II 

110TH CONGRESS 

1ST SESSION S. 1577 

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, and Mrs. CLINTON) 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 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. 

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


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1 SECTION 1. SHORT TITLE. 

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

3 Abuse Prevention Act of 2007’’. 

4 SEC. 2. FINDINGS AND PURPOSES. 

5 (a) FINDINGS.—Congress makes the following find6 ings: 

7 (1) Frail elders are a highly vulnerable popu8 lation who often lack the ability to give consent or 

9 defend themselves. Since the best predictor of future 

10 behavior is past behavior, individuals with histories 

11 of abuse pose a definite risk to patients and resi12 dents of long-term care facilities. 

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

14 of health care employees who commit criminal mis15 conduct on the job and are later found, through a 

16 background check conducted after the fact, to have 

17 a history of convictions for similar crimes. 

18 (3) A 2006 study conducted by the Department 

19 of Health and Human Services determined that— 

20 (A) criminal background checks are a valu21 able tool for employers during the hiring proc22 ess; 

23 (B) the use of criminal background checks 

24 during the hiring process does not limit the pool 

25 of potential job applicants; 


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1 (C) ‘‘a correlation exists between criminal 

2 history and incidences of abuse’’; and 

3 (D) the long-term care industry supports 

4 the practice of conducting background checks 

5 on potential employees in order to reduce the 

6 likelihood of hiring someone who has potential 

7 to harm residents. 

8 (4) In 2005, the Michigan Attorney General 

9 found that 10 percent of employees who were then 

10 providing services to frail elders had criminal back11 grounds. 

12 (5) In 2004, the staffs of State Adult Protec13 tive Services agencies received more than 500,000 

14 reports of elder and vulnerable adult abuse, and an 

15 ombudsman report concluded that more than 15,000 

16 nursing home complaints involved abuse, including 

17 nearly 4,000 complaints of physical abuse, more 

18 than 800 complaints of sexual abuse, and nearly 

19 1,000 complaints of financial exploitation; 

20 (6) The Department of Health and Human 

21 Services has determined that while 41 States now 

22 require criminal background checks on certified 

23 nurse aides prior to employment, only half of those 

24 (22) require criminal background checks at the Fed25 eral level. 


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

2 (1) create a coordinated, nationwide system of 

3 State criminal background checks that would greatly 

4 enhance the chances of identifying individuals with 

5 problematic backgrounds who move across State 

6 lines; 

7 (2) stop individuals who have a record of sub8 stantiated abuse, or a serious criminal record, from 

9 preying on helpless elders and individuals with dis10 abilities; and 

11 (3) provide assurance to long-term care employ12 ers and the residents they care for that potentially 

13 abusive workers will not be hired into positions of 

14 providing services to the extremely vulnerable resi15 dents of our Nation’s long-term care facilities. 

16 SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR 

17 NATIONAL AND STATE BACKGROUND 

18 CHECKS ON DIRECT PATIENT ACCESS EM19 PLOYEES OF LONG-TERM CARE FACILITIES 

20 OR PROVIDERS. 

21 Section 307 of the Medicare Prescription Drug, Im22 provement, and Modernization Act of 2003 (42 U.S.C. 

23 1395aa note) is amended by adding at the end the fol24 lowing new subsection: 

25 ‘‘(h) NATIONWIDE EXPANSION PROGRAM.— 


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

2 enactment of the Patient Safety and Abuse Preven3 tion Act of 2007, the Secretary shall expand the 

4 pilot program under this section to be conducted on 

5 a nationwide basis (in this subsection, such ex6 panded pilot program shall be referred to as the ‘na7 tionwide expansion program’). Except for the fol8 lowing modifications, the provisions of this section 

9 shall apply to the nationwide expansion program: 

10 ‘‘(A) AGREEMENTS.— 

11 ‘‘(i) NEWLY PARTICIPATING

12 STATES.—The Secretary shall enter into 

13 agreements with each State— 

14 ‘‘(I) that the Secretary has not 

15 entered into an agreement with under 

16 subsection (c)(1); 

17 ‘‘(II) that agrees to conduct 

18 background checks under the nation19 wide expansion program on a State20 wide basis; and 

21 ‘‘(III) that submits an applica22 tion to the Secretary containing such 

23 information and at such time as the 

24 Secretary may specify. 


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1 ‘‘(ii) CERTAIN PREVIOUSLY PARTICI2 PATING STATES.—The Secretary shall 

3 enter into agreements with each State— 

4 ‘‘(I) that the Secretary has en5 tered into an agreement with under 

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

7 such agreement did not require the 

8 State to conduct background checks 

9 under the pilot program established 

10 under subsection (a) on a Statewide 

11 basis; 

12 ‘‘(II) that agrees to conduct 

13 background checks under the nation14 wide expansion program on a State15 wide basis; and 

16 ‘‘(III) that submits an applica17 tion to the Secretary containing such 

18 information and at such time as the 

19 Secretary may specify. 

20 ‘‘(B) NONAPPLICATION OF SELECTION CRI21 TERIA.—The selection criteria required under 

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

23 ‘‘(C) REQUIRED FINGERPRINT CHECK AS

24 PART OF CRIMINAL HISTORY BACKGROUND

25 CHECK.—The procedures established under subVerDate Aug 31 2005 22:52 Jun 08, 2007 Jkt 059196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1577.IS S1577

