II

106TH CONGRESS

1ST SESSION S. 1445

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

JULY 27, 1999

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

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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:

4 ‘‘(8) SCREENING OF NURSING FACILITY WORK5 ERS.—

6 ‘‘(A) BACKGROUND CHECKS ON APPLI7 CANTS.—Subject to subparagraph (B)(ii), be8 fore hiring a nursing facility worker, a nursing

9 facility shall—

10 ‘‘(i) give the worker written notice

11 that the facility is required to perform

12 background checks with respect to appli13 cants;

14 ‘‘(ii) require, as a condition of employ15 ment, that such worker—

16 ‘‘(I) provide a written statement

17 disclosing any conviction for a rel18 evant crime or finding of patient or

19 resident abuse;

20 ‘‘(II) provide a statement signed

21 by the worker authorizing the facility

22 to request the search and exchange of

23 criminal records;

24 ‘‘(III) provide in person a copy of

25 the worker’s fingerprints; and
3

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1 ‘‘(IV) provide any other identi2 fication information the Secretary

3 may specify in regulation;

4 ‘‘(iii) initiate a check of the data col5 lection system established under section

6 1128E in accordance with regulations pro7 mulgated by the Secretary to determine

8 whether such system contains any disquali9 fying information with respect to such

10 worker; and

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

12 any such disqualifying information—

13 ‘‘(I) request that the State ini14 tiate a State and national criminal

15 background check on such worker in

16 accordance with the provisions of sub17 section (e)(8); and

18 ‘‘(II) furnish to the State the in19 formation described in subclauses (II)

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

21 than 7 days (excluding Saturdays,

22 Sundays, and legal public holidays

23 under section 6103(a) of title 5,

24 United States Code) after completion
4

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1 of the check against the system initi2 ated under clause (iii).

3 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

4 WORKERS.—

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

6 may not knowingly employ any nursing fa7 cility worker who has any conviction for a

8 relevant crime or with respect to whom a

9 finding of patient or resident abuse has

10 been made.

11 ‘‘(ii) PROVISIONAL EMPLOYMENT.—

12 After complying with the requirements of

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

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

15 provisional period of employment for a

16 nursing facility worker pending completion

17 of the check against the data collection

18 system described under subparagraph

19 (A)(iii) and the background check de20 scribed under subparagraph (A)(iv). Such

21 facility shall maintain direct supervision of

22 the worker during the worker’s provisional

23 period of employment.

24 ‘‘(C) REPORTING REQUIREMENTS.—A

25 nursing facility shall report to the State any in-
5

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1 stance in which the facility determines that a

2 nursing facility worker has committed an act of

3 resident neglect or abuse or misappropriation of

4 resident property in the course of employment

5 by the facility.

6 ‘‘(D) USE OF INFORMATION.—

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

8 that obtains information about a nursing

9 facility worker pursuant to clauses (iii) and

10 (iv) of subparagraph (A) may use such in11 formation only for the purpose of deter12 mining the suitability of the worker for

13 employment.

14 ‘‘(ii) IMMUNITY FROM LIABILITY.—A

15 nursing facility that, in denying employ16 ment for an applicant (including during

17 the period described in subparagraph

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

19 about such applicant provided by the State

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

21 1128E shall not be liable in any action

22 brought by such applicant based on the

23 employment determination resulting from

24 the information.
6

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1 ‘‘(iii) CRIMINAL PENALTY.—Whoever

2 knowingly violates the provisions of clause

3 (i) shall be fined in accordance with title

4 18, United States Code, imprisoned for not

5 more than 2 years, or both.

6 ‘‘(E) CIVIL PENALTY.—

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

8 that violates the provisions of this para9 graph shall be subject to a civil penalty in

10 an amount not to exceed—

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

12 $2,000; and

13 ‘‘(II) for the second and each

14 subsequent violation within any 5-year

15 period, $5,000.

