I 

111TH CONGRESS 

1ST SESSION H. R. 2223 

To provide for nationwide expansion of the pilot program for national and 

State background checks on direct patient access employees of longterm care facilities or providers. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 30, 2009 

Mr. SESTAK (for himself, Mr. EHLERS, Ms. KILPATRICK of Michigan, Mr. 

COURTNEY, Mrs. TAUSCHER, and Mr. UPTON) introduced the following 

bill; which was referred to the Committee on Energy and Commerce, and 

in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of 

such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

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. 

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. 

4 This Act may be cited as the ‘‘Patient Safety and 

5 Abuse Prevention Act’’. 


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1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) Frail elders are a highly vulnerable popu5 lation who often lack the ability to give consent or 

6 defend themselves. Since the best predictor of future 

7 behavior is past behavior, individuals with histories 

8 of abuse pose a definite risk to patients and resi9 dents of long-term care facilities. 

10 (2) Every month, there are stories in the media 

11 of health care employees who commit criminal mis12 conduct on the job and are later found, through a 

13 background check conducted after the fact, to have 

14 a history of convictions for similar crimes. 

15 (3) A 2006 study conducted by the Department 

16 of Health and Human Services determined that— 

17 (A) criminal background checks are a valu18 able tool for employers during the hiring proc19 ess; 

20 (B) the use of criminal background checks 

21 during the hiring process does not limit the pool 

22 of potential job applicants; 

23 (C) a correlation exists between criminal 

24 history and incidences of abuse; and 

25 (D) the long-term care industry supports 

26 the practice of conducting background checks 


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1 on potential employees in order to reduce the 

2 likelihood of hiring someone who has the poten3 tial to harm residents of long-term care facili4 ties. 

5 (4) A national survey of State Adult Protective 

6 Services agencies identified more than 500,000 re7 ports of elder and vulnerable adult abuse in 2004, 

8 and a national report concluded that more than 

9 15,000 nursing home complaints involved abuse, in10 cluding nearly 4,000 complaints of physical abuse, 

11 more than 800 complaints of sexual abuse, and 

12 nearly 1,000 complaints of financial exploitation. 

13 (5) The Department of Health and Human 

14 Services has determined that, while 41 States now 

15 require criminal background checks on certified 

16 nurse aides prior to employment, only half of those 

17 require criminal background checks at the Federal 

18 level. 

19 (b) PURPOSES.—The purposes of this Act are to— 

20 (1) lay the foundation for a coordinated, nation21 wide system of comprehensive State registry and 

22 criminal background checks that would greatly en23 hance the chances of identifying individuals with 

24 problematic backgrounds who change jobs frequently 

25 and move across State lines to avoid detection; 


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1 (2) stop individuals who have a record of sub2 stantiated abuse, or a serious criminal record, from 

3 preying on helpless elders and individuals with dis4 abilities; and 

5 (3) provide assurance to long-term care employ6 ers and the residents they care for that abusive 

7 workers will not be hired into positions that give 

8 them access to extremely vulnerable individuals re9 ceiving long-term care services in health care set10 tings across the United States. 

11 SEC. 3. NATIONWIDE PROGRAM FOR NATIONAL AND STATE 

12 BACKGROUND CHECKS ON DIRECT PATIENT 

13 ACCESS EMPLOYEES OF LONG-TERM CARE 

14 FACILITIES AND PROVIDERS. 

15 (a) IN GENERAL.—The Secretary of Health and 

16 Human Services (in this section referred to as the ‘‘Sec17 retary’’) shall establish a program to identify efficient, ef18 fective, and economical procedures for long-term care fa19 cilities or providers to conduct background checks on pro20 spective direct patient access employees on a nationwide 

