I

106TH CONGRESS

2D SESSION H. R. 4949

To amend title XIX of the Social Security Act to improve the quality of

care furnished in nursing homes.

IN THE HOUSE OF REPRESENTATIVES

JULY 25, 2000

Mr. WAXMAN (for himself, Mr. GEPHARDT, Mr. DINGELL, Mr. STARK, Mr.

BROWN of Ohio, Mr. GEORGE MILLER of California, Ms. SCHAKOWSKY,

Mr. FORBES, Mr. HOLT, Mr. LANTOS, Ms. LEE, Mr. BLAGOJEVICH, Mr.

HINCHEY, and Mr. WYNN) introduced the following bill; which was referred to the Committee on Commerce

A BILL

To amend title XIX of the Social Security Act to improve

the quality of care furnished in nursing homes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) IN GENERAL.—This Act may be cited as the

5 ‘‘Nursing Home Quality Protection Act’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Increased sanctions for substandard care furnished in nursing homes.
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Sec. 3. Increased resources to improve the quality of care furnished in nursing

homes.

Sec. 4. Increased public disclosure of nursing home conditions.

1 SEC. 2. INCREASED SANCTIONS FOR SUBSTANDARD CARE

2 FURNISHED IN NURSING HOMES.

3 (a) IN GENERAL.—Section 1919 of the Social Secu4 rity Act (42 U.S.C. 1396r) is amended—

5 (1) by redesignating subsection (i) as subsection

6 (j); and

7 (2) by inserting after subsection (h) the fol8 lowing new subsection:

9 ‘‘(i) REFUND OF FEDERAL MONEYS FOR SUB10 STANDARD NURSING CARE.—

11 ‘‘(1) IN GENERAL.—From amounts paid under

12 a State plan to a nursing facility, the nursing facil13 ity shall refund to the Secretary (for deposit in the

14 Account established in subsection (j)) for deficiencies

15 identified in a survey under subsection (g) the fol16 lowing amounts:

17 ‘‘(A) $2,000 for each deficiency that had

18 the potential to cause more than minimal harm

19 to a resident of the nursing facility.

20 ‘‘(B) $10,000 for each deficiency that

21 caused actual harm to a resident of the nursing

22 facility.
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1 ‘‘(C) $25,000 for each deficiency that

2 placed a resident of the nursing facility in im3 mediate jeopardy.

4 Amounts under this subparagraph shall be adjusted

5 annually to account for inflation in the manner pro6 vided for in section 1924(g).

7 ‘‘(2) DEADLINE FOR SUBSTANDARD CARE RE8 FUND.—Payment of the amounts payable by a nurs9 ing facility to the Secretary under paragraph (1)

10 shall be made not later than 30 days after the nurs11 ing facility receives notice of the deficiencies and the

12 amount of substandard care refund due.

13 ‘‘(3) WITHHOLDING OF PAYMENTS FOR FAIL14 URE TO PAY A SUBSTANDARD CARE REFUND TO THE

15 SECRETARY.—In the case of a nursing facility that

16 does not pay a substandard care refund required

17 under paragraph (1), in order to ensure that pay18 ments under the State plan to the facility are re19 duced by the amount of substandard care refund

20 due from the facility, the Secretary shall withhold

21 from payments attributable to this section the

22 amount of such substandard care refund.

23 ‘‘(4) APPEAL.—

24 ‘‘(A) IN GENERAL.—The Secretary shall

25 establish a procedure for a nursing facility to
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1 appeal to the Secretary a substandard care re2 fund paid or an amount withheld under this

3 paragraph.

4 ‘‘(B) REPAYMENTS BY THE SECRETARY.—

5 If a nursing facility is successful on appeal, the

6 Secretary shall pay to the nursing facility an

7 amount equal to the amount of the substandard

8 care refund paid under paragraph (1), or the

9 amount withheld under paragraph (3), or both,

10 if applicable, plus interest accruing on such

11 amount at the rate applicable under section

12 1903(d)(5).