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1 section (b)(1) shall require that the facility or 

2 provider obtain State and national criminal his3 tory background checks on the prospective em4 ployee utilizing a search of State and Federal 

5 criminal history records and including a finger6 print check using the Integrated Automated 

7 Fingerprint Identification System of the Fed8 eral Bureau of Investigation. 

9 ‘‘(D) PAYMENTS.— 

10 ‘‘(i) NEWLY PARTICIPATING

11 STATES.— 

12 ‘‘(I) IN GENERAL.—As part of 

13 the application submitted by a State 

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

15 State shall guarantee, with respect to 

16 the costs to be incurred by the State 

17 in carrying out the nationwide expan18 sion program, that the State will 

19 make available (directly or through 

20 donations from public or private enti21 ties) a particular amount of non-Fed22 eral contributions. 

23 ‘‘(II) FEDERAL MATCH.—The 

24 payment amount to each State that 

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1 ment with under subparagraph (A)(i) 

2 shall be 3 times the amount that the 

3 State guarantees to make available 

4 under subclause (I), except that in no 

5 case may the payment amount exceed 

6 $3,000,000. 

7 ‘‘(ii) PREVIOUSLY PARTICIPATING

8 STATES.— 

9 ‘‘(I) IN GENERAL.—As part of 

10 the application submitted by a State 

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

12 State shall guarantee, with respect to 

13 the costs to be incurred by the State 

14 in carrying out the nationwide expan15 sion program, that the State will 

16 make available (directly or through 

17 donations from public or private enti18 ties) a particular amount of non-Fed19 eral contributions. 

20 ‘‘(II) FEDERAL MATCH.—The 

21 payment amount to each State that 

22 the Secretary enters into an agree23 ment with under subparagraph (A)(ii) 

24 shall be 3 times the amount that the 

25 State guarantees to make available 


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1 under subclause (I), except that in no 

2 case may the payment amount exceed 

3 $1,500,000. 

4 ‘‘(iii) NO RESERVATION FOR EVALUA5 TION.—There shall be no reservation of 

6 any portion of the payment amount pro7 vided under clauses (i) or (ii) for con8 ducting an evaluation. 

9 ‘‘(E) EVALUATIONS AND REPORT.— 

10 ‘‘(i) EVALUATIONS.—The Inspector 

11 General of the Department of Health and 

12 Human Services shall conduct an annual 

13 evaluation of the nationwide expansion 

14 program in each of calendar years 2008 

15 and 2009. 

16 ‘‘(ii) REPORTS.—Not later than 6 

17 months after completion of the second year 

18 of the nationwide expansion program, the 

19 Inspector General of the Department of 

20 Health and Human Services shall submit a 

21 report to Congress containing the results 

22 of the annual evaluations conducted under 

23 clause (i), together with recommendations 

24 for the implementation of the requirements 

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


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1 the Social Security Act, as added by sec2 tion (3)(a) of the Patient Safety and 

3 Abuse Prevention Act of 2007. 

4 ‘‘(2) FUNDING.— 

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

6 notify the Secretary of the Treasury of the 

7 amount necessary to carry out the nationwide 

8 expansion program under this subsection for 

9 the period of fiscal years 2008 through 2010, 

10 except that in no case shall such amount exceed 

11 $156,000,000. 

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

13 funds in the Treasury not otherwise appro14 priated, the Secretary of the Treasury shall 

15 provide for the transfer to the Secretary of the 

16 amount specified as necessary to carry out the 

17 nationwide expansion program under subpara18 graph (A).’’. 

19 SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT AC20 CESS EMPLOYEES OF LONG-TERM CARE FA21 CILITIES AND PROVIDERS. 

22 (a) SCREENING OF SKILLED NURSING FACILITY AND

23 NURSING FACILITY EMPLOYEE APPLICANTS.— 

24 (1) MEDICARE PROGRAM.— 


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

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

3 amended by adding at the end the following 

4 new paragraph: 

5 ‘‘(9) SCREENING OF DIRECT PATIENT ACCESS

6 EMPLOYEES.— 

7 ‘‘(A) SCREENING AND CRIMINAL HISTORY

8 BACKGROUND CHECKS ON APPLICANTS.— 

9 ‘‘(i) SCREENING.—Beginning on Jan10 uary 1, 2011, before hiring a direct patient 

11 access employee, a skilled nursing facility 

12 shall screen the employee for any disquali13 fying information in accordance with such 

14 procedures as the State shall establish 

15 through a search of— 

16 ‘‘(I) State-based abuse and ne17 glect registries and databases, includ18 ing the abuse and neglect registries 

19 and databases of another State in the 

20 case where a prospective employee 

21 previously resided in that State; and 

22 ‘‘(II) criminal records and the 

23 records of any proceedings that may 

24 contain disqualifying information 

25 about applicants, such as proceedings 


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1 conducted by State professional licens2 ing and disciplinary boards and State 

3 medicaid fraud control units. 

4 ‘‘(ii) CRIMINAL HISTORY BACK5 GROUND CHECKS.—As part of such screen6 ing, the skilled nursing facility shall re7 quest that the State agency designated 

8 under subsection (e)(6)(E) oversee the co9 ordination of a State and national criminal 

10 history background check that utilizes a 

11 search of State and Federal criminal his12 tory records and includes a fingerprint 

13 check using the Integrated Automated Fin14 gerprint Identification System of the Fed15 eral Bureau of Investigation. 