21 basis (in this subsection, such program shall be referred 

22 to as the ‘‘nationwide program’’). Except for the following 

23 modifications, the Secretary shall carry out the nationwide 

24 program under similar terms and conditions as the pilot 

25 program under section 307 of the Medicare Prescription 


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1 Drug, Improvement, and Modernization Act of 2003 (Pub2 lic Law 108–173; 117 Stat. 2257), including the prohibi3 tion on hiring abusive workers and the authorization of 

4 the imposition of penalties by a participating State under 

5 subsection (b)(3)(A) and (b)(6), respectively, of such sec6 tion 307: 

7 (1) AGREEMENTS.— 

8 (A) NEWLY PARTICIPATING STATES.—The 

9 Secretary shall enter into agreements with each 

10 State— 

11 (i) that the Secretary has not entered 

12 into an agreement with under subsection 

13 (c)(1) of such section 307; 

14 (ii) that agrees to conduct background 

15 checks under the nationwide program on a 

16 Statewide basis; and 

17 (iii) that submits an application to the 

18 Secretary containing such information and 

19 at such time as the Secretary may specify. 

20 (B) CERTAIN PREVIOUSLY PARTICIPATING

21 STATES.—The Secretary shall enter into agree22 ments with each State— 

23 (i) that the Secretary has entered into 

24 an agreement with under such subsection 

25 (c)(1), but only in the case where such 


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1 agreement did not require the State to 

2 conduct background checks under the pro3 gram established under subsection (a) of 

4 such section 307 on a Statewide basis; 

5 (ii) that agrees to conduct background 

6 checks under the nationwide program on a 

7 Statewide basis; and 

8 (iii) that submits an application to the 

9 Secretary containing such information and 

10 at such time as the Secretary may specify. 

11 (2) NONAPPLICATION OF SELECTION CRI12 TERIA.—The selection criteria required under sub13 section (c)(3)(B) of such section 307 shall not apply. 

14 (3) REQUIRED FINGERPRINT CHECK AS PART

15 OF CRIMINAL HISTORY BACKGROUND CHECK.—The 

16 procedures established under subsection (b)(1) of 

17 such section 307 shall— 

18 (A) require that the long-term care facility 

19 or provider (or the designated agent of the 

20 long-term care facility or provider) obtain State 

21 and national criminal history background 

22 checks on the prospective employee through 

23 such means as the Secretary determines appro24 priate that utilize a search of State-based abuse 

25 and neglect registries and databases, including 


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1 the abuse and neglect registries of another 

2 State in the case where a prospective employee 

3 previously resided in that State, State criminal 

4 history records, the records of any proceedings 

5 in the State that may contain disqualifying in6 formation about prospective employees (such as 

7 proceedings conducted by State professional li8 censing and disciplinary boards and State Med9 icaid Fraud Control Units), and Federal crimi10 nal history records, including a fingerprint 

11 check using the Integrated Automated Finger12 print Identification System of the Federal Bu13 reau of Investigation; and 

14 (B) require States to describe and test 

15 methods that reduce duplicative fingerprinting, 

16 including providing for the development of ‘‘rap 

17 back’’ capability by the State such that, if a di18 rect patient access employee of a long-term care 

19 facility or provider is convicted of a crime fol20 lowing the initial criminal history background 

21 check conducted with respect to such employee, 

22 and the employee’s fingerprints match the 

23 prints on file with the State law enforcement 

24 department, the department will immediately 

25 inform the State and the State will immediately 


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1 inform the long-term care facility or provider 

2 which employs the direct patient access em3 ployee of such conviction. 

