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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3768 Introduced in Senate (IS)]

<DOC>

116th CONGRESS
  2d Session
                                S. 3768

To protect older adults and people with disabilities living in nursing 
  homes, intermediate care facilities, and psychiatric hospitals from 
                               COVID-19.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              May 19, 2020

  Mr. Casey (for himself, Mr. Whitehouse, Mr. Schumer, Mr. Jones, Ms. 
Warren, Ms. Baldwin, Mr. Markey, Mrs. Shaheen, Mr. Menendez, Mr. Reed, 
   Mr. Van Hollen, Mr. Blumenthal, Ms. Hirono, Ms. Cortez Masto, Ms. 
 Rosen, and Mr. Peters) introduced the following bill; which was read 
 twice and referred to the Committee on Health, Education, Labor, and 
                                Pensions

_______________________________________________________________________

                                 A BILL

 
To protect older adults and people with disabilities living in nursing 
  homes, intermediate care facilities, and psychiatric hospitals from 
                               COVID-19.

    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 ``Nursing Home COVID-19 Protection and 
Prevention Act of 2020''.

SEC. 2. COVID-19 NURSING HOME PROTECTIONS.

    (a) Program To Support COVID-19 Response.--
            (1) In general.--Not later than 30 days after the date of 
        enactment of this Act, the Secretary shall carry out a program 
        under which payments are made to States and Indian Tribes in 
        order to support cohorting individuals in skilled nursing 
        facilities, nursing facilities, intermediate care facilities, 
        and psychiatric hospitals based on COVID-19 status.
            (2) Application.--To be eligible to receive a payment under 
        this subsection, a State or Indian Tribe shall submit to the 
        Secretary an application. Such application shall include 
        evidence that the State or Indian Tribe (and involved skilled 
        nursing facilities, nursing facilities, intermediate care 
        facilities, and psychiatric hospitals) are able to cohort 
        individuals in compliance with guidance issued by the Secretary 
        during the emergency period. If feasible, the Secretary shall 
        provide for an expedited application process.
            (3) Requirements.--To be eligible to receive a payment 
        under this subsection, a State or Indian Tribe shall comply 
        with the following:
                    (A) Following guidance.--The State or Indian Tribe 
                shall follow the guidance established by the Secretary 
                under paragraph (5) and all other guidance issued by 
                the Secretary during the emergency period.
                    (B) Reporting.--The State or Indian Tribe shall, as 
                determined appropriate by the Secretary, periodically 
                report to the Secretary on the following:
                            (i) The convening and recommendations of 
                        the task force under subparagraph (C), 
                        cohorting strategies being used, the use of 
                        surge teams, and the technical assistance and 
                        resources provided under subparagraph (D).
                            (ii) The State or Indian Tribe's 
                        distribution of the payments received under the 
                        program under this subsection and what 
                        facilities are using such payments for (as 
                        permitted under paragraph (4)(B)).
                            (iii) Other items determined appropriate by 
                        the Secretary.
                    (C) Task force.--
                            (i) In general.--The State or Indian Tribe 
                        shall establish a task force to provide advice 
                        on the State's or Tribe's use and distribution 
                        of payments received under the program under 
                        this section, including on cohorting 
                        strategies, the use of surge teams, resident 
                        rights (particularly involving discharges and 
                        transfers), and other topics as determined 
                        appropriate by the Secretary.
                            (ii) Membership.--A task force established 
                        under clause (i) shall include representation 
                        from the following:
                                    (I) Consumers, including older 
                                adults age 65 and older, individuals 
                                with disabilities, family caregivers, 
                                and their advocates.
                                    (II) Skilled nursing facilities, 
                                nursing facilities, intermediate care 
                                facilities, and psychiatric hospitals.
                                    (III) Health care providers and 
                                other congregate settings (including 
                                hospitals and permanent or transitional 
                                housing facilities) that transfer 
                                residents to and from skilled nursing 
                                facilities, nursing facilities, 
                                intermediate care facilities, and 
                                psychiatric hospitals.
                                    (IV) Health professionals, such as 
                                direct care professionals, physicians, 
                                nurses, and pharmacists.
                                    (V) Experts in public health and 
                                infectious diseases.
                                    (VI) Experts in geriatrics and 
                                long-term care medicine.
                                    (VII) The State Long-Term Care 
                                Ombudsman program (as described in 
                                section 712(a)(1) of the Older 
                                Americans Act of 1965 (42 U.S.C. 
                                3058g(a)(1))).
                                    (VIII) The protection and advocacy 
                                system (as established under subtitle C 
                                of title I of the Developmental 
                                Disabilities Assistance and Bill of 
