     the Federal Bureau of Investigation has the capacity to store 
     and retrieve fingerprints from its database.
       (2) Notification of conviction of direct patient access 
     employee.--In the case where a direct patient access employee 
     (as defined in subparagraph (F)(iii) of sections 1819(b)(9) 
     and 1919(b)(9) of the Social Security Act, as added by 
     section 4(a)) is convicted of a crime following the initial 
     national criminal history background check conducted with 
     respect to such employee under such sections 1819(b)(9) and 
     1919(b)(9), and the employee's fingerprint matches the prints 
     on file with the Federal Bureau of Investigation, the Bureau 
     shall inform the State law enforcement department, in order 
     for the State to inform the skilled nursing facility, nursing 
     facility, or long-term care facility or provider of such 
     conviction in accordance with the requirements of sections 
     1819(e)(6)(I) and 1919(e)(8)(I) of the Social Security Act, 
     as added by section 4(a).
       (b) Reasonable Fee for National Criminal History Background 
     Checks Conducted on Employees of Long-Term Care Facilities.--
     The Director may charge a reasonable fee, in consultation 
     with the Secretary of Health and Human Services, for a 
     national criminal history background check using the 
     Integrated Automated Fingerprint Identification System of the 
     Federal Bureau of Investigation that is conducted under 
     section 1819(b)(9), 1919(b)(9), 1898, or 1902(a)(71) of the 
     Social Security Act, as added by subsections (a)(1), (a)(2), 
     (b)(1), and (b)(2) of section 4, respectively, that 
     represents the actual cost of conducting such national 
     criminal history background check.
                                  ____


 The Nursing Home Reform Act Turns Twenty: What Has Been Accomplished, 
                      and What Challenges Remain?

                          (By Orlene Christie)

       Thank you, Senators Kohl and Smith and the Senate Special 
     Committee on Aging for this opportunity to testify before you 
     today on Michigan's Workforce Background Check Program.
       My name is Orlene Christie, and I am the Director of the 
     Legislative and Statutory Compliance Office in the Michigan 
     Department of Community Health. I oversee the Workforce 
     Background Check Program.
       In 2004, Governor Jennifer Granholm and the Michigan 
     Department of Community Health (MDCH) Director Janet 
     Olszewski proposed strong requirements to assure the health 
     and safety of Michigan citizens in long-term care facilities. 
     This project is a priority for the Governor and the 
     Department Director. Working cooperatively with the Michigan 
     Legislature, the Office of Attorney General, and the Centers 
     for Medicaid and Medicare Services (CMS), Michigan 
     successfully implemented the Workforce Background Check 
     Program. Through a competitive process, Michigan secured from 
     CMS a $3.5 million grant to create an effective statewide 
     background check system.
       Through the passage of Public Acts 27 and 28 of 2006, 
     Michigan laws were enhanced and

[[Page S7359]]

     improved to require all applicants for employment that would 
     have direct access to our most vulnerable populations--the 
     elderly and disabled--to undergo a background check. 
     Additionally, all employees who were hired before the 
     effective date of April 1, 2006, would need to be 
     fingerprinted within 24 months of the enactment of the laws.
       Before the new laws were passed, only some employees in 
     nursing homes, county medical care facilities, homes for the 
     aged, and adult foster care facilities required some type of 
     background check. Prior to 2006, the background checks were 
     less comprehensive and primarily included a ``name-based'' 
     check of the Internet Criminal History Tool (ICHAT). The FBI 
     fingerprint check was only required for employees residing in 
     Michigan for less than three (3) years. The previous law also 
     did not require all employees with direct access to residents 
     in long-term care facilities to undergo a background check. 
     Further, for those persons who were subject to a background 
     check, there was no systematic process across the multiple 
     health and human service agencies to conduct the checks, to 
     disseminate findings, or to follow through on results.
       With Michigan's expansion of the laws, all individuals with 
     direct access to residents' personal information, financial 
     information, medical records, treatment information or any 
     other identifying information are now also required to be 
     part of Michigan's Workforce Background Check Program in 
     addition to individuals providing direct services to 
     patients. The scope of the checks was also enhanced to 
     include hospice, psychiatric hospitals, and hospitals with 
     swing beds, home health, and intermediate care facility/
     mental retardation (ICFs/MR).