13 ‘‘(5) RELATION TO OTHER SANCTIONS.—

14 ‘‘(A) IN GENERAL.—A substandard care

15 refund paid by or an amount withheld from a

16 nursing facility for a deficiency under this

17 paragraph—

18 ‘‘(i) shall not affect the authority of a

19 State or the Secretary to take enforcement

20 actions or impose sanctions against the

21 nursing facility under any other provision

22 of law with respect to the deficiency;

23 ‘‘(ii) shall be deducted from civil

24 money penalties assessed by the Secretary
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1 with respect to the deficiency under other

2 provisions of this Act; and

3 ‘‘(iii) shall not affect any remedy

4 available to an individual at common law.

5 ‘‘(B) PRESERVING RIGHT TO APPEAL.—

6 The failure of a nursing facility to appeal a

7 substandard care refund paid by or amount

8 withheld from the facility for a deficiency under

9 this paragraph shall have no effect on the right

10 of the facility to appeal any enforcement action

11 taken or sanction imposed by the Secretary

12 with respect to the deficiency under other provi13 sions of this Act.’’.

14 (b) EFFECTIVE DATE.—The amendments made by

15 subsection (a) shall apply with respect to surveys con16 ducted on or after the date that is one year after the date

17 of the enactment of this Act, without regard to whether

18 or not final regulations to carry out such amendments

19 have been promulgated by such date.

20 SEC. 3. INCREASED RESOURCES TO IMPROVE THE QUALITY

21 OF CARE FURNISHED IN NURSING HOMES.

22 (a) REINSTITUTION OF BOREN AMENDMENT PAY23 MENT METHODOLOGY.—

24 (1) PURPOSE.—In 1997, Congress repealed the

25 Boren amendment, which required that the States
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1 make reasonable and adequate payments to nursing

2 homes and other health care facilities in order to

3 provide quality care to residents. The purpose of this

4 section is to restore the Boren amendment so that

5 those facilities can provide better care to residents.

6 (2) PROVISION FOR PAYMENT OF REASONABLE

7 AND ADEQUATE COSTS.—Section 1902(a)(13) of the

8 Social Security Act (42 U.S.C. 1396a(a)(13)) is

9 amended to read as follows:

10 ‘‘(13) provide for payment of services through

11 the use of rates determined under this paragraph as

12 in effect on August 1, 1997;’’.

13 (3) EFFECTIVE DATE.—The amendment made

14 by paragraph (2) shall apply to services furnished on

15 or after the date that is one year after the date of

16 the enactment of this Act.

17 (b) GRANT PROGRAM TO IMPROVE QUALITY OF

18 CARE FURNISHED IN NURSING HOMES.—Section 1919 of

19 the Social Security Act (42 U.S.C. 1396r), as amended

20 by section 2(a), is further amended—

21 (1) by redesignating subsection (j) as sub22 section (k); and

23 (2) by inserting after subsection (i) the fol24 lowing new subsection:
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1 ‘‘(j) NURSING FACILITY QUALITY IMPROVEMENT AC2 COUNT.—

3 ‘‘(1) ESTABLISHMENT OF NURSING FACILITY

4 QUALITY IMPROVEMENT ACCOUNT.—

5 ‘‘(A) IN GENERAL.—There is hereby cre6 ated on the books of the Treasury an expendi7 ture account to be known as the ‘Nursing Facil8 ity Quality Improvement Account’ (in this sub9 section referred to as the ‘Account’).

10 ‘‘(B) DEPOSIT OF FUNDS IN THE AC11 COUNT.—The Secretary shall deposit in the

12 Account—

13 ‘‘(i) all substandard care refunds from

14 nursing facilities under subsection (i)(1);

15 and

16 ‘‘(ii) amounts withheld under sub17 section (i)(3).

18 ‘‘(C) APPROPRIATED AMOUNTS FROM SUB19 STANDARD CARE REFUNDS.—There are hereby

20 appropriated to the Account such amounts as

21 the Secretary deposits to the Account under

22 this paragraph.

23 ‘‘(2) GRANTS FOR IMPROVEMENT OF QUALITY

24 OF CARE.—
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1 ‘‘(A) IN GENERAL.—Subject to the suc2 ceeding provisions of this paragraph, from

3 amounts available in the Account, the Secretary

4 shall make grants to States for the purpose of

5 improving the quality of care furnished in nurs6 ing facilities operating in the State.

