II 

Calendar No. 1035 

110TH CONGRESS 

2D SESSION S. 1577 

[Report No. 110–474] 

To amend titles XVIII and XIX of the Social Security Act to require screening, including national criminal history background checks, of direct 

patient access employees of skilled nursing facilities, nursing facilities, 

and other long-term care facilities and providers, and to provide for 

nationwide expansion of the pilot program for national and State background checks on direct patient access employees of long-term care 

facilities or providers. 

IN THE SENATE OF THE UNITED STATES 

JUNE 7, 2007 

Mr. KOHL (for himself, Mr. DOMENICI, Mrs. MCCASKILL, Ms. STABENOW, 

Mrs. LINCOLN, Mr. LEVIN, Mrs. CLINTON, Mr. BINGAMAN, Mr. 

WHITEHOUSE, Ms. COLLINS, Mr. CASEY, Mr. COLEMAN, Mr. COCHRAN, 

Mr. BAYH, Ms. KLOBUCHAR, Mr. OBAMA, and Mr. WYDEN) introduced 

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

on Finance 

SEPTEMBER 22 (legislative day, SEPTEMBER 17), 2008 

Reported by Mr. BAUCUS, with an amendment and an amendment to the title 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To amend titles XVIII and XIX of the Social Security Act 

to require screening, including national criminal history 

background checks, of direct patient access employees 

of skilled nursing facilities, nursing facilities, and other 


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long-term care facilities and providers, and to provide 

for nationwide expansion of the pilot program for national and State background checks on direct patient 

access employees of long-term care facilities or providers. 

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 Safety and 

5 Abuse Prevention Act of 2007’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress makes the following find8 ings: 

9 (1) Frail elders are a highly vulnerable popu10 lation who often lack the ability to give consent or 

11 defend themselves. Since the best predictor of future 

12 behavior is past behavior, individuals with histories 

13 of abuse pose a definite risk to patients and resi14 dents of long-term care facilities. 

15 (2) Every month, there are stories in the media 

16 of health care employees who commit criminal mis17 conduct on the job and are later found, through a 

18 background check conducted after the fact, to have 

19 a history of convictions for similar crimes. 

20 (3) A 2006 study conducted by the Department 

21 of Health and Human Services determined that— 


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1 (A) criminal background checks are a valu2 able tool for employers during the hiring proc3 ess; 

4 (B) the use of criminal background checks 

5 during the hiring process does not limit the pool 

6 of potential job applicants; 

7 (C) ‘‘a correlation exists between criminal 

8 history and incidences of abuse’’; and 

9 (D) the long-term care industry supports 

10 the practice of conducting background checks 

11 on potential employees in order to reduce the 

12 likelihood of hiring someone who has potential 

13 to harm residents. 

14 (4) In 2005, the Michigan Attorney General 

15 found that 10 percent of employees who were then 

16 providing services to frail elders had criminal back17 grounds. 

18 (5) In 2004, the staffs of State Adult Protec19 tive Services agencies received more than 500,000 

20 reports of elder and vulnerable adult abuse, and an 

21 ombudsman report concluded that more than 15,000 

22 nursing home complaints involved abuse, including 

23 nearly 4,000 complaints of physical abuse, more 

24 than 800 complaints of sexual abuse, and nearly 

25 1,000 complaints of financial exploitation; 


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1 (6) The Department of Health and Human 

2 Services has determined that while 41 States now 

3 require criminal background checks on certified 

4 nurse aides prior to employment, only half of those 

5 (22) require criminal background checks at the Fed6 eral level. 

7 (b) PURPOSES.—The purposes of this Act are to— 

8 (1) create a coordinated, nationwide system of 

9 State criminal background checks that would greatly 

10 enhance the chances of identifying individuals with 

11 problematic backgrounds who move across State 

12 lines; 

13 (2) stop individuals who have a record of sub14 stantiated abuse, or a serious criminal record, from 

15 preying on helpless elders and individuals with dis16 abilities; and 

17 (3) provide assurance to long-term care employ18 ers and the residents they care for that potentially 

19 abusive workers will not be hired into positions of 

20 providing services to the extremely vulnerable resi21 dents of our Nation’s long-term care facilities. 


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1 SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR 

2 NATIONAL AND STATE BACKGROUND 

3 CHECKS ON DIRECT PATIENT ACCESS EM4 PLOYEES OF LONG-TERM CARE FACILITIES 

5 OR PROVIDERS. 

6 Section 307 of the Medicare Prescription Drug, Im7 provement, and Modernization Act of 2003 (42 U.S.C. 

8 1395aa note) is amended by adding at the end the fol9 lowing new subsection: 

10 ‘‘(h) NATIONWIDE EXPANSION PROGRAM.— 

11 ‘‘(1) IN GENERAL.—Beginning on the date of 

12 enactment of the Patient Safety and Abuse Preven13 tion Act of 2007, the Secretary shall expand the 

14 pilot program under this section to be conducted on 

15 a nationwide basis (in this subsection, such ex16 panded pilot program shall be referred to as the ‘na17 tionwide expansion program’). Except for the fol18 lowing modifications, the provisions of this section 

19 shall apply to the nationwide expansion program: 

20 ‘‘(A) AGREEMENTS.— 

21 ‘‘(i) NEWLY PARTICIPATING

22 STATES.—The Secretary shall enter into 

23 agreements with each State— 

24 ‘‘(I) that the Secretary has not 

25 entered into an agreement with under 

26 subsection (c)(1); 


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1 ‘‘(II) that agrees to conduct 

2 background checks under the nation3 wide expansion program on a State4 wide basis; and 

5 ‘‘(III) that submits an applica6 tion to the Secretary containing such 

7 information and at such time as the 

8 Secretary may specify. 

9 ‘‘(ii) CERTAIN PREVIOUSLY PARTICI10 PATING STATES.—The Secretary shall 

11 enter into agreements with each State— 

12 ‘‘(I) that the Secretary has en13 tered into an agreement with under 

14 subsection (c)(1) in the case where 

15 such agreement did not require the 

16 State to conduct background checks 

17 under the pilot program established 

18 under subsection (a) on a Statewide 

19 basis; 

20 ‘‘(II) that agrees to conduct 

21 background checks under the nation22 wide expansion program on a State23 wide basis; and 

24 ‘‘(III) that submits an applica25 tion to the Secretary containing such 


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1 information and at such time as the 

2 Secretary may specify. 

3 ‘‘(B) NONAPPLICATION OF SELECTION CRI4 TERIA.—The selection criteria required under 

5 subsection (c)(3)(B) shall not apply. 

6 ‘‘(C) REQUIRED FINGERPRINT CHECK AS

7 PART OF CRIMINAL HISTORY BACKGROUND

8 CHECK.—The procedures established under sub9 section (b)(1) shall require that the facility or 

10 provider obtain State and national criminal his11 tory background checks on the prospective em12 ployee utilizing a search of State and Federal 

13 criminal history records and including a finger14 print check using the Integrated Automated 

15 Fingerprint Identification System of the Fed16 eral Bureau of Investigation. 

17 ‘‘(D) PAYMENTS.— 

18 ‘‘(i) NEWLY PARTICIPATING

19 STATES.— 

20 ‘‘(I) IN GENERAL.—As part of 

21 the application submitted by a State 

22 under subparagraph (A)(i)(III), the 

23 State shall guarantee, with respect to 

24 the costs to be incurred by the State 

25 in carrying out the nationwide expanVerDate Aug 31 2005 00:15 Sep 23, 2008 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1577.RS S1577

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1 sion program, that the State will 

2 make available (directly or through 

3 donations from public or private enti4 ties) a particular amount of non-Fed5 eral contributions. 

6 ‘‘(II) FEDERAL MATCH.—The 

7 payment amount to each State that 

8 the Secretary enters into an agree9 ment with under subparagraph (A)(i) 

10 shall be 3 times the amount that the 

11 State guarantees to make available 

12 under subclause (I), except that in no 

13 case may the payment amount exceed 

14 $3,000,000. 

15 ‘‘(ii) PREVIOUSLY PARTICIPATING

16 STATES.— 

17 ‘‘(I) IN GENERAL.—As part of 

18 the application submitted by a State 

19 under subparagraph (A)(ii)(III), the 

20 State shall guarantee, with respect to 

21 the costs to be incurred by the State 

22 in carrying out the nationwide expan23 sion program, that the State will 

24 make available (directly or through 

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1 ties) a particular amount of non-Fed2 eral contributions. 