16 ‘‘(iii) USE OF PROCEDURES PRE17 VIOUSLY ESTABLISHED.—Nothing in this 

18 paragraph shall be construed as preventing 

19 a State from using procedures established 

20 for purposes of the pilot program for Na21 tional and State background checks on di22 rect patient access employees of long-term 

23 care facilities or providers under section 

24 307 of the Medicare Prescription Drug, 

25 Improvement, and Modernization Act of 


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1 2003, or the nationwide expansion pro2 gram under subsection (h) of such section, 

3 to satisfy the requirements of paragraph 

4 (6). 

5 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

6 WORKERS.— 

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

8 (ii), a skilled nursing facility may not 

9 knowingly employ any direct patient access 

10 employee who has any disqualifying infor11 mation (as defined in subparagraph 

12 (F)(ii)). 

13 ‘‘(ii) PROVISIONAL EMPLOYMENT.— 

14 Subject to clause (iii), the State may per15 mit a skilled nursing facility to provide for 

16 a provisional period of employment (not to 

17 exceed 30 days) for a direct patient access 

18 employee— 

19 ‘‘(I) pending completion of the 

20 screening and background check re21 quired under subparagraph (A); and 

22 ‘‘(II) in the case where the em23 ployee has appealed the results of 

24 such screening and background check, 


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1 pending completion of the appeals 

2 process. 

3 ‘‘(iii) SUPERVISION.—The facility 

4 shall maintain direct on-site supervision of 

5 the employee during such provisional pe6 riod of employment. 

7 ‘‘(C) PROCEDURES.— 

8 ‘‘(i) IN GENERAL.—The procedures 

9 established by the State under subpara10 graph (A) shall be designed to accomplish 

11 the following: 

12 ‘‘(I) Give a prospective direct pa13 tient access employee notice that the 

14 skilled nursing facility is required to 

15 perform background checks with re16 spect to new employees, including a 

17 fingerprint check as part of the na18 tional criminal history background 

19 check conducted under subparagraph 

20 (A)(ii) in the case of any new em21 ployee who does not have a certificate 

22 indicating that a fingerprint check has 

23 been completed and has not found any 

24 disqualifying information (as de25 scribed in subclause (V)). 


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1 ‘‘(II) Require, as a condition of 

2 employment, that the employee— 

3 ‘‘(aa) provide a written 

4 statement disclosing any disquali5 fying information; 

6 ‘‘(bb) provide a statement 

7 signed by the employee author8 izing the facility to request a 

9 background check that includes a 

10 search of the registries and data11 bases described in clause (i)(I) of 

12 subparagraph (A) and the 

13 records described in clause (i)(II) 

14 of such subparagraph and a 

15 criminal history background 

16 check conducted in accordance 

17 with clause (ii) of such subpara18 graph that includes a fingerprint 

19 check using the Integrated Auto20 mated Fingerprint System of the 

21 Federal Bureau of Investigation; 

22 ‘‘(cc) provide the facility 

23 with a rolled set of the employ24 ee’s fingerprints or submit to 

25 being fingerprinted; and 


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1 ‘‘(dd) provide any other 

2 identification information the 

3 State may require. 

4 ‘‘(III) Require the skilled nursing 

5 facility to check any available reg6 istries that would be likely to contain 

7 disqualifying information about a pro8 spective employee, including the reg9 istries and databases described in sub10 clause (I) of subparagraph (A)(i) and 

11 the records described in clause (II) of 

12 such subparagraph. 

13 ‘‘(IV) Provide a prospective di14 rect patient access employee the op15 portunity to request a copy of the re16 sults of the background check con17 ducted with respect to such employee 

18 and to correct any errors by providing 

19 appropriate documentation to the 

20 State and the facility. 

21 ‘‘(V) Upon completion of a fin22 gerprint check as part of the national 

23 criminal history background check 

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1 graph (A)(ii), provide the skilled nurs2 ing facility and the direct patient ac3 cess employee with a certificate indi4 cating that such fingerprint check has 

5 been completed and no disqualifying 

6 information was found. Such certifi7 cate shall— 

8 ‘‘(aa) be valid for 2 years; 

9 and 

10 ‘‘(bb) in the case where such 

11 direct patient access employee is 

12 hired by any other skilled nursing 

13 facility located in the State dur14 ing such 2-year period, satisfy 

15 the requirement that such facility 

16 have a fingerprint check con17 ducted as part of such national 

18 criminal history background 

19 check. 

20 ‘‘(ii) ELIMINATION OF UNNECESSARY

21 CHECKS.—The procedures established by 

22 the State under subparagraph (A) shall 

23 permit a skilled nursing facility to termi24 nate the background check at any stage at 

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1 formation regarding a prospective direct 

2 patient access employee. 

3 ‘‘(iii) DEVELOPMENT OF MODEL FORM

4 OF CERTIFICATE.—The Secretary shall de5 velop a model form of the certificate de6 scribed in clause (i)(V) that States may 

7 use to satisfy the requirements of such 

8 clause. 

9 ‘‘(D) USE OF INFORMATION; IMMUNITY

10 FROM LIABILITY.— 

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

12 nursing facility that obtains information 

13 about a direct patient access employee pur14 suant to screening or a criminal history 

15 background check shall use such informa16 tion only for the purpose of determining 

17 the suitability of the employee for employ18 ment. 