                                Rights Act (42 U.S.C. 15041 et seq.).
                                    (IX) State agencies, including the 
                                State surveying agency and the agency 
                                that administers the State plan under 
                                the Medicaid program under title XIX of 
                                the Social Security Act.
                                    (X) Other representatives as the 
                                Secretary determines appropriate.
                    (D) Protocol to evaluate.--The State or Indian 
                Tribe shall establish an expedited protocol to evaluate 
                a facility's ability (including a facility retrofitted 
                under paragraph (4)(B)(i)) to cohort individuals who 
                test positive for COVID-19, individuals who test 
                negative for COVID-19, or individuals with unknown 
                status or who are under observation. Such protocol 
                shall include an infection control self-assessment and 
                an abbreviated survey and may include a standard 
                survey.
                    (E) Technical assistance and resources.--
                            (i) In general.--The State or Indian Tribe 
                        shall ensure that skilled nursing facilities, 
                        nursing facilities, intermediate care 
                        facilities, and psychiatric hospitals receive 
                        technical assistance and the necessary 
                        resources to--
                                    (I) implement proper infection 
                                control protocols and practices;
                                    (II) minimize unnecessary 
                                transfers;
                                    (III) ensure adequate staffing, 
                                including the use of surge teams;
                                    (IV) effectively use and provide 
                                access to testing and personal 
                                protective equipment, including 
                                guidance on how to effectively use 
                                personal protective equipment when 
                                access is limited;
                                    (V) safely transition residents to 
                                home and community-based settings; and
                                    (VI) other topics, as determined 
                                appropriate by the Secretary.
                            (ii) Requirement for technical 
                        assistance.--The technical assistance required 
                        under clause (i) shall be provided by--
                                    (I) quality improvement 
                                organizations under part B of title XI 
                                of the Social Security Act; or
                                    (II) other independent 
                                organizations of a similar type that do 
                                not have conflicts of interest and are 
                                deemed appropriate by the Secretary.
            (4) Use of funds.--
                    (A) In general.--A State or Indian Tribe that 
                receives a payment under the program under this 
                subsection shall use funds to support skilled nursing 
                facilities, nursing facilities, intermediate care 
                facilities, and psychiatric hospitals that cohort, and 
                provide services to, individuals who test positive for 
                COVID-19, individuals who test negative for COVID-19, 
                and individuals with unknown status or who are under 
                observation. Such cohorting shall be in compliance with 
                all guidance issued by the Secretary during the 
                emergency period.
                    (B) Permissible uses and authorized costs.--States 
                and Indian Tribes shall use the payments received under 
                the program under this subsection for the following 
                purposes:
                            (i) To retrofit non-traditional facility-
                        based settings, such as hotels, dormitories, 
                        schools, churches, and other temporary or 
                        permanent shelters, for temporary use as 
                        skilled nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals.
                            (ii) To support skilled nursing facilities, 
                        nursing facilities, intermediate care 
                        facilities, and psychiatric hospitals with the 
                        establishment of specialized units within such 
                        facilities.
                            (iii) To provide testing kits or other 
                        supplies needed for rapid turnaround to test 
                        staff members and residents of skilled nursing 
                        facilities, nursing facilities, intermediate 
                        care facilities, and psychiatric hospitals for 
                        COVID-19.
                            (iv) To provide personal protective 
                        equipment to staff members of skilled nursing 
                        facilities, nursing facilities, intermediate 
                        care facilities, psychiatric hospitals and, 
                        where appropriate, to residents of such 
                        facilities.
                            (v) To safely facilitate necessary 
                        transfers to and from skilled nursing 
                        facilities, nursing facilities, intermediate 
                        care facilities, and psychiatric hospitals.
                            (vi) To safely facilitate voluntary 
                        discharges to home and community-based settings 
                        from skilled nursing facilities, nursing 
                        facilities, intermediate care facilities, and 
                        psychiatric hospitals.
                            (vii) To provide additional staffing 
                        (including the use of surge teams) associated 
                        with the COVID-19 pandemic for skilled nursing 
                        facilities, nursing facilities, intermediate 
                        care facilities, and psychiatric hospitals, 
