II

107TH CONGRESS

1ST SESSION S. 1054

To amend titles XVIII and XIX of the Social Security Act to prevent abuse

of recipients of long-term care services under the Medicare and Medicaid

programs.

IN THE SENATE OF THE UNITED STATES

JUNE 14, 2001

Mr. KOHL (for himself and Mr. REID) introduced the following bill; which was

read twice and referred to the Committee on Finance

A BILL

To amend titles XVIII and XIX of the Social Security Act

to prevent abuse of recipients of long-term care services

under the Medicare and Medicaid programs.

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 Abuse Preven5 tion Act’’.

6 SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE

7 OF NURSING FACILITY RESIDENTS.

8 (a) NURSING FACILITY AND SKILLED NURSING FA9 CILITY REQUIREMENTS.—
2

•S 1054 IS

1 (1) MEDICAID PROGRAM.—Section 1919(b) of

2 the Social Security Act (42 U.S.C. 1396r(b)) is

3 amended by adding at the end the following new

4 paragraph:

5 ‘‘(8) SCREENING OF NURSING FACILITY WORK6 ERS.—

7 ‘‘(A) BACKGROUND CHECKS ON APPLI8 CANTS.—Subject to subparagraph (B)(ii), be9 fore hiring a nursing facility worker, a nursing

10 facility shall—

11 ‘‘(i) give the worker written notice

12 that the facility is required to perform

13 background checks with respect to appli14 cants;

15 ‘‘(ii) require, as a condition of employ16 ment, that such worker—

17 ‘‘(I) provide a written statement

18 disclosing any conviction for a rel19 evant crime or finding of patient or

20 resident abuse;

21 ‘‘(II) provide a statement signed

22 by the worker authorizing the facility

23 to request the search and exchange of

24 criminal records;
3

•S 1054 IS

1 ‘‘(III) provide in person a copy of

2 the worker’s fingerprints or thumb

3 print, depending upon available tech4 nology; and

5 ‘‘(IV) provide any other identi6 fication information the Secretary

7 may specify in regulation;

8 ‘‘(iii) initiate a check of the data col9 lection system established under section

10 1128E in accordance with regulations pro11 mulgated by the Secretary to determine

12 whether such system contains any disquali13 fying information with respect to such

14 worker; and

15 ‘‘(iv) if that system does not contain

16 any such disqualifying information—

17 ‘‘(I) request that the State ini18 tiate a State and national criminal

19 background check on such worker in

20 accordance with the provisions of sub21 section (e)(8); and

22 ‘‘(II) furnish to the State the in23 formation described in subclauses (II)

24 through (IV) of clause (ii) not more

25 than 7 days (excluding Saturdays,
4

•S 1054 IS

1 Sundays, and legal public holidays

2 under section 6103(a) of title 5,

3 United States Code) after completion

4 of the check against the system initi5 ated under clause (iii).

6 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

7 WORKERS.—

8 ‘‘(i) IN GENERAL.—A nursing facility

9 may not knowingly employ any nursing fa10 cility worker who has any conviction for a

11 relevant crime or with respect to whom a

12 finding of patient or resident abuse has

13 been made.

14 ‘‘(ii) PROVISIONAL EMPLOYMENT.—

15 After complying with the requirements of

16 clauses (i), (ii), and (iii) of subparagraph

17 (A), a nursing facility may provide for a

18 provisional period of employment for a

19 nursing facility worker pending completion

20 of the check against the data collection

21 system described under subparagraph

22 (A)(iii) and the background check de23 scribed under subparagraph (A)(iv). Such

24 facility shall maintain direct supervision of
5

•S 1054 IS

1 the worker during the worker’s provisional

2 period of employment.

3 ‘‘(C) REPORTING REQUIREMENTS.—A

4 nursing facility shall report to the State any in5 stance in which the facility determines that a

6 nursing facility worker has committed an act of

7 resident neglect or abuse or misappropriation of

8 resident property in the course of employment

9 by the facility.

10 ‘‘(D) USE OF INFORMATION.—

11 ‘‘(i) IN GENERAL.—A nursing facility

12 that obtains information about a nursing

13 facility worker pursuant to clauses (iii) and

14 (iv) of subparagraph (A) may use such in15 formation only for the purpose of deter16 mining the suitability of the worker for

17 employment.

18 ‘‘(ii) IMMUNITY FROM LIABILITY.—A

19 nursing facility that, in denying employ20 ment for an applicant (including during

21 the period described in subparagraph

22 (B)(ii)), reasonably relies upon information

23 about such applicant provided by the State

24 pursuant to subsection (e)(8) or section

25 1128E shall not be liable in any action
6

•S 1054 IS

1 brought by such applicant based on the

2 employment determination resulting from

3 the information.

4 ‘‘(iii) CRIMINAL PENALTY.—Whoever

5 knowingly violates the provisions of clause

6 (i) shall be fined in accordance with title

7 18, United States Code, imprisoned for not

8 more than 2 years, or both.