                      how our program/system works

       Michigan created a Web based application that integrates 
     the databases for the available registries and provides a 
     convenient and effective mechanism for conducting criminal 
     history checks on prospective employees, current employees, 
     independent contractors and those granted clinical privileges 
     in facilities and agencies covered under the new laws.
       Further, the online workforce background check system is 
     designed to eliminate unnecessary fingerprinting through a 
     screening process.
       As of April 1, 2006, 98,625 applicants had been screened 
     through Michigan's Workforce Background Check Program. Of the 
     61,474 applicants that prompted the full background check, 
     3,262 were deemed unemployable and excluded from potential 
     hiring pools due to information found on state lists such as 
     ICHAT, (U.S. HHS Exclusion List) OIG exclusion list, the 
     nurse aid registry, the sex offender registry, the offender 
     tracking information system, and the FBI list.
       The applicants that have been excluded from employment are 
     not the types of people Michigan could ever allow to work 
     with our most vulnerable citizens. We have prevented hardened 
     criminals that otherwise would have access to our vulnerable 
     population from employment.
       As Michigan's demographic profile mirrors that of the 
     nation, the offenses that disqualify individuals from 
     employment in long-term care under the new laws are expected 
     to also be similar across the United States.
       Of the criminal history reports examined, fraudulent 
     activity and controlled substance violations account for 25 
     percent of all disqualifying crimes. Fraudulent activity 
     includes such things as embezzlement, identity theft, and 
     credit card fraud. This is particularly alarming giving the 
     projected increase in financial abuse of the elderly.
       Accessible to long-term care providers through a secure ID 
     and password, a provider is easily able to log onto the 
     workforce background check online system to conduct a check 
     of a potential employee. If no matches are found on the 
     registries, the applicant goes to an independent vendor for a 
     digital live scan of their fingerprints. The prints are then 
     submitted to the Michigan State Police and then to the FBI. 
     If there is a ``hit'' on the state or national database 
     search, a notice is sent to either the Michigan Department of 
     Community Health or the Michigan Department of Human Services 
     for staff analysts to examine the applicant's criminal 
     history.
       Michigan has also implemented a ``rap back'' system where 
     the Michigan State Police notifies one of the two state 
     agencies of a subsequent arrest and in turn the agency 
     notifies the employer. This way we can ensure that in real 
     time, as soon as the criminal history record is updated 
     (arrest, charge or conviction), the department and employer 
     are also notified.


                               conclusion

       As a result of Michigan's Workforce Background Check 
     Program, the health and safety of Michigan's vulnerable 
     population is protected by ensuring that adequate safeguards 
     are in place for background screenings of direct care service 
     workers.
       While the vast majority of health care workers are 
     outstanding individuals who do a wonderful job caring for 
     people in need, we are extremely pleased that Michigan's 
     Workforce Background Check Program has stopped more than 
     3,000 people with criminal histories from possibly preying on 
     our most vulnerable citizens. By building an appeals process, 
     we have also developed a fair system for reviewing inaccurate 
     criminal records or convictions.
       As you can see, Michigan has been leading the way in the 
     area of employee background checks. As I indicated, this 
     project has been a priority of Governor Jennifer Granholm and 
     Michigan Department of Community Health Director Janet 
     Olszewski. We appreciate this opportunity to share this 
     information with you today and look forward to our continued 
     cooperation on this vital topic.
       Thank you.
                                  ____



                                                       NCCNHR,

                                     Washington, DC, May 16, 2007.
     Hon. Herb Kohl,
     Chairman, Special Committee on Aging,
     U.S. Senate, Washington, DC.
       Dear Senator Kohl: NCCNHR, The National Consumer Voice for 
     Quality Long-Term Care, strongly endorses and supports the 
     Patient Safety and Abuse Prevention Act of 2007.
       The Patient Safety and Abuse Prevention Act would close 
     critical loopholes in the protection of nursing home 
     residents and other long-term care recipients by requiring 
     national criminal background checks on all workers who have 
     direct access to residents. Today, in most states, long-term 
     care providers are not required to conduct interstate 
     criminal background checks on any workers, and where 
     background checks are carried out, they are usually confined 
     to nursing assistants. Enactment of your legislation will 
     ensure that both licensed and unlicensed workers with 
     histories of criminal abuse do not move from job to job and 
     state to state while continuing to injure and exploit their 
     vulnerable charges.
       NCCNHR and its members across the United States wish to 
     thank you for pursuing this important legislation, and we 
     look forward to working with you to ensure its passage.
           Sincerely,
     Alice H. Hedt,
       Executive Director.
     Janet C. Wells,
       Director of Public Policy.
                                  ____



