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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1577 Reported in Senate (RS)]

                                                      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 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.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Patient Safety and Abuse 
Prevention Act of 2007''.</DELETED>

<DELETED>SEC. 2. FINDINGS AND PURPOSES.</DELETED>

<DELETED>    (a) Findings.--Congress makes the following 
findings:</DELETED>
        <DELETED>    (1) Frail elders are a highly vulnerable 
        population who often lack the ability to give consent or defend 
        themselves. Since the best predictor of future behavior is past 
        behavior, individuals with histories of abuse pose a definite 
        risk to patients and residents of long-term care 
        facilities.</DELETED>
        <DELETED>    (2) Every month, there are stories in the media of 
        health care employees who commit criminal misconduct on the job 
        and are later found, through a background check conducted after 
        the fact, to have a history of convictions for similar 
        crimes.</DELETED>
        <DELETED>    (3) A 2006 study conducted by the Department of 
        Health and Human Services determined that--</DELETED>
                <DELETED>    (A) criminal background checks are a 
                valuable tool for employers during the hiring 
                process;</DELETED>
                <DELETED>    (B) the use of criminal background checks 
                during the hiring process does not limit the pool of 
                potential job applicants;</DELETED>
                <DELETED>    (C) ``a correlation exists between 
                criminal history and incidences of abuse''; 
                and</DELETED>
                <DELETED>    (D) the long-term care industry supports 
                the practice of conducting background checks on 
                potential employees in order to reduce the likelihood 
                of hiring someone who has potential to harm 
                residents.</DELETED>
        <DELETED>    (4) In 2005, the Michigan Attorney General found 
        that 10 percent of employees who were then providing services 
        to frail elders had criminal backgrounds.</DELETED>
        <DELETED>    (5) In 2004, the staffs of State Adult Protective 
        Services agencies received more than 500,000 reports of elder 
        and vulnerable adult abuse, and an ombudsman report concluded 
        that more than 15,000 nursing home complaints involved abuse, 
        including nearly 4,000 complaints of physical abuse, more than 
        800 complaints of sexual abuse, and nearly 1,000 complaints of 
        financial exploitation;</DELETED>
        <DELETED>    (6) The Department of Health and Human Services 
        has determined that while 41 States now require criminal 
        background checks on certified nurse aides prior to employment, 
        only half of those (22) require criminal background checks at 
        the Federal level.</DELETED>
<DELETED>    (b) Purposes.--The purposes of this Act are to--</DELETED>
        <DELETED>    (1) create a coordinated, nationwide system of 
        State criminal background checks that would greatly enhance the 
        chances of identifying individuals with problematic backgrounds 
        who move across State lines;</DELETED>
        <DELETED>    (2) stop individuals who have a record of 
        substantiated abuse, or a serious criminal record, from preying 
        on helpless elders and individuals with disabilities; 
        and</DELETED>
        <DELETED>    (3) provide assurance to long-term care employers 
        and the residents they care for that potentially abusive 
        workers will not be hired into positions of providing services 
        to the extremely vulnerable residents of our Nation's long-term 
        care facilities.</DELETED>

<DELETED>SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR NATIONAL AND 
              STATE BACKGROUND CHECKS ON DIRECT PATIENT ACCESS 
              EMPLOYEES OF LONG-TERM CARE FACILITIES OR 
              PROVIDERS.</DELETED>

<DELETED>    Section 307 of the Medicare Prescription Drug, 
Improvement, and Modernization Act of 2003 (42 U.S.C. 1395aa note) is 
amended by adding at the end the following new subsection:</DELETED>
<DELETED>    ``(h) Nationwide Expansion Program.--</DELETED>
        <DELETED>    ``(1) In general.--Beginning on the date of 
        enactment of the Patient Safety and Abuse Prevention Act of 
        2007, the Secretary shall expand the pilot program under this 
        section to be conducted on a nationwide basis (in this 
        subsection, such expanded pilot program shall be referred to as 
        the `nationwide expansion program'). Except for the following 
        modifications, the provisions of this section shall apply to 
        the nationwide expansion program:</DELETED>
                <DELETED>    ``(A) Agreements.--</DELETED>
                        <DELETED>    ``(i) Newly participating 
                        states.--The Secretary shall enter into 
                        agreements with each State--</DELETED>
                                <DELETED>    ``(I) that the Secretary 
                                has not entered into an agreement with 
                                under subsection (c)(1);</DELETED>
                                <DELETED>    ``(II) that agrees to 
                                conduct background checks under the 
                                nationwide expansion program on a 
                                Statewide basis; and</DELETED>
                                <DELETED>    ``(III) that submits an 
                                application to the Secretary containing 
                                such information and at such time as 
                                the Secretary may specify.</DELETED>
                        <DELETED>    ``(ii) Certain previously 
                        participating states.--The Secretary shall 
                        enter into agreements with each State--
                        </DELETED>
                                <DELETED>    ``(I) that the Secretary 
                                has entered into an agreement with 
                                under subsection (c)(1) in the case 
                                where such agreement did not require 
                                the State to conduct background checks 
                                under the pilot program established 
                                under subsection (a) on a Statewide 
                                basis;</DELETED>
                                <DELETED>    ``(II) that agrees to 
                                conduct background checks under the 
                                nationwide expansion program on a 
                                Statewide basis; and</DELETED>
                                <DELETED>    ``(III) that submits an 
                                application to the Secretary containing 
                                such information and at such time as 
                                the Secretary may specify.</DELETED>
                <DELETED>    ``(B) Nonapplication of selection 
                criteria.--The selection criteria required under 
                subsection (c)(3)(B) shall not apply.</DELETED>
                <DELETED>    ``(C) Required fingerprint check as part 
                of criminal history background check.--The procedures 
                established under subsection (b)(1) shall require that 
                the facility or provider obtain State and national 
                criminal history background checks on the prospective 
                employee utilizing a search of State and Federal 
                criminal history records and including a fingerprint 
                check using the Integrated Automated Fingerprint 
                Identification System of the Federal Bureau of 
                Investigation.</DELETED>
                <DELETED>    ``(D) Payments.--</DELETED>
                        <DELETED>    ``(i) Newly participating 
                        states.--</DELETED>
                                <DELETED>    ``(I) In general.--As part 
                                of the application submitted by a State 
                                under subparagraph (A)(i)(III), the 
                                State shall guarantee, with respect to 
                                the costs to be incurred by the State 
                                in carrying out the nationwide 
                                expansion program, that the State will 
                                make available (directly or through 
                                donations from public or private 
                                entities) a particular amount of non-
                                Federal contributions.</DELETED>
                                <DELETED>    ``(II) Federal match.--The 
                                payment amount to each State that the 
                                Secretary enters into an agreement with 
                                under subparagraph (A)(i) shall be 3 
                                times the amount that the State 
                                guarantees to make available under 
                                subclause (I), except that in no case 
                                may the payment amount exceed 
                                $3,000,000.</DELETED>
                        <DELETED>    ``(ii) Previously participating 
                        states.--</DELETED>
                                <DELETED>    ``(I) In general.--As part 
                                of the application submitted by a State 
                                under subparagraph (A)(ii)(III), the 
                                State shall guarantee, with respect to 
                                the costs to be incurred by the State 
                                in carrying out the nationwide 
                                expansion program, that the State will 
                                make available (directly or through 
                                donations from public or private 
                                entities) a particular amount of non-
                                Federal contributions.</DELETED>
                                <DELETED>    ``(II) Federal match.--The 
                                payment amount to each State that the 
                                Secretary enters into an agreement with 
                                under subparagraph (A)(ii) shall be 3 
                                times the amount that the State 
                                guarantees to make available under 
                                subclause (I), except that in no case 
                                may the payment amount exceed 
                                $1,500,000.</DELETED>
                        <DELETED>    ``(iii) No reservation for 
                        evaluation.--There shall be no reservation of 
                        any portion of the payment amount provided 
                        under clauses (i) or (ii) for conducting an 
                        evaluation.</DELETED>
                <DELETED>    ``(E) Evaluations and report.--</DELETED>
                        <DELETED>    ``(i) Evaluations.--The Inspector 
                        General of the Department of Health and Human 
                        Services shall conduct an annual evaluation of 
                        the nationwide expansion program in each of 
                        calendar years 2008 and 2009.</DELETED>
                        <DELETED>    ``(ii) Reports.--Not later than 6 
                        months after completion of the second year of 
                        the nationwide expansion program, the Inspector 
                        General of the Department of Health and Human 
                        Services shall submit a report to Congress 
                        containing the results of the annual 
                        evaluations conducted under clause (i), 
                        together with recommendations for the 
                        implementation of the requirements of sections 
                        1819(b)(9) and 1919(b)(9) of the Social 
                        Security Act, as added by section (3)(a) of the 
                        Patient Safety and Abuse Prevention Act of 
                        2007.</DELETED>
        <DELETED>    ``(2) Funding.--</DELETED>
                <DELETED>    ``(A) Notification.--The Secretary shall 
                notify the Secretary of the Treasury of the amount 
                necessary to carry out the nationwide expansion program 
                under this subsection for the period of fiscal years 
                2008 through 2010, except that in no case shall such 
                amount exceed $156,000,000.</DELETED>
                <DELETED>    ``(B) Transfer of funds.--Out of any funds 
                in the Treasury not otherwise appropriated, the 
                Secretary of the Treasury shall provide for the 
                transfer to the Secretary of the amount specified as 
                necessary to carry out the nationwide expansion program 
                under subparagraph (A).''.</DELETED>