3 ‘‘(II) FEDERAL MATCH.—The 

4 payment amount to each State that 

5 the Secretary enters into an agree6 ment with under subparagraph (A)(ii) 

7 shall be 3 times the amount that the 

8 State guarantees to make available 

9 under subclause (I), except that in no 

10 case may the payment amount exceed 

11 $1,500,000. 

12 ‘‘(iii) NO RESERVATION FOR EVALUA13 TION.—There shall be no reservation of 

14 any portion of the payment amount pro15 vided under clauses (i) or (ii) for con16 ducting an evaluation. 

17 ‘‘(E) EVALUATIONS AND REPORT.— 

18 ‘‘(i) EVALUATIONS.—The Inspector 

19 General of the Department of Health and 

20 Human Services shall conduct an annual 

21 evaluation of the nationwide expansion 

22 program in each of calendar years 2008 

23 and 2009. 

24 ‘‘(ii) REPORTS.—Not later than 6 

25 months after completion of the second year 


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1 of the nationwide expansion program, the 

2 Inspector General of the Department of 

3 Health and Human Services shall submit a 

4 report to Congress containing the results 

5 of the annual evaluations conducted under 

6 clause (i), together with recommendations 

7 for the implementation of the requirements 

8 of sections 1819(b)(9) and 1919(b)(9) of 

9 the Social Security Act, as added by sec10 tion (3)(a) of the Patient Safety and 

11 Abuse Prevention Act of 2007. 

12 ‘‘(2) FUNDING.— 

13 ‘‘(A) NOTIFICATION.—The Secretary shall 

14 notify the Secretary of the Treasury of the 

15 amount necessary to carry out the nationwide 

16 expansion program under this subsection for 

17 the period of fiscal years 2008 through 2010, 

18 except that in no case shall such amount exceed 

19 $156,000,000. 

20 ‘‘(B) TRANSFER OF FUNDS.—Out of any 

21 funds in the Treasury not otherwise appro22 priated, the Secretary of the Treasury shall 

23 provide for the transfer to the Secretary of the 

24 amount specified as necessary to carry out the 


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1 nationwide expansion program under subpara2 graph (A).’’. 

3 SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT AC4 CESS EMPLOYEES OF LONG-TERM CARE FA5 CILITIES AND PROVIDERS. 

6 (a) SCREENING OF SKILLED NURSING FACILITY AND

7 NURSING FACILITY EMPLOYEE APPLICANTS.— 

8 (1) MEDICARE PROGRAM.— 

9 (A) IN GENERAL.—Section 1819(b) of the 

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

11 amended by adding at the end the following 

12 new paragraph: 

13 ‘‘(9) SCREENING OF DIRECT PATIENT ACCESS

14 EMPLOYEES.— 

15 ‘‘(A) SCREENING AND CRIMINAL HISTORY

16 BACKGROUND CHECKS ON APPLICANTS.— 

17 ‘‘(i) SCREENING.—Beginning on Jan18 uary 1, 2011, before hiring a direct patient 

19 access employee, a skilled nursing facility 

20 shall screen the employee for any disquali21 fying information in accordance with such 

22 procedures as the State shall establish 

23 through a search of— 

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1 ing the abuse and neglect registries 

2 and databases of another State in the 

3 case where a prospective employee 

4 previously resided in that State; and 

5 ‘‘(II) criminal records and the 

6 records of any proceedings that may 

7 contain disqualifying information 

8 about applicants, such as proceedings 

9 conducted by State professional licens10 ing and disciplinary boards and State 

11 medicaid fraud control units. 

12 ‘‘(ii) CRIMINAL HISTORY BACK13 GROUND CHECKS.—As part of such screen14 ing, the skilled nursing facility shall re15 quest that the State agency designated 

16 under subsection (e)(6)(E) oversee the co17 ordination of a State and national criminal 

18 history background check that utilizes a 

19 search of State and Federal criminal his20 tory records and includes a fingerprint 

21 check using the Integrated Automated Fin22 gerprint Identification System of the Fed23 eral Bureau of Investigation. 

24 ‘‘(iii) USE OF PROCEDURES PRE25 VIOUSLY ESTABLISHED.—Nothing in this 


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1 paragraph shall be construed as preventing 

2 a State from using procedures established 

3 for purposes of the pilot program for Na4 tional and State background checks on di5 rect patient access employees of long-term 

6 care facilities or providers under section 

7 307 of the Medicare Prescription Drug, 

8 Improvement, and Modernization Act of 

9 2003, or the nationwide expansion pro10 gram under subsection (h) of such section, 

11 to satisfy the requirements of paragraph 

12 (6). 

13 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

14 WORKERS.— 

15 ‘‘(i) IN GENERAL.—Subject to clause 

16 (ii), a skilled nursing facility may not 

17 knowingly employ any direct patient access 

18 employee who has any disqualifying infor19 mation (as defined in subparagraph 

20 (F)(ii)). 

21 ‘‘(ii) PROVISIONAL EMPLOYMENT.— 

22 Subject to clause (iii), the State may per23 mit a skilled nursing facility to provide for 

24 a provisional period of employment (not to 


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1 exceed 30 days) for a direct patient access 

2 employee— 

3 ‘‘(I) pending completion of the 

4 screening and background check re5 quired under subparagraph (A); and 

6 ‘‘(II) in the case where the em7 ployee has appealed the results of 

8 such screening and background check, 

9 pending completion of the appeals 

10 process. 

11 ‘‘(iii) SUPERVISION.—The facility 

12 shall maintain direct on-site supervision of 

13 the employee during such provisional pe14 riod of employment. 

15 ‘‘(C) PROCEDURES.— 

16 ‘‘(i) IN GENERAL.—The procedures 

17 established by the State under subpara18 graph (A) shall be designed to accomplish 

19 the following: 

20 ‘‘(I) Give a prospective direct pa21 tient access employee notice that the 

22 skilled nursing facility is required to 

23 perform background checks with re24 spect to new employees, including a 

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1 tional criminal history background 

2 check conducted under subparagraph 

3 (A)(ii) in the case of any new em4 ployee who does not have a certificate 

5 indicating that a fingerprint check has 

6 been completed and has not found any 

7 disqualifying information (as de8 scribed in subclause (V)). 

9 ‘‘(II) Require, as a condition of 

10 employment, that the employee— 

11 ‘‘(aa) provide a written 

12 statement disclosing any disquali13 fying information; 

14 ‘‘(bb) provide a statement 

15 signed by the employee author16 izing the facility to request a 

17 background check that includes a 

18 search of the registries and data19 bases described in clause (i)(I) of 

20 subparagraph (A) and the 

21 records described in clause (i)(II) 

22 of such subparagraph and a 

23 criminal history background 

24 check conducted in accordance 

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1 graph that includes a fingerprint 

2 check using the Integrated Auto3 mated Fingerprint System of the 

4 Federal Bureau of Investigation; 

5 ‘‘(cc) provide the facility 

6 with a rolled set of the employ7 ee’s fingerprints or submit to 

8 being fingerprinted; and 

9 ‘‘(dd) provide any other 

10 identification information the 

11 State may require. 

12 ‘‘(III) Require the skilled nursing 

13 facility to check any available reg14 istries that would be likely to contain 

15 disqualifying information about a pro16 spective employee, including the reg17 istries and databases described in sub18 clause (I) of subparagraph (A)(i) and 

19 the records described in clause (II) of 

20 such subparagraph. 

21 ‘‘(IV) Provide a prospective di22 rect patient access employee the op23 portunity to request a copy of the re24 sults of the background check con25 ducted with respect to such employee 


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1 and to correct any errors by providing 

2 appropriate documentation to the 

3 State and the facility. 

4 ‘‘(V) Upon completion of a fin5 gerprint check as part of the national 

6 criminal history background check 

7 conducted with respect to a direct pa8 tient access employee under subpara9 graph (A)(ii), provide the skilled nurs10 ing facility and the direct patient ac11 cess employee with a certificate indi12 cating that such fingerprint check has 

13 been completed and no disqualifying 

14 information was found. Such certifi15 cate shall— 

16 ‘‘(aa) be valid for 2 years; 

17 and 

18 ‘‘(bb) in the case where such 

19 direct patient access employee is 

20 hired by any other skilled nursing 

21 facility located in the State dur22 ing such 2-year period, satisfy 

23 the requirement that such facility 

24 have a fingerprint check con25 ducted as part of such national 


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1 criminal history background 

2 check. 