9 ‘‘(E) CIVIL PENALTY.—

10 ‘‘(i) IN GENERAL.—A nursing facility

11 that violates the provisions of this para12 graph shall be subject to a civil penalty in

13 an amount not to exceed—

14 ‘‘(I) for the first such violation,

15 $2,000; and

16 ‘‘(II) for the second and each

17 subsequent violation within any 5-year

18 period, $5,000.

19 ‘‘(ii) KNOWING RETENTION OF WORK20 ER.—In addition to any civil penalty under

21 clause (i), a nursing facility that—

22 ‘‘(I) knowingly continues to em23 ploy a nursing facility worker in viola24 tion of subparagraph (A) or (B); or
7

•S 1054 IS

1 ‘‘(II) knowingly fails to report a

2 nursing facility worker under subpara3 graph (C),

4 shall be subject to a civil penalty in an

5 amount not to exceed $5,000 for the first

6 such violation, and $10,000 for the second

7 and each subsequent violation within any

8 5-year period.

9 ‘‘(F) DEFINITIONS.—In this paragraph:

10 ‘‘(i) CONVICTION FOR A RELEVANT

11 CRIME.—The term ‘conviction for a rel12 evant crime’ means any Federal or State

13 criminal conviction for—

14 ‘‘(I) any offense described in

15 paragraphs (1) through (4) of section

16 1128(a); and

17 ‘‘(II) such other types of offenses

18 as the Secretary may specify in regu19 lations, taking into account the sever20 ity and relevance of such offenses, and

21 after consultation with representatives

22 of long-term care providers, represent23 atives of long-term care employees,

24 consumer advocates, and appropriate

25 Federal and State officials.
8

•S 1054 IS

1 ‘‘(ii) DISQUALIFYING INFORMATION.—

2 The term ‘disqualifying information’ means

3 information about a conviction for a rel4 evant crime or a finding of patient or resi5 dent abuse.

6 ‘‘(iii) FINDING OF PATIENT OR RESI7 DENT ABUSE.—The term ‘finding of pa8 tient or resident abuse’ means any sub9 stantiated finding by a State agency under

10 subsection (g)(1)(C) or a Federal agency

11 that a nursing facility worker has

12 committed—

13 ‘‘(I) an act of patient or resident

14 abuse or neglect or a misappropriation

15 of patient or resident property; or

16 ‘‘(II) such other types of acts as

17 the Secretary may specify in regula18 tions.

19 ‘‘(iv) NURSING FACILITY WORKER.—

20 The term ‘nursing facility worker’ means

21 any individual (other than any volunteer)

22 that has direct access to a patient of a

23 nursing facility under an employment or

24 other contract, or both, with such facility.

25 Such term includes individuals who are li-
9

•S 1054 IS

1 censed or certified by the State to provide

2 such services, and nonlicensed individuals

3 providing such services, as defined by the

4 Secretary, including nurse assistants,

5 nurse aides, home health aides, and per6 sonal care workers and attendants.’’.

7 (2) MEDICARE PROGRAM.—Section 1819(b) of

8 the Social Security Act (42 U.S.C. 1395i–3(b)) is

9 amended by adding at the end the following:

10 ‘‘(8) SCREENING OF SKILLED NURSING FACIL11 ITY WORKERS.—

12 ‘‘(A) BACKGROUND CHECKS ON APPLI13 CANTS.—Subject to subparagraph (B)(ii), be14 fore hiring a skilled nursing facility worker, a

15 skilled nursing facility shall—

16 ‘‘(i) give the worker written notice

17 that the facility is required to perform

18 background checks with respect to appli19 cants;

20 ‘‘(ii) require, as a condition of employ21 ment, that such worker—

22 ‘‘(I) provide a written statement

23 disclosing any conviction for a rel24 evant crime or finding of patient or

25 resident abuse;
10

•S 1054 IS

1 ‘‘(II) provide a statement signed

2 by the worker authorizing the facility

3 to request the search and exchange of

4 criminal records;

5 ‘‘(III) provide in person a copy of

6 the worker’s fingerprints or thumb

7 print, depending upon available tech8 nology; and

9 ‘‘(IV) provide any other identi10 fication information the Secretary

11 may specify in regulation;

12 ‘‘(iii) initiate a check of the data col13 lection system established under section

14 1128E in accordance with regulations pro15 mulgated by the Secretary to determine

16 whether such system contains any disquali17 fying information with respect to such

18 worker; and

19 ‘‘(iv) if that system does not contain

20 any such disqualifying information—

21 ‘‘(I) request that the State ini22 tiate a State and national criminal

23 background check on such worker in

24 accordance with the provisions of sub25 section (e)(6); and
11

•S 1054 IS

1 ‘‘(II) furnish to the State the in2 formation described in subclauses (II)

3 through (IV) of clause (ii) not more

4 than 7 days (excluding Saturdays,

5 Sundays, and legal public holidays

6 under section 6103(a) of title 5,

7 United States Code) after completion

8 of the check against the system initi9 ated under clause (iii).

