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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4280 Introduced in Senate (IS)]

<DOC>

118th CONGRESS
  2d Session
                                S. 4280

  To amend titles XVIII and XIX of the Social Security Act to require 
   skilled nursing facilities, nursing facilities, intermediate care 
       facilities for the intellectually disabled, and inpatient 
rehabilitation facilities to permit essential caregivers access during 
         any period in which regular visitation is restricted.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              May 8, 2024

 Mr. Blumenthal (for himself and Mr. Cornyn) 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 require 
   skilled nursing facilities, nursing facilities, intermediate care 
       facilities for the intellectually disabled, and inpatient 
rehabilitation facilities to permit essential caregivers access during 
         any period in which regular visitation is restricted.

    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 ``Essential Caregivers Act of 2024''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) According to the National Center for Health Statistics 
        of the Centers for Disease Control and Prevention, an estimated 
        1,300,000 individuals resided in nursing homes in 2020 at the 
        onset of the COVID-19 pandemic and nearly half of all nursing 
        home residents were living with a diagnosis of Alzheimer's or 
        other related dementia.
            (2) Regulations issued pursuant to the Nursing Home Reform 
        Act of 1987 established basic rights and services for residents 
        of nursing homes, including ``the right to a dignified 
        existence, self-determination, and communication with and 
        access to persons and services inside and outside the 
        facility''.
            (3) In March of 2020, the Centers for Medicare & Medicaid 
        Services instructed nursing facilities to restrict visitation 
        for all visitors and non-essential healthcare personnel and 
        cancel communal dining and group activities. Long-term care 
        ombudsman program representatives and State surveyors were 
        among those whose access to long-term care facilities was 
        prohibited or extremely restricted despite reopening guidance 
        released by the Centers for Medicare & Medicaid Services in May 
        of 2020.
            (4) Many long-term care residents declined dramatically or 
        died prematurely from ``failure to thrive'' in isolation.
            (5) According to the National Consumer Voice for Quality 
        Long-Term Care, in the first year of the COVID-19 pandemic, 1 
        in 5 healthcare workers resigned, retired, or were fired. This 
        exacerbated the longstanding problem of staff shortages that 
        already existed. Lack of staff, combined with the forced 
        absence of families, many of whom provided informal care and 
        support to residents, resulted in a significant decline in 
        residents' health and well-being. During the pandemic, pressure 
        ulcers in nursing home residents rose by 31 percent, the number 
        of residents experiencing significant weight loss rose by 49 
        percent, the number of residents reporting feeling down, 
        depressed, or hopeless rose by 40 percent, and the number of 
        residents prescribed antipsychotic medications rose by 77.5 
        percent.
            (6) According to the Department of Health and Human 
        Services, loneliness and isolation, such as that experienced by 
        long-term care residents during the COVID-19 pandemic, 
        represent profound threats to an individual's health and well-
        being.
            (7) Essential Caregivers provide supplemental care for 
        their loved one, regardless of staff shortages, staff turnover, 
        or emergencies. Essential Caregivers support residents and 
        advocate on their behalf.

SEC. 3. RIGHT TO ESSENTIAL CAREGIVERS; ACCESS TO ESSENTIAL CAREGIVERS 
              DURING PERIODS WHEN VISITATION IS OTHERWISE RESTRICTED.

    (a) Medicare Skilled Nursing Facilities.--Section 1819(c)(3) of the 
Social Security Act (42 U.S.C. 1395i-3(c)(3)) is amended--
            (1) by redesignating subparagraphs (A) through (E) as 
        clauses (i) through (v), respectively;
            (2) by striking ``A skilled nursing facility must--'' and 
        inserting the following:
                    ``(A) In general.--A skilled nursing facility 
                shall--''; and
            (3) by adding at the end the following new subparagraph:
                    ``(B) Access to essential caregivers during 
                emergency periods when visitation is otherwise 
                restricted.--
                            ``(i) Designation of essential caregiver.--
                        Each skilled nursing facility shall recognize 
                        the right of each resident of such facility 
                        to--
                                    ``(I) designate and have access to 
                                essential caregivers for such resident 
                                at all times, including during any 
                                period of emergency in which regular 
                                visitation is restricted by order of a 
                                Federal, State, or local authority or 
                                by other operation of law; and
                                    ``(II) amend such designation at 
                                any time.