3 ‘‘(ii) ELIMINATION OF UNNECESSARY

4 CHECKS.—The procedures established by 

5 the State under subparagraph (A) shall 

6 permit a skilled nursing facility to termi7 nate the background check at any stage at 

8 which the facility obtains disqualifying in9 formation regarding a prospective direct 

10 patient access employee. 

11 ‘‘(iii) DEVELOPMENT OF MODEL FORM

12 OF CERTIFICATE.—The Secretary shall de13 velop a model form of the certificate de14 scribed in clause (i)(V) that States may 

15 use to satisfy the requirements of such 

16 clause. 

17 ‘‘(D) USE OF INFORMATION; IMMUNITY

18 FROM LIABILITY.— 

19 ‘‘(i) USE OF INFORMATION.—A skilled 

20 nursing facility that obtains information 

21 about a direct patient access employee pur22 suant to screening or a criminal history 

23 background check shall use such informa24 tion only for the purpose of determining 


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1 the suitability of the employee for employ2 ment. 

3 ‘‘(ii) IMMUNITY FROM LIABILITY.—A 

4 skilled nursing facility that, in denying em5 ployment for an applicant, reasonably and 

6 in good faith relies upon credible informa7 tion about such applicant provided by a 

8 criminal history background check shall 

9 not be liable in any action brought by such 

10 applicant based on the employment deter11 mination resulting from the information. 

12 ‘‘(iii) PROHIBITION ON CHARGING EM13 PLOYEES FEES FOR CONDUCTING BACK14 GROUND CHECKS.—A skilled nursing facil15 ity shall not charge a prospective direct pa16 tient access employee a fee for the screen17 ing or criminal history background check 

18 conducted under this paragraph. 

19 ‘‘(E) PENALTIES.— 

20 ‘‘(i) IN GENERAL.— 

21 ‘‘(I) STATE PENALTIES.—Subject 

22 to subclause (II), a skilled nursing fa23 cility that violates the provisions of 

24 this paragraph shall be subject to 

25 such penalties as the State determines 


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1 appropriate to enforce the require2 ments of this paragraph. A skilled 

3 nursing facility shall report to the 

4 Secretary on a quarterly basis any 

5 penalties imposed by the State under 

6 the preceding sentence. 

7 ‘‘(II) EXCLUSION FROM PARTICI8 PATION.—In any case where the Sec9 retary determines that a State is not 

10 sufficiently enforcing the requirements 

11 of this paragraph, the Secretary may 

12 exclude a skilled nursing facility lo13 cated within the State that violates 

14 the provisions of this paragraph from 

15 participating in the programs under 

16 this title and title XIX (in accordance 

17 with the procedures of section 1128). 

18 ‘‘(ii) KNOWING RETENTION OF WORK19 ER.—In addition to any penalty under 

20 clause (i), a skilled nursing facility that 

21 knowingly continues to employ a direct pa22 tient access employee in violation of sub23 paragraph (A) or (B) shall be subject to a 

24 civil penalty in an amount not to exceed 

25 $5,000 for the first such violation, and 


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1 $10,000 for the second and each subse2 quent violation within any 5-year period. 

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

4 ‘‘(i) CONVICTION FOR A RELEVANT

5 CRIME.—The term ‘conviction for a rel6 evant crime’ means any Federal or State 

7 criminal conviction for— 

8 ‘‘(I) any offense described in sec9 tion 1128(a); and 

10 ‘‘(II) such other types of of11 fenses, including violent crimes, as the 

12 State may specify. 

13 ‘‘(ii) DISQUALIFYING INFORMATION.— 

14 The term ‘disqualifying information’ means 

15 information about a conviction for a rel16 evant crime or a finding of substantiated 

17 patient or resident abuse. 

18 ‘‘(iii) DIRECT PATIENT ACCESS EM19 PLOYEE.—The term ‘direct patient access 

20 employee’ means any individual who has 

21 access to a patient or resident of a skilled 

22 nursing facility through employment or 

23 through a contract with such facility and 

24 has duties that involve (or may involve) 

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1 dent of the facility, as determined by the 

2 State for purposes of this paragraph. Such 

3 term does not include a volunteer unless 

4 the volunteer has duties that are equiva5 lent to the duties of a direct patient access 

6 employee and those duties involve (or may 

7 involve) one-on-one contact with a patient 

8 or resident of the facility.’’. 

9 (B) CONFORMING AMENDMENT.—Section 

10 1819(e) of the Social Security Act (42 U.S.C. 

11 1395i–3(e)) is amended by adding at the end 

12 the following new paragraph: 

13 ‘‘(6) SCREENING OF DIRECT PATIENT ACCESS

14 EMPLOYEES.—Beginning on January 1, 2011, the 

15 State must— 

16 ‘‘(A) have procedures in place for the con17 duct of screening and criminal history back18 ground checks under subparagraph (A) of sub19 section (b)(9), in accordance with the require20 ments of subparagraph (C) of such subsection; 

21 ‘‘(B) be responsible for monitoring compli22 ance with the procedures and requirements of 

23 such subsection; 

24 ‘‘(C) as appropriate, provide for a provi25 sional period of employment of a direct patient 


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1 access employee under clause (ii) of subpara2 graph (B) of such subsection, including proce3 dures to ensure that a skilled nursing facility 

4 provides direct on-site supervision of the em5 ployee in accordance with clause (iii) of such 

6 subparagraph; 

7 ‘‘(D) provide an independent process by 

8 which a provisional employee or an employee 

9 may appeal or dispute the accuracy of the infor10 mation obtained in a background check per11 formed under such subsection; and 

12 ‘‘(E) designate a single State agency as re13 sponsible for— 

14 ‘‘(i) overseeing the coordination of any 

15 State and national criminal history back16 ground checks requested by a skilled nurs17 ing facility utilizing a search of State and 

18 Federal criminal history records, including 

19 a fingerprint check of such records; 

20 ‘‘(ii) reviewing, using appropriate pri21 vacy and security safeguards, the results of 

22 any State or national criminal history 

23 background checks conducted regarding a 

24 prospective direct patient access employee 


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1 to determine whether the employee has any 

2 conviction for a relevant crime; 

3 ‘‘(iii) immediately reporting to the 

4 skilled nursing facility that requested the 

5 criminal history background checks the re6 sults of such review; and 

7 ‘‘(iv) in the case of an employee with 

8 a conviction for a relevant crime that is 

9 subject to reporting under section 1128E 

10 of the Social Security Act (42 U.S.C. 

11 1320a–7e), reporting the existence of such 

12 conviction to the database established 

13 under that section; 

14 ‘‘(F) have a system in place for deter15 mining and levying appropriate penalties for 

16 violations of the provisions of such subsection; 

17 ‘‘(G) have a system in place for deter18 mining which individuals are direct patient ac19 cess employees for purposes of subparagraph 

20 (F)(iii) of such subsection; 

21 ‘‘(H) as appropriate, specify offenses, in22 cluding violent crimes, for purposes of subpara23 graph (F)(i)(II) of such subsection; and 

24 ‘‘(I) develop ‘rap back’ capability such 

25 that, if a direct patient access employee of a 


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1 skilled nursing facility is convicted of a crime 

2 following the initial criminal history background 

3 check conducted with respect to such employee, 

4 and the employee’s fingerprints match the 

5 prints on file with the State law enforcement 

6 department, the department will immediately 

7 inform the State agency designated under sub8 paragraph (E).’’. 

9 (2) MEDICAID PROGRAM.— 

10 (A) IN GENERAL.—Section 1919(b) of the 

11 Social Security Act (42 U.S.C. 1396r(b)) is 

12 amended by adding at the end the following 

13 new paragraph: 

14 ‘‘(9) SCREENING OF DIRECT PATIENT ACCESS

15 EMPLOYEES.— 

16 ‘‘(A) SCREENING AND CRIMINAL HISTORY

17 BACKGROUND CHECKS ON APPLICANTS.— 

18 ‘‘(i) SCREENING.—Beginning on Jan19 uary 1, 2011, before hiring a direct patient 

20 access employee, a nursing facility shall 

21 screen the employee for any disqualifying 

22 information in accordance with such proce23 dures as the State shall establish through 

24 a search of— 


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1 ‘‘(I) State-based abuse and ne2 glect registries and databases, includ3 ing the abuse and neglect registries 

4 and databases of another State in the 

5 case where a prospective employee 

6 previously resided in that State; and 

7 ‘‘(II) criminal records and the 

8 records of any proceedings that may 

9 contain disqualifying information 

10 about applicants, such as proceedings 

11 conducted by State professional licens12 ing and disciplinary boards and State 

13 medicaid fraud control units. 