<DELETED>SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES 
              OF LONG-TERM CARE FACILITIES AND PROVIDERS.</DELETED>

<DELETED>    (a) Screening of Skilled Nursing Facility and Nursing 
Facility Employee Applicants.--</DELETED>
        <DELETED>    (1) Medicare program.--</DELETED>
                <DELETED>    (A) In general.--Section 1819(b) of the 
                Social Security Act (42 U.S.C. 1395i-3(b)) is amended 
                by adding at the end the following new 
                paragraph:</DELETED>
        <DELETED>    ``(9) Screening of direct patient access 
        employees.--</DELETED>
                <DELETED>    ``(A) Screening and criminal history 
                background checks on applicants.--</DELETED>
                        <DELETED>    ``(i) Screening.--Beginning on 
                        January 1, 2011, before hiring a direct patient 
                        access employee, a skilled nursing facility 
                        shall screen the employee for any disqualifying 
                        information in accordance with such procedures 
                        as the State shall establish through a search 
                        of--</DELETED>
                                <DELETED>    ``(I) State-based abuse 
                                and neglect registries and databases, 
                                including the abuse and neglect 
                                registries and databases of another 
                                State in the case where a prospective 
                                employee previously resided in that 
                                State; and</DELETED>
                                <DELETED>    ``(II) criminal records 
                                and the records of any proceedings that 
                                may contain disqualifying information 
                                about applicants, such as proceedings 
                                conducted by State professional 
                                licensing and disciplinary boards and 
                                State medicaid fraud control 
                                units.</DELETED>
                        <DELETED>    ``(ii) Criminal history background 
                        checks.--As part of such screening, the skilled 
                        nursing facility shall request that the State 
                        agency designated under subsection (e)(6)(E) 
                        oversee the coordination of a State and 
                        national criminal history background check that 
                        utilizes a search of State and Federal criminal 
                        history records and includes a fingerprint 
                        check using the Integrated Automated 
                        Fingerprint Identification System of the 
                        Federal Bureau of Investigation.</DELETED>
                        <DELETED>    ``(iii) Use of procedures 
                        previously established.--Nothing in this 
                        paragraph shall be construed as preventing a 
                        State from using procedures established for 
                        purposes of the pilot program for National and 
                        State background checks on direct patient 
                        access employees of long-term care facilities 
                        or providers under section 307 of the Medicare 
                        Prescription Drug, Improvement, and 
                        Modernization Act of 2003, or the nationwide 
                        expansion program under subsection (h) of such 
                        section, to satisfy the requirements of 
                        paragraph (6).</DELETED>
                <DELETED>    ``(B) Prohibition on hiring of abusive 
                workers.--</DELETED>
                        <DELETED>    ``(i) In general.--Subject to 
                        clause (ii), a skilled nursing facility may not 
                        knowingly employ any direct patient access 
                        employee who has any disqualifying information 
                        (as defined in subparagraph (F)(ii)).</DELETED>
                        <DELETED>    ``(ii) Provisional employment.--
                        Subject to clause (iii), the State may permit a 
                        skilled nursing facility to provide for a 
                        provisional period of employment (not to exceed 
                        30 days) for a direct patient access employee--
                        </DELETED>
                                <DELETED>    ``(I) pending completion 
                                of the screening and background check 
                                required under subparagraph (A); 
                                and</DELETED>
                                <DELETED>    ``(II) in the case where 
                                the employee has appealed the results 
                                of such screening and background check, 
                                pending completion of the appeals 
                                process.</DELETED>
                        <DELETED>    ``(iii) Supervision.--The facility 
                        shall maintain direct on-site supervision of 
                        the employee during such provisional period of 
                        employment.</DELETED>
                <DELETED>    ``(C) Procedures.--</DELETED>
                        <DELETED>    ``(i) In general.--The procedures 
                        established by the State under subparagraph (A) 
                        shall be designed to accomplish the 
                        following:</DELETED>
                                <DELETED>    ``(I) Give a prospective 
                                direct patient access employee notice 
                                that the skilled nursing facility is 
                                required to perform background checks 
                                with respect to new employees, 
                                including a fingerprint check as part 
                                of the national criminal history 
                                background check conducted under 
                                subparagraph (A)(ii) in the case of any 
                                new employee who does not have a 
                                certificate indicating that a 
                                fingerprint check has been completed 
                                and has not found any disqualifying 
                                information (as described in subclause 
                                (V)).</DELETED>
                                <DELETED>    ``(II) Require, as a 
                                condition of employment, that the 
                                employee--</DELETED>
                                        <DELETED>    ``(aa) provide a 
                                        written statement disclosing 
                                        any disqualifying 
                                        information;</DELETED>
                                        <DELETED>    ``(bb) provide a 
                                        statement signed by the 
                                        employee authorizing the 
                                        facility to request a 
                                        background check that includes 
                                        a search of the registries and 
                                        databases described in clause 
                                        (i)(I) of subparagraph (A) and 
                                        the records described in clause 
                                        (i)(II) of such subparagraph 
                                        and a criminal history 
                                        background check conducted in 
                                        accordance with clause (ii) of 
                                        such subparagraph that includes 
                                        a fingerprint check using the 
                                        Integrated Automated 
                                        Fingerprint System of the 
                                        Federal Bureau of 
                                        Investigation;</DELETED>
                                        <DELETED>    ``(cc) provide the 
                                        facility with a rolled set of 
                                        the employee's fingerprints or 
                                        submit to being fingerprinted; 
                                        and</DELETED>
                                        <DELETED>    ``(dd) provide any 
                                        other identification 
                                        information the State may 
                                        require.</DELETED>
                                <DELETED>    ``(III) Require the 
                                skilled nursing facility to check any 
                                available registries that would be 
                                likely to contain disqualifying 
                                information about a prospective 
                                employee, including the registries and 
                                databases described in subclause (I) of 
                                subparagraph (A)(i) and the records 
                                described in clause (II) of such 
                                subparagraph.</DELETED>
                                <DELETED>    ``(IV) Provide a 
                                prospective direct patient access 
                                employee the opportunity to request a 
                                copy of the results of the background 
                                check conducted with respect to such 
                                employee and to correct any errors by 
                                providing appropriate documentation to 
                                the State and the facility.</DELETED>
                                <DELETED>    ``(V) Upon completion of a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted with respect to a 
                                direct patient access employee under 
                                subparagraph (A)(ii), provide the 
                                skilled nursing facility and the direct 
                                patient access employee with a 
                                certificate indicating that such 
                                fingerprint check has been completed 
                                and no disqualifying information was 
                                found. Such certificate shall--
                                </DELETED>
                                        <DELETED>    ``(aa) be valid 
                                        for 2 years; and</DELETED>
                                        <DELETED>    ``(bb) in the case 
                                        where such direct patient 
                                        access employee is hired by any 
                                        other skilled nursing facility 
                                        located in the State during 
                                        such 2-year period, satisfy the 
                                        requirement that such facility 
                                        have a fingerprint check 
