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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1044 Introduced in House (IH)]

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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That (a)(1) sections 
1861(e)(9) and 1861(j)(15) of the Social Security Act (relating to 
qualifications of hospitals and skilled nursing facilities) are each 
amended by striking out ``health and safety'' and inserting in lieu 
thereof ``health, safety, and rights''.
    (2) Section 1864(c) of such Act is amended by striking out ``health 
and safety of patients'' and inserting in lieu thereof ``the health, 
safety, and rights of patients''.
    (b) Part C of title XVIII of such Act is amended by adding after 
section 1881 the following new sections:

       ``rights of patients of certain long-term care facilities

    ``Sec. 1882. (a) In prescribing standards under subsections (e)(9) 
and (j)(15) of section 1861 with respect to the rights of individuals 
(hereinafter in this section and section 1883 referred to as 
`patients') furnished services in an institution which has (as 
determined by the Secretary) an average duration-of-stay of more than 
30 days (such an institution hereinafter in this section and section 
1183 referred to as a `facility'), the Secretary shall--
            ``(1) require the governing board of the facility to 
        establish written policies, consistent with the rights set 
        forth in subsection (b), regarding the rights and 
        responsibilities of patients and, through the administrator of 
        the facility, to develop and adhere to procedures for 
        implementing such policies;
            ``(2) require the facility to make these policies and 
        procedures available to the public, patients, guardians, and 
        relatives of patients, and to any relative or other person 
        serving as a representative payee of a patient pursuant to 
        section 205(j) of this Act; and
            ``(3) require the staff of the facility to be trained and 
        involved in the implementation of these policies and 
        procedures.
    ``(b) A facility's policies and procedures regarding rights of 
patients of the facility must at least ensure that the following 
patients' rights are provided:
            ``(1) Information on patient rights.--A patient's right to 
        be fully informed, as evidenced by the patient's written 
        acknowledgment, before or at the time of admission and during 
        stay of these rights and of all rules and regulations governing 
        patient conduct and responsibility.
            ``(2) Information on services and charges.--A patient's 
        right (A) to be fully informed, and given a written statement 
        before or at the time of admission and during stay, of services 
        available in the facility and of related charges for such 
        services, including any charges for services not covered under 
        this title or title XIX or not covered by the facility's basic 
        per diem rate, and (B) to be informed in writing at least 30 
        days in advance of any changes in the availability of services 
        or in the charges for these services.
            ``(3) Information on and participation in medical 
        treatment.--A patient's right (A) to be fully informed by a 
        physician of the patient's medical condition, unless medically 
        contraindicated for a specified and limited period of time (as 
        documented, by a physician, in the patient's medical record), 
        (B) to be afforded the opportunity to participate in the 
        planning of his medical treatment, and (C) to refuse to 
        participate in experimental research.
            ``(4) Conditions of transfer or discharge.--A patient's 
        right (A) to be transferred within the facility or discharged 
        from the facility only for medical reasons, for his welfare or 
        that of other patients, or for nonpayment of his stay (except 
        as prohibited by this title or title XIX), (B) to be informed 
        before admission of the causes for such a transfer or 
        discharge, (C) to be given 30 days' advance notice of such a 
        transfer or discharge (except for emergencies threatening the 
        health or safety of the patient), and (D) to be given 
        sufficient preparation and orientation to ensure safe and 
        orderly transfer or discharge and adjustment and to have this 
        preparation and orientation documented in his medical record.
            ``(5) Grievances.--A patient's right to be assisted, 
        throughout his period of stay, in his exercise of his rights as 
        a patient and as a citizen, and to this end the patient's right 
        to file complaints under section 1883, voice grievances, and 
        recommend changes in policies and service to the staff of the 
        facility and to outside representatives of his choice 
        (including representatives of governmental agencies 
        administering the programs under this title and title XIX) free 
        from restraint, interference, coercion, discrimination, or 
        reprisal.
            ``(6) Management of personal financial affairs.--A 
        patient's right to manage his personal financial affairs or be 
        given, at least quarterly, an itemized accounting of financial 
        transactions made on his behalf whenever the facility accepts 
        his written delegation of this responsibility for any period of 
        time in conformance with State law.
            ``(7) Freedom from abuse and restraints.--A patient's 
        right--
                    ``(A) to be free from mental and physical abuse, 
                and
                    ``(B) to be free from chemical and physical 
                restraints, except (i) as authorized in writing by a 
                physician for a specified and limited period of time, 
                or (ii) in emergencies when necessary to protect the 
                patient from injury to himself or to others (in which 
                case notice of the use of such restraints, and an 
                explanation of the circumstances thereof, shall be 
                promptly provided to the attending physician and noted 
                in the patient's medical record).
            ``(8) Confidentiality of treatment and medical records.--A 
        patient's right--
                    ``(A) to be assured confidential treatment of his 
                personal and medical records, and
                    ``(B) to approve or refuse the release of such 
                records to any individual outside the facility, except 
                in the case of a transfer to another health care 
                institution or as required by law or third-party 
                payment contract.
            ``(9) Dignity and privacy.--A patient's right to be treated 
        with consideration, respect, and full recognition of his 
        dignity and individuality, including privacy in treatment and 
        in care for his personal needs.
            ``(10) Work requirements.--A patient's right not to be 
        required to perform services for the facility.
            ``(11) Freedom of association.--A patient's right to 
        associate and communicate privately (in writing or otherwise) 
        with persons of his choice.
            ``(12) Participation in activities of choice.--A patient's 
        right to meet with, and participate in activities of, social, 
        religious, and community groups at his discretion.
            ``(13) Use of personal possessions.--A patient's right to 
        retain and use his personal clothing and possessions as space 
        permits, unless to do so would infringe upon rights of other 
        patients, and to be provided security in storing possessions.
            ``(14) Privacy for married patients.--A married patient's 
        right to be assured privacy in visits by the patient's spouse 
        and, if spouses are both patients in the facility, the right of 
        the patients to share the same room if they so desire.
    ``(c) The patient's rights and responsibilities specified in 
paragraphs (1) through (4) of subsection (b), as they pertain to a 
patient adjudicated incompetent in accordance with State law, devolve 
to the patient's guardian, next of kin, sponsoring agency (or 
agencies), or relative or other person serving as representative payee 
under section 205(j) of this Act (except when the facility itself is 
representative payee).