14 ‘‘(ii) CRIMINAL HISTORY BACK15 GROUND CHECKS.—As part of such screen16 ing, the nursing facility shall request that 

17 the State agency designated under sub18 section (e)(6)(E) oversee the coordination 

19 of a State and national criminal history 

20 background check that utilizes a search of 

21 State and Federal criminal history records 

22 and includes a fingerprint check using the 

23 Integrated Automated Fingerprint Identi24 fication System of the Federal Bureau of 

25 Investigation. 


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1 ‘‘(iii) USE OF PROCEDURES PRE2 VIOUSLY ESTABLISHED.—Nothing in this 

3 paragraph shall be construed as preventing 

4 a State from using procedures established 

5 for purposes of the pilot program for Na6 tional and State background checks on di7 rect patient access employees of long-term 

8 care facilities or providers under section 

9 307 of the Medicare Prescription Drug, 

10 Improvement, and Modernization Act of 

11 2003, or the nationwide expansion pro12 gram under subsection (h) of such section, 

13 to satisfy the requirements of paragraph 

14 (6). 

15 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

16 WORKERS.— 

17 ‘‘(i) IN GENERAL.—Subject to clause 

18 (ii), a nursing facility may not knowingly 

19 employ any direct patient access employee 

20 who has any disqualifying information (as 

21 defined in subparagraph (F)(ii)). 

22 ‘‘(ii) PROVISIONAL EMPLOYMENT.— 

23 Subject to clause (iii), the State may per24 mit a nursing facility to provide for a pro25 visional period of employment (not to exVerDate Aug 31 2005 00:15 Sep 23, 2008 Jkt 059200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6401 E:\BILLS\S1577.RS S1577

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1 ceed 30 days) for a direct patient access 

2 employee— 

3 ‘‘(I) pending completion of the 

4 screening and background check re5 quired under subparagraph (A); and 

6 ‘‘(II) in the case where the em7 ployee has appealed the results of 

8 such screening and background check, 

9 pending completion of the appeals 

10 process. 

11 ‘‘(iii) SUPERVISION.—The facility 

12 shall maintain direct on-site supervision of 

13 the employee during such provisional pe14 riod of employment. 

15 ‘‘(C) PROCEDURES.— 

16 ‘‘(i) IN GENERAL.—The procedures 

17 established by the State under subpara18 graph (A) shall be designed to accomplish 

19 the following: 

20 ‘‘(I) Give a prospective direct pa21 tient access employee notice that the 

22 nursing facility is required to perform 

23 background checks with respect to 

24 new employees, including a fingerprint 

25 check as part of the national criminal 


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1 history background check conducted 

2 under subparagraph (A)(ii) in the 

3 case of any new employee who does 

4 not have a certificate indicating that a 

5 fingerprint check has been completed 

6 and has not found any disqualifying 

7 information (as described in subclause 

8 (V)). 

9 ‘‘(II) Require, as a condition of 

10 employment, that the employee— 

11 ‘‘(aa) provide a written 

12 statement disclosing any disquali13 fying information; 

14 ‘‘(bb) provide a statement 

15 signed by the employee author16 izing the facility to request a 

17 background check that includes a 

18 search of the registries and data19 bases described in clause (i)(I) of 

20 subparagraph (A) and the 

21 records described in clause (i)(II) 

22 of such subparagraph and a 

23 criminal history background 

24 check conducted in accordance 

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1 graph that includes a fingerprint 

2 check using the Integrated Auto3 mated Fingerprint System of the 

4 Federal Bureau of Investigation; 

5 ‘‘(cc) provide the facility 

6 with a rolled set of the employ7 ee’s fingerprints or submit to 

8 being fingerprinted; and 

9 ‘‘(dd) provide any other 

10 identification information the 

11 State may require. 

12 ‘‘(III) Require the nursing facil13 ity to check any available registries 

14 that would be likely to contain dis15 qualifying information about a pro16 spective employee, including the reg17 istries and databases described in sub18 clause (I) of subparagraph (A)(i) and 

19 the records described in clause (II) of 

20 such subparagraph. 

21 ‘‘(IV) Provide a prospective di22 rect patient access employee the op23 portunity to request a copy of the re24 sults of the background check con25 ducted with respect to such employee 


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1 and to correct any errors by providing 

2 appropriate documentation to the 

3 State and the nursing facility. 

4 ‘‘(V) Upon completion of a fin5 gerprint check as part of the national 

6 criminal history background check 

7 conducted with respect to a direct pa8 tient access employee under subpara9 graph (A)(ii), provide the nursing fa10 cility and the direct patient access em11 ployee with a certificate indicating 

12 that such fingerprint check has been 

13 completed and no disqualifying infor14 mation was found. Such certificate 

15 shall— 

16 ‘‘(aa) be valid for 2 years; 

17 and 

18 ‘‘(bb) in the case where such 

19 direct patient access employee is 

20 hired by any other nursing facil21 ity located in the State during 

22 such 2-year period, satisfy the re23 quirement that such facility have 

24 a fingerprint check conducted as 


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1 part of such national criminal 

2 history background check. 

3 ‘‘(ii) ELIMINATION OF UNNECESSARY

4 CHECKS.—The procedures established by 

5 the State under subparagraph (A) shall 

6 permit a nursing facility to terminate the 

7 background check at any stage at which 

8 the facility obtains disqualifying informa9 tion regarding a prospective direct patient 

10 access employee. 

11 ‘‘(iii) DEVELOPMENT OF MODEL FORM

12 OF CERTIFICATE.—The Secretary shall de13 velop a model form of the certificate de14 scribed in clause (i)(V) that States may 

15 use to satisfy the requirements of such 

16 clause. 

17 ‘‘(D) USE OF INFORMATION; IMMUNITY

18 FROM LIABILITY.— 

19 ‘‘(i) USE OF INFORMATION.—A nurs20 ing facility that obtains information about 

21 a direct patient access employee pursuant 

22 to screening or a criminal history back23 ground check shall use such information 

24 only for the purpose of determining the 

25 suitability of the employee for employment. 


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1 ‘‘(ii) IMMUNITY FROM LIABILITY.—A 

2 nursing facility that, in denying employ3 ment for an applicant, reasonably and in 

4 good faith relies upon credible information 

5 about such applicant provided by a crimi6 nal history background check shall not be 

7 liable in any action brought by such appli8 cant based on the employment determina9 tion resulting from the information. 

10 ‘‘(iii) PROHIBITION ON CHARGING EM11 PLOYEES FEES FOR CONDUCTING BACK12 GROUND CHECKS.—A nursing facility shall 

13 not charge a prospective direct patient ac14 cess employee a fee for the screening or 

15 criminal history background check con16 ducted under this paragraph. 

17 ‘‘(E) PENALTIES.— 

18 ‘‘(i) IN GENERAL.— 

19 ‘‘(I) STATE PENALTIES.—Subject 

20 to subclause (II), a nursing facility 

21 that violates the provisions of this 

22 paragraph shall be subject to such 

23 penalties as the State determines ap24 propriate to enforce the requirements 

25 of this paragraph. A nursing facility 


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1 shall report to the Secretary on a 

2 quarterly basis any penalties imposed 

3 by the State under the preceding sen4 tence. 

5 ‘‘(II) EXCLUSION FROM PARTICI6 PATION.—In any case where the Sec7 retary determines that a State is not 

8 sufficiently enforcing the requirements 

9 of this paragraph, the Secretary may 

10 exclude a nursing facility located with11 in the State that violates the provi12 sions of this paragraph from partici13 pating in the programs under this 

14 title and title XVIII (in accordance 

15 with the procedures of section 1128). 

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

18 clause (i), a nursing facility that knowingly 

19 continues to employ a direct patient access 

20 employee in violation of subparagraph (A) 

21 or (B) shall be subject to a civil penalty in 

22 an amount not to exceed $5,000 for the 

23 first such violation, and $10,000 for the 

24 second and each subsequent violation with25 in any 5-year period. 


