II

105TH CONGRESS

1ST SESSION S. 1122

To establish a national registry of abusive and criminal patient care workers

and to require criminal background checks of patient care workers.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1997

Mr. KOHL (for himself, Mr. GRASSLEY, and Mr. REID) introduced the

following bill; which was read twice and referred to the Committee on Finance

A BILL

To establish a national registry of abusive and criminal patient care workers and to require criminal background

checks of patient care workers.

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 NATIONAL REGISTRY OF ABU7 SIVE WORKERS.

8 (a) IN GENERAL.—The Secretary shall establish,

9 under the health care fraud and abuse data collection pro10 gram established under section 1128E of the Social Secu-
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1 rity Act (42 U.S.C. 1320a–7e), a registry to be known

2 as the ‘‘National Registry of Abusive Workers’’ (hereafter

3 referred to in this section as the ‘‘Registry’’) to collect and

4 maintain data on covered health care workers (as defined

5 in subsection (e)) who have been the subject of reports

6 of patient abuse.

7 (b) SUBMISSION OF INFORMATION BY STATE REG8 ISTRIES.—Each State registry under sections 1819(e)(2)

9 and 1919(e)(2) of the Social Security Act (42 U.S.C.

10 1395i–3(e)(2) and 1396r(e)(2)) shall submit to the Reg11 istry any existing or newly acquired information contained

12 in the State registry concerning covered health care work13 ers who have been the subject of confirmed findings of

14 patient abuse.

15 (c) SUBMISSION OF INFORMATION BY STATE.—Each

16 State shall report to the Registry any existing or newly

17 acquired information concerning the identity of any cov18 ered health care worker who has been found to have com19 mitted an abusive act involving a patient, including the

20 identity of any such worker who has been convicted of a

21 Federal or State crime as described in section

22 1128(a)(2)(A) of the Social Security Act (42 U.S.C.

23 1320a–7(a)(2)(A)). The State shall provide such workers

24 with a right to issue a statement concerning the submis25 sion of information to the Registry under this subsection.
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1 Any information disclosed concerning a finding of an abu2 sive act shall also include disclosure of any statement sub3 mitted by a worker in the registry relating to the finding

4 or a clear and accurate summary of such a statement.

5 (d) SUBMISSION OF INFORMATION BY FACILITIES.—

6 Each covered health care facility shall report to the State

7 concerning a covered health care worker who has been

8 found to have engaged in an act of patient abuse. The

9 State shall, in accordance with the procedures described

10 in part 483 of title 42, Code of Federal Regulations (as

11 in effect on July 1, 1995), conduct an investigation with

12 respect to a report under this subsection to determine the

13 validity of such a report.

14 (e) BACKGROUND CHECK.—

15 (1) REQUIREMENTS.—

16 (A) IN GENERAL.—Each covered health

17 care facility (as defined in subsection (f)), prior

18 to employing a covered health care worker,

19 shall—

20 (i) in the case of a covered health care

21 worker who has not otherwise undergone a

22 criminal background check as part of the

23 licensing requirements of a State, as deter24 mined under regulations promulgated by

25 the Secretary, provide for the conduct by
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1 the State of a criminal background check

2 (through an existing State database (if

3 any) and through the Integrated Auto4 mated Fingerprint Identification System)

5 concerning such worker, and provide the

6 worker with prior written notice of the re7 quirement for such a background check;

8 (ii) obtain from a covered health care

9 worker prior to employment a written cer10 tification that such worker does not have a

11 criminal record, and that a finding of

12 abuse has not been made relating to such

13 worker, that would preclude such worker

14 from carrying out duties that require di15 rect patient care; and

16 (iii) in the case of all such workers,

17 contact the State health care worker reg18 istries established under sections

19 1819(e)(2) and 1919(e)(2) which shall also

20 contact the Registry for information con21 cerning the worker.

22 (B) IMPOSITION OF FEES.—A State may

23 assess a covered health care facility a fee for

24 the conduct of a criminal background check

25 under subparagraph (A)(i) in an amount that
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1 does not exceed the actual cost of the conduct

2 of the background check. Such a facility may

3 recover from the covered health care worker in4 volved a fee in an amount equal to not more

5 than 50 percent of the amount of the fee as6 sessed by the State for the criminal background

7 check.