16 ‘‘(ii) KNOWING RETENTION OF WORK17 ER.—In addition to any civil penalty under

18 clause (i), a nursing facility that—

19 ‘‘(I) knowingly continues to em20 ploy a nursing facility worker in viola21 tion of subparagraph (A) or (B); or

22 ‘‘(II) knowingly fails to report a

23 nursing facility worker under subpara24 graph (C); shall be subject to a civil

25 penalty in an amount not to exceed
7

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1 $5,000 for the first such violation,

2 and $10,000 for the second and each

3 subsequent violation within any 5-year

4 period.

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

6 ‘‘(i) CONVICTION FOR A RELEVANT

7 CRIME.—The term ‘conviction for a rel8 evant crime’ means any Federal or State

9 criminal conviction for—

10 ‘‘(I) any offense described in

11 paragraphs (1) through (4) of section

12 1128(a); and

13 ‘‘(II) such other types of offenses

14 as the Secretary may specify in regu15 lations, taking into account the sever16 ity and relevance of such offenses, and

17 after consultation with representatives

18 of long-term care providers, represent19 atives of long-term care employees,

20 consumer advocates, and appropriate

21 Federal and State officials.

22 ‘‘(ii) DISQUALIFYING INFORMATION.—

23 The term ‘disqualifying information’ means

24 information about a conviction for a rel-
8

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1 evant crime or a finding of patient or resi2 dent abuse.

3 ‘‘(iii) FINDING OF PATIENT OR RESI4 DENT ABUSE.—The term ‘finding of pa5 tient or resident abuse’ means any sub6 stantiated finding by a State agency under

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

8 that a nursing facility worker has

9 committed—

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

11 abuse or neglect or a misappropriation

12 of patient or resident property; or

13 ‘‘(II) such other types of acts as

14 the Secretary may specify in regula15 tions.

16 ‘‘(iv) NURSING FACILITY WORKER.—

17 The term ‘nursing facility worker’ means

18 any individual (other than any volunteer)

19 that has direct access to a patient of a

20 nursing facility under an employment or

21 other contract, or both, with such facility.

22 Such term includes individuals who are li23 censed or certified by the State to provide

24 such services, and nonlicensed individuals

25 providing such services, as defined by the
9

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1 Secretary, including nurse assistants,

2 nurse aides, home health aides, and per3 sonal care workers and attendants.’’.

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

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

6 amended by adding at the end the following:

7 ‘‘(8) SCREENING OF SKILLED NURSING FACIL8 ITY WORKERS.—

9 ‘‘(A) BACKGROUND CHECKS ON APPLI10 CANTS.—Subject to subparagraph (B)(ii), be11 fore hiring a skilled nursing facility worker, a

12 skilled nursing facility shall—

13 ‘‘(i) give the worker written notice

14 that the facility is required to perform

15 background checks with respect to appli16 cants;

17 ‘‘(ii) require, as a condition of employ18 ment, that such worker—

19 ‘‘(I) provide a written statement

20 disclosing any conviction for a rel21 evant crime or finding of patient or

22 resident abuse;

23 ‘‘(II) provide a statement signed

24 by the worker authorizing the facility
10

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1 to request the search and exchange of

2 criminal records;

3 ‘‘(III) provide in person a copy of

4 the worker’s fingerprints; 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)(6); 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,
11

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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 skilled nursing

9 facility may not knowingly employ any

10 skilled nursing facility worker who has any

11 conviction for a relevant crime or with re12 spect to whom a finding of patient or resi13 dent abuse has been made.

14 ‘‘(ii) PROVISIONAL EMPLOYMENT.—

15 After complying with the requirements of

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

17 (A), a skilled nursing facility may provide

18 for a provisional period of employment for

19 a skilled nursing facility worker pending

20 completion of the check against the data

21 collection system described under subpara22 graph (A)(iii) and the background check

23 described under subparagraph (A)(iv).

24 Such facility shall maintain direct super-
12

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1 vision of the covered individual during the

2 worker’s provisional period of employment.

3 ‘‘(C) REPORTING REQUIREMENTS.—A

4 skilled nursing facility shall report to the State

5 any instance in which the facility determines

6 that a skilled nursing facility worker has com7 mitted an act of resident neglect or abuse or

8 misappropriation of resident property in the

9 course of employment by the facility.