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

2 ‘‘(i) CONVICTION FOR A RELEVANT

3 CRIME.—The term ‘conviction for a rel4 evant crime’ means any Federal or State 

5 criminal conviction for— 

6 ‘‘(I) any offense described in sec7 tion 1128(a); and 

8 ‘‘(II) such other types of of9 fenses, including violent crimes, as the 

10 State may specify. 

11 ‘‘(ii) DISQUALIFYING INFORMATION.— 

12 The term ‘disqualifying information’ means 

13 information about a conviction for a rel14 evant crime or a finding of substantiated 

15 patient or resident abuse. 

16 ‘‘(iii) DIRECT PATIENT ACCESS EM17 PLOYEE.—The term ‘direct patient access 

18 employee’ means any individual who has 

19 access to a patient or resident of a nursing 

20 facility through employment or through a 

21 contract with such facility and has duties 

22 that involve (or may involve) one-on-one 

23 contact with a patient or resident of the 

24 facility, as determined by the State for 

25 purposes of this paragraph. Such term 


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1 does not include a volunteer unless the vol2 unteer has duties that are equivalent to the 

3 duties of a direct patient access employee 

4 and those duties involve (or may involve) 

5 one-on-one contact with a patient or resi6 dent of the facility.’’. 

7 (B) CONFORMING AMENDMENT.—Section 

8 1919(e) of the Social Security Act (42 U.S.C. 

9 1396r(e)) is amended by adding at the end the 

10 following new paragraph: 

11 ‘‘(8) SCREENING OF DIRECT PATIENT ACCESS

12 EMPLOYEES.—Beginning on January 1, 2011, the 

13 State must— 

14 ‘‘(A) have procedures in place for the con15 duct of screening and criminal history back16 ground checks under subparagraph (A) of sub17 section (b)(9), in accordance with the require18 ments of subparagraph (C) of such subsection; 

19 ‘‘(B) be responsible for monitoring compli20 ance with the procedures and requirements of 

21 such subsection; 

22 ‘‘(C) as appropriate, provide for a provi23 sional period of employment of a direct patient 

24 access employee under clause (ii) of subpara25 graph (B) of such subsection, including proceVerDate Aug 31 2005 00:15 Sep 23, 2008 Jkt 059200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6401 E:\BILLS\S1577.RS S1577

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1 dures to ensure that a nursing facility provides 

2 direct on-site supervision of the employee in ac3 cordance with clause (iii) of such subparagraph; 

4 ‘‘(D) provide an independent process by 

5 which a provisional employee or an employee 

6 may appeal or dispute the accuracy of the infor7 mation obtained in a background check per8 formed under such subsection; and 

9 ‘‘(E) designate a single State agency as re10 sponsible for— 

11 ‘‘(i) overseeing the coordination of any 

12 State and national criminal history back13 ground checks requested by a nursing fa14 cility utilizing a search of State and Fed15 eral criminal history records, including a 

16 fingerprint check of such records; 

17 ‘‘(ii) reviewing, using appropriate pri18 vacy and security safeguards, the results of 

19 any State or national criminal history 

20 background checks conducted regarding a 

21 prospective direct patient access employee 

22 to determine whether the employee has any 

23 conviction for a relevant crime; 

24 ‘‘(iii) immediately reporting to the 

25 nursing facility that requested the criminal 


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1 history background checks the results of 

2 such review; and 

3 ‘‘(iv) in the case of an employee with 

4 a conviction for a relevant crime that is 

5 subject to reporting under section 1128E 

6 of the Social Security Act (42 U.S.C. 

7 1320a–7e), reporting the existence of such 

8 conviction to the database established 

9 under that section; 

10 ‘‘(F) have a system in place for deter11 mining and levying appropriate penalties for 

12 violations of the provisions of such subsection; 

13 ‘‘(G) have a system in place for deter14 mining which individuals are direct patient ac15 cess employees for purposes of subparagraph 

16 (F)(iii) of such subsection; 

17 ‘‘(H) as appropriate, specify offenses, in18 cluding violent crimes, for purposes of subpara19 graph (F)(i)(II) of such subsection; and 

20 ‘‘(I) develop ‘rap back’ capability such 

21 that, if a direct patient access employee of a 

22 nursing facility is convicted of a crime following 

23 the initial criminal history background check 

24 conducted with respect to such employee, and 

25 the employee’s fingerprints match the prints on 


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1 file with the State law enforcement department, 

2 the department will immediately inform the 

3 State agency designated under subparagraph 

4 (E).’’. 

5 (b) APPLICATION TO OTHER LONG-TERM CARE FA6 CILITIES OR PROVIDERS.— 

7 (1) MEDICARE.—Part E of title XVIII of the 

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

9 amended by adding at the end the following: 

10 ‘‘APPLICATION OF SKILLED NURSING FACILITY PREVEN11 TIVE ABUSE PROVISIONS TO LONG-TERM CARE FA12 CILITIES AND PROVIDERS

13 ‘‘SEC. 1898. (a) The provisions of section 1819(b)(9) 

14 shall apply to a long-term care facility or provider (as de15 fined in subsection (b)) in the same manner as such provi16 sions apply to a skilled nursing facility. 

17 ‘‘(b) LONG-TERM CARE FACILITY OR PROVIDER.— 

18 In this section, the term ‘long-term care facility or pro19 vider’ means the following facilities or providers which re20 ceive payment for services under this title or title XIX: 

21 ‘‘(1) A home health agency. 

22 ‘‘(2) A provider of hospice care. 

23 ‘‘(3) A long-term care hospital. 

24 ‘‘(4) A provider of personal care services. 

25 ‘‘(5) A provider of adult day care. 


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1 ‘‘(6) A residential care provider that arranges 

2 for, or directly provides, long-term care services, in3 cluding an assisted living facility that provides a 

4 level of care established by the Secretary. 

5 ‘‘(7) An intermediate care facility for the men6 tally retarded (as defined in section 1905(d)).’’. 

7 (2) MEDICAID.—Section 1902(a) of the Social 

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

9 (A) in paragraph (69), by striking ‘‘and’’ 

10 at the end; 

11 (B) in paragraph (70)(B)(iv), by striking 

12 the period at the end and inserting ‘‘; and’’; 

13 and 

14 (C) by inserting after paragraph 

15 (70)(B)(iv) the following: 

16 ‘‘(71) provide that the provisions of section 

17 1919(b)(9) apply to a long-term care facility or pro18 vider (as defined in section 1898(b)) in the same 

19 manner as such provisions apply to a nursing facil20 ity.’’. 

21 (3) EFFECTIVE DATE.—The amendments made 

22 by this subsection shall take effect on January 1, 

23 2011. 

24 (c) PAYMENTS.— 


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1 (1) PROCEDURES TO REIMBURSE COSTS OF NA2 TIONAL BACKGROUND CHECK.— 

3 (A) IN GENERAL.—The Secretary of 

4 Health and Human Services shall establish pro5 cedures to reimburse the costs of conducting 

6 national criminal history background checks 

7 under sections 1819(b)(9), 1919(b)(9), 1898, 

8 and 1902(a)(71) of the Social Security Act, as 

9 added by subsections (a)(1), (a)(2), (b)(1), and 

10 (b)(2), respectively, through the following mech11 anisms, in such proportion as the Secretary de12 termines appropriate: 

13 (i) By providing payments to skilled 

14 nursing facilities and long-term care facili15 ties or providers for costs incurred as are 

16 attributable to the conduct of such na17 tional criminal history background checks 

18 under such section 1819(b)(9). 

19 (ii) By making a payment, from sums 

20 appropriated therefore, under section 

21 1903(a) of the Social Security Act (42 

22 U.S.C. 1396b(a)) to each State which has 

23 a plan approved under title XIX of the So24 cial Security Act (42 U.S.C. 1396 et seq.), 

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1 ter commencing on January 1, 2011, in an 

2 amount equal to 90 percent of the sums 

3 expended with respect to costs incurred 

4 during such quarter as are attributable to 

5 the conduct of such national criminal his6 tory background checks under such section 

7 1919(b)(9). 

