I

103D CONGRESS

1ST SESSION H. R. 1044

To amend title XVIII of the Social Security Act to provide for the enforcement of standards relating to the rights of patients in certain medical

facilities.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 23, 1993

Mrs. BYRNE introduced the following bill; which was referred jointly to the

Committees on Ways and Means and Energy and Commerce

A BILL

To amend title XVIII of the Social Security Act to provide

for the enforcement of standards relating to the rights

of patients in certain medical facilities.

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

3 That (a)(1) sections 1861(e)(9) and 1861(j)(15) of the

4 Social Security Act (relating to qualifications of hospitals

5 and skilled nursing facilities) are each amended by strik6 ing out ‘‘health and safety’’ and inserting in lieu thereof

7 ‘‘health, safety, and rights’’.
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1 (2) Section 1864(c) of such Act is amended by strik2 ing out ‘‘health and safety of patients’’ and inserting in

3 lieu thereof ‘‘the health, safety, and rights of patients’’.

4 (b) Part C of title XVIII of such Act is amended by

5 adding after section 1881 the following new sections:

6 ‘‘RIGHTS OF PATIENTS OF CERTAIN LONG-TERM CARE

7 FACILITIES

8 ‘‘SEC. 1882. (a) In prescribing standards under sub9 sections (e)(9) and (j)(15) of section 1861 with respect

10 to the rights of individuals (hereinafter in this section and

11 section 1883 referred to as ‘patients’) furnished services

12 in an institution which has (as determined by the Sec13 retary) an average duration-of-stay of more than 30 days

14 (such an institution hereinafter in this section and section

15 1183 referred to as a ‘facility’), the Secretary shall—

16 ‘‘(1) require the governing board of the facility

17 to establish written policies, consistent with the

18 rights set forth in subsection (b), regarding the

19 rights and responsibilities of patients and, through

20 the administrator of the facility, to develop and ad21 here to procedures for implementing such policies;

22 ‘‘(2) require the facility to make these policies

23 and procedures available to the public, patients,

24 guardians, and relatives of patients, and to any rel25 ative or other person serving as a representative
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1 payee of a patient pursuant to section 205(j) of this

2 Act; and

3 ‘‘(3) require the staff of the facility to be

4 trained and involved in the implementation of these

5 policies and procedures.

6 ‘‘(b) A facility’s policies and procedures regarding

7 rights of patients of the facility must at least ensure that

8 the following patients’ rights are provided:

9 ‘‘(1) INFORMATION ON PATIENT RIGHTS.—A

10 patient’s right to be fully informed, as evidenced by

11 the patient’s written acknowledgment, before or at

12 the time of admission and during stay of these

13 rights and of all rules and regulations governing pa14 tient conduct and responsibility.

15 ‘‘(2) INFORMATION ON SERVICES AND

16 CHARGES.—A patient’s right (A) to be fully in17 formed, and given a written statement before or at

18 the time of admission and during stay, of services

19 available in the facility and of related charges for

20 such services, including any charges for services not

21 covered under this title or title XIX or not covered

22 by the facility’s basic per diem rate, and (B) to be

23 informed in writing at least 30 days in advance of

24 any changes in the availability of services or in the

25 charges for these services.
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1 ‘‘(3) INFORMATION ON AND PARTICIPATION IN

2 MEDICAL TREATMENT.—A patient’s right (A) to be

3 fully informed by a physician of the patient’s medi4 cal condition, unless medically contraindicated for a

5 specified and limited period of time (as documented,

6 by a physician, in the patient’s medical record), (B)

7 to be afforded the opportunity to participate in the

8 planning of his medical treatment, and (C) to refuse

9 to participate in experimental research.