                   ``enforcement of patient's rights

    ``Sec. 1883. (a) The Secretary shall establish, by regulation, a 
schedule of the maximum amount of civil penalties which may be imposed 
under this section for the violation of each of the patient's rights 
set forth in section 1882(b). No such penalty shall exceed $500 for a 
single violation, except that the civil penalty for a violation of a 
patient's right, under paragraph (5) of such section, to file a 
complaint under this section free from restraint, interference, 
coercion, discrimination, or reprisal shall not exceed $1,000. The 
Secretary shall define in those regulations what constitutes a separate 
violation for purposes of this section.
    ``(b)(1) Any patient, or any person on behalf of such a patient, 
who claims to have had a right under section 1882(b) violated by the 
facility may submit a complaint, written or oral, with the appropriate 
enforcing agency (as defined in subsection (f)). No such complaint with 
respect to a violation shall be considered by an enforcing agency under 
this section unless it is filed with the agency within 180 days after 
the date the alleged violation occurred.
    ``(2) Upon receiving a complaint concerning a facility under 
paragraph (1), an enforcing agency shall promptly notify the facility 
of the complaint (including the date, place, and circumstances of the 
alleged violation), shall investigate the complaint (keeping 
confidential insofar as possible the identity of the complainant and 
the name of the patient or patients involved if the complainant is not 
such a patient), and shall provide the complainant with a written 
report thereon within 30 days of the date the complaint was filed. A 
copy of the report of the agency, including the complaint (with 
identities of the complainant and any patients deleted), shall be made 
part of the permanent files of the agency and made available to the 
public.
    ``(c)(1)(A) If, as a result of an investigation conducted under 
subsection (b)(2), the enforcing agency determines that a facility has 
not violated any patients' rights under section 1882(b), the enforcing 
agency shall notify the facility and the complainant of such 
determination.
    ``(B) If, as a result of such an investigation, the enforcing 
agency determines that a facility has violated one or more patients' 
rights under section 1882(b), the enforcing agency shall endeavor to 
provide appropriate adjustment with respect to any such alleged 
violation (and to prevent future similar violations) by informal 
methods of conference, conciliation, and persuasion. Nothing said or 
done during and as part of such informal endeavors may be made public 
by the enforcing agency or used as evidence in a subsequent proceeding 
without the written consent of the persons concerned. If after such 
endeavors (but in a period no longer than 30 days), the enforcing 
agency is not able to secure from the facility a conciliation agreement 
or other understanding acceptable to the agency and the complainant, 
the agency shall assess against the facility a civil penalty 
(determined in accordance with the schedule developed under subsection 
(a)) by an order made--
            ``(i) after written notice (including notice of the 
        enforcing agency's proposed order and the facility's 
        opportunity to request, within 15 days after the date the 
        notice is received, a hearing on the proposed order), and
            ``(ii) after opportunity for a hearing in accordance with 
        procedures to be specified by the Secretary in regulations.
    ``(2) Such an order shall provide that the penalty shall be paid 
(in accordance with subsection (d)(2)) to the enforcing agency and the 
agency shall promptly make payment to patients (or heirs of patients, 
in the case of deceased patients) in accordance with the penalties 
assessed for violation of their rights. Notwithstanding any other 
provision of law, civil penalties paid to any individual in accordance 
with this paragraph shall not constitute income or resources or 
otherwise be taken into account (A) for purposes of determining the 
eligibility of the individual, or the family or household of the 
individual, for assistance under a State plan approved under title XIX, 
or for aid, assistance, or benefits in any form under any Federal 
program, or any State or local program financed in whole or in part 
with Federal funds, which conditions such eligibility to any extent 
upon the income or resources of the individual, family, or household, 
or (B) for purposes of determining the amount or extent of such aid, 
assistance, or benefits.
    ``(3) An enforcing agency may suspend imposition of an order of 
assessment against a facility if the facility can provide assurances, 
satisfactory to the agency, that the facility has taken such actions as 
will prevent the reoccurrence of the violation (and similar violations) 
from which the order results. To the extent that the enforcing agency 
determines, based on a later complaint or investigation, that such 
actions have not been taken in accordance with such assurances, the 