                            ``(ii) Presumption of designation.--For 
                        purposes of clause (i), in the case of a 
                        resident who is unable, by reason of cognitive 
                        or mental disability, to make an election 
                        described in such clause, the resident 
                        representative (as defined in section 483.5 of 
                        title 42, Code of Federal Regulations) of such 
                        resident shall be permitted to make such 
                        designation for such resident.
                            ``(iii) Access to essential caregivers 
                        during emergency periods when visitation is 
                        otherwise restricted.--During a period of 
                        emergency in which regular visitation is 
                        restricted by order of a Federal, State, or 
                        local authority or by other operation of law, 
                        including any period in which a waiver or 
                        modification of requirements pursuant to 
                        section 1135 is in effect, a skilled nursing 
                        facility shall--
                                    ``(I) not deny in-person access to 
                                a resident by an essential caregiver of 
                                the resident except as provided in this 
                                subparagraph;
                                    ``(II) allow at least 1 essential 
                                caregiver to have access to and provide 
                                assistance to such resident at such 
                                facility every day and at any time; and
                                    ``(III) enforce the agreement 
                                described in clause (vii)(III) with 
                                respect to an essential caregiver.
                            ``(iv) Restrictions on access.--
                                    ``(I) In general.--During a period 
                                of emergency in which regular 
                                visitation is restricted by order of a 
                                Federal, State, or local authority or 
                                by other operation of law, including 
                                any period in which a waiver or 
                                modification of requirements pursuant 
                                to section 1135 is in effect, a skilled 
                                nursing facility may deny access to a 
                                resident by an essential caregiver of 
                                the resident for--
                                            ``(aa) an initial period of 
                                        not longer than 7 days; and
                                            ``(bb) one additional 
                                        period of not longer than 7 
                                        days (in addition to the 
                                        initial period described in 
                                        item (aa)) if the department of 
                                        health of the State in which 
                                        the facility is located 
                                        approves the denial of access 
                                        for such additional period.
                                    ``(II) Rule of application.--For 
                                purposes of subclause (I), a period of 
                                emergency in which regular visitation 
                                is restricted by order of a Federal, 
                                State, or local authority or by other 
                                operation of law shall begin on the 
                                date that such order or other operation 
                                of law takes effect and shall end on 
                                the date that such order or other 
                                operation of law expires or is 
                                otherwise terminated. During any such 
                                period, the maximum number of days for 
                                which a skilled nursing facility may 
                                deny access to a resident by an 
                                essential caregiver of the resident is 
                                7 total days (or, subject to the 
                                approval of the department of health of 
                                the State in which the facility is 
                                located, 14 total days).
                            ``(v) Compliance and notification.--
                                    ``(I) Authority.--No essential 
                                caregiver who upholds the agreement 
                                described in clause (vii)(III) shall be 
                                denied access to the skilled nursing 
                                facility of the resident involved.
                                    ``(II) Notification.-- If an 
                                essential caregiver fails to comply 
                                with an agreement with a skilled 
                                nursing facility described in clause 
                                (vii)(III), the facility must first 
                                provide a warning to the essential 
                                caregiver and resident in writing 
                                citing specific issues of non-
                                compliance and providing clear guidance 
                                for corrective measures.
                                    ``(III) Enforcement.--If an 
                                essential caregiver or resident, after 
                                receiving a notification of 
                                noncompliance described in subclause 
                                (II), fails to take corrective action, 
                                the essential caregiver may 
                                subsequently be denied access to the 
                                resident. In such cases, the facility 
                                shall provide to such caregiver and 
                                such resident (or health care proxy of 
                                such resident), not later than 24 hours 
                                after such denial of access occurs, a 
                                written explanation as to why such 
                                caregiver was denied access to such 
                                resident. Such explanation must include 
                                the resident's and caregiver's options 
                                for appeal under the processes 
                                established under clause (vi).
                            ``(vi) Options for residents and caregivers 
                        to appeal denials of access.--
                                    ``(I) In general.--Not later than 2 
                                years after the date of enactment of 
                                this subparagraph, the Secretary shall 
                                issue a final rule establishing a 
                                process for residents and caregivers to 
                                appeal denials of access.