4 (4) STATE REQUIREMENTS.—An agreement en5 tered into under paragraph (1) shall require that a 

6 participating State— 

7 (A) be responsible for monitoring compli8 ance with the requirements of the nationwide 

9 program; 

10 (B) have procedures in place to— 

11 (i) conduct screening and criminal his12 tory background checks under the nation13 wide program in accordance with the re14 quirements of this section; 

15 (ii) monitor compliance by long-term 

16 care facilities and providers with the proce17 dures and requirements of the nationwide 

18 program; 

19 (iii) as appropriate, provide for a pro20 visional period of employment by a long21 term care facility or provider of a direct 

22 patient access employee, not to exceed 30 

23 days, pending completion of the required 

24 criminal history background check and, in 

25 the case where the employee has appealed 


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1 the results of such background check, 

2 pending completion of the appeals process, 

3 during which the employee shall be subject 

4 to direct on-site supervision (in accordance 

5 with procedures established by the State to 

6 ensure that a long-term care facility or 

7 provider furnishes such direct on-site su8 pervision); 

9 (iv) provide an independent process by 

10 which a provisional employee or an em11 ployee may appeal or dispute the accuracy 

12 of the information obtained in a back13 ground check performed under the nation14 wide program, including the specification 

15 of criteria for appeals for direct patient ac16 cess employees found to have disqualifying 

17 information which shall include consider18 ation of the passage of time, extenuating 

19 circumstances, demonstration of rehabilita20 tion, and relevancy of the particular dis21 qualifying information with respect to the 

22 current employment of the individual; 

23 (v) provide for the designation of a 

24 single State agency as responsible for— 


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1 (I) overseeing the coordination of 

2 any State and national criminal his3 tory background checks requested by 

4 a long-term care facility or provider 

5 (or the designated agent of the long6 term care facility or provider) utilizing 

7 a search of State and Federal crimi8 nal history records, including a finger9 print check of such records; 

10 (II) overseeing the design of ap11 propriate privacy and security safe12 guards for use in the review of the re13 sults of any State or national criminal 

14 history background checks conducted 

15 regarding a prospective direct patient 

16 access employee to determine whether 

17 the employee has any conviction for a 

18 relevant crime; 

19 (III) immediately reporting to 

20 the long-term care facility or provider 

21 that requested the criminal history 

22 background check the results of such 

23 review; and 

24 (IV) in the case of an employee 

25 with a conviction for a relevant crime 


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1 that is subject to reporting under sec2 tion 1128E of the Social Security Act 

3 (42 U.S.C. 1320a–7e), reporting the 

4 existence of such conviction to the 

5 database established under that sec6 tion; 

7 (vi) determine which individuals are 

8 direct patient access employees (as defined 

9 in paragraph (6)(B)) for purposes of the 

10 nationwide program; 

11 (vii) as appropriate, specify offenses, 

12 including convictions for violent crimes, for 

13 purposes of the nationwide program; and 

14 (viii) describe and test methods that 

15 reduce duplicative fingerprinting, including 

16 providing for the development of ‘‘rap 

17 back’’ capability such that, if a direct pa18 tient access employee of a long-term care 

19 facility or provider is convicted of a crime 

20 following the initial criminal history back21 ground check conducted with respect to 

22 such employee, and the employee’s finger23 prints match the prints on file with the 

24 State law enforcement department— 


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1 (I) the department will imme2 diately inform the State agency des3 ignated under clause (v) and such 

4 agency will immediately inform the fa5 cility or provider which employs the 

6 direct patient access employee of such 

7 conviction; and 

8 (II) the State will provide, or will 

9 require the facility to provide, to the 

10 employee a copy of the results of the 

11 criminal history background check 

12 conducted with respect to the em13 ployee at no charge in the case where 

14 the individual requests such a copy. 

15 (5) PAYMENTS.— 

16 (A) NEWLY PARTICIPATING STATES.— 

17 (i) IN GENERAL.—As part of the ap18 plication submitted by a State under para19 graph (1)(A)(iii), the State shall guar20 antee, with respect to the costs to be in21 curred by the State in carrying out the na22 tionwide program, that the State will make 

23 available (directly or through donations 

24 from public or private entities) a particular 

25 amount of non-Federal contributions, as a 


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1 condition of receiving the Federal match 

2 under clause (ii). 

3 (ii) FEDERAL MATCH.—The payment 

4 amount to each State that the Secretary 

5 enters into an agreement with under para6 graph (1)(A) shall be 3 times the amount 

7 that the State guarantees to make avail8 able under clause (i), except that in no 

9 case may the payment amount exceed 

10 $3,000,000. 