                                        conducted as part of such 
                                        national criminal history 
                                        background check.</DELETED>
                        <DELETED>    ``(ii) Elimination of unnecessary 
                        checks.--The procedures established by the 
                        State under subparagraph (A) shall permit a 
                        skilled nursing facility to terminate the 
                        background check at any stage at which the 
                        facility obtains disqualifying information 
                        regarding a prospective direct patient access 
                        employee.</DELETED>
                        <DELETED>    ``(iii) Development of model form 
                        of certificate.--The Secretary shall develop a 
                        model form of the certificate described in 
                        clause (i)(V) that States may use to satisfy 
                        the requirements of such clause.</DELETED>
                <DELETED>    ``(D) Use of information; immunity from 
                liability.--</DELETED>
                        <DELETED>    ``(i) Use of information.--A 
                        skilled nursing facility that obtains 
                        information about a direct patient access 
                        employee pursuant to screening or a criminal 
                        history background check shall use such 
                        information only for the purpose of determining 
                        the suitability of the employee for 
                        employment.</DELETED>
                        <DELETED>    ``(ii) Immunity from liability.--A 
                        skilled nursing facility that, in denying 
                        employment for an applicant, reasonably and in 
                        good faith relies upon credible information 
                        about such applicant provided by a criminal 
                        history background check shall not be liable in 
                        any action brought by such applicant based on 
                        the employment determination resulting from the 
                        information.</DELETED>
                        <DELETED>    ``(iii) Prohibition on charging 
                        employees fees for conducting background 
                        checks.--A skilled nursing facility shall not 
                        charge a prospective direct patient access 
                        employee a fee for the screening or criminal 
                        history background check conducted under this 
                        paragraph.</DELETED>
                <DELETED>    ``(E) Penalties.--</DELETED>
                        <DELETED>    ``(i) In general.--</DELETED>
                                <DELETED>    ``(I) State penalties.--
                                Subject to subclause (II), a skilled 
                                nursing facility that violates the 
                                provisions of this paragraph shall be 
                                subject to such penalties as the State 
                                determines appropriate to enforce the 
                                requirements of this paragraph. A 
                                skilled nursing facility shall report 
                                to the Secretary on a quarterly basis 
                                any penalties imposed by the State 
                                under the preceding sentence.</DELETED>
                                <DELETED>    ``(II) Exclusion from 
                                participation.--In any case where the 
                                Secretary determines that a State is 
                                not sufficiently enforcing the 
                                requirements of this paragraph, the 
                                Secretary may exclude a skilled nursing 
                                facility located within the State that 
                                violates the provisions of this 
                                paragraph from participating in the 
                                programs under this title and title XIX 
                                (in accordance with the procedures of 
                                section 1128).</DELETED>
                        <DELETED>    ``(ii) Knowing retention of 
                        worker.--In addition to any penalty under 
                        clause (i), a skilled nursing facility that 
                        knowingly continues to employ a direct patient 
                        access employee in violation of subparagraph 
                        (A) or (B) shall be subject to a civil penalty 
                        in an amount not to exceed $5,000 for the first 
                        such violation, and $10,000 for the second and 
                        each subsequent violation within any 5-year 
                        period.</DELETED>
                <DELETED>    ``(F) Definitions.--In this 
                paragraph:</DELETED>
                        <DELETED>    ``(i) Conviction for a relevant 
                        crime.--The term `conviction for a relevant 
                        crime' means any Federal or State criminal 
                        conviction for--</DELETED>
                                <DELETED>    ``(I) any offense 
                                described in section 1128(a); 
                                and</DELETED>
                                <DELETED>    ``(II) such other types of 
                                offenses, including violent crimes, as 
                                the State may specify.</DELETED>
                        <DELETED>    ``(ii) Disqualifying 
                        information.--The term `disqualifying 
                        information' means information about a 
                        conviction for a relevant crime or a finding of 
                        substantiated patient or resident 
                        abuse.</DELETED>
                        <DELETED>    ``(iii) Direct patient access 
                        employee.--The term `direct patient access 
                        employee' means any individual who has access 
                        to a patient or resident of a skilled nursing 
                        facility through employment or through a 
                        contract with such facility and has duties that 
                        involve (or may involve) one-on-one contact 
                        with a patient or resident of the facility, as 
                        determined by the State for purposes of this 
                        paragraph. Such term does not include a 
                        volunteer unless the volunteer has duties that 
                        are equivalent to the duties of a direct 
                        patient access employee and those duties 
                        involve (or may involve) one-on-one contact 
                        with a patient or resident of the 
                        facility.''.</DELETED>
                <DELETED>    (B) Conforming amendment.--Section 1819(e) 
                of the Social Security Act (42 U.S.C. 1395i-3(e)) is 
                amended by adding at the end the following new 
                paragraph:</DELETED>
        <DELETED>    ``(6) Screening of direct patient access 
        employees.--Beginning on January 1, 2011, the State must--
        </DELETED>
                <DELETED>    ``(A) have procedures in place for the 
                conduct of screening and criminal history background 
                checks under subparagraph (A) of subsection (b)(9), in 
                accordance with the requirements of subparagraph (C) of 
                such subsection;</DELETED>
                <DELETED>    ``(B) be responsible for monitoring 
                compliance with the procedures and requirements of such 
                subsection;</DELETED>
                <DELETED>    ``(C) as appropriate, provide for a 
                provisional period of employment of a direct patient 
                access employee under clause (ii) of subparagraph (B) 
                of such subsection, including procedures to ensure that 
                a skilled nursing facility provides direct on-site 
                supervision of the employee in accordance with clause 
                (iii) of such subparagraph;</DELETED>
                <DELETED>    ``(D) provide an independent process by 
                which a provisional employee or an employee may appeal 
                or dispute the accuracy of the information obtained in 
                a background check performed under such subsection; 
                and</DELETED>
                <DELETED>    ``(E) designate a single State agency as 
                responsible for--</DELETED>
                        <DELETED>    ``(i) overseeing the coordination 
                        of any State and national criminal history 
                        background checks requested by a skilled 
                        nursing facility utilizing a search of State 
                        and Federal criminal history records, including 
                        a fingerprint check of such records;</DELETED>
                        <DELETED>    ``(ii) reviewing, using 
                        appropriate privacy and security safeguards, 
                        the results of any State or national criminal 
                        history background checks conducted regarding a 
                        prospective direct patient access employee to 
                        determine whether the employee has any 
                        conviction for a relevant crime;</DELETED>
                        <DELETED>    ``(iii) immediately reporting to 
                        the skilled nursing facility that requested the 
                        criminal history background checks the results 
                        of such review; and</DELETED>
                        <DELETED>    ``(iv) in the case of an employee 
                        with a conviction for a relevant crime that is 
                        subject to reporting under section 1128E of the 
                        Social Security Act (42 U.S.C. 1320a-7e), 
                        reporting the existence of such conviction to 
                        the database established under that 
                        section;</DELETED>
                <DELETED>    ``(F) have a system in place for 
                determining and levying appropriate penalties for 
                violations of the provisions of such 
                subsection;</DELETED>
                <DELETED>    ``(G) have a system in place for 
                determining which individuals are direct patient access 
                employees for purposes of subparagraph (F)(iii) of such 
                subsection;</DELETED>
                <DELETED>    ``(H) as appropriate, specify offenses, 
                including violent crimes, for purposes of subparagraph 
                (F)(i)(II) of such subsection; and</DELETED>
                <DELETED>    ``(I) develop `rap back' capability such 
                that, if a direct patient access employee of a skilled 
                nursing facility is convicted of a crime following the 
                initial criminal history background check conducted 
                with respect to such employee, and the employee's 
                fingerprints match the prints on file with the State 
                law enforcement department, the department will 