19 ‘‘(ii) IMMUNITY FROM LIABILITY.—A 

20 skilled nursing facility that, in denying em21 ployment for an applicant, reasonably and 

22 in good faith relies upon credible informa23 tion about such applicant provided by a 

24 criminal history background check shall 

25 not be liable in any action brought by such 


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1 applicant based on the employment deter2 mination resulting from the information. 

3 ‘‘(iii) PROHIBITION ON CHARGING EM4 PLOYEES FEES FOR CONDUCTING BACK5 GROUND CHECKS.—A skilled nursing facil6 ity shall not charge a prospective direct pa7 tient access employee a fee for the screen8 ing or criminal history background check 

9 conducted under this paragraph. 

10 ‘‘(E) PENALTIES.— 

11 ‘‘(i) IN GENERAL.— 

12 ‘‘(I) STATE PENALTIES.—Subject 

13 to subclause (II), a skilled nursing fa14 cility that violates the provisions of 

15 this paragraph shall be subject to 

16 such penalties as the State determines 

17 appropriate to enforce the require18 ments of this paragraph. A skilled 

19 nursing facility shall report to the 

20 Secretary on a quarterly basis any 

21 penalties imposed by the State under 

22 the preceding sentence. 

23 ‘‘(II) EXCLUSION FROM PARTICI24 PATION.—In any case where the Sec25 retary determines that a State is not 


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1 sufficiently enforcing the requirements 

2 of this paragraph, the Secretary may 

3 exclude a skilled nursing facility lo4 cated within the State that violates 

5 the provisions of this paragraph from 

6 participating in the programs under 

7 this title and title XIX (in accordance 

8 with the procedures of section 1128). 

9 ‘‘(ii) KNOWING RETENTION OF WORK10 ER.—In addition to any penalty under 

11 clause (i), a skilled nursing facility that 

12 knowingly continues to employ a direct pa13 tient access employee in violation of sub14 paragraph (A) or (B) shall be subject to a 

15 civil penalty in an amount not to exceed 

16 $5,000 for the first such violation, and 

17 $10,000 for the second and each subse18 quent violation within any 5-year period. 

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

20 ‘‘(i) CONVICTION FOR A RELEVANT

21 CRIME.—The term ‘conviction for a rel22 evant crime’ means any Federal or State 

23 criminal conviction for— 

24 ‘‘(I) any offense described in sec25 tion 1128(a); and 


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1 ‘‘(II) such other types of of2 fenses, including violent crimes, as the 

3 State may specify. 

4 ‘‘(ii) DISQUALIFYING INFORMATION.— 

5 The term ‘disqualifying information’ means 

6 information about a conviction for a rel7 evant crime or a finding of substantiated 

8 patient or resident abuse. 

9 ‘‘(iii) DIRECT PATIENT ACCESS EM10 PLOYEE.—The term ‘direct patient access 

11 employee’ means any individual who has 

12 access to a patient or resident of a skilled 

13 nursing facility through employment or 

14 through a contract with such facility and 

15 has duties that involve (or may involve) 

16 one-on-one contact with a patient or resi17 dent of the facility, as determined by the 

18 State for purposes of this paragraph. Such 

19 term does not include a volunteer unless 

20 the volunteer has duties that are equiva21 lent to the duties of a direct patient access 

22 employee and those duties involve (or may 

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

24 or resident of the facility.’’. 


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1 (B) CONFORMING AMENDMENT.—Section 

2 1819(e) of the Social Security Act (42 U.S.C. 

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

4 the following new paragraph: 

5 ‘‘(6) SCREENING OF DIRECT PATIENT ACCESS

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

7 State must— 

8 ‘‘(A) have procedures in place for the con9 duct of screening and criminal history back10 ground checks under subparagraph (A) of sub11 section (b)(9), in accordance with the require12 ments of subparagraph (C) of such subsection; 

13 ‘‘(B) be responsible for monitoring compli14 ance with the procedures and requirements of 

15 such subsection; 

16 ‘‘(C) as appropriate, provide for a provi17 sional period of employment of a direct patient 

18 access employee under clause (ii) of subpara19 graph (B) of such subsection, including proce20 dures to ensure that a skilled nursing facility 

21 provides direct on-site supervision of the em22 ployee in accordance with clause (iii) of such 

23 subparagraph; 

24 ‘‘(D) provide an independent process by 

25 which a provisional employee or an employee 


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1 may appeal or dispute the accuracy of the infor2 mation obtained in a background check per3 formed under such subsection; and 

4 ‘‘(E) designate a single State agency as re5 sponsible for— 

6 ‘‘(i) overseeing the coordination of any 

7 State and national criminal history back8 ground checks requested by a skilled nurs9 ing facility utilizing a search of State and 

10 Federal criminal history records, including 

11 a fingerprint check of such records; 

12 ‘‘(ii) reviewing, using appropriate pri13 vacy and security safeguards, the results of 

14 any State or national criminal history 

15 background checks conducted regarding a 

16 prospective direct patient access employee 

17 to determine whether the employee has any 

18 conviction for a relevant crime; 