10 ‘‘(D) USE OF INFORMATION.—

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

12 facility that obtains information about a

13 skilled nursing facility worker pursuant to

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

15 may use such information only for the pur16 pose of determining the suitability of the

17 worker for employment.

18 ‘‘(ii) IMMUNITY FROM LIABILITY.—A

19 skilled nursing facility that, in denying em20 ployment for an applicant (including dur21 ing 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)(6) or section

25 1128E shall not be liable in any action
13

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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 skilled nursing

11 facility that violates the provisions of this

12 paragraph shall be subject to a civil pen13 alty in 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 skilled nursing facility that—

22 ‘‘(I) knowingly continues to em23 ploy a skilled nursing facility worker

24 in violation of subparagraph (A) or

25 (B); or
14

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1 ‘‘(II) knowingly fails to report a

2 skilled nursing facility worker under

3 subparagraph (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.
15

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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 skilled 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) SKILLED NURSING FACILITY

20 WORKER.—The term ‘skilled nursing facil21 ity worker’ means any individual (other

22 than any volunteer) that has direct access

23 to a patient of a skilled nursing facility

24 under an employment or other contract, or

25 both, with such facility. Such term includes
16

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1 individuals who are licensed or certified by

2 the State to provide such services, and

3 nonlicensed individuals providing such

4 services, as defined by the Secretary, in5 cluding nurse assistants, nurse aides, home

6 health aides, and personal care workers

7 and attendants.’’.

8 (b) STATE REQUIREMENTS.—

9 (1) MEDICAID PROGRAM.—

10 (A) EXPANSION OF STATE REGISTRY TO

11 COLLECT INFORMATION ABOUT NURSING FACIL12 ITY EMPLOYEES OTHER THAN NURSE AIDES.—

13 Section 1919 of the Social Security Act (42

14 U.S.C. 1396r) is amended—

15 (i) in subsection (e)(2)—

16 (I) in the paragraph heading, by

17 striking ‘‘NURSE AIDE REGISTRY’’ and

18 inserting ‘‘NURSING FACILITY EM19 PLOYEE REGISTRY’’;

20 (II) in subparagraph (A)—

21 (aa) by striking ‘‘By not

22 later than January 1, 1989, the’’

23 and inserting ‘‘The’’;

24 (bb) by striking ‘‘a registry

25 of all individuals’’ and inserting
17

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

2 and

3 (cc) by inserting before the

4 period ‘‘, and (II) all other nurs5 ing facility employees with re6 spect to whom the State has

7 made a finding described in sub8 paragraph (B)’’;

9 (III) in subparagraph (B), by

10 striking ‘‘involving an individual listed

11 in the registry’’ and inserting ‘‘involv12 ing a nursing facility employee’’; and

13 (IV) in subparagraph (C), by

14 striking ‘‘nurse aide’’ and inserting

15 ‘‘nursing facility employee or appli16 cant for employment’’; and

17 (ii) in subsection (g)(1)—

18 (I) in subparagraph (C)—

19 (aa) in the first sentence, by

20 striking ‘‘nurse aide’’ and insert21 ing ‘‘nursing facility employee’’;

22 and

23 (bb) in the third sentence,

24 by striking ‘‘nurse aide’’ each
18

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1 place it appears and inserting

2 ‘‘nursing facility employee’’; and

3 (II) in subparagraph (D), by

4 striking ‘‘nurse aide’’ each place it ap5 pears and inserting ‘‘nursing facility

6 employee’’.