                immediately inform the State agency designated under 
                subparagraph (E).''.</DELETED>
        <DELETED>    (2) Medicaid program.--</DELETED>
                <DELETED>    (A) In general.--Section 1919(b) of the 
                Social Security Act (42 U.S.C. 1396r(b)) is amended by 
                adding at the end the following new 
                paragraph:</DELETED>
        <DELETED>    ``(9) Screening of direct patient access 
        employees.--</DELETED>
                <DELETED>    ``(A) Screening and criminal history 
                background checks on applicants.--</DELETED>
                        <DELETED>    ``(i) Screening.--Beginning on 
                        January 1, 2011, before hiring a direct patient 
                        access employee, a nursing facility shall 
                        screen the employee for any disqualifying 
                        information in accordance with such procedures 
                        as the State shall establish through a search 
                        of--</DELETED>
                                <DELETED>    ``(I) State-based abuse 
                                and neglect registries and databases, 
                                including the abuse and neglect 
                                registries and databases of another 
                                State in the case where a prospective 
                                employee previously resided in that 
                                State; and</DELETED>
                                <DELETED>    ``(II) criminal records 
                                and the records of any proceedings that 
                                may contain disqualifying information 
                                about applicants, such as proceedings 
                                conducted by State professional 
                                licensing and disciplinary boards and 
                                State medicaid fraud control 
                                units.</DELETED>
                        <DELETED>    ``(ii) Criminal history background 
                        checks.--As part of such screening, the nursing 
                        facility shall request that the State agency 
                        designated under subsection (e)(6)(E) oversee 
                        the coordination of a State and national 
                        criminal history background check that utilizes 
                        a search of State and Federal criminal history 
                        records and includes a fingerprint check using 
                        the Integrated Automated Fingerprint 
                        Identification System of the Federal Bureau of 
                        Investigation.</DELETED>
                        <DELETED>    ``(iii) Use of procedures 
                        previously established.--Nothing in this 
                        paragraph shall be construed as preventing a 
                        State from using procedures established for 
                        purposes of the pilot program for National and 
                        State background checks on direct patient 
                        access employees of long-term care facilities 
                        or providers under section 307 of the Medicare 
                        Prescription Drug, Improvement, and 
                        Modernization Act of 2003, or the nationwide 
                        expansion program under subsection (h) of such 
                        section, to satisfy the requirements of 
                        paragraph (6).</DELETED>
                <DELETED>    ``(B) Prohibition on hiring of abusive 
                workers.--</DELETED>
                        <DELETED>    ``(i) In general.--Subject to 
                        clause (ii), a nursing facility may not 
                        knowingly employ any direct patient access 
                        employee who has any disqualifying information 
                        (as defined in subparagraph (F)(ii)).</DELETED>
                        <DELETED>    ``(ii) Provisional employment.--
                        Subject to clause (iii), the State may permit a 
                        nursing facility to provide for a provisional 
                        period of employment (not to exceed 30 days) 
                        for a direct patient access employee--
                        </DELETED>
                                <DELETED>    ``(I) pending completion 
                                of the screening and background check 
                                required under subparagraph (A); 
                                and</DELETED>
                                <DELETED>    ``(II) in the case where 
                                the employee has appealed the results 
                                of such screening and background check, 
                                pending completion of the appeals 
                                process.</DELETED>
                        <DELETED>    ``(iii) Supervision.--The facility 
                        shall maintain direct on-site supervision of 
                        the employee during such provisional period of 
                        employment.</DELETED>
                <DELETED>    ``(C) Procedures.--</DELETED>
                        <DELETED>    ``(i) In general.--The procedures 
                        established by the State under subparagraph (A) 
                        shall be designed to accomplish the 
                        following:</DELETED>
                                <DELETED>    ``(I) Give a prospective 
                                direct patient access employee notice 
                                that the nursing facility is required 
                                to perform background checks with 
                                respect to new employees, including a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted under subparagraph 
                                (A)(ii) in the case of any new employee 
                                who does not have a certificate 
                                indicating that a fingerprint check has 
                                been completed and has not found any 
                                disqualifying information (as described 
                                in subclause (V)).</DELETED>
                                <DELETED>    ``(II) Require, as a 
                                condition of employment, that the 
                                employee--</DELETED>
                                        <DELETED>    ``(aa) provide a 
                                        written statement disclosing 
                                        any disqualifying 
                                        information;</DELETED>
                                        <DELETED>    ``(bb) provide a 
                                        statement signed by the 
                                        employee authorizing the 
                                        facility to request a 
                                        background check that includes 
                                        a search of the registries and 
                                        databases described in clause 
                                        (i)(I) of subparagraph (A) and 
                                        the records described in clause 
                                        (i)(II) of such subparagraph 
                                        and a criminal history 
                                        background check conducted in 
                                        accordance with clause (ii) of 
                                        such subparagraph that includes 
                                        a fingerprint check using the 
                                        Integrated Automated 
                                        Fingerprint System of the 
                                        Federal Bureau of 
                                        Investigation;</DELETED>
                                        <DELETED>    ``(cc) provide the 
                                        facility with a rolled set of 
                                        the employee's fingerprints or 
                                        submit to being fingerprinted; 
                                        and</DELETED>
                                        <DELETED>    ``(dd) provide any 
                                        other identification 
                                        information the State may 
                                        require.</DELETED>
                                <DELETED>    ``(III) Require the 
                                nursing facility to check any available 
                                registries that would be likely to 
                                contain disqualifying information about 
                                a prospective employee, including the 
                                registries and databases described in 
                                subclause (I) of subparagraph (A)(i) 
                                and the records described in clause 
                                (II) of such subparagraph.</DELETED>
                                <DELETED>    ``(IV) Provide a 
                                prospective direct patient access 
                                employee the opportunity to request a 
                                copy of the results of the background 
                                check conducted with respect to such 
                                employee and to correct any errors by 
                                providing appropriate documentation to 
                                the State and the nursing 
                                facility.</DELETED>
                                <DELETED>    ``(V) Upon completion of a 
                                fingerprint check as part of the 
                                national criminal history background 
                                check conducted with respect to a 
                                direct patient access employee under 
                                subparagraph (A)(ii), provide the 
                                nursing facility and the direct patient 
                                access employee with a certificate 
                                indicating that such fingerprint check 
                                has been completed and no disqualifying 
                                information was found. Such certificate 
                                shall--</DELETED>
                                        <DELETED>    ``(aa) be valid 
                                        for 2 years; and</DELETED>
                                        <DELETED>    ``(bb) in the case 
                                        where such direct patient 
                                        access employee is hired by any 
                                        other nursing facility located 
                                        in the State during such 2-year 
                                        period, satisfy the requirement 
                                        that such facility have a 
                                        fingerprint check conducted as 
                                        part of such national criminal 
                                        history background 
                                        check.</DELETED>
                        <DELETED>    ``(ii) Elimination of unnecessary 