                        which may include providing premium or hazard 
                        pay, overtime pay, enhanced payment rates, paid 
                        sick and family medical leave, childcare, 
                        temporary housing, transportation, and other 
                        supportive services for staff members.
                            (viii) To provide support for individuals 
                        who have no other mechanism to pay for their 
                        care at skilled nursing facilities, nursing 
                        facilities, intermediate care facilities, and 
                        psychiatric hospitals and are unable to pay.
                            (ix) Other purposes relating to the 
                        cohorting described in subparagraph (A).
            (5) Additional guidance.--For purposes of the program under 
        this subsection, not later than 30 days after the date of 
        enactment of this Act (and prior to making any payments to 
        States or Indian Tribes under the program) the Secretary shall 
        establish guidance on the following:
                    (A) Which skilled nursing facilities, nursing 
                facilities, intermediate care facilities, and 
                psychiatric hospitals are permitted to cohort 
                individuals who test positive for COVID-19, individuals 
                who test negative for COVID-19, and individuals with 
                unknown status or who are under observation. Such 
                guidance shall account for--
                            (i) the facility's history of compliance 
                        with the requirements of participation under 
                        titles XVIII and XIX of the Social Security 
                        Act, including requirements relating to 
                        infection control and emergency preparedness;
                            (ii) the facility's current or past 
                        affiliation (as either a candidate or 
                        participant) with the special focus facility 
                        program under section 1819(f)(8) of such Act 
                        (42 U.S.C. 1395i-3(f)(8)) and section 
                        1919(f)(10) of such Act (42 U.S.C. 
                        1396r(f)(10)); and
                            (iii) the facility's ability to treat high-
                        severity residents, as applicable.
                    (B) Consumer protections for residents of skilled 
                nursing facilities, nursing facilities, intermediate 
                care facilities, and psychiatric hospitals affected by 
                COVID-19 cohorting policies, including by--
                            (i) prohibiting facilities from discharging 
                        residents for failure to pay for services; and
                            (ii) requiring written notification to be 
                        provided to residents and their family and 
                        legal representatives at least 72 hours prior 
                        to discharge or transfers, with such notice 
                        containing--
                                    (I) information on the rights of 
                                the resident;
                                    (II) contact information for the 
                                State Long-Term Care Ombudsman program 
                                (as described in section 712(a)(1) of 
                                the Older Americans Act of 1965 (42 
                                U.S.C. 3058g(a)(1))); and
                                    (III) contact information for the 
                                protection and advocacy system (as 
                                established under subtitle C of title I 
                                of the Developmental Disabilities 
                                Assistance and Bill of Rights Act (42 
                                U.S.C. 15041 et seq.).
                    (C) Strategies to effectively cohort residents of 
                skilled nursing facilities, nursing facilities, 
                intermediate care facilities, and psychiatric hospitals 
                based on COVID-19 status, including--
                            (i) the temporary utilization of non-
                        traditional facility-based settings, such as 
                        hotels, dormitories, schools, churches, and 
                        other temporary or permanent shelters, as 
                        skilled nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals;
                            (ii) how to safely and effectively move, 
                        shelter in place, and cohort within facilities;
                            (iii) how to establish separate facilities 
                        for individuals who test positive for COVID-19;
                            (iv) how to establish separate facilities 
                        for individuals who test negative for COVID-19;
                            (v) proper procedures for conducting COVID-
                        19 testing, sending tests to be analyzed, and 
                        effective use of COVID-19 testing;
                            (vi) adequate staffing, with contingency 
                        plans during shortages, including the use of--
                                    (I) separate staffing according to 
                                COVID-19 status; and
                                    (II) surge teams;
                            (vii) effective use of personal protective 
                        equipment, including in cases where access to 
                        an adequate supply of personal protective 
                        equipment is limited;
                            (viii) how to minimize resident transfers 
                        to and from the facilities;
                            (ix) how to safely effectuate resident 
                        transfers to home and community-based settings 
                        from the facilities; and
                            (x) how to uphold resident rights in 
                        accordance with titles XVIII and XIX of the 
                        Social Security Act.
            (6) Report.--Not later than 2 years after the date of the 
        enactment of this section, the Secretary shall submit to the 
        appropriate Committees of Congress a report on the program 
        under this section, together with recommendations for such 
        legislation and administrative action as the Secretary 