7 (B) FEDERAL AND STATE REQUIREMENT

8 TO CONDUCT BACKGROUND CHECKS.—Section

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

10 1396r(e)) is amended by adding at the end the

11 following:

12 ‘‘(8) FEDERAL AND STATE REQUIREMENTS

13 CONCERNING CRIMINAL BACKGROUND CHECKS ON

14 NURSING FACILITY EMPLOYEES.—

15 ‘‘(A) IN GENERAL.—Upon receipt of a re16 quest by a nursing facility pursuant to sub17 section (b)(8) that is accompanied by the infor18 mation 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
19

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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 or other positive

10 identification information submitted. The Attor11 ney General shall provide any corresponding in12 formation resulting from the search to the

13 State.

14 ‘‘(C) STATE REPORTING OF INFORMATION

15 TO NURSING FACILITY.—Upon receipt of the in16 formation provided by the Attorney General

17 pursuant to subparagraph (B), the State

18 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 nursing facility the

24 results of such review; and
20

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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 nursing facility a fee for ini25 tiating the criminal background check
21

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1 under this paragraph and subsection

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

3 Attorney General, and for performing

4 the review and report required by sub5 paragraph (C). The amount of such

6 fee shall not exceed the actual cost of

7 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)(8), including regula23 tions regarding the security, confiden24 tiality, accuracy, use, destruction, and dis-
22

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1 semination of information, audits and rec2 ordkeeping, 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;
23

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

2 and

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

4 requests.’’.

5 (2) MEDICARE PROGRAM.—

6 (A) EXPANSION OF STATE REGISTRY TO

7 COLLECT INFORMATION ABOUT SKILLED NURS8 ING FACILITY EMPLOYEES OTHER THAN NURSE

9 AIDES.—Section 1819 of the Social Security

10 Act (42 U.S.C. 1395i–3) is amended—

11 (i) in subsection (e)(2)—

12 (I) in the paragraph heading, by

13 striking ‘‘NURSE AIDE REGISTRY’’ and

14 inserting ‘‘SKILLED NURSING CARE

15 EMPLOYEE REGISTRY’’;

16 (II) in subparagraph (A)—

17 (aa) by striking ‘‘By not

18 later than January 1, 1989, the’’

19 and inserting ‘‘The’’;

20 (bb) by striking ‘‘a registry

21 of all individuals’’ and inserting

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

23 and

24 (cc) by inserting before the

25 period ‘‘, and (II) all other
24

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1 skilled nursing facility employees

2 with respect to whom the State

3 has made a finding described in

4 subparagraph (B)’’;

5 (III) in subparagraph (B), by

6 striking ‘‘involving an individual listed

7 in the registry’’ and inserting ‘‘involv8 ing a skilled nursing facility em9 ployee’’; and

10 (IV) in subparagraph (C), by

11 striking ‘‘nurse aide’’ and inserting

12 ‘‘skilled nursing facility employee or

13 applicant for employment’’; and

14 (ii) in subsection (g)(1)—

15 (I) in subparagraph (C)—

16 (aa) in the first sentence, by

17 striking ‘‘nurse aide’’ and insert18 ing ‘‘skilled nursing facility em19 ployee’’; and

20 (bb) in the third sentence,

21 by striking ‘‘nurse aide’’ each

22 place it appears and inserting

23 ‘‘skilled nursing facility em24 ployee’’; and
25

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1 (II) in subparagraph (D), by

2 striking ‘‘nurse aide’’ each place it ap3 pears and inserting ‘‘skilled nursing

4 facility employee’’.

5 (B) FEDERAL AND STATE REQUIREMENT

6 TO CONDUCT BACKGROUND CHECKS.—Section

7 1819(e) of the Social Security Act (42 U.S.C.

8 1395i–3(e)) is amended by adding at the end

9 the following:

10 ‘‘(6) FEDERAL AND STATE REQUIREMENTS

11 CONCERNING CRIMINAL BACKGROUND CHECKS ON

12 SKILLED NURSING FACILITY EMPLOYEES.—

13 ‘‘(A) IN GENERAL.—Upon receipt of a re14 quest by a skilled nursing facility pursuant to

15 subsection (b)(8) that is accompanied by the in16 formation 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).
26

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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 or other positive

8 identification information submitted. The Attor9 ney General shall provide any corresponding in10 formation resulting from the search to the