                        checks.--The procedures established by the 
                        State under subparagraph (A) shall permit a 
                        nursing facility to terminate the background 
                        check at any stage at which the facility 
                        obtains disqualifying information regarding a 
                        prospective direct patient access 
                        employee.</DELETED>
                        <DELETED>    ``(iii) Development of model form 
                        of certificate.--The Secretary shall develop a 
                        model form of the certificate described in 
                        clause (i)(V) that States may use to satisfy 
                        the requirements of such clause.</DELETED>
                <DELETED>    ``(D) Use of information; immunity from 
                liability.--</DELETED>
                        <DELETED>    ``(i) Use of information.--A 
                        nursing facility that obtains information about 
                        a direct patient access employee pursuant to 
                        screening or a criminal history background 
                        check shall use such information only for the 
                        purpose of determining the suitability of the 
                        employee for employment.</DELETED>
                        <DELETED>    ``(ii) Immunity from liability.--A 
                        nursing facility that, in denying employment 
                        for an applicant, reasonably and in good faith 
                        relies upon credible information about such 
                        applicant provided by a criminal history 
                        background check shall not be liable in any 
                        action brought by such applicant based on the 
                        employment determination resulting from the 
                        information.</DELETED>
                        <DELETED>    ``(iii) Prohibition on charging 
                        employees fees for conducting background 
                        checks.--A nursing facility shall not charge a 
                        prospective direct patient access employee a 
                        fee for the screening or criminal history 
                        background check conducted under this 
                        paragraph.</DELETED>
                <DELETED>    ``(E) Penalties.--</DELETED>
                        <DELETED>    ``(i) In general.--</DELETED>
                                <DELETED>    ``(I) State penalties.--
                                Subject to subclause (II), a nursing 
                                facility that violates the provisions 
                                of this paragraph shall be subject to 
                                such penalties as the State determines 
                                appropriate to enforce the requirements 
                                of this paragraph. A nursing facility 
                                shall report to the Secretary on a 
                                quarterly basis any penalties imposed 
                                by the State under the preceding 
                                sentence.</DELETED>
                                <DELETED>    ``(II) Exclusion from 
                                participation.--In any case where the 
                                Secretary determines that a State is 
                                not sufficiently enforcing the 
                                requirements of this paragraph, the 
                                Secretary may exclude a nursing 
                                facility located within the State that 
                                violates the provisions of this 
                                paragraph from participating in the 
                                programs under this title and title 
                                XVIII (in accordance with the 
                                procedures of section 1128).</DELETED>
                        <DELETED>    ``(ii) Knowing retention of 
                        worker.--In addition to any penalty under 
                        clause (i), a nursing facility that knowingly 
                        continues to employ a direct patient access 
                        employee in violation of subparagraph (A) or 
                        (B) shall be subject to a civil penalty in an 
                        amount not to exceed $5,000 for the first such 
                        violation, and $10,000 for the second and each 
                        subsequent violation within any 5-year 
                        period.</DELETED>
                <DELETED>    ``(F) Definitions.--In this 
                paragraph:</DELETED>
                        <DELETED>    ``(i) Conviction for a relevant 
                        crime.--The term `conviction for a relevant 
                        crime' means any Federal or State criminal 
                        conviction for--</DELETED>
                                <DELETED>    ``(I) any offense 
                                described in section 1128(a); 
                                and</DELETED>
                                <DELETED>    ``(II) such other types of 
                                offenses, including violent crimes, as 
                                the State may specify.</DELETED>
                        <DELETED>    ``(ii) Disqualifying 
                        information.--The term `disqualifying 
                        information' means information about a 
                        conviction for a relevant crime or a finding of 
                        substantiated patient or resident 
                        abuse.</DELETED>
                        <DELETED>    ``(iii) Direct patient access 
                        employee.--The term `direct patient access 
                        employee' means any individual who has access 
                        to a patient or resident of a nursing facility 
                        through employment or through a contract with 
                        such facility and has duties that involve (or 
                        may involve) one-on-one contact with a patient 
                        or resident of the facility, as determined by 
                        the State for purposes of this paragraph. Such 
                        term does not include a volunteer unless the 
                        volunteer has duties that are equivalent to the 
                        duties of a direct patient access employee and 
                        those duties involve (or may involve) one-on-
                        one contact with a patient or resident of the 
                        facility.''.</DELETED>
                <DELETED>    (B) Conforming amendment.--Section 1919(e) 
                of the Social Security Act (42 U.S.C. 1396r(e)) is 
                amended by adding at the end the following new 
                paragraph:</DELETED>
        <DELETED>    ``(8) Screening of direct patient access 
        employees.--Beginning on January 1, 2011, the State must--
        </DELETED>
                <DELETED>    ``(A) have procedures in place for the 
                conduct of screening and criminal history background 
                checks under subparagraph (A) of subsection (b)(9), in 
                accordance with the requirements of subparagraph (C) of 
                such subsection;</DELETED>
                <DELETED>    ``(B) be responsible for monitoring 
                compliance with the procedures and requirements of such 
                subsection;</DELETED>
                <DELETED>    ``(C) as appropriate, provide for a 
                provisional period of employment of a direct patient 
                access employee under clause (ii) of subparagraph (B) 
                of such subsection, including procedures to ensure that 
                a nursing facility provides direct on-site supervision 
                of the employee in accordance with clause (iii) of such 
                subparagraph;</DELETED>
                <DELETED>    ``(D) provide an independent process by 
                which a provisional employee or an employee may appeal 
                or dispute the accuracy of the information obtained in 
                a background check performed under such subsection; 
                and</DELETED>
                <DELETED>    ``(E) designate a single State agency as 
                responsible for--</DELETED>
                        <DELETED>    ``(i) overseeing the coordination 
                        of any State and national criminal history 
                        background checks requested by a nursing 
                        facility utilizing a search of State and 
                        Federal criminal history records, including a 
                        fingerprint check of such records;</DELETED>
                        <DELETED>    ``(ii) reviewing, using 
                        appropriate privacy and security safeguards, 
                        the results of any State or national criminal 
                        history background checks conducted regarding a 
                        prospective direct patient access employee to 
                        determine whether the employee has any 
                        conviction for a relevant crime;</DELETED>
                        <DELETED>    ``(iii) immediately reporting to 
                        the nursing facility that requested the 
                        criminal history background checks the results 
                        of such review; and</DELETED>
                        <DELETED>    ``(iv) in the case of an employee 
                        with a conviction for a relevant crime that is 
                        subject to reporting under section 1128E of the 
                        Social Security Act (42 U.S.C. 1320a-7e), 
                        reporting the existence of such conviction to 
                        the database established under that 
                        section;</DELETED>
                <DELETED>    ``(F) have a system in place for 
                determining and levying appropriate penalties for 
                violations of the provisions of such 
                subsection;</DELETED>
                <DELETED>    ``(G) have a system in place for 
                determining which individuals are direct patient access 
                employees for purposes of subparagraph (F)(iii) of such 
                subsection;</DELETED>
                <DELETED>    ``(H) as appropriate, specify offenses, 
                including violent crimes, for purposes of subparagraph 
                (F)(i)(II) of such subsection; and</DELETED>
                <DELETED>    ``(I) develop `rap back' capability such 
                that, if a direct patient access employee of a nursing 
                facility is convicted of a crime following the initial 
                criminal history background check conducted with 
                respect to such employee, and the employee's 
                fingerprints match the prints on file with the State 
                law enforcement department, the department will 
                immediately inform the State agency designated under 
                subparagraph (E).''.</DELETED>
<DELETED>    (b) Application to Other Long-Term Care Facilities or 
Providers.--</DELETED>
        <DELETED>    (1) Medicare.--Part E of title XVIII of the Social 
        Security Act (42 U.S.C. 1395x et seq.) is amended by adding at 
        the end the following:</DELETED>