8 (B) FUNDING FOR PAYMENTS FOR COSTS

9 INCURRED UNDER MEDICARE PROGRAM.—The 

10 Secretary of Health and Human Services shall 

11 provide for the transfer, in appropriate part 

12 from the Federal Hospital Insurance Trust 

13 Fund established under section 1817 of the So14 cial Security Act (42 U.S.C. 1395i) and the 

15 Federal Supplementary Insurance Trust Fund 

16 established under section 1841 of such Act (42 

17 U.S.C. 1395t), of such funds as are necessary 

18 to make payments under subparagraph (A)(i) 

19 for fiscal year 2011 and each fiscal year there20 after. 

21 (C) DETERMINATION OF APPROPRIATE

22 PROPORTION.—In establishing the procedures 

23 under subparagraph (A), the Secretary of 

24 Health and Human Services shall determine 

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1 nisms described in such subparagraph would re2 sult in an equitable allocation of the costs of 

3 such reimbursement between the Medicare pro4 gram under title XVIII of the Social Security 

5 Act and the Medicaid program under title XIX 

6 of such Act. 

7 (2) ENSURING NO DUPLICATIVE PAYMENTS.— 

8 The procedures established under paragraph (1)(A) 

9 shall ensure that no duplicative payments are made 

10 for the costs of conducting such national criminal 

11 history background checks, including any duplication 

12 of payments made under the pilot program for na13 tional and State background checks on direct patient 

14 access employees of long-term care facilities or pro15 viders under section 307 of the Medicare Prescrip16 tion Drug, Improvement, and Modernization Act of 

17 2007, including the nationwide expansion program 

18 under subsection (h) of such section, as added by 

19 section 3. 

20 (3) SUBMISSION OF COSTS INCURRED BY FA21 CILITIES IN PERFORMING CHECKS.— 

22 (A) IN GENERAL.—The procedures estab23 lished under paragraph (1)(A) shall provide a 

24 process, such as through submission of a bill, 

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1 cility, and a long-term care facility or provider 

2 may submit information regarding the costs in3 curred by such facility in conducting national 

4 criminal history background checks under sec5 tions 1819(b)(9), 1919(b)(9), 1898, and 

6 1902(a)(71) of the Social Security Act, as 

7 added by subsections (a)(1), (a)(2), (b)(1), and 

8 (b)(2), respectively. 

9 (B) MODEL FORMS.—The Secretary of 

10 Health and Human Services shall develop 

11 model forms that may be used by a skilled 

12 nursing facility, a nursing facility, and a long13 term care facility or provider to submit a claim 

14 for reimbursement of the costs described in 

15 paragraph (1)(A) that contains the information 

16 described in subparagraph (A). 

17 (4) REGULATIONS.—Not later than 3 years 

18 after the date of enactment of this Act, the Sec19 retary of Health and Human Services shall promul20 gate regulations to carry out this subsection. 

21 SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FED22 ERAL BUREAU OF INVESTIGATION. 

23 (a) DEVELOPMENT OF RAP BACK CAPABILITIES.— 

24 (1) IN GENERAL.—Not later than January 1, 

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1 tigation (in this section referred to as the ‘‘Direc2 tor’’) shall ensure that the Integrated Automated 

3 Fingerprint Identification System of the Federal Bu4 reau of Investigation has the capacity to store and 

5 retrieve fingerprints from its database. 

6 (2) NOTIFICATION OF CONVICTION OF DIRECT

7 PATIENT ACCESS EMPLOYEE.—In the case where a 

8 direct patient access employee (as defined in sub9 paragraph (F)(iii) of sections 1819(b)(9) and 

10 1919(b)(9) of the Social Security Act, as added by 

11 section 4(a)) is convicted of a crime following the 

12 initial national criminal history background check 

13 conducted with respect to such employee under such 

14 sections 1819(b)(9) and 1919(b)(9), and the employ15 ee’s fingerprint matches the prints on file with the 

16 Federal Bureau of Investigation, the Bureau shall 

17 inform the State law enforcement department, in 

18 order for the State to inform the skilled nursing fa19 cility, nursing facility, or long-term care facility or 

20 provider of such conviction in accordance with the 

21 requirements of sections 1819(e)(6)(I) and 

22 1919(e)(8)(I) of the Social Security Act, as added by 

23 section 4(a). 

24 (b) REASONABLE FEE FOR NATIONAL CRIMINAL

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1 PLOYEES OF LONG-TERM CARE FACILITIES.—The Direc2 tor may charge a reasonable fee, in consultation with the 

3 Secretary of Health and Human Services, for a national 

4 criminal history background check using the Integrated 

5 Automated Fingerprint Identification System of the Fed6 eral Bureau of Investigation that is conducted under sec7 tion 1819(b)(9), 1919(b)(9), 1898, or 1902(a)(71) of the 

8 Social Security Act, as added by subsections (a)(1), (a)(2), 

9 (b)(1), and (b)(2) of section 4, respectively, that rep10 resents the actual cost of conducting such national crimi11 nal history background check. 

12 SECTION 1. SHORT TITLE. 

13 This Act may be cited as the ‘‘Patient Safety and 

14 Abuse Prevention Act’’. 

15 SEC. 2. FINDINGS AND PURPOSES. 

16 (a) FINDINGS.—Congress makes the following findings: 

17 (1) Frail elders are a highly vulnerable popu18 lation who often lack the ability to give consent or de19 fend themselves. Since the best predictor of future be20 havior is past behavior, individuals with histories of 

21 abuse pose a definite risk to patients and residents of 

22 long-term care facilities. 

23 (2) Every month, there are stories in the media 

24 of health care employees who commit criminal mis25 conduct on the job and are later found, through a 


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1 background check conducted after the fact, to have a 

2 history of convictions for similar crimes. 

3 (3) A 2006 study conducted by the Department 

4 of Health and Human Services determined that— 

5 (A) criminal background checks are a valu6 able tool for employers during the hiring process; 

7 (B) the use of criminal background checks 

8 during the hiring process does not limit the pool 

9 of potential job applicants; 

10 (C) a correlation exists between criminal 

11 history and incidences of abuse; and 

12 (D) the long-term care industry supports 

13 the practice of conducting background checks on 

14 potential employees in order to reduce the likeli15 hood of hiring someone who has the potential to 

16 harm residents of long-term care facilities. 

17 (4) In 2004, the staff of State Adult Protective 

18 Services agencies received more than 500,000 reports 

19 of elder and vulnerable adult abuse, and an ombuds20 man report concluded that more than 15,000 nursing 

21 home complaints involved abuse, including nearly 

22 4,000 complaints of physical abuse, more than 800 

23 complaints of sexual abuse, and nearly 1,000 com24 plaints of financial exploitation. 


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1 (5) The Department of Health and Human Serv2 ices has determined that, while 41 States now require 

3 criminal background checks on certified nurse aides 

4 prior to employment, only half of those (22) require 

5 criminal background checks at the Federal level. 

6 (b) PURPOSES.—The purposes of this Act are to— 

7 (1) lay the foundation for a coordinated, nation8 wide system of State criminal background checks that 

9 would greatly enhance the chances of identifying indi10 viduals with problematic backgrounds who move 

11 across State lines; 

12 (2) stop individuals who have a record of sub13 stantiated abuse, or a serious criminal record, from 

14 preying on helpless elders and individuals with dis15 abilities; and 

16 (3) provide assurance to long-term care employ17 ers and the residents they care for that potentially 

18 abusive workers will not be hired into positions of 

19 providing services to the extremely vulnerable resi20 dents of long-term care facilities in the United States. 


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1 SEC. 3. NATIONWIDE PROGRAM FOR NATIONAL AND STATE 

2 BACKGROUND CHECKS ON DIRECT PATIENT 

3 ACCESS EMPLOYEES OF LONG-TERM CARE FA4 CILITIES AND PROVIDERS. 

5 (a) IN GENERAL.—The Secretary of Health and 

6 Human Services (in this section referred to as the ‘‘Sec7 retary’’), shall establish a program to identify efficient, ef8 fective, and economical procedures for long term care facili9 ties or providers to conduct background checks on prospec10 tive direct patient access employees on a nationwide basis 

11 (in this subsection, such program shall be referred to as the 

12 ‘‘nationwide program’’). Except for the following modifica13 tions, the Secretary shall carry out the nationwide program 

14 under similar terms and conditions as the pilot program 

15 under section 307 of the Medicare Prescription Drug, Im16 provement, and Modernization Act of 2003 (Public Law 

17 108–173; 117 Stat. 2257), including the prohibition on hir18 ing abusive workers and the authorization of the imposition 

19 of penalties by a participating State under subsection 

20 (b)(3)(A) and (b)(6), respectively, of such section 307: 

21 (1) AGREEMENTS.— 

22 (A) NEWLY PARTICIPATING STATES.—The 

23 Secretary shall enter into agreements with each 

24 State— 


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1 (i) that the Secretary has not entered 

2 into an agreement with under subsection 

3 (c)(1) of such section 307; 

4 (ii) that agrees to conduct background 

5 checks under the nationwide program on a 

6 Statewide basis; and 

7 (iii) that submits an application to the 

8 Secretary containing such information and 

9 at such time as the Secretary may specify. 