10 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

11 WORKERS.—

12 ‘‘(i) IN GENERAL.—A skilled nursing

13 facility may not knowingly employ any

14 skilled nursing facility worker who has any

15 conviction for a relevant crime or with re16 spect to whom a finding of patient or resi17 dent abuse has been made.

18 ‘‘(ii) PROVISIONAL EMPLOYMENT.—

19 After complying with the requirements of

20 clauses (i), (ii), and (iii) of subparagraph

21 (A), a skilled nursing facility may provide

22 for a provisional period of employment for

23 a skilled nursing facility worker pending

24 completion of the check against the data

25 collection system described under subpara-
12

•S 1054 IS

1 graph (A)(iii) and the background check

2 described under subparagraph (A)(iv).

3 Such facility shall maintain direct super4 vision of the covered individual during the

5 worker’s provisional period of employment.

6 ‘‘(C) REPORTING REQUIREMENTS.—A

7 skilled nursing facility shall report to the State

8 any instance in which the facility determines

9 that a skilled nursing facility worker has com10 mitted an act of resident neglect or abuse or

11 misappropriation of resident property in the

12 course of employment by the facility.

13 ‘‘(D) USE OF INFORMATION.—

14 ‘‘(i) IN GENERAL.—A skilled nursing

15 facility that obtains information about a

16 skilled nursing facility worker pursuant to

17 clauses (iii) and (iv) of subparagraph (A)

18 may use such information only for the pur19 pose of determining the suitability of the

20 worker for employment.

21 ‘‘(ii) IMMUNITY FROM LIABILITY.—A

22 skilled nursing facility that, in denying em23 ployment for an applicant (including dur24 ing the period described in subparagraph

25 (B)(ii)), reasonably relies upon information
13

•S 1054 IS

1 about such applicant provided by the State

2 pursuant to subsection (e)(6) or section

3 1128E shall not be liable in any action

4 brought by such applicant based on the

5 employment determination resulting from

6 the information.

7 ‘‘(iii) CRIMINAL PENALTY.—Whoever

8 knowingly violates the provisions of clause

9 (i) shall be fined in accordance with title

10 18, United States Code, imprisoned for not

11 more than 2 years, or both.

12 ‘‘(E) CIVIL PENALTY.—

13 ‘‘(i) IN GENERAL.—A skilled nursing

14 facility that violates the provisions of this

15 paragraph shall be subject to a civil pen16 alty in an amount not to exceed—

17 ‘‘(I) for the first such violation,

18 $2,000; and

19 ‘‘(II) for the second and each

20 subsequent violation within any 5-year

21 period, $5,000.

22 ‘‘(ii) KNOWING RETENTION OF WORK23 ER.—In addition to any civil penalty under

24 clause (i), a skilled nursing facility that—
14

•S 1054 IS

1 ‘‘(I) knowingly continues to em2 ploy a skilled nursing facility worker

3 in violation of subparagraph (A) or

4 (B); or

5 ‘‘(II) knowingly fails to report a

6 skilled nursing facility worker under

7 subparagraph (C),

8 shall be subject to a civil penalty in an

9 amount not to exceed $5,000 for the first

10 such violation, and $10,000 for the second

11 and each subsequent violation within any

12 5-year period.

13 ‘‘(F) DEFINITIONS.—In this paragraph:

14 ‘‘(i) CONVICTION FOR A RELEVANT

15 CRIME.—The term ‘conviction for a rel16 evant crime’ means any Federal or State

17 criminal conviction for—

18 ‘‘(I) any offense described in

19 paragraphs (1) through (4) of section

20 1128(a); and

21 ‘‘(II) such other types of offenses

22 as the Secretary may specify in regu23 lations, taking into account the sever24 ity and relevance of such offenses, and

25 after consultation with representatives
15

•S 1054 IS

1 of long-term care providers, represent2 atives of long-term care employees,

3 consumer advocates, and appropriate

4 Federal and State officials.

5 ‘‘(ii) DISQUALIFYING INFORMATION.—

6 The term ‘disqualifying information’ means

7 information about a conviction for a rel8 evant crime or a finding of patient or resi9 dent abuse.

10 ‘‘(iii) FINDING OF PATIENT OR RESI11 DENT ABUSE.—The term ‘finding of pa12 tient or resident abuse’ means any sub13 stantiated finding by a State agency under

14 subsection (g)(1)(C) or a Federal agency

15 that a skilled nursing facility worker has

16 committed—

17 ‘‘(I) an act of patient or resident

18 abuse or neglect or a misappropriation

19 of patient or resident property; or

20 ‘‘(II) such other types of acts as

21 the Secretary may specify in regula22 tions.

23 ‘‘(iv) SKILLED NURSING FACILITY

24 WORKER.—The term ‘skilled nursing facil25 ity worker’ means any individual (other
16

•S 1054 IS

1 than any volunteer) that has direct access

2 to a patient of a skilled nursing facility

3 under an employment or other contract, or

4 both, with such facility. Such term includes

5 individuals who are licensed or certified by

6 the State to provide such services, and

7 nonlicensed individuals providing such

8 services, as defined by the Secretary, in9 cluding nurse assistants, nurse aides, home

10 health aides, and personal care workers

11 and attendants.’’.