        determines appropriate.
            (7) Funding.--Out of any monies in the Treasury of the 
        United States not otherwise appropriated, there are 
        appropriated to the Secretary $20,000,000,000 for fiscal year 
        2020 for making payments to States and Indian Tribes under this 
        subsection. Amounts appropriated under the preceding sentence 
        shall remain available until expended.
    (b) COVID-19 Data Collection and Disclosure.--
            (1) Data collection and publication by the secretary.--
                    (A) In general.--Beginning after the date of 
                enactment of this Act and continuing through the end of 
                the emergency period, or through a later date 
                determined appropriate by the Secretary, the Secretary 
                shall make publicly available on the Nursing Home 
                Compare websites described in sections 1819(i) and 
                1919(i) of the Social Security Act (42 U.S.C. 1395i-
                3(i); 42 U.S.C. 1396r(i)) and on the internet website 
                of the Centers for Medicare & Medicaid Services 
                information, within each State, Indian Tribe, and each 
                skilled nursing facility, nursing facility, 
                intermediate care facility, and psychiatric hospitals, 
                on the following:
                            (i) The number of suspected and confirmed 
                        COVID-19 cases among residents in skilled 
                        nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals.
                            (ii) The number of suspected and confirmed 
                        COVID-19 cases among staff persons in skilled 
                        nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals.
                            (iii) The number of total deaths and COVID-
                        19 deaths (among both residents and staff 
                        persons, including by age, gender, race, and 
                        ethnicity) in skilled nursing facilities, 
                        nursing facilities, intermediate care 
                        facilities, and psychiatric hospitals.
                            (iv) Personal protective equipment and hand 
                        hygiene supplies in skilled nursing facilities, 
                        nursing facilities, intermediate care 
                        facilities, and psychiatric hospitals.
                            (v) Ventilator capacity and supplies 
                        available in skilled nursing facilities, 
                        nursing facilities, intermediate care 
                        facilities, and psychiatric hospitals.
                            (vi) Resident beds and census in skilled 
                        nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals.
                            (vii) Access to testing in skilled nursing 
                        facilities, nursing facilities, intermediate 
                        care facilities, and psychiatric hospitals.
                            (viii) Staffing shortages in skilled 
                        nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals.
                            (ix) Other items determined appropriate by 
                        the Secretary.
                    (B) Update.--The data described in subparagraph (A) 
                shall be updated not less frequently than on a daily 
                basis.
                    (C) Data sharing and transfer.--The Secretary shall 
                share the data described in subparagraph (A) with--
                            (i) the Department of Veterans Affairs;
                            (ii) the Federal Emergency Management 
                        Agency;
                            (iii) States;
                            (iv) Indian Tribes; and
                            (v) other entities determined appropriate 
                        by the Secretary.
                    (D) Privacy.--The Secretary shall take all 
                necessary steps to protect the privacy of individual 
                residents and staff persons associated with the 
                affected skilled nursing facility, nursing facility, 
                intermediate care facility, or psychiatric hospital.
            (2) Disclosure by facilities.--
                    (A) In general.--Beginning after the date of 
                enactment of this Act and continuing through the end of 
                the emergency period, or through a later date 
                determined appropriate by the Secretary, the Secretary 
                shall ensure that skilled nursing facilities, nursing 
                facilities, intermediate care facilities, and 
                psychiatric hospitals provide notification when a case 
                of COVID-19 is confirmed among a resident or staff 
                person or when 3 or more residents or staff exhibit the 
                new-onset of respiratory symptoms occurring within 72 
                hours of each other to the following:
                            (i) Residents of such facility and 
                        residents' family or legal representative.
                            (ii) State Long-Term Care Ombudsman 
                        programs (as described in section 712(a)(1) of 
                        the Older Americans Act of 1965 (42 U.S.C. 
                        3058g(a)(1))).
                            (iii) The protection and advocacy system 
                        (as established under subtitle C of title I of 
                        the Developmental Disabilities Assistance and 
                        Bill of Rights Act (42 U.S.C. 15041 et seq.).
                    (B) Timing.--The notification required under 
                subparagraph (A) shall be provided--
                            (i) within 12 hours of the confirmation of 
                        a COVID-19 case or the confirmation of 3 or 
                        more residents or staff persons exhibiting new-
                        onset respiratory symptoms with 72 hours of 
                        each other; and
                            (ii) in the most expedient manner 
                        available, to be followed-up with written 
                        notification to residents of the facility and 
                        residents' family or legal representative.
            (3) HHS study and report on covid-19 outbreaks.--
                    (A) Study.--
                            (i) In general.--The Secretary shall 