11 (B) PREVIOUSLY PARTICIPATING

12 STATES.— 

13 (i) IN GENERAL.—As part of the ap14 plication submitted by a State under para15 graph (1)(B)(iii), the State shall guar16 antee, with respect to the costs to be in17 curred by the State in carrying out the na18 tionwide program, that the State will make 

19 available (directly or through donations 

20 from public or private entities) a particular 

21 amount of non-Federal contributions, as a 

22 condition of receiving the Federal match 

23 under clause (ii). 

24 (ii) FEDERAL MATCH.—The payment 

25 amount to each State that the Secretary 


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1 enters into an agreement with under para2 graph (1)(B) shall be 3 times the amount 

3 that the State guarantees to make avail4 able under clause (i), except that in no 

5 case may the payment amount exceed 

6 $1,500,000. 

7 (6) DEFINITIONS.—Under the nationwide pro8 gram: 

9 (A) LONG-TERM CARE FACILITY OR PRO10 VIDER.—The term ‘‘long-term care facility or 

11 provider’’ means the following facilities or pro12 viders which receive payment for services under 

13 title XVIII or XIX of the Social Security Act: 

14 (i) A skilled nursing facility (as de15 fined in section 1819(a) of the Social Secu16 rity Act (42 U.S.C. 1395i–3(a)). 

17 (ii) A nursing facility (as defined in 

18 section 1919(a) of such Act (42 U.S.C. 

19 1396r(a)). 

20 (iii) A home health agency. 

21 (iv) A provider of hospice care (as de22 fined in section 1861(dd)(1) of such Act 

23 (42 U.S.C. 1395x(dd)(1)). 


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1 (v) A long-term care hospital (as de2 scribed in section 1886(d)(1)(B)(iv) of 

3 such Act (42 U.S.C. 1395ww(d)(1)(B)(iv)). 

4 (vi) A provider of personal care serv5 ices. 

6 (vii) A provider of adult day care. 

7 (viii) A residential care provider that 

8 arranges for, or directly provides, long9 term care services, including an assisted 

10 living facility that provides a level of care 

11 established by the Secretary. 

12 (ix) An intermediate care facility for 

13 the mentally retarded (as defined in sec14 tion 1905(d) of such Act (42 U.S.C. 

15 1396d(d)). 

16 (x) Any other facility or provider of 

17 long-term care services under such titles as 

18 the participating State determines appro19 priate. 

20 (B) DIRECT PATIENT ACCESS EM21 PLOYEE.—The term ‘‘direct patient access em22 ployee’’ means any individual who has access to 

23 a patient or resident of a long-term care facility 

24 or provider through employment or through a 

25 contract with such facility or provider and has 


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1 duties that involve (or may involve) one-on-one 

2 contact with a patient or resident of the facility 

3 or provider, as determined by the State for pur4 poses of the nationwide program. Such term 

5 does not include a volunteer unless the volun6 teer has duties that are equivalent to the duties 

7 of a direct patient access employee and those 

8 duties involve (or may involve) one-on-one con9 tact with a patient or resident of the long-term 

10 care facility or provider. 

11 (7) EVALUATION AND REPORT.— 

12 (A) EVALUATION.—The Inspector General 

13 of the Department of Health and Human Serv14 ices shall conduct an evaluation of the nation15 wide program. 

16 (B) REPORT.—Not later than 180 days 

17 after the completion of the nationwide program, 

18 the Inspector General of the Department of 

19 Health and Human Services shall submit a re20 port to Congress containing the results of the 

21 evaluation conducted under subparagraph (A). 

22 (b) FUNDING.— 

23 (1) NOTIFICATION.—The Secretary of Health 

24 and Human Services shall notify the Secretary of 

25 the Treasury of the amount necessary to carry out 


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1 the nationwide program under this section for the 

2 period of fiscal years 2010 through 2012, except 

3 that in no case shall such amount exceed 

4 $160,000,000. 