11 State.

12 ‘‘(C) STATE REPORTING OF INFORMATION

13 TO SKILLED NURSING FACILITY.—Upon receipt

14 of the information provided by the Attorney

15 General pursuant to subparagraph (B), the

16 State 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 skilled nursing fa22 cility the 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-
27

•S 1445 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 skilled nursing facility a fee

22 for initiating the criminal background

23 check under this paragraph and sub24 section (b)(8), including fees charged

25 by the Attorney General, and for per-
28

•S 1445 IS

1 forming the review and report re2 quired by subparagraph (C). The

3 amount of such fee shall not exceed

4 the actual cost of 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)(9), including regula20 tions regarding the security confidentiality,

21 accuracy, use, destruction, and dissemina22 tion of information, audits and record23 keeping, and the imposition of fees.

24 ‘‘(ii) APPEAL PROCEDURES.—The At25 torney General, in consultation with the
29

•S 1445 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.’’.
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1 (c) APPLICATION TO OTHER ENTITIES PROVIDING

2 LONG-TERM CARE SERVICES.—

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

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

5 (A) in paragraph (65), by striking the pe6 riod and inserting ‘‘; and’’; and

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

8 following:

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

10 be paid under the State plan for providing long-term

11 care services for which medical assistance is avail12 able under the State plan to individuals requiring

13 long-term care complies with the requirements of

14 subsections (b)(8) and (e)(8) of section 1919.’’.

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

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

17 amended by adding at the end the following:

18 ‘‘APPLICATION OF SKILLED NURSING FACILITY PREVEN19 TIVE ABUSE PROVISIONS TO ANY PROVIDER OF

20 SERVICES OR OTHER ENTITY PROVIDING LONG-TERM

21 CARE SERVICES

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

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

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

25 this title for providing long-term care services to an indi26 vidual entitled to benefits under part A or enrolled under
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1 part B (including an individual provided with a

2 Medicare+Choice plan offered by a Medicare+Choice or3 ganization under part C).’’.

4 (d) REIMBURSEMENT OF REASONABLE COSTS FOR

5 BACKGROUND CHECKS.—The Secretary of Health and

6 Human Services shall factor into any payment system

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

8 reasonable costs of the requirements of sections

9 1819(b)(8) and 1919(b)(8) of such Act, as added by this

10 section, incurred by any entity subject to such require11 ments.

12 SEC. 3. INCLUSION OF ABUSIVE NURSING FACILITY WORK13 ERS IN THE DATABASE ESTABLISHED AS

14 PART OF NATIONAL HEALTH CARE FRAUD

15 AND ABUSE DATA COLLECTION PROGRAM.

16 (a) INCLUSION OF ABUSIVE ACTS WITHIN A LONG17 TERM CARE FACILITY.—Section 1128E(g)(1)(A) of the

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

19 amended—

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

21 and

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

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

24 a patient or a resident of a long-term care
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•S 1445 IS

1 facility, or misappropriation of such a pa2 tient’s or resident’s property.’’.

3 (b) COVERAGE OF LONG-TERM CARE FACILITY EM4 PLOYEES.—Section 1128E(g)(2) of the Social Security

5 Act (42 U.S.C. 1320a–7e(g)(2)) is amended by inserting

6 ‘‘, and includes any individual of a long-term care facility

7 (other than any volunteer) that has direct access to a pa8 tient or resident of such a facility under an employment

9 or other contract, or both, with the facility (including indi10 viduals who are licensed or certified by the State to pro11 vide services at the facility, and nonlicensed individuals,

12 as defined by the Secretary, providing services at the facil13 ity, including nurse assistants, nurse aides, home health

14 aides, and personal care workers and attendants)’’ before

15 the period.

16 (c) REPORTING BY LONG-TERM CARE FACILITIES.—

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

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

19 amended by striking ‘‘and health plan’’ and insert20 ing ‘‘, health plan, and long-term care facility’’.

21 (2) CORRECTION OF INFORMATION.—Section

22 1128E(c)(2) of the Social Security Act (42 U.S.C.