  <DELETED>``application of skilled nursing facility preventive abuse 
    provisions to long-term care facilities and providers</DELETED>

<DELETED>    ``Sec. 1898.  (a) The provisions of section 1819(b)(9) 
shall apply to a long-term care facility or provider (as defined in 
subsection (b)) in the same manner as such provisions apply to a 
skilled nursing facility.</DELETED>
<DELETED>    ``(b) Long-Term Care Facility or Provider.--In this 
section, the term `long-term care facility or provider' means the 
following facilities or providers which receive payment for services 
under this title or title XIX:</DELETED>
        <DELETED>    ``(1) A home health agency.</DELETED>
        <DELETED>    ``(2) A provider of hospice care.</DELETED>
        <DELETED>    ``(3) A long-term care hospital.</DELETED>
        <DELETED>    ``(4) A provider of personal care 
        services.</DELETED>
        <DELETED>    ``(5) A provider of adult day care.</DELETED>
        <DELETED>    ``(6) A residential care provider that arranges 
        for, or directly provides, long-term care services, including 
        an assisted living facility that provides a level of care 
        established by the Secretary.</DELETED>
        <DELETED>    ``(7) An intermediate care facility for the 
        mentally retarded (as defined in section 1905(d)).''.</DELETED>
        <DELETED>    (2) Medicaid.--Section 1902(a) of the Social 
        Security Act (42 U.S.C. 1396a) is amended--</DELETED>
                <DELETED>    (A) in paragraph (69), by striking ``and'' 
                at the end;</DELETED>
                <DELETED>    (B) in paragraph (70)(B)(iv), by striking 
                the period at the end and inserting ``; and''; 
                and</DELETED>
                <DELETED>    (C) by inserting after paragraph 
                (70)(B)(iv) the following:</DELETED>
        <DELETED>    ``(71) provide that the provisions of section 
        1919(b)(9) apply to a long-term care facility or provider (as 
        defined in section 1898(b)) in the same manner as such 
        provisions apply to a nursing facility.''.</DELETED>
        <DELETED>    (3) Effective date.--The amendments made by this 
        subsection shall take effect on January 1, 2011.</DELETED>
<DELETED>    (c) Payments.--</DELETED>
        <DELETED>    (1) Procedures to reimburse costs of national 
        background check.--</DELETED>
                <DELETED>    (A) In general.--The Secretary of Health 
                and Human Services shall establish procedures to 
                reimburse the costs of conducting national criminal 
                history background checks under sections 1819(b)(9), 
                1919(b)(9), 1898, and 1902(a)(71) of the Social 
                Security Act, as added by subsections (a)(1), (a)(2), 
                (b)(1), and (b)(2), respectively, through the following 
                mechanisms, in such proportion as the Secretary 
                determines appropriate:</DELETED>
                        <DELETED>    (i) By providing payments to 
                        skilled nursing facilities and long-term care 
                        facilities or providers for costs incurred as 
                        are attributable to the conduct of such 
                        national criminal history background checks 
                        under such section 1819(b)(9).</DELETED>
                        <DELETED>    (ii) By making a payment, from 
                        sums appropriated therefore, under section 
                        1903(a) of the Social Security Act (42 U.S.C. 
                        1396b(a)) to each State which has a plan 
                        approved under title XIX of the Social Security 
                        Act (42 U.S.C. 1396 et seq.), for each quarter, 
                        beginning with the quarter commencing on 
                        January 1, 2011, in an amount equal to 90 
                        percent of the sums expended with respect to 
                        costs incurred during such quarter as are 
                        attributable to the conduct of such national 
                        criminal history background checks under such 
                        section 1919(b)(9).</DELETED>
                <DELETED>    (B) Funding for payments for costs 
                incurred under medicare program.--The Secretary of 
                Health and Human Services shall provide for the 
                transfer, in appropriate part from the Federal Hospital 
                Insurance Trust Fund established under section 1817 of 
                the Social Security Act (42 U.S.C. 1395i) and the 
                Federal Supplementary Insurance Trust Fund established 
                under section 1841 of such Act (42 U.S.C. 1395t), of 
                such funds as are necessary to make payments under 
                subparagraph (A)(i) for fiscal year 2011 and each 
                fiscal year thereafter.</DELETED>
                <DELETED>    (C) Determination of appropriate 
                proportion.--In establishing the procedures under 
                subparagraph (A), the Secretary of Health and Human 
                Services shall determine what proportion of payments 
                using the mechanisms described in such subparagraph 
                would result in an equitable allocation of the costs of 
                such reimbursement between the Medicare program under 
                title XVIII of the Social Security Act and the Medicaid 
                program under title XIX of such Act.</DELETED>
        <DELETED>    (2) Ensuring no duplicative payments.--The 
        procedures established under paragraph (1)(A) shall ensure that 
        no duplicative payments are made for the costs of conducting 
        such national criminal history background checks, including any 
        duplication of payments made under the pilot program for 
        national and State background checks on direct patient access 
        employees of long-term care facilities or providers under 
        section 307 of the Medicare Prescription Drug, Improvement, and 
        Modernization Act of 2007, including the nationwide expansion 
        program under subsection (h) of such section, as added by 
        section 3.</DELETED>
        <DELETED>    (3) Submission of costs incurred by facilities in 
        performing checks.--</DELETED>
                <DELETED>    (A) In general.--The procedures 
                established under paragraph (1)(A) shall provide a 
                process, such as through submission of a bill, by which 
                a skilled nursing facility, a nursing facility, and a 
                long-term care facility or provider may submit 
                information regarding the costs incurred by such 
                facility in conducting national criminal history 
                background checks under sections 1819(b)(9), 
                1919(b)(9), 1898, and 1902(a)(71) of the Social 
                Security Act, as added by subsections (a)(1), (a)(2), 
                (b)(1), and (b)(2), respectively.</DELETED>
                <DELETED>    (B) Model forms.--The Secretary of Health 
                and Human Services shall develop model forms that may 
                be used by a skilled nursing facility, a nursing 
                facility, and a long-term care facility or provider to 
                submit a claim for reimbursement of the costs described 
                in paragraph (1)(A) that contains the information 
                described in subparagraph (A).</DELETED>
        <DELETED>    (4) Regulations.--Not later than 3 years after the 
        date of enactment of this Act, the Secretary of Health and 
        Human Services shall promulgate regulations to carry out this 
        subsection.</DELETED>