8 (C) EFFECTIVE DATE.—The requirement

9 in subparagraph (A)(i) shall become applicable

10 on January 1, 1999, or on such earlier date as

11 the Director of the Federal Bureau of Inves12 tigation determines that the Integrated Auto13 mated Fingerprint Identification System has

14 become operational.

15 (2) PROBATIONARY EMPLOYMENT.—Each cov16 ered health care facility shall provide a probationary

17 period of employment for a covered health care

18 worker pending the completion of the background

19 checks required under paragraph (1)(A). Such facil20 ity shall maintain direct supervision of the covered

21 health care worker during the worker’s probationary

22 period of employment.

23 (3) PENALTY.—

24 (A) IN GENERAL.—A covered health care

25 facility that violates paragraph (1) or (2) shall
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1 be subject to a civil penalty in an amount not

2 to exceed—

3 (i) for the first such violation, $2,000;

4 and

5 (ii) for the second and each subse6 quent violation within any 5-year period,

7 $5,000.

8 (B) KNOWING RETENTION OF WORKER.—

9 In addition to any civil penalty under subpara10 graph (A), a covered health care facility that—

11 (i) knowingly continues to employ a

12 covered health care worker in violation of

13 paragraph (1) or (2) in a position involving

14 direct patient care; or

15 (ii) knowingly fails to report a covered

16 health care worker who has been deter17 mined to have committed patient abuse;

18 shall be subject to a civil penalty in an amount

19 not to exceed $5,000 for the first such viola20 tion, and $10,000 for the second and each sub21 sequent violation within any 5-year period.

22 (f) DEFINITIONS.—In this section:

23 (1) COVERED HEALTH CARE FACILITY.—The

24 term ‘‘covered health care facility’’ means—
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1 (A) with respect to application under the

2 medicare program under title XVIII of the So3 cial Security Act (42 U.S.C. 1395 et seq.), a

4 provider of services, as defined in section

5 1861(u) of such Act (other than a fund for pur6 poses of sections 1814(g) and 1835(e));

7 (B) with respect to application under the

8 medicaid program under title XIX of the Social

9 Security Act (42 U.S.C. 1396 et seq.), any

10 nursing facility, home health agency, commu11 nity-based residential facility, adult day care

12 center, adult family home, assisted living facil13 ity, hospice program, hospital, treatment facil14 ity, personal care worker agency, supportive

15 home care worker agency, board and care facil16 ity, or any other entity that receives assistance

17 or benefits under the medicaid program under

18 that title;

19 (C) a facility of the National Institutes of

20 Health;

21 (D) a facility of the Indian Health Service;

22 (E) a health center under section 330 of

23 the Public Health Service Act (42 U.S.C.

24 254b); and
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1 (F) a hospital or other patient care facility

2 owned or operated under the authority of the

3 Department of Veterans Affairs or the Depart4 ment of Defense.

5 (2) COVERED HEALTH CARE WORKER.—The

6 term ‘‘covered health care worker’’ means any indi7 vidual that has direct contact with a patient of a

8 covered health care facility under an employment or

9 other contract, or under a volunteer agreement, with

10 such facility. Such term includes individuals who are

11 licensed or certified by the State to provide such

12 services, and non-licensed individuals providing such

13 services as defined by the Secretary including nurse

14 assistants, nurses aides, home health aides, and per15 sonal care workers and attendants.

16 (3) PATIENT ABUSE.—The term ‘‘patient

17 abuse’’ means any incidence of abuse, neglect, mis18 treatment, or misappropriation of property of a pa19 tient of a covered health care facility. The terms

20 ‘‘abuse’’, ‘‘neglect’’, ‘‘mistreatment’’, and ‘‘misappro21 priation of property’’ shall have the meanings given

22 such terms in part 483 of title 42, Code of Federal

23 Regulations.

24 (4) SECRETARY.—The term ‘‘Secretary’’ means

25 the Secretary of Health and Human Services.
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1 (g) CONSULTATION.—In carrying out this section the

2 Secretary shall consult with the Director of the Federal

3 Bureau of Investigation.

4 (h) REGULATIONS.—Not later than 6 months after

5 the date of enactment of this Act, the Secretary shall pro6 mulgate regulations to carry out this section. With respect

7 to subsections (b) and (c), the regulations shall call for

8 the submission of information to the Registry not later

9 than 30 days after the date of a conviction or on which

10 a finding is made.