7 ‘‘(B) USE OF GRANT FUNDS.—Grants

8 made available to States under subparagraph

9 (A) may be used for any or all of the following

10 specified purposes:

11 ‘‘(i) To enable a nursing facility to re12 cruit additional nursing staff or to retain

13 existing nursing staff (including through

14 the use of financial incentives).

15 ‘‘(ii) To increase education and train16 ing of nursing staff.

17 ‘‘(iii) To provide incentives to increase

18 the level of nursing staff in a nursing facil19 ity.

20 ‘‘(iv) Any other purpose that the Sec21 retary determines is likely to improve the

22 quality of care furnished to residents of a

23 nursing facility.

24 ‘‘(C) TERMS AND CONDITIONS.—The Sec25 retary shall establish such terms and conditions
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1 as the Secretary determines to be appropriate

2 for the receipt of grant funds under this para3 graph. Such terms and conditions shall include

4 the following requirements:

5 ‘‘(i) A State shall develop a plan for

6 the use of grant funds.

7 ‘‘(ii) In developing the plan required

8 under clause (i), the State shall consult

9 with representatives of nursing facility

10 residents, of nursing facilities, of nursing

11 staff, and of other interested parties, and

12 shall provide for an opportunity for public

13 comment.

14 ‘‘(iii) The State shall submit to the

15 Secretary annual reports on the use of

16 grant funds under the plan.

17 ‘‘(D) AGGREGATE AMOUNT OF GRANT

18 FUNDS FOR STATES.—The amount of a grant

19 to a State under this subsection may not exceed

20 the aggregate amount of substandard care re21 funds (under subsection (i)) from nursing facili22 ties operating in the State.

23 ‘‘(E) NONPARTICIPATION BY STATES.—

24 Notwithstanding subparagraph (D), if a State

25 does not receive a grant under this subsection,
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1 the Secretary may redistribute, in a manner

2 consistent with section 2104(f), the sub3 standard care refunds received from nursing fa4 cilities in that State to other States.

5 ‘‘(F) LIMITATIONS ON USE OF GRANT

6 AMOUNTS.—A State may not use amounts

7 made available under a grant under this

8 paragraph—

9 ‘‘(i) to satisfy any requirement for the

10 expenditure of non-Federal funds as a con11 dition for the receipt of Federal funds; or

12 ‘‘(ii) to make payments to a nursing

13 facility that is not in compliance with Fed14 eral labor and employment laws or that

15 has a pattern of violations of such laws.

16 Amounts made available under a grant under

17 this paragraph shall be in addition to, and may

18 not be used to supplant, any funds that are or

19 would otherwise be expended under any Fed20 eral, State, or local law by a State or local gov21 ernment.

22 ‘‘(G) DEFINITION.—In this subsection and

23 subsection (g)(5)(E), the term ‘nursing staff’

24 means a registered professional nurse, a li-
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1 censed practical or licensed vocational nurse, or

2 a certified nurse aide.

3 ‘‘(3) ANNUAL AUDITS.—

4 ‘‘(A) IN GENERAL.—The Secretary shall

5 conduct annual audits of the use of grant funds

6 made available under paragraph (2). The Sec7 retary shall assess the extent to which such

8 funds have resulted in increased nursing staff,

9 reduced nursing staff turnover, increased train10 ing of nursing staff, and improvements in the

11 quality of care furnished in nursing facilities lo12 cated in States receiving such grant funds.

13 ‘‘(B) ADDITIONAL TERMS FOR RECEIPT OF

14 GRANT FUNDS.—As a part of a plan under

15 paragraph (2)(C), the State shall afford the

16 Secretary access to any records or information

17 relating to the plan for the purposes of an audit

18 of the State’s use of grant funds.