12 (3) TECHNICAL AMENDMENTS.—Effective as if

13 included in the enactment of section 941 of the

14 Medicare, Medicaid, and SCHIP Benefits Improve15 ment and Protection Act of 2000 (114 Stat. 2763A–

16 585), as enacted into law by section 1(a)(6) of Pub17 lic Law 106–554, sections 1819(b) and 1919(b) of

18 the Social Security Act (42 U.S.C. 1395i–3(b),

19 1396r(b)), as amended by such section 941 (as so

20 enacted into law) are each amended by redesignating

21 the paragraph (8) added by such section as para22 graph (9).

23 (b) STATE REQUIREMENTS.—

24 (1) MEDICAID PROGRAM.—
17

•S 1054 IS

1 (A) EXPANSION OF STATE REGISTRY TO

2 COLLECT INFORMATION ABOUT NURSING FACIL3 ITY EMPLOYEES OTHER THAN NURSE AIDES.—

4 Section 1919 of the Social Security Act (42

5 U.S.C. 1396r) is amended—

6 (i) in subsection (e)(2)—

7 (I) in the paragraph heading, by

8 striking ‘‘NURSE AIDE REGISTRY’’ and

9 inserting ‘‘NURSING FACILITY EM10 PLOYEE REGISTRY’’;

11 (II) in subparagraph (A)—

12 (aa) by striking ‘‘By not

13 later than January 1, 1989, the’’

14 and inserting ‘‘The’’;

15 (bb) by striking ‘‘a registry

16 of all individuals’’ and inserting

17 ‘‘a registry of (I) all individuals’’;

18 and

19 (cc) by inserting before the

20 period ‘‘, and (II) all other nurs21 ing facility employees with re22 spect to whom the State has

23 made a finding described in sub24 paragraph (B)’’;
18

•S 1054 IS

1 (III) in subparagraph (B), by

2 striking ‘‘involving an individual listed

3 in the registry’’ and inserting ‘‘involv4 ing a nursing facility employee’’; and

5 (IV) in subparagraph (C), by

6 striking ‘‘nurse aide’’ and inserting

7 ‘‘nursing facility employee or appli8 cant for employment’’; and

9 (ii) in subsection (g)(1)—

10 (I) in subparagraph (C)—

11 (aa) in the first sentence, by

12 striking ‘‘nurse aide’’ and insert13 ing ‘‘nursing facility employee’’;

14 and

15 (bb) in the third sentence,

16 by striking ‘‘nurse aide’’ each

17 place it appears and inserting

18 ‘‘nursing facility employee’’; and

19 (II) in subparagraph (D)—

20 (aa) in the subparagraph

21 heading, by striking ‘‘NURSE

22 AIDE REGISTRY’’ and inserting

23 ‘‘NURSING FACILITY EMPLOYEE

24 REGISTRY’’; and
19

•S 1054 IS

1 (bb) by striking ‘‘nurse

2 aide’’ each place it appears and

3 inserting ‘‘nursing facility em4 ployee’’.

5 (B) FEDERAL AND STATE REQUIREMENT

6 TO CONDUCT BACKGROUND CHECKS.—Section

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

8 1396r(e)) is amended by adding at the end the

9 following:

10 ‘‘(8) FEDERAL AND STATE REQUIREMENTS

11 CONCERNING CRIMINAL BACKGROUND CHECKS ON

12 NURSING FACILITY EMPLOYEES.—

13 ‘‘(A) IN GENERAL.—Upon receipt of a re14 quest by a nursing facility pursuant to sub15 section (b)(8) that is accompanied by the infor16 mation described in subclauses (II) through

17 (IV) of subsection (b)(8)(A)(ii), a State, after

18 checking appropriate State records and finding

19 no disqualifying information (as defined in sub20 section (b)(8)(F)(ii)), shall submit such request

21 and information to the Attorney General and

22 shall request the Attorney General to conduct a

23 search and exchange of records with respect to

24 the individual as described in subparagraph

25 (B).
20

•S 1054 IS

1 ‘‘(B) SEARCH AND EXCHANGE OF

2 RECORDS BY ATTORNEY GENERAL.—Upon re3 ceipt of a submission pursuant to subparagraph

4 (A), the Attorney General shall direct a search

5 of the records of the Federal Bureau of Inves6 tigation for any criminal history records cor7 responding to the fingerprints and other posi8 tive identification information submitted. The

9 Attorney General shall provide any cor10 responding information resulting from the

11 search to the State.

12 ‘‘(C) STATE REPORTING OF INFORMATION

13 TO NURSING FACILITY.—Upon receipt of the in14 formation provided by the Attorney General

15 pursuant to subparagraph (B), the State

16 shall—

17 ‘‘(i) review the information to deter18 mine whether the individual has any con19 viction for a relevant crime (as defined in

20 subsection (b)(8)(F)(i));

21 ‘‘(ii) report to the nursing facility the

22 results of such review; and

23 ‘‘(iii) in the case of an individual with

24 a conviction for a relevant crime, report

25 the existence of such conviction of such in-
21

•S 1054 IS

1 dividual to the database established under

2 section 1128E.