10 ‘‘(4) CONDITIONS OF TRANSFER OR DIS11 CHARGE.—A patient’s right (A) to be transferred

12 within the facility or discharged from the facility

13 only for medical reasons, for his welfare or that of

14 other patients, or for nonpayment of his stay (except

15 as prohibited by this title or title XIX), (B) to be

16 informed before admission of the causes for such a

17 transfer or discharge, (C) to be given 30 days’ ad18 vance notice of such a transfer or discharge (except

19 for emergencies threatening the health or safety of

20 the patient), and (D) to be given sufficient prepara21 tion and orientation to ensure safe and orderly

22 transfer or discharge and adjustment and to have

23 this preparation and orientation documented in his

24 medical record.
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1 ‘‘(5) GRIEVANCES.—A patient’s right to be as2 sisted, throughout his period of stay, in his exercise

3 of his rights as a patient and as a citizen, and to

4 this end the patient’s right to file complaints under

5 section 1883, voice grievances, and recommend

6 changes in policies and service to the staff of the fa7 cility and to outside representatives of his choice (in8 cluding representatives of governmental agencies ad9 ministering the programs under this title and title

10 XIX) free from restraint, interference, coercion, dis11 crimination, or reprisal.

12 ‘‘(6) MANAGEMENT OF PERSONAL FINANCIAL

13 AFFAIRS.—A patient’s right to manage his personal

14 financial affairs or be given, at least quarterly, an

15 itemized accounting of financial transactions made

16 on his behalf whenever the facility accepts his writ17 ten delegation of this responsibility for any period of

18 time in conformance with State law.

19 ‘‘(7) FREEDOM FROM ABUSE AND RE20 STRAINTS.—A patient’s right—

21 ‘‘(A) to be free from mental and physical

22 abuse, and

23 ‘‘(B) to be free from chemical and physical

24 restraints, except (i) as authorized in writing by

25 a physician for a specified and limited period of
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1 time, or (ii) in emergencies when necessary to

2 protect the patient from injury to himself or to

3 others (in which case notice of the use of such

4 restraints, and an explanation of the cir5 cumstances thereof, shall be promptly provided

6 to the attending physician and noted in the pa7 tient’s medical record).

8 ‘‘(8) CONFIDENTIALITY OF TREATMENT AND

9 MEDICAL RECORDS.—A patient’s right—

10 ‘‘(A) to be assured confidential treatment

11 of his personal and medical records, and

12 ‘‘(B) to approve or refuse the release of

13 such records to any individual outside the facil14 ity, except in the case of a transfer to another

15 health care institution or as required by law or

16 third-party payment contract.

17 ‘‘(9) DIGNITY AND PRIVACY.—A patient’s right

18 to be treated with consideration, respect, and full

19 recognition of his dignity and individuality, including

20 privacy in treatment and in care for his personal

21 needs.

22 ‘‘(10) WORK REQUIREMENTS.—A patient’s

23 right not to be required to perform services for the

24 facility.
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1 ‘‘(11) FREEDOM OF ASSOCIATION.—A patient’s

2 right to associate and communicate privately (in

3 writing or otherwise) with persons of his choice.

4 ‘‘(12) PARTICIPATION IN ACTIVITIES OF

5 CHOICE.—A patient’s right to meet with, and par6 ticipate in activities of, social, religious, and commu7 nity groups at his discretion.

8 ‘‘(13) USE OF PERSONAL POSSESSIONS.—A pa9 tient’s right to retain and use his personal clothing

10 and possessions as space permits, unless to do so

11 would infringe upon rights of other patients, and to

12 be provided security in storing possessions.

13 ‘‘(14) PRIVACY FOR MARRIED PATIENTS.—A

14 married patient’s right to be assured privacy in vis15 its by the patient’s spouse and, if spouses are both

16 patients in the facility, the right of the patients to

17 share the same room if they so desire.

18 ‘‘(c) The patient’s rights and responsibilities specified

19 in paragraphs (1) through (4) of subsection (b), as they

20 pertain to a patient adjudicated incompetent in accordance

21 with State law, devolve to the patient’s guardian, next of

22 kin, sponsoring agency (or agencies), or relative or other

23 person serving as representative payee under section

24 205(j) of this Act (except when the facility itself is rep25 resentative payee).
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1 ‘‘ENFORCEMENT OF PATIENT’S RIGHTS

2 ‘‘SEC. 1883. (a) The Secretary shall establish, by reg3 ulation, a schedule of the maximum amount of civil pen4 alties which may be imposed under this section for the

5 violation of each of the patient’s rights set forth in section

6 1882(b). No such penalty shall exceed $500 for a single

7 violation, except that the civil penalty for a violation of

8 a patient’s right, under paragraph (5) of such section, to

9 file a complaint under this section free from restraint, in10 terference, coercion, discrimination, or reprisal shall not

11 exceed $1,000. The Secretary shall define in those regula12 tions what constitutes a separate violation for purposes

13 of this section.