                                    ``(II) Appeals process.--The agency 
                                responsible for overseeing the appeals 
                                process established under subclause (I) 
                                shall--
                                            ``(aa) receive appeals from 
                                        residents and essential 
                                        caregivers challenging a 
                                        decision by a skilled nursing 
                                        facility to deny access under 
                                        clause (v); and
                                            ``(bb) investigate all such 
                                        appeals within 48 hours of 
                                        receipt.
                                    ``(III) Burden of proof.--During an 
                                appeal received under the appeals 
                                process established under subclause 
                                (I), if a skilled nursing facility 
                                defends a decision to deny access to an 
                                essential caregiver under clause (v) on 
                                the basis that the essential caregiver 
                                violated the agreement described in 
                                clause (vii)(III), the skilled nursing 
                                facility shall have the burden of proof 
                                in demonstrating that the essential 
                                caregiver violated such agreement.
                                    ``(IV) Resolution of appeal.--With 
                                respect to an appeal received under the 
                                appeals process established under 
                                subclause (I), the agency responsible 
                                for overseeing the appeal shall make a 
                                determination as to whether a skilled 
                                nursing facility violated a requirement 
                                or prohibition of this subparagraph 
                                within 48 hours of commencing its 
                                investigation. If the agency determines 
                                that a facility has violated such a 
                                requirement or prohibition the agency 
                                shall--
                                            ``(aa) require the facility 
                                        to allow immediate access to 
                                        the essential caregiver in 
                                        question;
                                            ``(bb) require the facility 
                                        to establish a corrective 
                                        action plan to prevent the 
                                        recurrence of such violation 
                                        within a 7-day period of 
                                        receiving notice from the 
                                        agency; and
                                            ``(cc) impose a civil money 
                                        penalty in an amount to be 
                                        determined by the agency (not 
                                        to exceed $5,000) if such 
                                        facility fails to implement the 
                                        corrective action plan with the 
                                        7-day period specified in item 
                                        (bb).
                            ``(vii) Definition of essential 
                        caregiver.--For purposes of this subparagraph, 
                        the term `essential caregiver' means, with 
                        respect to a resident of a skilled nursing 
                        facility, an individual who--
                                    ``(I) is designated by or on behalf 
                                of the resident pursuant to clause (i) 
                                or clause (ii);
                                    ``(II) will provide assistance to 
                                such resident, which may include 
                                assistance with activities of daily 
                                living or providing emotional support 
                                or companionship to such resident; and
                                    ``(III) agrees to follow all safety 
                                protocols established by such facility, 
                                which shall be clearly specified in 
                                writing and may be no more restrictive 
                                than the safety protocols (including 
                                safety standards and entry 
                                requirements) applicable to staff of 
                                such facility.''.
    (b) Medicaid Nursing Facilities.--Section 1919(c)(3) of the Social 
Security Act (42 U.S.C. 1396r(c)(3)) is amended--
            (1) by redesignating subparagraphs (A) through (E) as 
        clauses (i) through (v), respectively;
            (2) by striking ``A nursing facility must--'' and inserting 
        the following:
                    ``(A) In general.--A nursing facility shall--''; 
                and
            (3) by adding at the end the following new subparagraph:
                    ``(B) Access to essential caregivers during 
                emergency periods when visitation is otherwise 
                restricted.--
                            ``(i) Designation of essential caregiver.--
                        Each nursing facility shall recognize the right 
                        of each resident of such facility to--
                                    ``(I) designate and have access to 
                                essential caregivers for such resident 
                                at all times, including during any 
                                period of emergency in which regular 
                                visitation is restricted by order of a 
                                Federal, State, or local authority or 
                                by other operation of law; and
                                    ``(II) amend such designation at 
                                any time.
                            ``(ii) Presumption of designation.--For 
                        purposes of clause (i), in the case of a 
                        resident who is unable, by reason of cognitive 
                        or mental disability, to make an election 
                        described in such clause, the resident 
                        representative (as defined in section 483.5 of 
                        title 42, Code of Federal Regulations) of such 
                        resident shall be permitted to make such 
                        designation for such resident.