19 ‘‘(C) ANNUAL REPORT.—The Secretary

20 shall submit to Congress an annual report on

21 the audits conducted under this paragraph.’’.
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1 SEC. 4. INCREASED PUBLIC DISCLOSURE OF NURSING

2 HOME CONDITIONS.

3 (a) INTERNET DISCLOSURE.—Section 1919(g)(5) of

4 the Social Security Act (42 U.S.C. 1396r(g)(5)) is amend5 ed by adding at the end the following new subparagraph:

6 ‘‘(E) PUBLICATION ON THE INTERNET OF

7 NURSING FACILITY INFORMATION.—As soon as

8 practicable, but in no case later than January

9 1, 2002, the Secretary shall make available to

10 the public on the Internet site of the Depart11 ment of Health and Human Services, and by

12 such other means as the Secretary determines

13 appropriate, the following information with re14 spect to each nursing facility:

15 ‘‘(i) COMPLIANCE WITH FACILITY

16 STANDARDS.—A summary of the facility’s

17 compliance or noncompliance with Federal

18 nursing facility standards.

19 ‘‘(ii) COPIES OF RECENT SURVEYS.—

20 A copy of the three most recent surveys

21 conducted of the nursing facility under

22 subsection (g).

23 ‘‘(iii) COMPLAINTS FILED AGAINST

24 THE FACILITY.—A summary of each com25 plaint filed against the nursing facility

26 during the three most recent years and a
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1 summary of the outcome or current status

2 of the complaint.

3 ‘‘(iv) ENFORCEMENT ACTIONS

4 AGAINST THE FACILITY.—A summary of

5 each enforcement action undertaken by the

6 Secretary or a State during the three most

7 recent years with respect to the facility

8 and a summary of the outcome or current

9 status of the action.

10 ‘‘(v) NURSE STAFFING RATIOS.—Data

11 on the nursing staff of the facility for each

12 of the four previous calendar quarters, in13 cluding the following ratios:

14 ‘‘(I) The ratio of registered pro15 fessional nurses to residents of the fa16 cility.

17 ‘‘(II) The ratio of licensed prac18 tical or licensed vocational nurses to

19 residents of the facility.

20 ‘‘(III) The ratio of certified nurse

21 aides to residents of the facility.

22 ‘‘(IV) The ratio of aggregate

23 nursing staff to residents of the facil24 ity.
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1 Such data shall include information on

2 such ratios by shift. Such ratios shall be

3 calculated by comparing the number of

4 hours such staff expend providing nursing

5 care to residents of the facility to the num6 ber of residents in the facility.

7 ‘‘(vi) OWNERSHIP DISCLOSURE.—The

8 identity of the owner and operator of the

9 nursing facility, including an identification

10 of whether the facility is a part of a chain

11 of nursing facilities, and if so, the identity

12 of the chain and the number of facilities in

13 such chain.

14 ‘‘(vii) LABOR VIOLATIONS.—Violations

15 of Federal labor and employment laws, and

16 costs incurred for activities directly related

17 to influencing employees with respect to

18 unionization, during the three most recent

19 years.

20 ‘‘(viii) OTHER PERTINENT INFORMA21 TION.—Any other information that the

22 Secretary determines appropriate to inform

23 the public on conditions and quality of care

24 furnished at the facility.
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1 After January 1, 2002, the Secretary shall con2 tinuously update the information posted on

3 such Internet site and shall ensure that such in4 formation is never more than 90 days out of

5 date.’’.

6 (b) POSTING OF STAFFING INFORMATION.—Section

7 1919(c)(8) of the Social Security Act (42 U.S.C.

8 1396r(c)(8)) is amended by inserting before the period the

9 following: ‘‘and the nurse staffing ratio information under

10 subsection (g)(5)(E)(v)’’.

11 (c) RECORDKEEPING AND REPORTING REQUIRE12 MENTS.—Section 1919(d) of the Social Security Act (42

13 U.S.C. 1396r(d)) is amended by adding at the end the

14 following new paragraph:

15 ‘‘(5) RECORDKEEPING AND REPORTING RE16 QUIREMENTS.—

17 ‘‘(A) IN GENERAL.—A nursing facility

18 shall maintain such records and make such re19 ports to the Secretary as the Secretary may re20 quire for the administration and enforcement of

21 this section, including providing to the Sec22 retary such information as the Secretary may

23 require to implement subsection (g)(5)(E). The

24 Secretary may specify the form and manner of

25 any report required under this section, and
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1 shall establish a procedure for the electronic

2 transmission of such records.

3 ‘‘(B) CERTIFICATION.—A report required

4 under this paragraph shall be certified by the

5 administrator of the nursing facility as being

6 true, accurate, and complete.’’.

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