agency shall reimpose such an order.
    ``(d)(1)(A) Not later than 60 days after the final action of an 
enforcing agency with respect to a complaint or suspension of an order 
of assessment under this section, any person adversely affected or 
aggrieved by the action is entitled to judicial review thereof in the 
appropriate United States district court or State court of competent 
jurisdiction. The provisions of sections 701(b)(2), and 702 through 706 
of title 5, United States Code, shall apply to such reviews.
    ``(B) Where a patient or facility brings an action for review of a 
determination by an enforcing agency which is not in the patient's or 
facility's favor, respectively, and the action is determined to 
constitute harassment of the facility or patient, respectively, the 
patient or facility shall be liable to the enforcing agency for all the 
agency's legal fees and costs (including reasonable attorney's fees) in 
connection with the action.
    ``(2)(A) If an enforcing agency has issued a final order of an 
assessment of a penalty against a facility and--
            ``(i) the order has not been suspended under subsection 
        (c)(3), the facility shall pay the amount of the penalty to the 
        enforcing agency within 60 days after the date the order 
        becomes final, or
            ``(ii) the order has been suspended but has been reimposed, 
        the facility shall pay the amount of the penalty to the 
        enforcing agency within 60 days after the date the order was 
        reimposed.
    ``(B)(i) The agency will hold any such amounts paid to it in escrow 
and, except as provided in clause (ii), shall make payment of it, in 
accordance with subsection (b)(2), at the end of the applicable 60-day 
period described in subparagraph (A).
    ``(ii) If judicial review of such an order of an enforcing agency 
has been sought, the agency shall make payment of any penalty collected 
at the conclusion of the review and in accordance with the order of the 
court.
    ``(3) If a facility fails to make timely payment of a civil penalty 
according to paragraph (2), the enforcing agency shall recover the 
amount assessed (plus interest at currently prevailing rates from the 
last date of such 60-day period) in an action brought in any 
appropriate district court of the United States or State court of 
competent jurisdiction and shall hold or transfer it in the manner 
provided in that paragraph.
    ``(e) The imposition of a civil penalty under this section shall 
not preclude, and shall be in addition to, any other monetary damages 
recoverable by, or other relief available to, patients or enforcing 
agencies as a result of violation of patients' rights.
    ``(f) For purposes of this section, the term `enforcing agency' 
means, with respect to an alleged violation occurring in a State in 
which the Secretary--
            ``(1) has entered into an agreement under section 
        1864(d)(1), the appropriate State or local agency or agencies 
        specified in that agreement, or
            ``(2) has not entered into such an agreement, such office 
        within the Department of Health, Education, and Welfare as the 
        Secretary shall designate by regulation.''.
    (c) Section 1864 of such Act is amended by adding at the end the 
following new subsection:
    ``(d)(1) The Secretary shall make an agreement with any State which 
is able and willing to do so and has an agreement under subsection (a) 
under which the agency (or agencies) under subsection (a) will serve as 
an appropriate agency for the purpose of enforcing patients' rights 
under section 1883. The Secretary shall pay for the services of such an 
agency in the manner prescribed in subsection (b).
    ``(2) Any agreement under this section with a State with regard to 
determining whether a facility meets the standards relating to 
patients' rights and described in section 1882 shall include a 
provision that each routine certification survey of such a facility 
shall include a private meeting between patients and survey personnel 
to discuss patients' experiences within the facility as regards such 
rights and compliance with such standards generally.''.
    (d) Section 1865(a) of such Act is amended by inserting after the 
second sentence the following new sentence: ``No institution shall be 
so deemed to meet standards relating to patients' rights and described 
in section 1882 unless the accreditation survey of the institution 
includes a private meeting between patients and survey personnel to 
discuss patients' experiences within the institution as regards such 
rights and compliance with such standards generally.''.
    Sec. 2. The Secretary of Health, Education, and Welfare shall first 
publish proposed regulations for carrying out the amendments made by 
this Act not later than six months after the date of the enactment of 
this Act and such regulations shall first become final and fully 
effective on the first day of the ninth month which begins after the 
date of the enactment of this Act.

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