                                                         AARP,

                                     Washington, DC, June 6, 2007.
     Hon. Herbert H. Kohl,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kohl: AARP is very pleased to support the 
     bipartisan Patient Safety and Abuse Prevention Act of 2007 
     that you are sponsoring with Senator Domenici. We truly 
     appreciate your leadership and applaud your advocacy for 
     national criminal background checks for long-term care 
     employees.
       Individuals with criminal convictions or histories of abuse 
     can pose a significant risk to persons receiving long-term 
     care. A system of national criminal background checks is 
     especially critical, given the mobility of today's workers, 
     the turnover in the long-term care workforce, and the fact 
     that it is not unusual for individuals to work in multiple 
     states.
       Your bill takes important steps to protect individuals in 
     both home-and community-based and institutional settings by 
     establishing a system of screening and national criminal 
     history background checks, including an FBI fingerprint 
     check. These background checks would apply to employees of 
     long-term care providers receiving Medicare or Medicaid funds 
     whose duties involve or may involve one-on-one contact with 
     individuals receiving long-term care. Penalties would apply 
     if providers knowingly hire or continue to employ an 
     individual with a conviction for a relevant crime or a 
     finding of substantiated abuse of an individual receiving 
     long-term care.
       This legislation builds on the framework of the criminal 
     background check pilot program included in the Medicare 
     Modernization Act and gives states resources to put in place 
     the infrastructure for criminal background checks. This bill 
     includes many important provisions, and we want to continue 
     working with you to ensure that long-term care employers 
     provide adequate direct supervision of employees during 
     provisional employment or an appeal. In addition, we want to 
     improve the balance in accountability between states and 
     providers in the legislation. We appreciate your willingness 
     to work with AARP on this bill.
       This bill would make significant strides in protecting 
     individuals across the country receiving long-term care 
     services and we look forward to working with you and your 
     colleagues on both sides of the aisle to advance this 
     important initiative. If there are any further questions, 
     please feel free to call me or have your staff contact Rhonda 
     Richards of our Federal Affairs staff.
           Sincerely,

                                              David P. Sloane,

                              Senior Managing Director, Government
     Relations and Advocacy.
                                  ____

                                               State of Wisconsin,


                            Board on Aging and Long Term Care,

                                        Madison, WI, May 16, 2007.
     Hon. Herb Kohl,
     Chairman, Special Committee on Aging,
     Washington, DC.
       Dear Senator Kohl: On behalf of the Wisconsin Board on 
     Aging and Long Term Care, I am pleased to express our support 
     for the Patient Safety and Abuse Prevention Act of 2007.
       The Patient Safety and Abuse Prevention Act would offer 
     substantially increased protection for consumers of long-term 
     care by requiring a national criminal background check on all 
     caregivers who come into direct contact with residents. 
     Today, long-term

[[Page S7360]]

     care providers often are not required to do interstate 
     criminal background checks on workers. Where background 
     checks are done, they are often limited to nursing 
     assistants. This overlooks the possibility that licensed 
     professional staff and ancillary workers such as dietary or 
     housekeeping staff who may have criminal histories could be 
     employed to deliver resident care. It is imperative that 
     Congress ensure that workers with histories of criminal abuse 
     cannot move from state to state with impunity while 
     continuing to work in a ``target-rich environment.''
       As well, the bill's provisions addressing the need for 
     assistance by CMS in funding the costs of obtaining the 
     interstate background checks and the requirement that states 
     notify employers of subsequent offenses by previously cleared 
     workers are welcome additions to the system. These provisions 
     will tighten the net and make it even more difficult for 
     workers with backgrounds of criminal misappropriation of 
     property, abuse, and neglect to find a place providing care 
     to our vulnerable elders.
       As the Executive Director of the Wisconsin Board on Aging 
     and Long Term Care, I thank you for pursuing this important 
     legislation, and I look forward to working with you to ensure 
     its passage.
           Sincerely,
                                              George F. Potaracke,
     Executive Director.
                                  ____



                                  The Elder Justice Coalition,

                                     Washington, DC, June 7, 2007.
     Hon. Herbert H. Kohl,
     Chairman, Special Committee on Aging,
     U.S. Senate, Washington, DC.
       Dear Chairman Kohl: On behalf of the 542-member Elder 
     Justice Coalition (EJC), I applaud you on the planned 
     introduction of the Patient Safety and Abuse Prevention Act 
     of 2007. The Elder Justice Coalition has long supported your 
     efforts to secure passage of legislation to ensure that 
     employees of long-term care facilities or providers do not 
     have criminal records or other histories of abusive conduct 
     that could lead to endangering facility residents and others 
     receiving long-term care.
       Since the Elder Justice Act, as introduced in the 110th 
     Congress (S. 1070), does not include background check 
     provisions, we are pleased that you will be introducing this 
     important bill. We commend your leadership and steadfast 
     commitment to protecting individuals who need long-term care 
     from abuse, neglect, and exploitation, and for your 
     leadership on other issues concerning the nation's older 
     population.
       Thank you also for being an original co-sponsor of the 
     Elder Justice Act. Please let us know how we can be 
     supportive of your continued work for elder justice.
           Sincerely,
                                               Robert B. Blancato,
                                             National Coordinator.
                                 ______