11 SEC. 3. EXCLUSION OF CERTAIN INDIVIDUALS FROM PAR12 TICIPATION IN PROGRAMS.

13 (a) MANDATORY LIFETIME EXCLUSION.—Section

14 1128(a) of the Social Security Act (42 U.S.C. 1320a–

15 7(a)) is amended by adding at the end the following:

16 ‘‘(5) CRIMINAL CONVICTION.—Any individual or

17 entity that has been—

18 ‘‘(A) convicted, under Federal or State

19 law, of a criminal offense involving a crime

20 against bodily security, including homicide, bat21 tery, endangerment of safety, sexual assault,

22 child or elder abuse, and spousal abuse; or

23 ‘‘(B) found to have—

24 ‘‘(i) knowingly continued to employ an

25 individual described in subparagraph (A)
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1 in a position involving direct patient care;

2 or

3 ‘‘(ii) knowingly failed to report an in4 dividual who has been determined to have

5 committed a crime described in subpara6 graph (A).’’.

7 (b) PERMISSIVE EXCLUSION.—

8 (1) IN GENERAL.—Section 1128(b) of the So9 cial Security Act (42 U.S.C. 1320a–7(b)) is amend10 ed—

11 (A) in subsection (b), by adding at the end

12 the following:

13 ‘‘(16) FINDING RELATING TO PATIENT

14 ABUSE.—Any individual or entity that—

15 ‘‘(A) is or has been the subject of a spe16 cific documented finding of patient abuse by a

17 State (as determined under procedures utilized

18 by a State under section 1819(e)(2) or

19 1919(e)(2)); or

20 ‘‘(B) has been found to have—

21 ‘‘(i) knowingly continued to employ an

22 individual described in subparagraph (A)

23 in a position involving direct patient care;

24 or
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1 ‘‘(ii) knowingly failed to report an in2 dividual who has been determined to have

3 committed patient abuse as described in

4 subparagraph (A).’’; and

5 (B) in subsection (c)(3), by adding at the

6 end the following:

7 ‘‘(G) In the case of an exclusion of an individ8 ual or entity under subsection (b)(16), the period of

9 exclusion shall be determined in accordance with

10 regulations promulgated by the Secretary based on

11 the severity of the conduct that is the subject of the

12 exclusion.’’.

13 (2) REGULATIONS.—Not later than 6 months

14 after the date of enactment of this Act, the Sec15 retary of Health and Human Services shall promul16 gate regulations to establish periods of exclusion for

17 purposes of section 1128(c)(3)(G) of the Social Se18 curity Act.

19 (c) EXCLUSIONS APPLY TO ANY ENTITY ELIGIBLE

20 FOR FEDERAL REIMBURSEMENT.—Section 1128 of the

21 Social Security Act (42 U.S.C. 1320a–7) is amended by

22 adding at the end the following:

23 ‘‘(j) APPLICABILITY OF CERTAIN EXCLUSIONS.—The

24 exclusion (or direction to exclude) an individual or entity

25 under subsections (a)(2) and (b)(16) shall provide that
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1 such individual or entity is excluded from working for or

2 on behalf of any entity that is eligible for reimbursement

3 under a Federal health care program, as defined in section

4 1128B(f).’’.

5 SEC. 4. PREVENTION AND TRAINING DEMONSTRATION

6 PROJECT.

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

8 Human Services shall establish a demonstration program

9 to provide grants to develop information on best practices

10 in patient abuse prevention training (including behavior

11 training and interventions) for managers and staff of hos12 pital and health care facilities.

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

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

15 nonprofit entity and prepare and submit to the Secretary

16 of Health and Human Services an application at such

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

18 the Secretary may require.

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

20 grant under this section shall be used to—

21 (1) examine ways to improve collaboration be22 tween State health care survey and provider certifi23 cation agencies, long-term care ombudsman pro24 grams, the long-term care industry, and local com25 munity members;
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1 (2) examine patient care issues relating to regu2 latory oversight, community involvement, and facility

3 staffing and management with a focus on staff

4 training, staff stress management and staff super5 vision;

6 (3) examine the use of patient abuse prevention

7 training programs by long-term care entities, includ8 ing the training program developed by the National

9 Association of Attorneys General, and the extent to

10 which such programs are used; and

11 (4) identify and disseminate best practices for

12 preventing and reducing patient abuse.

13 (d) AUTHORIZATION OF APPROPRIATIONS.—There is

14 authorized to be appropriated such sums as may be nec15 essary to carry out this section.

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