                        conduct a study on COVID-19 outbreaks in 
                        skilled nursing facilities, nursing facilities, 
                        intermediate care facilities, and psychiatric 
                        hospitals. Such study shall include an analysis 
                        of--
                                    (I) the characteristics of skilled 
                                nursing facilities, nursing facilities, 
                                intermediate care facilities, and 
                                psychiatric hospitals that experienced 
                                COVID-19 outbreaks;
                                    (II) the size of the outbreaks;
                                    (III) the number of deaths of 
                                residents and staff persons from COVID-
                                19; and
                                    (IV) the total number of deaths of 
                                residents.
                            (ii) Characteristics.--The characteristics 
                        described in clause (i) shall include--
                                    (I) the facility's history of 
                                compliance with the requirements of 
                                participation under titles XVIII and 
                                XIX of the Social Security Act, 
                                including requirements relating to 
                                infection control and emergency 
                                preparedness;
                                    (II) the facility's current or past 
                                affiliation (as either a candidate or 
                                participant) with the special focus 
                                facility program under section 
                                1819(f)(8) of such Act (42 U.S.C. 
                                1395i-3(f)(8)) and section 1919(f)(10) 
                                of such Act (42 U.S.C. 1396r(f)(10));
                                    (III) the facility's resident size, 
                                including the number of occupied beds;
                                    (IV) the facility's geographic 
                                location; and
                                    (V) the facility's for-profit or 
                                non-profit status.
                    (B) Report.--Not later than 6 months after the end 
                of the emergency period, and every 6 months thereafter 
                through the end of the 2-year period that begins at the 
                end of the emergency period, the Secretary shall submit 
                to the appropriate Committees of Congress a report 
                containing the results of the study conducted under 
                paragraph (1), together with recommendations for such 
                legislation and administrative action as the Secretary 
                determines appropriate.
    (c) Monthly Briefings on the COVID-19 Response.--
            (1) Monthly briefings.-- Not later than 15 days after the 
        date of enactment of this Act, and at least once every 30 days 
        thereafter through the end of the emergency period, the 
        Secretary shall brief the appropriate Committees of Congress 
        (including all members of such Committees) on the COVID-19 
        outbreak in skilled nursing facilities, nursing facilities, 
        intermediate care facilities, and psychiatric hospitals and the 
        response by the Secretary to such outbreak.
            (2) Report.--Not later than 1 year after the date of 
        enactment of this Act, the Inspector General of the Department 
        of Health and Human Services shall submit to Congress a report 
        that evaluates the response of the Secretary to the COVID-19 
        outbreak in skilled nursing facilities, nursing facilities, 
        intermediate care facilities, and psychiatric hospitals such as 
        guidance, rules, or waivers established by the Secretary.
    (d) Rule of Construction.--Nothing in this section shall be 
construed to affect the requirements or conditions of participation 
under titles XVIII and XIX of the Social Security Act with respect to 
skilled nursing facilities, nursing facilities, intermediate care 
facilities, and psychiatric hospitals.
    (e) Definitions.--In this section:
            (1) Appropriate committees of congress.--The term 
        ``appropriate Committee of Congress'' means--
                    (A) the Committee on Finance of the Senate;
                    (B) the Committee on Health, Education, Labor, and 
                Pensions of the Senate;
                    (C) the Special Committee on Aging of the Senate;
                    (D) the Committee on Ways and Means of the House of 
                Representatives; and
                    (E) the Committee on Energy and Commerce of the 
                House of Representatives.
            (2) Emergency period.--The term ``Emergency period'' means 
        the emergency period described in section 1135(g)(1)(B) of the 
        Social Security Act (42 U.S.C. 1395b-5(g)(1)(B)).
            (3) Indian tribe.--The term ``Indian Tribe'' has the 
        meaning given that term in section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5304).
            (4) Intermediate care facility.--The term ``intermediate 
        care facility'' means an intermediate care facility described 
        in section 1905(d) of the Social Security Act (42 U.S.C. 
        1396d(d)).
            (5) Nursing facility.--The term ``nursing facility'' has 
        the meaning given that term in section 1919(a) of the Social 
        Security Act (42 U.S.C. 1396r(a)).
            (6) Psychiatric hospital.--The term ``psychiatric 
        hospital'' has the meaning given that term in section 1861(f) 
        of the Social Security Act (42 U.S.C. 1395x(f)).
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (8) Skilled nursing facility.--The term ``skilled nursing 
        facility'' has the meaning given that term in section 1819(a) 
        of the Social Security Act (42 U.S.C. 1395i-3(a)).
            (9) State.--The term ``State'' means the 50 States, the 
        District of Columbia, the Commonwealth of Puerto Rico, the 
        United States Virgin Islands, Guam, the Commonwealth of the 
        Northern Mariana Islands, and American Samoa.
            (10) Surge team.--The term ``surge team'' means a short-
        term staffing team.
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