19 ‘‘(iii) immediately reporting to the 

20 skilled nursing facility that requested the 

21 criminal history background checks the re22 sults of such review; and 

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

24 a conviction for a relevant crime that is 

25 subject to reporting under section 1128E 


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

2 1320a–7e), reporting the existence of such 

3 conviction to the database established 

4 under that section; 

5 ‘‘(F) have a system in place for deter6 mining and levying appropriate penalties for 

7 violations of the provisions of such subsection; 

8 ‘‘(G) have a system in place for deter9 mining which individuals are direct patient ac10 cess employees for purposes of subparagraph 

11 (F)(iii) of such subsection; 

12 ‘‘(H) as appropriate, specify offenses, in13 cluding violent crimes, for purposes of subpara14 graph (F)(i)(II) of such subsection; and 

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

16 that, if a direct patient access employee of a 

17 skilled nursing facility is convicted of a crime 

18 following the initial criminal history background 

19 check conducted with respect to such employee, 

20 and the employee’s fingerprints match the 

21 prints on file with the State law enforcement 

22 department, the department will immediately 

23 inform the State agency designated under sub24 paragraph (E).’’. 

25 (2) MEDICAID PROGRAM.— 


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

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

3 amended by adding at the end the following 

4 new paragraph: 

5 ‘‘(9) SCREENING OF DIRECT PATIENT ACCESS

6 EMPLOYEES.— 

7 ‘‘(A) SCREENING AND CRIMINAL HISTORY

8 BACKGROUND CHECKS ON APPLICANTS.— 

9 ‘‘(i) SCREENING.—Beginning on Jan10 uary 1, 2011, before hiring a direct patient 

11 access employee, a nursing facility shall 

12 screen the employee for any disqualifying 

13 information in accordance with such proce14 dures as the State shall establish through 

15 a search of— 

16 ‘‘(I) State-based abuse and ne17 glect registries and databases, includ18 ing the abuse and neglect registries 

19 and databases of another State in the 

20 case where a prospective employee 

21 previously resided in that State; and 

22 ‘‘(II) criminal records and the 

23 records of any proceedings that may 

24 contain disqualifying information 

25 about applicants, such as proceedings 


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1 conducted by State professional licens2 ing and disciplinary boards and State 

3 medicaid fraud control units. 

4 ‘‘(ii) CRIMINAL HISTORY BACK5 GROUND CHECKS.—As part of such screen6 ing, the nursing facility shall request that 

7 the State agency designated under sub8 section (e)(6)(E) oversee the coordination 

9 of a State and national criminal history 

10 background check that utilizes a search of 

11 State and Federal criminal history records 

12 and includes a fingerprint check using the 

13 Integrated Automated Fingerprint Identi14 fication System of the Federal Bureau of 

15 Investigation. 

16 ‘‘(iii) USE OF PROCEDURES PRE17 VIOUSLY ESTABLISHED.—Nothing in this 

18 paragraph shall be construed as preventing 

19 a State from using procedures established 

20 for purposes of the pilot program for Na21 tional and State background checks on di22 rect patient access employees of long-term 

23 care facilities or providers under section 

24 307 of the Medicare Prescription Drug, 

25 Improvement, and Modernization Act of 


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1 2003, or the nationwide expansion pro2 gram under subsection (h) of such section, 

3 to satisfy the requirements of paragraph 

4 (6). 

5 ‘‘(B) PROHIBITION ON HIRING OF ABUSIVE

6 WORKERS.— 

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

8 (ii), a nursing facility may not knowingly 

9 employ any direct patient access employee 

10 who has any disqualifying information (as 

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

12 ‘‘(ii) PROVISIONAL EMPLOYMENT.— 

13 Subject to clause (iii), the State may per14 mit a nursing facility to provide for a pro15 visional period of employment (not to ex16 ceed 30 days) for a direct patient access 

17 employee— 

18 ‘‘(I) pending completion of the 

19 screening and background check re20 quired under subparagraph (A); and 

21 ‘‘(II) in the case where the em22 ployee has appealed the results of 

23 such screening and background check, 

24 pending completion of the appeals 

25 process. 


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1 ‘‘(iii) SUPERVISION.—The facility 

2 shall maintain direct on-site supervision of 

3 the employee during such provisional pe4 riod of employment. 

5 ‘‘(C) PROCEDURES.— 

6 ‘‘(i) IN GENERAL.—The procedures 

7 established by the State under subpara8 graph (A) shall be designed to accomplish 

9 the following: 

10 ‘‘(I) Give a prospective direct pa11 tient access employee notice that the 

12 nursing facility is required to perform 

13 background checks with respect to 

14 new employees, including a fingerprint 

15 check as part of the national criminal 

16 history background check conducted 

17 under subparagraph (A)(ii) in the 

18 case of any new employee who does 

19 not have a certificate indicating that a 

20 fingerprint check has been completed 

21 and has not found any disqualifying 

22 information (as described in subclause 

23 (V)). 