10 (B) CERTAIN PREVIOUSLY PARTICIPATING

11 STATES.—The Secretary shall enter into agree12 ments with each State— 

13 (i) that the Secretary has entered into 

14 an agreement with under such subsection 

15 (c)(1), but only in the case where such 

16 agreement did not require the State to con17 duct background checks under the program 

18 established under subsection (a) of such sec19 tion 307 on a Statewide basis; 

20 (ii) that agrees to conduct background 

21 checks under the nationwide program on a 

22 Statewide basis; and 

23 (iii) that submits an application to the 

24 Secretary containing such information and 

25 at such time as the Secretary may specify. 


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1 (2) NONAPPLICATION OF SELECTION CRITERIA.— 

2 The selection criteria required under subsection 

3 (c)(3)(B) of such section 307 shall not apply. 

4 (3) REQUIRED FINGERPRINT CHECK AS PART OF

5 CRIMINAL HISTORY BACKGROUND CHECK.—The proce6 dures established under subsection (b)(1) of such sec7 tion 307 shall— 

8 (A) require that the long-term care facility 

9 or provider (or the designated agent of the long10 term care facility or provider) obtain State and 

11 national criminal history background checks on 

12 the prospective employee through such means as 

13 the Secretary determines appropriate that utilize 

14 a search of State-based abuse and neglect reg15 istries and databases, including the abuse and 

16 neglect registries of another State in the case 

17 where a prospective employee previously resided 

18 in that State, State criminal history records, the 

19 records of any proceedings in the State that may 

20 contain disqualifying information about prospec21 tive employees (such as proceedings conducted by 

22 State professional licensing and disciplinary 

23 boards and State Medicaid Fraud Control 

24 Units), and Federal criminal history records, in25 cluding a fingerprint check using the Integrated 


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1 Automated Fingerprint Identification System of 

2 the Federal Bureau of Investigation; and 

3 (B) encourage States to test methods to re4 duce duplicative fingerprinting, including pro5 viding for the development of ‘‘rap back’’ capa6 bility by the State such that, if a direct patient 

7 access employee of a long-term care facility or 

8 provider is convicted of a crime following the 

9 initial criminal history background check con10 ducted with respect to such employee, and the 

11 employee’s fingerprints match the prints on file 

12 with the State law enforcement department, the 

13 department will immediately inform the State 

14 and the State will immediately inform the long15 term care facility or provider of such conviction. 

16 (4) STATE REQUIREMENTS.—An agreement en17 tered into under paragraph (1) shall require that a 

18 participating State— 

19 (A) be responsible for monitoring compli20 ance with the requirements of the nationwide 

21 program; 

22 (B) have procedures in place to— 

23 (i) conduct screening and criminal his24 tory background checks under the nationVerDate Aug 31 2005 00:15 Sep 23, 2008 Jkt 059200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6203 E:\BILLS\S1577.RS S1577

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1 wide program in accordance with the re2 quirements of this section; 

3 (ii) monitor compliance by long-term 

4 care facilities and providers with the proce5 dures and requirements of the nationwide 

6 program; 

7 (iii) as appropriate, provide for a pro8 visional period of employment by a long9 term care facility or provider of a direct 

10 patient access employee, not to exceed 30 

11 days, pending completion of the required 

12 criminal history background check and, in 

13 the case where the employee has appealed 

14 the results of such background check, pend15 ing completion of the appeals process, dur16 ing which the employee shall be subject to 

17 direct on-site supervision (in accordance 

18 with procedures established by the State to 

19 ensure that a long-term care facility or pro20 vider furnishes such direct on-site super21 vision); 

22 (iv) provide an independent process by 

23 which a provisional employee or an em24 ployee may appeal or dispute the accuracy 

25 of the information obtained in a backVerDate Aug 31 2005 00:15 Sep 23, 2008 Jkt 059200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6203 E:\BILLS\S1577.RS S1577

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1 ground check performed under the nation2 wide program, including the specification of 

3 criteria for appeals for direct patient access 

4 employees found to have disqualifying infor5 mation which shall include consideration of 

6 the passage of time, extenuating cir7 cumstances, demonstration of rehabilitation, 

8 and relevancy of the particular disquali9 fying information with respect to the cur10 rent employment of the individual; 

11 (v) provide for the designation of a 

12 single State agency as responsible for— 

13 (I) overseeing the coordination of 

14 any State and national criminal his15 tory background checks requested by a 

16 long-term care facility or provider (or 

17 the designated agent of the long-term 

18 care facility or provider) utilizing a 

19 search of State and Federal criminal 

20 history records, including a fingerprint 

21 check of such records; 

22 (II) overseeing the design of ap23 propriate privacy and security safe24 guards for use in the review of the re25 sults of any State or national criminal 


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1 history background checks conducted 

2 regarding a prospective direct patient 

3 access employee to determine whether 

4 the employee has any conviction for a 

5 relevant crime; 

6 (III) immediately reporting to the 

7 long-term care facility or provider that 

8 requested the criminal history back9 ground check the results of such review; 

10 and 

11 (IV) in the case of an employee 

12 with a conviction for a relevant crime 

13 that is subject to reporting under sec14 tion 1128E of the Social Security Act 

15 (42 U.S.C. 1320a–7e), reporting the ex16 istence of such conviction to the data17 base established under that section; 

18 (vi) determine which individuals are 

19 direct patient access employees (as defined 

20 in paragraph (6)(B)) for purposes of the 

21 nationwide program; 

22 (vii) as appropriate, specify offenses, 

23 including convictions for violent crimes, for 

24 purposes of the nationwide program; and 


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1 (viii) provide for the development of 

2 ‘‘rap back’’ capability such that, if a direct 

3 patient access employee of a long-term care 

4 facility or provider is convicted of a crime 

5 following the initial criminal history back6 ground check conducted with respect to such 

7 employee, and the employee’s fingerprints 

8 match the prints on file with the State law 

9 enforcement department— 

10 (I) the department will imme11 diately inform the State agency des12 ignated under clause (v) and such 

13 agency will immediately inform the fa14 cility or provider of such conviction; 

15 and 

16 (II) the State will provide, or will 

17 require the facility to provide, to the 

18 employee a copy of the results of the 

19 criminal history background check con20 ducted with respect to the employee at 

21 no charge in the case where the indi22 vidual requests such a copy. 

23 (5) PAYMENTS.— 

24 (A) NEWLY PARTICIPATING STATES.— 


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1 (i) IN GENERAL.—As part of the appli2 cation submitted by a State under para3 graph (1)(A)(iii), the State shall guarantee, 

4 with respect to the costs to be incurred by 

5 the State in carrying out the nationwide 

6 program, that the State will make available 

7 (directly or through donations from public 

8 or private entities) a particular amount of 

9 non-Federal contributions, as a condition of 

10 receiving the Federal match under clause 

11 (ii). 

12 (ii) FEDERAL MATCH.—The payment 

13 amount to each State that the Secretary en14 ters into an agreement with under para15 graph (1)(A) shall be 3 times the amount 

16 that the State guarantees to make available 

17 under clause (i), except that in no case may 

18 the payment amount exceed $3,000,000. 

19 (B) PREVIOUSLY PARTICIPATING STATES.— 

20 (i) IN GENERAL.—As part of the appli21 cation submitted by a State under para22 graph (1)(B)(iii), the State shall guarantee, 

23 with respect to the costs to be incurred by 

24 the State in carrying out the nationwide 

25 program, that the State will make available 


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1 (directly or through donations from public 

2 or private entities) a particular amount of 

3 non-Federal contributions, as a condition of 

4 receiving the Federal match under clause 

5 (ii). 