                            ``(iii) Access to essential caregivers 
                        during emergency periods when visitation is 
                        otherwise restricted.--During a period of 
                        emergency in which regular visitation is 
                        restricted by order of a Federal, State, or 
                        local authority or by other operation of law, 
                        including any period in which a waiver or 
                        modification of requirements pursuant to 
                        section 1135 is in effect, a nursing facility 
                        shall--
                                    ``(I) not deny in-person access to 
                                a resident by an essential caregiver of 
                                the resident except as provided in this 
                                subparagraph;
                                    ``(II) allow at least 1 essential 
                                caregiver to have access to and provide 
                                assistance to such resident at such 
                                facility every day and at any time; and
                                    ``(III) enforce the agreement 
                                described in clause (vii)(III) with 
                                respect to an essential caregiver.
                            ``(iv) Restrictions on access.--
                                    ``(I) In general.--During a period 
                                of emergency in which regular 
                                visitation is restricted by order of a 
                                Federal, State, or local authority or 
                                by other operation of law, including 
                                any period in which a waiver or 
                                modification of requirements pursuant 
                                to section 1135 is in effect, a nursing 
                                facility may deny access to a resident 
                                by an essential caregiver of the 
                                resident for--
                                            ``(aa) an initial period of 
                                        not longer than 7 days; and
                                            ``(bb) one additional 
                                        period of not longer than 7 
                                        days (in addition to the 
                                        initial period described in 
                                        item (aa)) if the department of 
                                        health of the State in which 
                                        the facility is located 
                                        approves the denial of access 
                                        for such additional period.
                                    ``(II) Rule of application.--For 
                                purposes of subclause (I), a period of 
                                emergency in which regular visitation 
                                is restricted by order of a Federal, 
                                State, or local authority or by other 
                                operation of law shall begin on the 
                                date that such order or other operation 
                                of law takes effect and shall end on 
                                the date that such order or other 
                                operation of law expires or is 
                                otherwise terminated. During any such 
                                period, the maximum number of days for 
                                which a nursing facility may deny 
                                access to a resident by an essential 
                                caregiver of the resident is 7 total 
                                days (or, subject to the approval of 
                                the department of health of the State 
                                in which the facility is located, 14 
                                total days).
                            ``(v) Compliance and notification.--
                                    ``(I) Authority.--No essential 
                                caregiver who upholds the agreement 
                                described in clause (vii)(III) shall be 
                                denied access to the nursing facility 
                                of the resident involved.
                                    ``(II) Notification.-- If an 
                                essential caregiver fails to comply 
                                with an agreement with a nursing 
                                facility described in clause 
                                (vii)(III), the facility must first 
                                provide a warning to the essential 
                                caregiver and resident in writing 
                                citing specific issues of non-
                                compliance and providing clear guidance 
                                for corrective measures.
                                    ``(III) Enforcement.--If an 
                                essential caregiver or resident, after 
                                receiving a notification of 
                                noncompliance described in subclause 
                                (II), fails to take corrective action, 
                                the essential caregiver may 
                                subsequently be denied access to the 
                                resident. In such cases, the facility 
                                shall provide to such caregiver and 
                                such resident (or health care proxy of 
                                such resident), not later than 24 hours 
                                after such denial of access occurs, a 
                                written explanation as to why such 
                                caregiver was denied access to such 
                                resident. Such explanation must include 
                                the resident's and caregiver's options 
                                for appeal under the processes 
                                established under clause (vi).
                            ``(vi) Options for residents and caregivers 
                        to appeal denials of access.--
                                    ``(I) In general.--Not later than 2 
                                years after the date of enactment of 
                                this subparagraph, the Secretary shall 
                                issue a final rule establishing a 
                                process for residents and caregivers to 
                                appeal denials of access.
                                    ``(II) Appeals process.--The agency 
                                responsible for overseeing the appeals 
                                process established under subclause (I) 
                                shall--
                                            ``(aa) receive appeals from 
                                        residents and essential 
                                        caregivers challenging a 
                                        decision by a nursing facility 
                                        to deny access under clause 
                                        (v); and
                                            ``(bb) investigate all such 
                                        appeals within 48 hours of 
                                        receipt.
                                    ``(III) Burden of proof.--During an 
                                appeal received under the appeals 
                                process established under subclause 
                                (I), if a nursing facility defends a 
                                decision to deny access to an essential 
                                caregiver under clause (v) on the basis 
                                that the essential caregiver violated 
                                the agreement described in clause 
                                (vii)(III), the nursing facility shall 
                                have the burden of proof in 
                                demonstrating that the essential 
                                caregiver violated such agreement.