24 ‘‘(II) Require, as a condition of 

25 employment, that the employee— 


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1 ‘‘(aa) provide a written 

2 statement disclosing any disquali3 fying information; 

4 ‘‘(bb) provide a statement 

5 signed by the employee author6 izing the facility to request a 

7 background check that includes a 

8 search of the registries and data9 bases described in clause (i)(I) of 

10 subparagraph (A) and the 

11 records described in clause (i)(II) 

12 of such subparagraph and a 

13 criminal history background 

14 check conducted in accordance 

15 with clause (ii) of such subpara16 graph that includes a fingerprint 

17 check using the Integrated Auto18 mated Fingerprint System of the 

19 Federal Bureau of Investigation; 

20 ‘‘(cc) provide the facility 

21 with a rolled set of the employ22 ee’s fingerprints or submit to 

23 being fingerprinted; and 


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1 ‘‘(dd) provide any other 

2 identification information the 

3 State may require. 

4 ‘‘(III) Require the nursing facil5 ity to check any available registries 

6 that would be likely to contain dis7 qualifying information about a pro8 spective employee, including the reg9 istries and databases described in sub10 clause (I) of subparagraph (A)(i) and 

11 the records described in clause (II) of 

12 such subparagraph. 

13 ‘‘(IV) Provide a prospective di14 rect patient access employee the op15 portunity to request a copy of the re16 sults of the background check con17 ducted with respect to such employee 

18 and to correct any errors by providing 

19 appropriate documentation to the 

20 State and the nursing facility. 

21 ‘‘(V) Upon completion of a fin22 gerprint check as part of the national 

23 criminal history background check 

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1 graph (A)(ii), provide the nursing fa2 cility and the direct patient access em3 ployee with a certificate indicating 

4 that such fingerprint check has been 

5 completed and no disqualifying infor6 mation was found. Such certificate 

7 shall— 

8 ‘‘(aa) be valid for 2 years; 

9 and 

10 ‘‘(bb) in the case where such 

11 direct patient access employee is 

12 hired by any other nursing facil13 ity located in the State during 

14 such 2-year period, satisfy the re15 quirement that such facility have 

16 a fingerprint check conducted as 

17 part of such national criminal 

18 history background check. 

19 ‘‘(ii) ELIMINATION OF UNNECESSARY

20 CHECKS.—The procedures established by 

21 the State under subparagraph (A) shall 

22 permit a nursing facility to terminate the 

23 background check at any stage at which 

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1 tion regarding a prospective direct patient 

2 access employee. 

3 ‘‘(iii) DEVELOPMENT OF MODEL FORM

4 OF CERTIFICATE.—The Secretary shall de5 velop a model form of the certificate de6 scribed in clause (i)(V) that States may 

7 use to satisfy the requirements of such 

8 clause. 

9 ‘‘(D) USE OF INFORMATION; IMMUNITY

10 FROM LIABILITY.— 

11 ‘‘(i) USE OF INFORMATION.—A nurs12 ing facility that obtains information about 

13 a direct patient access employee pursuant 

14 to screening or a criminal history back15 ground check shall use such information 

16 only for the purpose of determining the 

17 suitability of the employee for employment. 

18 ‘‘(ii) IMMUNITY FROM LIABILITY.—A 

19 nursing facility that, in denying employ20 ment for an applicant, reasonably and in 

21 good faith relies upon credible information 

22 about such applicant provided by a crimi23 nal history background check shall not be 

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1 cant based on the employment determina2 tion resulting from the information. 

3 ‘‘(iii) PROHIBITION ON CHARGING EM4 PLOYEES FEES FOR CONDUCTING BACK5 GROUND CHECKS.—A nursing facility shall 

6 not charge a prospective direct patient ac7 cess employee a fee for the screening or 

8 criminal history background check con9 ducted under this paragraph. 

10 ‘‘(E) PENALTIES.— 

11 ‘‘(i) IN GENERAL.— 

12 ‘‘(I) STATE PENALTIES.—Subject 

13 to subclause (II), a nursing facility 

14 that violates the provisions of this 

15 paragraph shall be subject to such 

16 penalties as the State determines ap17 propriate to enforce the requirements 

18 of this paragraph. A nursing facility 

19 shall report to the Secretary on a 

20 quarterly basis any penalties imposed 

21 by the State under the preceding sen22 tence. 

23 ‘‘(II) EXCLUSION FROM PARTICI24 PATION.—In any case where the Sec25 retary determines that a State is not 


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1 sufficiently enforcing the requirements 

2 of this paragraph, the Secretary may 

3 exclude a nursing facility located with4 in the State that violates the provi5 sions of this paragraph from partici6 pating in the programs under this 

7 title and title XVIII (in accordance 

8 with the procedures of section 1128). 

9 ‘‘(ii) KNOWING RETENTION OF WORK10 ER.—In addition to any penalty under 

11 clause (i), a nursing facility that knowingly 

12 continues to employ a direct patient access 

13 employee in violation of subparagraph (A) 

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

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

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

17 second and each subsequent violation with18 in any 5-year period. 

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

20 ‘‘(i) CONVICTION FOR A RELEVANT

21 CRIME.—The term ‘conviction for a rel22 evant crime’ means any Federal or State 

23 criminal conviction for— 

24 ‘‘(I) any offense described in sec25 tion 1128(a); and 


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1 ‘‘(II) such other types of of2 fenses, including violent crimes, as the 

3 State may specify. 

4 ‘‘(ii) DISQUALIFYING INFORMATION.— 

5 The term ‘disqualifying information’ means 

6 information about a conviction for a rel7 evant crime or a finding of substantiated 

8 patient or resident abuse. 