6 (ii) FEDERAL MATCH.—The payment 

7 amount to each State that the Secretary en8 ters into an agreement with under para9 graph (1)(B) shall be 3 times the amount 

10 that the State guarantees to make available 

11 under clause (i), except that in no case may 

12 the payment amount exceed $1,500,000. 

13 (6) DEFINITIONS.—Under the nationwide pro14 gram: 

15 (A) LONG-TERM CARE FACILITY OR PRO16 VIDER.—The term ‘‘long-term care facility or 

17 provider’’ means the following facilities or pro18 viders which receive payment for services under 

19 title XVIII or XIX of the Social Security Act: 

20 (i) A skilled nursing facility (as de21 fined in section 1819(a) of the Social Secu22 rity Act (42 U.S.C. 1395i–3(a)). 

23 (ii) A nursing facility (as defined in 

24 section 1919(a) of such Act (42 U.S.C. 

25 1396r(a)). 


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1 (iii) A home health agency. 

2 (iv) A provider of hospice care (as de3 fined in section 1861(dd)(1) of such Act (42 

4 U.S.C. 1395x(dd)(1)). 

5 (v) A long-term care hospital (as de6 scribed in section 1886(d)(1)(B)(iv) of such 

7 Act (42 U.S.C. 1395ww(d)(1)(B)(iv)). 

8 (vi) A provider of personal care serv9 ices. 

10 (vii) A provider of adult day care. 

11 (viii) A residential care provider that 

12 arranges for, or directly provides, long-term 

13 care services, including an assisted living 

14 facility that provides a level of care estab15 lished by the Secretary. 

16 (ix) An intermediate care facility for 

17 the mentally retarded (as defined in section 

18 1905(d) of such Act (42 U.S.C. 1396d(d)). 

19 (x) Any other facility or provider of 

20 long-term care services under such titles as 

21 the participating State determines appro22 priate. 

23 (B) DIRECT PATIENT ACCESS EMPLOYEE.— 

24 The term ‘‘direct patient access employee’’ means 

25 any individual who has access to a patient or 


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1 resident of a long-term care facility or provider 

2 through employment or through a contract with 

3 such facility or provider and has duties that in4 volve (or may involve) one-on-one contact with a 

5 patient or resident of the facility or provider, as 

6 determined by the State for purposes of the na7 tionwide program. Such term does not include a 

8 volunteer unless the volunteer has duties that are 

9 equivalent to the duties of a direct patient access 

10 employee and those duties involve (or may in11 volve) one-on-one contact with a patient or resi12 dent of the long-term care facility or provider. 

13 (7) EVALUATION AND REPORT.— 

14 (A) EVALUATION.—The Inspector General of 

15 the Department of Health and Human Services 

16 shall conduct an evaluation of the nationwide 

17 program. 

18 (B) REPORT.—Not later than 180 days 

19 after the completion of the nationwide program, 

20 the Inspector General of the Department of 

21 Health and Human Services shall submit a re22 port to Congress containing the results of the 

23 evaluation conducted under subparagraph (A). 

24 (b) FUNDING.— 


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1 (1) NOTIFICATION.—The Secretary of Health and 

2 Human Services shall notify the Secretary of the 

3 Treasury of the amount necessary to carry out the na4 tionwide program under this section for the period of 

5 fiscal years 2009 through 2011, except that in no case 

6 shall such amount exceed $160,000,000. 

7 (2) TRANSFER OF FUNDS.—Out of any funds in 

8 the Treasury not otherwise appropriated, the Sec9 retary of the Treasury shall provide for the transfer 

10 to the Secretary of Health and Human Services of the 

11 amount specified as necessary to carry out the na12 tionwide program under paragraph (1). Such amount 

13 shall remain available until expended. 

14 SEC. 4. MANDATORY STATE USE OF NATIONAL CORRECT 

15 CODING INITIATIVE. 

16 (a) IN GENERAL.—Section 1903(r) of the Social Secu17 rity Act (42 U.S.C. 1396b(r)) is amended— 

18 (1) in paragraph (1)(B)— 

19 (A) in clause (ii), by striking ‘‘and’’ at the 

20 end; 

21 (B) in clause (iii), by adding ‘‘and’’ after 

22 the semi-colon; and 

23 (C) by adding at the end the following new 

24 clause: 


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1 ‘‘(iv) effective for claims filed on or 

2 after October 1, 2009, incorporate compat3 ible methodologies of the National Correct 

4 Coding Initiative administered by the Sec5 retary (or any successor initiative to pro6 mote correct coding and to control improper 

7 coding leading to inappropriate payment) 

8 and such other methodologies of that Initia9 tive (or such other national correct coding 

10 methodologies) as the Secretary identifies in 

11 accordance with paragraph (3);’’; and 

12 (2) by adding at the end the following new para13 graph: 

14 ‘‘(3) Not later than September 1, 2009, the Secretary 

15 shall do the following: 

16 ‘‘(A) Identify those methodologies of the National 

17 Correct Coding Initiative administered by the Sec18 retary (or any successor initiative to promote correct 

19 coding and to control improper coding leading to in20 appropriate payment) which are compatible to claims 

21 filed under this title. 

22 ‘‘(B) Identify those methodologies of such Initia23 tive (or such other national correct coding methodolo24 gies) that should be incorporated into claims filed 

25 under this title with respect to items or services for 


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1 which States provide medical assistance under this 

2 title and no national correct coding methodologies 

3 have been established under such Initiative with re4 spect to title XVIII. 

5 ‘‘(C) Notify States of— 

6 ‘‘(i) the methodologies identified under sub7 paragraphs (A) and (B) (and of any other na8 tional correct coding methodologies identified 

9 under subparagraph (B)); and 

10 ‘‘(ii) how States are to incorporate such 

11 methodologies into claims filed under this title. 

12 ‘‘(D) Submit a report to Congress that includes 

13 the notice to States under subparagraph (C) and an 

14 analysis supporting the identification of the meth15 odologies made under subparagraphs (A) and (B).’’. 

16 (b) EXTENSION FOR STATE LAW AMENDMENT.—In the 

17 case of a State plan under title XIX of the Social Security 

18 Act (42 U.S.C. 1396 et seq.) which the Secretary of Health 

19 and Human Services determines requires State legislation 

20 in order for the plan to meet the additional requirements 

21 imposed by the amendment made by subsection (a)(1)(C), 

22 the State plan shall not be regarded as failing to comply 

23 with the requirements of such title solely on the basis of 

24 its failure to meet these additional requirements before the 

25 first day of the first calendar quarter beginning after the 


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1 close of the first regular session of the State legislature that 

2 begins after the date of enactment of this Act. For purposes 

3 of the previous sentence, in the case of a State that has a 

4 2-year legislative session, each year of the session is consid5 ered to be a separate regular session of the State legislature. 

6 SEC. 5. FUNDING FOR THE MEDICARE IMPROVEMENT 

7 FUND. 

8 Section 1898(b)(1) of the Social Security Act, as added 

9 by section 7002(a) of the Supplemental Appropriations Act, 

10 2008 (Public Law 110–252) and amended by section 

11 188(a)(2) of the Medicare Improvements for Patients and 

12 Providers Act of 2008 (Public Law 110–275), is amended 

13 to read as follows: 

14 ‘‘(1) IN GENERAL.—There shall be available to 

15 the Fund, for expenditures from the Fund for services 

16 furnished during— 

17 ‘‘(A) fiscal year 2014, $2,220,000,000; and 

18 ‘‘(B) fiscal years 2014 through 2017, 

19 $20,200,000,000.’’. 

Amend the title so as to read: ‘‘A bill to provide for 

nationwide expansion of the pilot program for national 

and State background checks on direct patient access employees of long-term care facilities or providers.’’. 


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Calendar No. 1035 

110TH CONGRESS 

2D SESSION S. 1577 

[Report No. 110–474] 

A BILL 

To amend titles XVIII and XIX of the Social Secuor providers. tient access employees of long-term care facilities tional and State background checks on direct pa- tionwide expansion of the pilot program for na- facilities and providers, and to provide for na- ties, nursing facilities, and other long-term care tient access employees of skilled nursing facili- criminal history background checks, of direct pa- rity Act to require screening, including national 

SEPTEMBER 22 (legislative day, SEPTEMBER 17), 2008 

Reported with an amendment and an amendment to the 

title 


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