14 ‘‘(b)(1) Any patient, or any person on behalf of such

15 a patient, who claims to have had a right under section

16 1882(b) violated by the facility may submit a complaint,

17 written or oral, with the appropriate enforcing agency (as

18 defined in subsection (f)). No such complaint with respect

19 to a violation shall be considered by an enforcing agency

20 under this section unless it is filed with the agency within

21 180 days after the date the alleged violation occurred.

22 ‘‘(2) Upon receiving a complaint concerning a facility

23 under paragraph (1), an enforcing agency shall promptly

24 notify the facility of the complaint (including the date,

25 place, and circumstances of the alleged violation), shall in-
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1 vestigate the complaint (keeping confidential insofar as

2 possible the identity of the complainant and the name of

3 the patient or patients involved if the complainant is not

4 such a patient), and shall provide the complainant with

5 a written report thereon within 30 days of the date the

6 complaint was filed. A copy of the report of the agency,

7 including the complaint (with identities of the complainant

8 and any patients deleted), shall be made part of the

9 permanent files of the agency and made available to the

10 public.

11 ‘‘(c)(1)(A) If, as a result of an investigation con12 ducted under subsection (b)(2), the enforcing agency de13 termines that a facility has not violated any patients’

14 rights under section 1882(b), the enforcing agency shall

15 notify the facility and the complainant of such determina16 tion.

17 ‘‘(B) If, as a result of such an investigation, the en18 forcing agency determines that a facility has violated one

19 or more patients’ rights under section 1882(b), the enforc20 ing agency shall endeavor to provide appropriate adjust21 ment with respect to any such alleged violation (and to

22 prevent future similar violations) by informal methods of

23 conference, conciliation, and persuasion. Nothing said or

24 done during and as part of such informal endeavors may

25 be made public by the enforcing agency or used as evi-
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1 dence in a subsequent proceeding without the written con2 sent of the persons concerned. If after such endeavors (but

3 in a period no longer than 30 days), the enforcing agency

4 is not able to secure from the facility a conciliation agree5 ment or other understanding acceptable to the agency and

6 the complainant, the agency shall assess against the facil7 ity a civil penalty (determined in accordance with the

8 schedule developed under subsection (a)) by an order

9 made—

10 ‘‘(i) after written notice (including notice of the

11 enforcing agency’s proposed order and the facility’s

12 opportunity to request, within 15 days after the date

13 the notice is received, a hearing on the proposed

14 order), and

15 ‘‘(ii) after opportunity for a hearing in accord16 ance with procedures to be specified by the Sec17 retary in regulations.

18 ‘‘(2) Such an order shall provide that the penalty

19 shall be paid (in accordance with subsection (d)(2)) to the

20 enforcing agency and the agency shall promptly make pay21 ment to patients (or heirs of patients, in the case of de22 ceased patients) in accordance with the penalties assessed

23 for violation of their rights. Notwithstanding any other

24 provision of law, civil penalties paid to any individual in

25 accordance with this paragraph shall not constitute in-
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1 come or resources or otherwise be taken into account (A)

2 for purposes of determining the eligibility of the individ3 ual, or the family or household of the individual, for assist4 ance under a State plan approved under title XIX, or for

5 aid, assistance, or benefits in any form under any Federal

6 program, or any State or local program financed in whole

7 or in part with Federal funds, which conditions such eligi8 bility to any extent upon the income or resources of the

9 individual, family, or household, or (B) for purposes of de10 termining the amount or extent of such aid, assistance,

11 or benefits.

12 ‘‘(3) An enforcing agency may suspend imposition of

13 an order of assessment against a facility if the facility can

14 provide assurances, satisfactory to the agency, that the fa15 cility has taken such actions as will prevent the reoccur16 rence of the violation (and similar violations) from which

17 the order results. To the extent that the enforcing agency

18 determines, based on a later complaint or investigation,

19 that such actions have not been taken in accordance with

20 such assurances, the agency shall reimpose such an order.

21 ‘‘(d)(1)(A) Not later than 60 days after the final ac22 tion of an enforcing agency with respect to a complaint

23 or suspension of an order of assessment under this section,

24 any person adversely affected or aggrieved by the action

25 is entitled to judicial review thereof in the appropriate
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1 United States district court or State court of competent

2 jurisdiction. The provisions of sections 701(b)(2), and 702

3 through 706 of title 5, United States Code, shall apply

4 to such reviews.