3 ‘‘(D) FEES FOR PERFORMANCE OF CRIMI4 NAL BACKGROUND CHECKS.—

5 ‘‘(i) AUTHORITY TO CHARGE FEES.—

6 ‘‘(I) ATTORNEY GENERAL.—The

7 Attorney General may charge a fee to

8 any State requesting a search and ex9 change of records pursuant to this

10 paragraph and subsection (b)(8) for

11 conducting the search and providing

12 the records. The amount of such fee

13 shall not exceed the lesser of the ac14 tual cost of such activities or $50.

15 Such fees shall be available to the At16 torney General, or, in the Attorney

17 General’s discretion, to the Federal

18 Bureau of Investigation, until ex19 pended.

20 ‘‘(II) STATE.—A State may

21 charge a nursing facility a fee for ini22 tiating the criminal background check

23 under this paragraph and subsection

24 (b)(8), including fees charged by the

25 Attorney General, and for performing
22

•S 1054 IS

1 the review and report required by sub2 paragraph (C). The amount of such

3 fee shall not exceed the actual cost of

4 such activities.

5 ‘‘(ii) PROHIBITION ON CHARGING AP6 PLICANTS OR EMPLOYEES.—An entity may

7 not impose on an applicant for employment

8 or an employee any charges relating to the

9 performance of a background check under

10 this paragraph.

11 ‘‘(E) REGULATIONS.—

12 ‘‘(i) IN GENERAL.—In addition to the

13 Secretary’s authority to promulgate regula14 tions under this title, the Attorney Gen15 eral, in consultation with the Secretary,

16 may promulgate such regulations as are

17 necessary to carry out the Attorney Gen18 eral’s responsibilities under this paragraph

19 and subsection (b)(8), including regula20 tions regarding the security, confiden21 tiality, accuracy, use, destruction, and dis22 semination of information, audits and rec23 ordkeeping, and the imposition of fees.

24 ‘‘(ii) APPEAL PROCEDURES.—The At25 torney General, in consultation with the
23

•S 1054 IS

1 Secretary, shall promulgate such regula2 tions as are necessary to establish proce3 dures by which an applicant or employee

4 may appeal or dispute the accuracy of the

5 information obtained in a background

6 check conducted under this paragraph. Ap7 peals shall be limited to instances in which

8 an applicant or employee is incorrectly

9 identified as the subject of the background

10 check, or when information about the ap11 plicant or employee has not been updated

12 to reflect changes in the applicant’s or em13 ployee’s criminal record.

14 ‘‘(F) REPORT.—Not later than 2 years

15 after the date of enactment of this paragraph,

16 the Attorney General shall submit a report to

17 Congress on—

18 ‘‘(i) the number of requests for

19 searches and exchanges of records made

20 under this section;

21 ‘‘(ii) the disposition of such requests;

22 and

23 ‘‘(iii) the cost of responding to such

24 requests.’’.

25 (2) MEDICARE PROGRAM.—
24

•S 1054 IS

1 (A) EXPANSION OF STATE REGISTRY TO

2 COLLECT INFORMATION ABOUT SKILLED NURS3 ING FACILITY EMPLOYEES OTHER THAN NURSE

4 AIDES.—Section 1819 of the Social Security

5 Act (42 U.S.C. 1395i–3) is amended—

6 (i) in subsection (e)(2)—

7 (I) in the paragraph heading, by

8 striking ‘‘NURSE AIDE REGISTRY’’ and

9 inserting ‘‘SKILLED NURSING CARE

10 EMPLOYEE REGISTRY’’;

11 (II) in subparagraph (A)—

12 (aa) by striking ‘‘By not

13 later than January 1, 1989, the’’

14 and inserting ‘‘The’’;

15 (bb) by striking ‘‘a registry

16 of all individuals’’ and inserting

17 ‘‘a registry of (I) all individuals’’;

18 and

19 (cc) by inserting before the

20 period ‘‘, and (II) all other

21 skilled nursing facility employees

22 with respect to whom the State

23 has made a finding described in

24 subparagraph (B)’’;
25

•S 1054 IS

1 (III) in subparagraph (B), by

2 striking ‘‘involving an individual listed

3 in the registry’’ and inserting ‘‘involv4 ing a skilled nursing facility em5 ployee’’; and

6 (IV) in subparagraph (C), by

7 striking ‘‘nurse aide’’ and inserting

8 ‘‘skilled nursing facility employee or

9 applicant for employment’’; and

10 (ii) in subsection (g)(1)—

11 (I) in subparagraph (C)—

12 (aa) in the first sentence, by

13 striking ‘‘nurse aide’’ and insert14 ing ‘‘skilled nursing facility em15 ployee’’; and

16 (bb) in the third sentence,

17 by striking ‘‘nurse aide’’ each

18 place it appears and inserting

19 ‘‘skilled nursing facility em20 ployee’’; and

21 (II) in subparagraph (D)—

22 (aa) in the subparagraph

23 heading, by striking ‘‘NURSE

24 AIDE REGISTRY’’ and inserting
26

•S 1054 IS

1 ‘‘NURSING FACILITY EMPLOYEE

2 REGISTRY’’; and

3 (bb) by striking ‘‘nurse

4 aide’’ each place it appears and

5 inserting ‘‘nursing facility em6 ployee’’.