5 (2) TRANSFER OF FUNDS.—Out of any funds 

6 in the Treasury not otherwise appropriated, the Sec7 retary of the Treasury shall provide for the transfer 

8 to the Secretary of Health and Human Services of 

9 the amount specified as necessary to carry out the 

10 nationwide program under paragraph (1). Such 

11 amount shall remain available until expended. 

12 SEC. 4. MANDATORY STATE USE OF NATIONAL CORRECT 

13 CODING INITIATIVE. 

14 (a) IN GENERAL.—Section 1903(r) of the Social Se15 curity Act (42 U.S.C. 1396b(r)), as amended by section 

16 3(a) of the QI Program Supplemental Funding Act of 

17 2008 (Public Law 110–379), is amended— 

18 (1) in paragraph (1)(B)— 

19 (A) in clause (ii), by striking ‘‘and’’ at the 

20 end; 

21 (B) in clause (iii), by adding ‘‘and’’ after 

22 the semicolon; and 

23 (C) by adding at the end the following new 

24 clause: 


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1 ‘‘(iv) effective for claims filed on or 

2 after October 1, 2010, incorporate compat3 ible methodologies of the National Correct 

4 Coding Initiative administered by the Sec5 retary (or any successor initiative to pro6 mote correct coding and to control im7 proper coding leading to inappropriate pay8 ment) and such other methodologies of 

9 that Initiative (or such other national cor10 rect coding methodologies) as the Sec11 retary identifies in accordance with para12 graph (4);’’; and 

13 (2) by adding at the end the following new 

14 paragraph: 

15 ‘‘(4) Not later than September 1, 2010, the Secretary 

16 shall do the following: 

17 ‘‘(A) Identify those methodologies of the Na18 tional Correct Coding Initiative administered by the 

19 Secretary (or any successor initiative to promote cor20 rect coding and to control improper coding leading 

21 to inappropriate payment) which are compatible to 

22 claims filed under this title. 

23 ‘‘(B) Identify those methodologies of such Ini24 tiative (or such other national correct coding meth25 odologies) that should be incorporated into claims 


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1 filed under this title with respect to items or services 

2 for which States provide medical assistance under 

3 this title and no national correct coding methodolo4 gies have been established under such Initiative with 

5 respect to title XVIII. 

6 ‘‘(C) Notify States of— 

7 ‘‘(i) the methodologies identified under 

8 subparagraphs (A) and (B) (and of any other 

9 national correct coding methodologies identified 

10 under subparagraph (B)); and 

11 ‘‘(ii) how States are to incorporate such 

12 methodologies into claims filed under this title. 

13 ‘‘(D) Submit a report to Congress that includes 

14 the notice to States under subparagraph (C) and an 

15 analysis supporting the identification of the meth16 odologies made under subparagraphs (A) and (B).’’. 

17 (b) EXTENSION FOR STATE LAW AMENDMENT.—In 

18 the case of a State plan under title XIX of the Social Se19 curity Act (42 U.S.C. 1396 et seq.) which the Secretary 

20 of Health and Human Services determines requires State 

21 legislation in order for the plan to meet the additional re22 quirements imposed by the amendment made by sub23 section (a)(1)(C), the State plan shall not be regarded as 

24 failing to comply with the requirements of such title solely 

25 on the basis of its failure to meet these additional requireVerDate Nov 24 2008 20:45 May 03, 2009 Jkt 079200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H2223.IH H2223

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1 ments before the first day of the first calendar quarter 

2 beginning after the close of the first regular session of the 

3 State legislature that begins after the date of enactment 

4 of this Act. For purposes of the previous sentence, in the 

5 case of a State that has a 2-year legislative session, each 

6 year of the session is considered to be a separate regular 

7 session of the State legislature. 

Æ 


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