9 ‘‘(iii) DIRECT PATIENT ACCESS EM10 PLOYEE.—The term ‘direct patient access 

11 employee’ means any individual who has 

12 access to a patient or resident of a nursing 

13 facility through employment or through a 

14 contract with such facility and has duties 

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

16 contact with a patient or resident of the 

17 facility, as determined by the State for 

18 purposes of this paragraph. Such term 

19 does not include a volunteer unless the vol20 unteer has duties that are equivalent to the 

21 duties of a direct patient access employee 

22 and those duties involve (or may involve) 

23 one-on-one contact with a patient or resi24 dent of the facility.’’. 


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1 (B) CONFORMING AMENDMENT.—Section 

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

3 1396r(e)) is amended by adding at the end the 

4 following new paragraph: 

5 ‘‘(8) SCREENING OF DIRECT PATIENT ACCESS

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

7 State must— 

8 ‘‘(A) have procedures in place for the con9 duct of screening and criminal history back10 ground checks under subparagraph (A) of sub11 section (b)(9), in accordance with the require12 ments of subparagraph (C) of such subsection; 

13 ‘‘(B) be responsible for monitoring compli14 ance with the procedures and requirements of 

15 such subsection; 

16 ‘‘(C) as appropriate, provide for a provi17 sional period of employment of a direct patient 

18 access employee under clause (ii) of subpara19 graph (B) of such subsection, including proce20 dures to ensure that a nursing facility provides 

21 direct on-site supervision of the employee in ac22 cordance with clause (iii) of such subparagraph; 

23 ‘‘(D) provide an independent process by 

24 which a provisional employee or an employee 

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1 mation obtained in a background check per2 formed under such subsection; and 

3 ‘‘(E) designate a single State agency as re4 sponsible for— 

5 ‘‘(i) overseeing the coordination of any 

6 State and national criminal history back7 ground checks requested by a nursing fa8 cility utilizing a search of State and Fed9 eral criminal history records, including a 

10 fingerprint check of such records; 

11 ‘‘(ii) reviewing, using appropriate pri12 vacy and security safeguards, the results of 

13 any State or national criminal history 

14 background checks conducted regarding a 

15 prospective direct patient access employee 

16 to determine whether the employee has any 

17 conviction for a relevant crime; 

18 ‘‘(iii) immediately reporting to the 

19 nursing facility that requested the criminal 

20 history background checks the results of 

21 such review; and 

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

23 a conviction for a relevant crime that is 

24 subject to reporting under section 1128E 

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


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1 1320a–7e), reporting the existence of such 

2 conviction to the database established 

3 under that section; 

4 ‘‘(F) have a system in place for deter5 mining and levying appropriate penalties for 

6 violations of the provisions of such subsection; 

7 ‘‘(G) have a system in place for deter8 mining which individuals are direct patient ac9 cess employees for purposes of subparagraph 

10 (F)(iii) of such subsection; 

11 ‘‘(H) as appropriate, specify offenses, in12 cluding violent crimes, for purposes of subpara13 graph (F)(i)(II) of such subsection; and 

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

15 that, if a direct patient access employee of a 

16 nursing facility is convicted of a crime following 

17 the initial criminal history background check 

18 conducted with respect to such employee, and 

19 the employee’s fingerprints match the prints on 

20 file with the State law enforcement department, 

21 the department will immediately inform the 

22 State agency designated under subparagraph 

23 (E).’’. 

24 (b) APPLICATION TO OTHER LONG-TERM CARE FA25 CILITIES OR PROVIDERS.— 


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

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

3 amended by adding at the end the following: 

4 ‘‘APPLICATION OF SKILLED NURSING FACILITY PREVEN5 TIVE ABUSE PROVISIONS TO LONG-TERM CARE FA6 CILITIES AND PROVIDERS

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

8 shall apply to a long-term care facility or provider (as de9 fined in subsection (b)) in the same manner as such provi10 sions apply to a skilled nursing facility. 

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

12 In this section, the term ‘long-term care facility or pro13 vider’ means the following facilities or providers which re14 ceive payment for services under this title or title XIX: 

15 ‘‘(1) A home health agency. 

16 ‘‘(2) A provider of hospice care. 

17 ‘‘(3) A long-term care hospital. 

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

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

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

21 for, or directly provides, long-term care services, in22 cluding an assisted living facility that provides a 

23 level of care established by the Secretary. 

24 ‘‘(7) An intermediate care facility for the men25 tally retarded (as defined in section 1905(d)).’’. 


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

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

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

4 at the end; 

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

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

7 and 

8 (C) by inserting after paragraph 

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

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

11 1919(b)(9) apply to a long-term care facility or pro12 vider (as defined in section 1898(b)) in the same 

13 manner as such provisions apply to a nursing facil14 ity.’’. 

15 (3) EFFECTIVE DATE.—The amendments made 

16 by this subsection shall take effect on January 1, 

17 2011. 