                                    ``(IV) Resolution of appeal.--With 
                                respect to an appeal received under the 
                                appeals process established under 
                                subclause (I), the agency responsible 
                                for overseeing the appeal shall make a 
                                determination as to whether a nursing 
                                facility violated a requirement or 
                                prohibition of this subparagraph within 
                                48 hours of commencing its 
                                investigation. If the agency determines 
                                that a facility has violated such a 
                                requirement or prohibition the agency 
                                shall--
                                            ``(aa) require the facility 
                                        to allow immediate access to 
                                        the essential caregiver in 
                                        question;
                                            ``(bb) require the facility 
                                        to establish a corrective 
                                        action plan to prevent the 
                                        recurrence of such violation 
                                        within a 7-day period of 
                                        receiving notice from the 
                                        agency; and
                                            ``(cc) impose a civil money 
                                        penalty in an amount to be 
                                        determined by the agency (not 
                                        to exceed $5,000) if such 
                                        facility fails to implement the 
                                        corrective action plan with the 
                                        7-day period specified in item 
                                        (bb).
                            ``(vii) Definition of essential 
                        caregiver.--For purposes of this subparagraph, 
                        the term `essential caregiver' means, with 
                        respect to a resident of a nursing facility, an 
                        individual who--
                                    ``(I) is designated by or on behalf 
                                of the resident pursuant to clause (i) 
                                or clause (ii);
                                    ``(II) will provide assistance to 
                                such resident, which may include 
                                assistance with of activities of daily 
                                living or providing emotional support 
                                or companionship to such resident; and
                                    ``(III) agrees to follow all safety 
                                protocols established by such facility, 
                                which shall be clearly specified in 
                                writing and may be no more restrictive 
                                than the safety protocols (including 
                                safety standards and entry 
                                requirements) applicable to staff of 
                                such facility.''.
    (c) Intermediate Care Facilities for the Intellectually Disabled.--
Section 1905(d) of the Social Security Act (42 U.S.C. 1396d(d)) is 
amended--
            (1) in paragraph (2), by striking ``and'' at the end;
            (2) in paragraph (3), by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(4) the institution complies with the requirements 
        relating to the designation of, and access to residents by, 
        essential caregivers described in section 1919(c)(3)(B) in the 
        same manner as if such institution were a nursing facility.''.
    (d) Inpatient Rehabilitation Facilities.--Section 1866(a)(1) of the 
Social Security Act (42 U.S.C. 1395cc(a)(1)) is amended--
            (1) in subparagraph (X), by striking ``and'' at the end;
            (2) in subparagraph (Y), by striking the period at the end 
        and inserting ``, and''; and
            (3) by inserting after subparagraph (Y) the following new 
        subparagraph:
            ``(Z) in the case of an inpatient rehabilitation facility 
        that is located on the same campus (as defined by the 
        Secretary) as a skilled nursing facility, nursing facility (as 
        defined in section 1919(a)), or intermediate care facility for 
        the intellectually disabled (as described in section 1905(d)), 
        to comply with the requirements relating to the designation of, 
        and access to residents by, essential caregivers described in 
        section 1819(c)(3)(B) in the same manner as if such institution 
        were a skilled nursing facility.''.
    (e) Regulations.--The Secretary of Health and Human Services shall, 
after consultation with stakeholders (including residents, family 
members, long-term care ombudsmen, other advocates of nursing home 
residents, and nursing home providers), promulgate regulations to carry 
out this Act and the amendments made by this Act.
    (f) Rules of Construction.--
            (1) No new authority for state and local officials to 
        restrict visitation at nursing facilities.--Nothing in this 
        section or the amendments made by this section shall be 
        construed as creating any new authority for State or local 
        officials to restrict visitation at nursing facilities.
            (2) No new authority for nursing facilities to unilaterally 
        restrict visitation.--Nothing in this section or the amendments 
        made by this section shall be construed as creating any new 
        authority for a skilled nursing facility or nursing facility 
        (as such terms are defined in sections 1819 and 1919 of the 
        Social Security Act, respectively (42 U.S.C. 1395i-3, 1396r)) 
        to restrict visitation.
    (g) Effective Date.--The amendments made by this Act shall take 
effect on the date that is 2 years after the date of enactment of this 
Act, and shall apply with respect to periods beginning on or after such 
date in which regular visitation at nursing facilities is restricted by 
order of a Federal, State, or local authority or by other operation of 
law.
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