7 (B) FEDERAL AND STATE REQUIREMENT

8 TO CONDUCT BACKGROUND CHECKS.—Section

9 1819(e) of the Social Security Act (42 U.S.C.

10 1395i–3(e)) is amended by adding at the end

11 the following:

12 ‘‘(6) FEDERAL AND STATE REQUIREMENTS

13 CONCERNING CRIMINAL BACKGROUND CHECKS ON

14 SKILLED NURSING FACILITY EMPLOYEES.—

15 ‘‘(A) IN GENERAL.—Upon receipt of a re16 quest by a skilled nursing facility pursuant to

17 subsection (b)(8) that is accompanied by the in18 formation described in subclauses (II) through

19 (IV) of subsection (b)(8)(A)(ii), a State, after

20 checking appropriate State records and finding

21 no disqualifying information (as defined in sub22 section (b)(8)(F)(ii)), shall submit such request

23 and information to the Attorney General and

24 shall request the Attorney General to conduct a

25 search and exchange of records with respect to
27

•S 1054 IS

1 the individual as described in subparagraph

2 (B).

3 ‘‘(B) SEARCH AND EXCHANGE OF

4 RECORDS BY ATTORNEY GENERAL.—Upon re5 ceipt of a submission pursuant to subparagraph

6 (A), the Attorney General shall direct a search

7 of the records of the Federal Bureau of Inves8 tigation for any criminal history records cor9 responding to the fingerprints and other posi10 tive identification information submitted. The

11 Attorney General shall provide any cor12 responding information resulting from the

13 search to the State.

14 ‘‘(C) STATE REPORTING OF INFORMATION

15 TO SKILLED NURSING FACILITY.—Upon receipt

16 of the information provided by the Attorney

17 General pursuant to subparagraph (B), the

18 State shall—

19 ‘‘(i) review the information to deter20 mine whether the individual has any con21 viction for a relevant crime (as defined in

22 subsection (b)(8)(F)(i));

23 ‘‘(ii) report to the skilled nursing fa24 cility the results of such review; and
28

•S 1054 IS

1 ‘‘(iii) in the case of an individual with

2 a conviction for a relevant crime, report

3 the existence of such conviction of such in4 dividual to the database established under

5 section 1128E.

6 ‘‘(D) FEES FOR PERFORMANCE OF CRIMI7 NAL BACKGROUND CHECKS.—

8 ‘‘(i) AUTHORITY TO CHARGE FEES.—

9 ‘‘(I) ATTORNEY GENERAL.—The

10 Attorney General may charge a fee to

11 any State requesting a search and ex12 change of records pursuant to this

13 paragraph and subsection (b)(8) for

14 conducting the search and providing

15 the records. The amount of such fee

16 shall not exceed the lesser of the ac17 tual cost of such activities or $50.

18 Such fees shall be available to the At19 torney General, or, in the Attorney

20 General’s discretion, to the Federal

21 Bureau of Investigation until ex22 pended.

23 ‘‘(II) STATE.—A State may

24 charge a skilled nursing facility a fee

25 for initiating the criminal background
29

•S 1054 IS

1 check under this paragraph and sub2 section (b)(8), including fees charged

3 by the Attorney General, and for per4 forming the review and report re5 quired by subparagraph (C). The

6 amount of such fee shall not exceed

7 the actual cost of such activities.

8 ‘‘(ii) PROHIBITION ON CHARGING AP9 PLICANTS OR EMPLOYEES.—An entity may

10 not impose on an applicant for employment

11 or an employee any charges relating to the

12 performance of a background check under

13 this paragraph.

14 ‘‘(E) REGULATIONS.—

15 ‘‘(i) IN GENERAL.—In addition to the

16 Secretary’s authority to promulgate regula17 tions under this title, the Attorney Gen18 eral, in consultation with the Secretary,

19 may promulgate such regulations as are

20 necessary to carry out the Attorney Gen21 eral’s responsibilities under this paragraph

22 and subsection (b)(9), including regula23 tions regarding the security confidentiality,

24 accuracy, use, destruction, and dissemina-
30

•S 1054 IS

1 tion of information, audits and record2 keeping, and the imposition of fees.