18 (c) PAYMENTS.— 

19 (1) PROCEDURES TO REIMBURSE COSTS OF NA20 TIONAL BACKGROUND CHECK.— 

21 (A) IN GENERAL.—The Secretary of 

22 Health and Human Services shall establish pro23 cedures to reimburse the costs of conducting 

24 national criminal history background checks 

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


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

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

3 (b)(2), respectively, through the following mech4 anisms, in such proportion as the Secretary de5 termines appropriate: 

6 (i) By providing payments to skilled 

7 nursing facilities and long-term care facili8 ties or providers for costs incurred as are 

9 attributable to the conduct of such na10 tional criminal history background checks 

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

12 (ii) By making a payment, from sums 

13 appropriated therefore, under section 

14 1903(a) of the Social Security Act (42 

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

16 a plan approved under title XIX of the So17 cial Security Act (42 U.S.C. 1396 et seq.), 

18 for each quarter, beginning with the quar19 ter commencing on January 1, 2011, in an 

20 amount equal to 90 percent of the sums 

21 expended with respect to costs incurred 

22 during such quarter as are attributable to 

23 the conduct of such national criminal his24 tory background checks under such section 

25 1919(b)(9). 


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1 (B) FUNDING FOR PAYMENTS FOR COSTS

2 INCURRED UNDER MEDICARE PROGRAM.—The 

3 Secretary of Health and Human Services shall 

4 provide for the transfer, in appropriate part 

5 from the Federal Hospital Insurance Trust 

6 Fund established under section 1817 of the So7 cial Security Act (42 U.S.C. 1395i) and the 

8 Federal Supplementary Insurance Trust Fund 

9 established under section 1841 of such Act (42 

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

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

12 for fiscal year 2011 and each fiscal year there13 after. 

14 (C) DETERMINATION OF APPROPRIATE

15 PROPORTION.—In establishing the procedures 

16 under subparagraph (A), the Secretary of 

17 Health and Human Services shall determine 

18 what proportion of payments using the mecha19 nisms described in such subparagraph would re20 sult in an equitable allocation of the costs of 

21 such reimbursement between the Medicare pro22 gram under title XVIII of the Social Security 

23 Act and the Medicaid program under title XIX 

24 of such Act. 


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1 (2) ENSURING NO DUPLICATIVE PAYMENTS.— 

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

3 shall ensure that no duplicative payments are made 

4 for the costs of conducting such national criminal 

5 history background checks, including any duplication 

6 of payments made under the pilot program for na7 tional and State background checks on direct patient 

8 access employees of long-term care facilities or pro9 viders under section 307 of the Medicare Prescrip10 tion Drug, Improvement, and Modernization Act of 

11 2007, including the nationwide expansion program 

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

13 section 3. 

14 (3) SUBMISSION OF COSTS INCURRED BY FA15 CILITIES IN PERFORMING CHECKS.— 

16 (A) IN GENERAL.—The procedures estab17 lished under paragraph (1)(A) shall provide a 

18 process, such as through submission of a bill, 

19 by which a skilled nursing facility, a nursing fa20 cility, and a long-term care facility or provider 

21 may submit information regarding the costs in22 curred by such facility in conducting national 

23 criminal history background checks under sec24 tions 1819(b)(9), 1919(b)(9), 1898, and 

25 1902(a)(71) of the Social Security Act, as 


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

2 (b)(2), respectively. 

3 (B) MODEL FORMS.—The Secretary of 

4 Health and Human Services shall develop 

5 model forms that may be used by a skilled 

6 nursing facility, a nursing facility, and a long7 term care facility or provider to submit a claim 

8 for reimbursement of the costs described in 

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

10 described in subparagraph (A). 

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

12 after the date of enactment of this Act, the Sec13 retary of Health and Human Services shall promul14 gate regulations to carry out this subsection. 

15 SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FED16 ERAL BUREAU OF INVESTIGATION. 

17 (a) DEVELOPMENT OF RAP BACK CAPABILITIES.— 

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

19 2011, the Director of the Federal Bureau of Inves20 tigation (in this section referred to as the ‘‘Direc21 tor’’) shall ensure that the Integrated Automated 

22 Fingerprint Identification System of the Federal Bu23 reau of Investigation has the capacity to store and 

24 retrieve fingerprints from its database. 


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1 (2) NOTIFICATION OF CONVICTION OF DIRECT

2 PATIENT ACCESS EMPLOYEE.—In the case where a 

3 direct patient access employee (as defined in sub4 paragraph (F)(iii) of sections 1819(b)(9) and 

5 1919(b)(9) of the Social Security Act, as added by 

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

7 initial national criminal history background check 

8 conducted with respect to such employee under such 

9 sections 1819(b)(9) and 1919(b)(9), and the employ10 ee’s fingerprint matches the prints on file with the 

11 Federal Bureau of Investigation, the Bureau shall 

12 inform the State law enforcement department, in 

13 order for the State to inform the skilled nursing fa14 cility, nursing facility, or long-term care facility or 

15 provider of such conviction in accordance with the 

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

17 1919(e)(8)(I) of the Social Security Act, as added by 

18 section 4(a). 

19 (b) REASONABLE FEE FOR NATIONAL CRIMINAL

20 HISTORY BACKGROUND CHECKS CONDUCTED ON EM21 PLOYEES OF LONG-TERM CARE FACILITIES.—The Direc22 tor may charge a reasonable fee, in consultation with the 

23 Secretary of Health and Human Services, for a national 

24 criminal history background check using the Integrated 

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1 eral Bureau of Investigation that is conducted under sec2 tion 1819(b)(9), 1919(b)(9), 1898, or 1902(a)(71) of the 

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

4 (b)(1), and (b)(2) of section 4, respectively, that rep5 resents the actual cost of conducting such national crimi6 nal history background check. 

Æ 


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