23 1320a–7e(c)(2)) is amended by striking ‘‘and health

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

25 care facility’’.
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•S 1445 IS

1 (d) ACCESS TO REPORTED INFORMATION.—Section

2 1128E(d)(1) of the Social Security Act (42 U.S.C. 1320a–

3 7e(d)(1)) is amended by striking ‘‘and health plans’’ and

4 inserting ‘‘, health plans, and long-term care facilities’’.

5 (e) MANDATORY CHECK OF DATABASE BY LONG6 TERM CARE FACILITIES.—Section 1128E(d) of the Social

7 Security Act (42 U.S.C. 1320a–7e(d)) is amended by add8 ing at the end the following:

9 ‘‘(3) MANDATORY CHECK OF DATABASE BY

10 LONG-TERM CARE FACILITIES.—A long-term care fa11 cility shall check the database maintained under this

12 section prior to hiring under an employment or other

13 contract, or both, any individual as an employee of

14 such a facility who will have direct access to a pa15 tient or resident of the facility (including individuals

16 who are licensed or certified by the State to provide

17 services at the facility, and nonlicensed individuals,

18 as defined by the Secretary, that will provide serv19 ices at the facility, including nurse assistants, nurse

20 aides, home health aides, and personal care workers

21 and attendants).’’.

22 (f) DEFINITION OF LONG-TERM CARE FACILITY.—

23 Section 1128E(g) of the Social Security Act (42 U.S.C.

24 1320a–7e(g)) is amended by adding at the end the fol25 lowing:
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•S 1445 IS

1 ‘‘(6) LONG-TERM CARE FACILITY.—The term

2 ‘long-term care facility’ means a skilled nursing fa3 cility (as defined in section 1819(a)), a nursing facil4 ity (as defined in section 1919(a)), a home health

5 agency, a hospice facility, an intermediate care facil6 ity for the mentally retarded (as defined in section

7 1905(d)), or any other facility that provides long8 term care services and receives payment for such

9 services under the medicare program under title

10 XVIII or the medicaid program under title XIX.’’.

11 (g) AUTHORIZATION OF APPROPRIATIONS.—There is

12 authorized to be appropriated to carry out the amend13 ments made by this section, $10,200,000 for fiscal year

14 2000.

15 SEC. 4. PREVENTION AND TRAINING DEMONSTRATION

16 PROJECT.

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

18 Human Services shall establish a demonstration program

19 to provide grants to develop information on best practices

20 in patient abuse prevention training (including behavior

21 training and interventions) for managers and staff of hos22 pital and health care facilities.

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

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

25 nonprofit entity and prepare and submit to the Secretary
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1 of Health and Human Services an application at such

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

3 the Secretary may require.

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

5 grant under this section shall be used to—

6 (1) examine ways to improve collaboration be7 tween State health care survey and provider certifi8 cation agencies, long-term care ombudsman pro9 grams, the long-term care industry, and local com10 munity members;

11 (2) examine patient care issues relating to regu12 latory oversight, community involvement, and facility

13 staffing and management with a focus on staff

14 training, staff stress management, and staff super15 vision;

16 (3) examine the use of patient abuse prevention

17 training programs by long-term care entities, includ18 ing the training program developed by the National

19 Association of Attorneys General, and the extent to

20 which such programs are used; and

21 (4) identify and disseminate best practices for

22 preventing and reducing patient abuse.

23 (d) AUTHORIZATION OF APPROPRIATIONS.—There is

24 authorized to be appropriated such sums as may be nec25 essary to carry out this section.
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1 SEC. 5. EFFECTIVE DATE.

2 The provisions of and amendments made by the Act

3 shall apply, without regard to whether implementing regu4 lations are in effect, to any individual applying for employ5 ment or hired for such employment—

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

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

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

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

10 after the date of enactment of this Act,

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

12 date which is 12 months after such date of enact13 ment, and

14 (3) by any hospice facility, any intermediate

15 care facility for the mentally retarded (as defined in

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

17 other facility that provides long-term care services

18 and receives payment for such services under the

19 medicare program under title XVIII of such Act or

20 the medicaid program under title XIX of such Act,

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

22 date of enactment.

Æ