5 ‘‘(B) Where a patient or facility brings an action for

6 review of a determination by an enforcing agency which

7 is not in the patient’s or facility’s favor, respectively, and

8 the action is determined to constitute harassment of the

9 facility or patient, respectively, the patient or facility shall

10 be liable to the enforcing agency for all the agency’s legal

11 fees and costs (including reasonable attorney’s fees) in

12 connection with the action.

13 ‘‘(2)(A) If an enforcing agency has issued a final

14 order of an assessment of a penalty against a facility

15 and—

16 ‘‘(i) the order has not been suspended under

17 subsection (c)(3), the facility shall pay the amount

18 of the penalty to the enforcing agency within 60

19 days after the date the order becomes final, or

20 ‘‘(ii) the order has been suspended but has been

21 reimposed, the facility shall pay the amount of the

22 penalty to the enforcing agency within 60 days after

23 the date the order was reimposed.

24 ‘‘(B)(i) The agency will hold any such amounts paid

25 to it in escrow and, except as provided in clause (ii), shall
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1 make payment of it, in accordance with subsection (b)(2),

2 at the end of the applicable 60-day period described in

3 subparagraph (A).

4 ‘‘(ii) If judicial review of such an order of an enforc5 ing agency has been sought, the agency shall make pay6 ment of any penalty collected at the conclusion of the re7 view and in accordance with the order of the court.

8 ‘‘(3) If a facility fails to make timely payment of a

9 civil penalty according to paragraph (2), the enforcing

10 agency shall recover the amount assessed (plus interest

11 at currently prevailing rates from the last date of such

12 60-day period) in an action brought in any appropriate

13 district court of the United States or State court of com14 petent jurisdiction and shall hold or transfer it in the man15 ner provided in that paragraph.

16 ‘‘(e) The imposition of a civil penalty under this sec17 tion shall not preclude, and shall be in addition to, any

18 other monetary damages recoverable by, or other relief

19 available to, patients or enforcing agencies as a result of

20 violation of patients’ rights.

21 ‘‘(f) For purposes of this section, the term ‘enforcing

22 agency’ means, with respect to an alleged violation occur23 ring in a State in which the Secretary—
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1 ‘‘(1) has entered into an agreement under sec2 tion 1864(d)(1), the appropriate State or local agen3 cy or agencies specified in that agreement, or

4 ‘‘(2) has not entered into such an agreement,

5 such office within the Department of Health, Edu6 cation, and Welfare as the Secretary shall designate

7 by regulation.’’.

8 (c) Section 1864 of such Act is amended by adding

9 at the end the following new subsection:

10 ‘‘(d)(1) The Secretary shall make an agreement with

11 any State which is able and willing to do so and has an

12 agreement under subsection (a) under which the agency

13 (or agencies) under subsection (a) will serve as an appro14 priate agency for the purpose of enforcing patients’ rights

15 under section 1883. The Secretary shall pay for the serv16 ices of such an agency in the manner prescribed in sub17 section (b).

18 ‘‘(2) Any agreement under this section with a State

19 with regard to determining whether a facility meets the

20 standards relating to patients’ rights and described in sec21 tion 1882 shall include a provision that each routine cer22 tification survey of such a facility shall include a private

23 meeting between patients and survey personnel to discuss

24 patients’ experiences within the facility as regards such

25 rights and compliance with such standards generally.’’.
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1 (d) Section 1865(a) of such Act is amended by insert2 ing after the second sentence the following new sentence:

3 ‘‘No institution shall be so deemed to meet standards re4 lating to patients’ rights and described in section 1882

5 unless the accreditation survey of the institution includes

6 a private meeting between patients and survey personnel

7 to discuss patients’ experiences within the institution as

8 regards such rights and compliance with such standards

9 generally.’’.

10 SEC. 2. The Secretary of Health, Education, and

11 Welfare shall first publish proposed regulations for carry12 ing out the amendments made by this Act not later than

13 six months after the date of the enactment of this Act

14 and such regulations shall first become final and fully ef15 fective on the first day of the ninth month which begins

16 after the date of the enactment of this Act.

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