<DELETED>SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FEDERAL BUREAU OF 
              INVESTIGATION.</DELETED>

<DELETED>    (a) Development of Rap Back Capabilities.--</DELETED>
        <DELETED>    (1) In general.--Not later than January 1, 2011, 
        the Director of the Federal Bureau of Investigation (in this 
        section referred to as the ``Director'') shall ensure that the 
        Integrated Automated Fingerprint Identification System of the 
        Federal Bureau of Investigation has the capacity to store and 
        retrieve fingerprints from its database.</DELETED>
        <DELETED>    (2) Notification of conviction of direct patient 
        access employee.--In the case where a direct patient access 
        employee (as defined in subparagraph (F)(iii) of sections 
        1819(b)(9) and 1919(b)(9) of the Social Security Act, as added 
        by section 4(a)) is convicted of a crime following the initial 
        national criminal history background check conducted with 
        respect to such employee under such sections 1819(b)(9) and 
        1919(b)(9), and the employee's fingerprint matches the prints 
        on file with the Federal Bureau of Investigation, the Bureau 
        shall inform the State law enforcement department, in order for 
        the State to inform the skilled nursing facility, nursing 
        facility, or long-term care facility or provider of such 
        conviction in accordance with the requirements of sections 
        1819(e)(6)(I) and 1919(e)(8)(I) of the Social Security Act, as 
        added by section 4(a).</DELETED>
<DELETED>    (b) Reasonable Fee for National Criminal History 
Background Checks Conducted on Employees of Long-Term Care 
Facilities.--The Director may charge a reasonable fee, in consultation 
with the Secretary of Health and Human Services, for a national 
criminal history background check using the Integrated Automated 
Fingerprint Identification System of the Federal Bureau of 
Investigation that is conducted under section 1819(b)(9), 1919(b)(9), 
1898, or 1902(a)(71) of the Social Security Act, as added by 
subsections (a)(1), (a)(2), (b)(1), and (b)(2) of section 4, 
respectively, that represents the actual cost of conducting such 
national criminal history background check.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Patient Safety and Abuse Prevention 
Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress makes the following findings:
            (1) Frail elders are a highly vulnerable population who 
        often lack the ability to give consent or defend themselves. 
        Since the best predictor of future behavior is past behavior, 
        individuals with histories of abuse pose a definite risk to 
        patients and residents of long-term care facilities.
            (2) Every month, there are stories in the media of health 
        care employees who commit criminal misconduct on the job and 
        are later found, through a background check conducted after the 
        fact, to have a history of convictions for similar crimes.
            (3) A 2006 study conducted by the Department of Health and 
        Human Services determined that--
                    (A) criminal background checks are a valuable tool 
                for employers during the hiring process;
                    (B) the use of criminal background checks during 
                the hiring process does not limit the pool of potential 
                job applicants;
                    (C) a correlation exists between criminal history 
                and incidences of abuse; and
                    (D) the long-term care industry supports the 
                practice of conducting background checks on potential 
                employees in order to reduce the likelihood of hiring 
                someone who has the potential to harm residents of 
                long-term care facilities.
            (4) In 2004, the staff of State Adult Protective Services 
        agencies received more than 500,000 reports of elder and 
        vulnerable adult abuse, and an ombudsman report concluded that 
        more than 15,000 nursing home complaints involved abuse, 
        including nearly 4,000 complaints of physical abuse, more than 
        800 complaints of sexual abuse, and nearly 1,000 complaints of 
        financial exploitation.
            (5) The Department of Health and Human Services has 
        determined that, while 41 States now require criminal 
        background checks on certified nurse aides prior to employment, 
        only half of those (22) require criminal background checks at 
        the Federal level.
    (b) Purposes.--The purposes of this Act are to--
            (1) lay the foundation for a coordinated, nationwide system 
        of State criminal background checks that would greatly enhance 
        the chances of identifying individuals with problematic 
        backgrounds who move across State lines;
            (2) stop individuals who have a record of substantiated 
        abuse, or a serious criminal record, from preying on helpless 
        elders and individuals with disabilities; and
            (3) provide assurance to long-term care employers and the 
        residents they care for that potentially abusive workers will 
        not be hired into positions of providing services to the 
        extremely vulnerable residents of long-term care facilities in 
        the United States.

SEC. 3. NATIONWIDE PROGRAM FOR NATIONAL AND STATE BACKGROUND CHECKS ON 
              DIRECT PATIENT ACCESS EMPLOYEES OF LONG-TERM CARE 
              FACILITIES AND PROVIDERS.