3 ‘‘(ii) APPEAL PROCEDURES.—The At4 torney General, in consultation with the

5 Secretary, shall promulgate such regula6 tions as are necessary to establish proce7 dures by which an applicant or employee

8 may appeal or dispute the accuracy of the

9 information obtained in a background

10 check conducted under this paragraph. Ap11 peals shall be limited to instances in which

12 an applicant or employee is incorrectly

13 identified as the subject of the background

14 check, or when information about the ap15 plicant or employee has not been updated

16 to reflect changes in the applicant’s or em17 ployee’s criminal record.

18 ‘‘(F) REPORT.—Not later than 2 years

19 after the date of enactment of this paragraph,

20 the Attorney General shall submit a report to

21 Congress on—

22 ‘‘(i) the number of requests for

23 searches and exchanges of records made

24 under this section;
31

•S 1054 IS

1 ‘‘(ii) the disposition of such requests;

2 and

3 ‘‘(iii) the cost of responding to such

4 requests.’’.

5 (c) APPLICATION TO OTHER ENTITIES PROVIDING

6 HOME HEALTH OR LONG-TERM CARE SERVICES.—

7 (1) MEDICAID.—Section 1902(a) of the Social

8 Security Act (42 U.S.C. 1396a) is amended—

9 (A) in paragraph (65), by striking the pe10 riod and inserting ‘‘; and’’; and

11 (B) by inserting after paragraph (65) the

12 following:

13 ‘‘(66) provide that any entity that is eligible to

14 be paid under the State plan for providing home

15 health services or long-term care services for which

16 medical assistance is available under the State plan

17 to individuals requiring long-term care complies with

18 the requirements of subsections (b)(8) and (e)(8) of

19 section 1919.’’.

20 (2) MEDICARE.—Part D of title XVIII of the

21 Social Security Act (42 U.S.C. 1395x et seq.) is

22 amended by adding at the end the following:
32

•S 1054 IS

1 ‘‘APPLICATION OF SKILLED NURSING FACILITY PREVEN2 TIVE ABUSE PROVISIONS TO ANY PROVIDER OF

3 SERVICES OR OTHER ENTITY PROVIDING HOME

4 HEALTH OR LONG-TERM CARE SERVICES

5 ‘‘SEC. 1897. The requirements of subsections (b)(8)

6 and (e)(6) of section 1819 shall apply to any provider of

7 services or any other entity that is eligible to be paid under

8 this title for providing home health services or long-term

9 care services to an individual entitled to benefits under

10 part A or enrolled under part B (including an individual

11 provided with a Medicare+Choice plan offered by a

12 Medicare+Choice organization under part C).’’.

13 (d) REIMBURSEMENT OF REASONABLE COSTS FOR

14 BACKGROUND CHECKS.—The Secretary of Health and

15 Human Services shall factor into any payment system

16 under titles XVIII and XIX of the Social Security Act the

17 reasonable costs of the requirements of sections

18 1819(b)(8) and 1919(b)(8) of such Act, as added by this

19 section, incurred by any entity subject to such require20 ments.
33

•S 1054 IS

1 SEC. 3. INCLUSION OF ABUSIVE WORKERS IN THE DATA2 BASE ESTABLISHED AS PART OF NATIONAL

3 HEALTH CARE FRAUD AND ABUSE DATA COL4 LECTION PROGRAM.

5 (a) INCLUSION OF ABUSIVE ACTS WITHIN A LONG6 TERM CARE FACILITY OR PROVIDER.—Section

7 1128E(g)(1)(A) of the Social Security Act (42 U.S.C.

8 1320a–7e(g)(1)(A)) is amended—

9 (1) by redesignating clause (v) as clause (vi);

10 and

11 (2) by inserting after clause (iv), the following:

12 ‘‘(v) A finding of abuse or neglect of

13 a patient or a resident of a long-term care

14 facility, or misappropriation of such a pa15 tient’s or resident’s property.’’.

16 (b) COVERAGE OF LONG-TERM CARE FACILITY OR

17 PROVIDER EMPLOYEES.—Section 1128E(g)(2) of the So18 cial Security Act (42 U.S.C. 1320a–7e(g)(2)) is amended

19 by inserting ‘‘, and includes any individual of a long-term

20 care facility or provider (other than any volunteer) that

21 has direct access to a patient or resident of such a facility

22 under an employment or other contract, or both, with the

23 facility or provider (including individuals who are licensed

24 or certified by the State to provide services at the facility

25 or through the provider, and nonlicensed individuals, as

26 defined by the Secretary, providing services at the facility
34

•S 1054 IS

1 or through the provider, including nurse assistants, nurse

2 aides, home health aides, and personal care workers and

3 attendants)’’ before the period.

4 (c) REPORTING BY LONG-TERM CARE FACILITIES OR

5 PROVIDERS.—

6 (1) IN GENERAL.—Section 1128E(b)(1) of the

7 Social Security Act (42 U.S.C. 1320a–7e(b)(1)) is

8 amended by striking ‘‘and health plan’’ and insert9 ing ‘‘, health plan, and long-term care facility or

10 provider’’.

11 (2) CORRECTION OF INFORMATION.—Section

12 1128E(c)(2) of the Social Security Act (42 U.S.C.

13 1320a–7e(c)(2)) is amended by striking ‘‘and health

14 plan’’ and inserting ‘‘, health plan, and long-term

15 care facility or provider’’.

16 (d) ACCESS TO REPORTED INFORMATION.—Section

17 1128E(d)(1) of the Social Security Act (42 U.S.C. 1320a–

18 7e(d)(1)) is amended by striking ‘‘and health plans’’ and

19 inserting ‘‘, health plans, and long-term care facilities or

20 providers’’.

21 (e) MANDATORY CHECK OF DATABASE BY LONG22 TERM CARE FACILITIES OR PROVIDERS.—Section

23 1128E(d) of the Social Security Act (42 U.S.C. 1320a–

24 7e(d)) is amended by adding at the end the following:
35

•S 1054 IS

1 ‘‘(3) MANDATORY CHECK OF DATABASE BY

2 LONG-TERM CARE FACILITIES OR PROVIDERS.—A

3 long-term care facility or provider shall check the

4 database maintained under this section prior to hir5 ing under an employment or other contract, or both,

6 any individual as an employee of such a facility or

7 provider who will have direct access to a patient or

8 resident of the facility or provider (including individ9 uals who are licensed or certified by the State to

10 provide services at the facility or through the pro11 vider, and nonlicensed individuals, as defined by the

12 Secretary, that will provide services at the facility or

13 through the provider, including nurse assistants,

14 nurse aides, home health aides, and personal care

15 workers and attendants).’’.

16 (f) DEFINITION OF LONG-TERM CARE FACILITY OR

17 PROVIDER.—Section 1128E(g) of the Social Security Act

18 (42 U.S.C. 1320a–7e(g)) is amended by adding at the end

19 the following:

20 ‘‘(6) LONG-TERM CARE FACILITY OR PRO21 VIDER.—The term ‘long-term care facility or pro22 vider’ means a skilled nursing facility (as defined in

23 section 1819(a)), a nursing facility (as defined in

24 section 1919(a)), a home health agency, a hospice

25 facility, an intermediate care facility for the mentally
36

•S 1054 IS

1 retarded (as defined in section 1905(d)), or any

2 other facility that provides, or provider of, long-term

3 care services or home health services and receives

4 payment for such services under the medicare pro5 gram under title XVIII or the medicaid program

6 under title XIX.’’.

7 (g) AUTHORIZATION OF APPROPRIATIONS.—There is

8 authorized to be appropriated to carry out the amend9 ments made by this section, $10,200,000 for fiscal year

10 2002.

11 SEC. 4. PREVENTION AND TRAINING DEMONSTRATION

12 PROJECT.

13 (a) ESTABLISHMENT.—The Secretary of Health and

14 Human Services shall establish a demonstration program

15 to provide grants to develop information on best practices

16 in patient abuse prevention training (including behavior

17 training and interventions) for managers and staff of hos18 pital and health care facilities.

19 (b) ELIGIBILITY.—To be eligible to receive a grant

20 under subsection (a), an entity shall be a public or private

21 nonprofit entity and prepare and submit to the Secretary

22 of Health and Human Services an application at such

23 time, in such manner, and containing such information as

24 the Secretary may require.
37

•S 1054 IS

1 (c) USE OF FUNDS.—Amounts received under a

2 grant under this section shall be used to—

3 (1) examine ways to improve collaboration be4 tween State health care survey and provider certifi5 cation agencies, long-term care ombudsman pro6 grams, the long-term care industry, and local com7 munity members;

8 (2) examine patient care issues relating to regu9 latory oversight, community involvement, and facility

10 staffing and management with a focus on staff

11 training, staff stress management, and staff super12 vision;

13 (3) examine the use of patient abuse prevention

14 training programs by long-term care entities, includ15 ing the training program developed by the National

16 Association of Attorneys General, and the extent to

17 which such programs are used; and

18 (4) identify and disseminate best practices for

19 preventing and reducing patient abuse.

20 (d) AUTHORIZATION OF APPROPRIATIONS.—There is

21 authorized to be appropriated such sums as may be nec22 essary to carry out this section.

23 SEC. 5. EFFECTIVE DATE.

24 The provisions of and amendments made by the Act

25 shall apply, without regard to whether implementing regu-
38

•S 1054 IS

1 lations are in effect, to any individual applying for employ2 ment or hired for such employment—

3 (1) by any skilled nursing facility (as defined in

4 section 1819(a) of the Social Security Act) or any

5 nursing facility (as defined in section 1919(a) of

6 such Act), on or after the date which is 6 months

7 after the date of enactment of this Act,

8 (2) by any home health agency, on or after the

9 date which is 12 months after such date of enact10 ment, and

11 (3) by any hospice facility, any intermediate

12 care facility for the mentally retarded (as defined in

13 section 1905(d) of the Social Security Act), or any

14 other facility that provides long-term care services

15 and receives payment for such services under the

16 medicare program under title XVIII of such Act or

17 the medicaid program under title XIX of such Act,

18 on or after the date which is 18 months after such

19 date of enactment.

Æ