    (a) In General.--The Secretary of Health and Human Services (in 
this section referred to as the ``Secretary''), shall establish a 
program to identify efficient, effective, and economical procedures for 
long term care facilities or providers to conduct background checks on 
prospective direct patient access employees on a nationwide basis (in 
this subsection, such program shall be referred to as the ``nationwide 
program''). Except for the following modifications, the Secretary shall 
carry out the nationwide program under similar terms and conditions as 
the pilot program under section 307 of the Medicare Prescription Drug, 
Improvement, and Modernization Act of 2003 (Public Law 108-173; 117 
Stat. 2257), including the prohibition on hiring abusive workers and 
the authorization of the imposition of penalties by a participating 
State under subsection (b)(3)(A) and (b)(6), respectively, of such 
section 307:
            (1) Agreements.--
                    (A) Newly participating states.--The Secretary 
                shall enter into agreements with each State--
                            (i) that the Secretary has not entered into 
                        an agreement with under subsection (c)(1) of 
                        such section 307;
                            (ii) that agrees to conduct background 
                        checks under the nationwide program on a 
                        Statewide basis; and
                            (iii) that submits an application to the 
                        Secretary containing such information and at 
                        such time as the Secretary may specify.
                    (B) Certain previously participating states.--The 
                Secretary shall enter into agreements with each State--
                            (i) that the Secretary has entered into an 
                        agreement with under such subsection (c)(1), 
                        but only in the case where such agreement did 
                        not require the State to conduct background 
                        checks under the program established under 
                        subsection (a) of such section 307 on a 
                        Statewide basis;
                            (ii) that agrees to conduct background 
                        checks under the nationwide program on a 
                        Statewide basis; and
                            (iii) that submits an application to the 
                        Secretary containing such information and at 
                        such time as the Secretary may specify.
            (2) Nonapplication of selection criteria.--The selection 
        criteria required under subsection (c)(3)(B) of such section 
        307 shall not apply.
            (3) Required fingerprint check as part of criminal history 
        background check.--The procedures established under subsection 
        (b)(1) of such section 307 shall--
                    (A) require that the long-term care facility or 
                provider (or the designated agent of the long-term care 
                facility or provider) obtain State and national 
                criminal history background checks on the prospective 
                employee through such means as the Secretary determines 
                appropriate that utilize a search of State-based abuse 
                and neglect registries and databases, including the 
                abuse and neglect registries of another State in the 
                case where a prospective employee previously resided in 
                that State, State criminal history records, the records 
                of any proceedings in the State that may contain 
                disqualifying information about prospective employees 
                (such as proceedings conducted by State professional 
                licensing and disciplinary boards and State Medicaid 
                Fraud Control Units), and Federal criminal history 
                records, including a fingerprint check using the 
                Integrated Automated Fingerprint Identification System 
                of the Federal Bureau of Investigation; and
                    (B) encourage States to test methods to reduce 
                duplicative fingerprinting, including providing for the 
                development of ``rap back'' capability by the State 
                such that, if a direct patient access employee of a 
                long-term care facility or provider is convicted of a 
                crime following the initial criminal history background 
                check conducted with respect to such employee, and the 
                employee's fingerprints match the prints on file with 
                the State law enforcement department, the department 
                will immediately inform the State and the State will 
                immediately inform the long-term care facility or 
                provider of such conviction.
            (4) State requirements.--An agreement entered into under 
        paragraph (1) shall require that a participating State--
                    (A) be responsible for monitoring compliance with 
                the requirements of the nationwide program;
                    (B) have procedures in place to--
                            (i) conduct screening and criminal history 
                        background checks under the nationwide program 
                        in accordance with the requirements of this 
                        section;
                            (ii) monitor compliance by long-term care 
                        facilities and providers with the procedures 
                        and requirements of the nationwide program;
                            (iii) as appropriate, provide for a 
                        provisional period of employment by a long-term 
                        care facility or provider of a direct patient 
                        access employee, not to exceed 30 days, pending 
                        completion of the required criminal history 
                        background check and, in the case where the 
                        employee has appealed the results of such 
                        background check, pending completion of the 
                        appeals process, during which the employee 
                        shall be subject to direct on-site supervision 
                        (in accordance with procedures established by 
                        the State to ensure that a long-term care 
                        facility or provider furnishes such direct on-
                        site supervision);
                            (iv) provide an independent process by 
                        which a provisional employee or an employee may 
                        appeal or dispute the accuracy of the 
                        information obtained in a background check 
                        performed under the nationwide program, 
                        including the specification of criteria for 
                        appeals for direct patient access employees 
                        found to have disqualifying information which 
                        shall include consideration of the passage of 
                        time, extenuating circumstances, demonstration 
                        of rehabilitation, and relevancy of the 
                        particular disqualifying information with 
                        respect to the current employment of the 
                        individual;
                            (v) provide for the designation of a single 
                        State agency as responsible for--
                                    (I) overseeing the coordination of 
                                any State and national criminal history 
                                background checks requested by a long-
                                term care facility or provider (or the 
                                designated agent of the long-term care 
                                facility or provider) utilizing a 
                                search of State and Federal criminal 
                                history records, including a 
                                fingerprint check of such records;
                                    (II) overseeing the design of 
                                appropriate privacy and security 
                                safeguards for use in the review of the 
                                results of any State or national 
                                criminal history background checks 
                                conducted regarding a prospective 
                                direct patient access employee to 
                                determine whether the employee has any 
                                conviction for a relevant crime;
                                    (III) immediately reporting to the 
                                long-term care facility or provider 
                                that requested the criminal history 
                                background check the results of such 
                                review; and
                                    (IV) in the case of an employee 
                                with a conviction for a relevant crime 
                                that is subject to reporting under 
                                section 1128E of the Social Security 
                                Act (42 U.S.C. 1320a-7e), reporting the 
                                existence of such conviction to the 
                                database established under that 
                                section;
                            (vi) determine which individuals are direct 
                        patient access employees (as defined in 
                        paragraph (6)(B)) for purposes of the 
                        nationwide program;
                            (vii) as appropriate, specify offenses, 
                        including convictions for violent crimes, for 
                        purposes of the nationwide program; and
                            (viii) provide for the development of ``rap 
                        back'' capability such that, if a direct 
                        patient access employee of a long-term care 
                        facility or provider is convicted of a crime 
                        following the initial criminal history 
                        background check conducted with respect to such 
                        employee, and the employee's fingerprints match 
                        the prints on file with the State law 
                        enforcement department--
                                    (I) the department will immediately 
                                inform the State agency designated 
                                under clause (v) and such agency will 
                                immediately inform the facility or 
                                provider of such conviction; and
                                    (II) the State will provide, or 
                                will require the facility to provide, 
                                to the employee a copy of the results 
                                of the criminal history background 
                                check conducted with respect to the 
                                employee at no charge in the case where 
                                the individual requests such a copy.
            (5) Payments.--
                    (A) Newly participating states.--
                            (i) In general.--As part of the application 
                        submitted by a State under paragraph 
                        (1)(A)(iii), the State shall guarantee, with 
                        respect to the costs to be incurred by the 
                        State in carrying out the nationwide program, 
                        that the State will make available (directly or 
                        through donations from public or private 
                        entities) a particular amount of non-Federal 
                        contributions, as a condition of receiving the 
                        Federal match under clause (ii).
                            (ii) Federal match.--The payment amount to 
                        each State that the Secretary enters into an 
                        agreement with under paragraph (1)(A) shall be 
                        3 times the amount that the State guarantees to 
                        make available under clause (i), except that in 
                        no case may the payment amount exceed 
                        $3,000,000.
                    (B) Previously participating states.--
                            (i) In general.--As part of the application 
                        submitted by a State under paragraph 
                        (1)(B)(iii), the State shall guarantee, with 
                        respect to the costs to be incurred by the 
                        State in carrying out the nationwide program, 
                        that the State will make available (directly or 
                        through donations from public or private 
                        entities) a particular amount of non-Federal 
                        contributions, as a condition of receiving the 
                        Federal match under clause (ii).
                            (ii) Federal match.--The payment amount to 
                        each State that the Secretary enters into an 
                        agreement with under paragraph (1)(B) shall be 
                        3 times the amount that the State guarantees to 
                        make available under clause (i), except that in 
                        no case may the payment amount exceed 
                        $1,500,000.
            (6) Definitions.--Under the nationwide program:
                    (A) Long-term care facility or provider.--The term 
                ``long-term care facility or provider'' means the 
                following facilities or providers which receive payment 
                for services under title XVIII or XIX of the Social 
                Security Act:
                            (i) A skilled nursing facility (as defined 
                        in section 1819(a) of the Social Security Act 
                        (42 U.S.C. 1395i-3(a)).
                            (ii) A nursing facility (as defined in 
                        section 1919(a) of such Act (42 U.S.C. 
                        1396r(a)).
                            (iii) A home health agency.
                            (iv) A provider of hospice care (as defined 
                        in section 1861(dd)(1) of such Act (42 U.S.C. 
                        1395x(dd)(1)).
                            (v) A long-term care hospital (as described 
                        in section 1886(d)(1)(B)(iv) of such Act (42 
                        U.S.C. 1395ww(d)(1)(B)(iv)).
                            (vi) A provider of personal care services.
                            (vii) A provider of adult day care.
                            (viii) A residential care provider that 
                        arranges for, or directly provides, long-term 
                        care services, including an assisted living 
                        facility that provides a level of care 
                        established by the Secretary.
                            (ix) An intermediate care facility for the 
                        mentally retarded (as defined in section 
                        1905(d) of such Act (42 U.S.C. 1396d(d)).
                            (x) Any other facility or provider of long-
                        term care services under such titles as the 
                        participating State determines appropriate.
                    (B) Direct patient access employee.--The term 
                ``direct patient access employee'' means any individual 
                who has access to a patient or resident of a long-term 
                care facility or provider through employment or through 
                a contract with such facility or provider and has 
                duties that involve (or may involve) one-on-one contact 
                with a patient or resident of the facility or provider, 
                as determined by the State for purposes of the 
                nationwide program. Such term does not include a 
                volunteer unless the volunteer has duties that are 
                equivalent to the duties of a direct patient access 
                employee and those duties involve (or may involve) one-
                on-one contact with a patient or resident of the long-
                term care facility or provider.
            (7) Evaluation and report.--
                    (A) Evaluation.--The Inspector General of the 
                Department of Health and Human Services shall conduct 
                an evaluation of the nationwide program.
                    (B) Report.--Not later than 180 days after the 
                completion of the nationwide program, the Inspector 
                General of the Department of Health and Human Services 
                shall submit a report to Congress containing the 
                results of the evaluation conducted under subparagraph 
                (A).
    (b) Funding.--
            (1) Notification.--The Secretary of Health and Human 
        Services shall notify the Secretary of the Treasury of the 
        amount necessary to carry out the nationwide program under this 
        section for the period of fiscal years 2009 through 2011, 
        except that in no case shall such amount exceed $160,000,000.
            (2) Transfer of funds.--Out of any funds in the Treasury 
        not otherwise appropriated, the Secretary of the Treasury shall 
        provide for the transfer to the Secretary of Health and Human 
        Services of the amount specified as necessary to carry out the 
        nationwide program under paragraph (1). Such amount shall 
        remain available until expended.

SEC. 4. MANDATORY STATE USE OF NATIONAL CORRECT CODING INITIATIVE.

    (a) In General.--Section 1903(r) of the Social Security Act (42 
U.S.C. 1396b(r)) is amended--
            (1) in paragraph (1)(B)--
                    (A) in clause (ii), by striking ``and'' at the end;
                    (B) in clause (iii), by adding ``and'' after the 
                semi-colon; and
                    (C) by adding at the end the following new clause:
                            ``(iv) effective for claims filed on or 
                        after October 1, 2009, incorporate compatible 
                        methodologies of the National Correct Coding 
                        Initiative administered by the Secretary (or 
                        any successor initiative to promote correct 
                        coding and to control improper coding leading 
                        to inappropriate payment) and such other 
                        methodologies of that Initiative (or such other 
                        national correct coding methodologies) as the 
                        Secretary identifies in accordance with 
                        paragraph (3);''; and
            (2) by adding at the end the following new paragraph:
    ``(3) Not later than September 1, 2009, the Secretary shall do the 
following:
            ``(A) Identify those methodologies of the National Correct 
        Coding Initiative administered by the Secretary (or any 
        successor initiative to promote correct coding and to control 
        improper coding leading to inappropriate payment) which are 
        compatible to claims filed under this title.
            ``(B) Identify those methodologies of such Initiative (or 
        such other national correct coding methodologies) that should 
        be incorporated into claims filed under this title with respect 
        to items or services for which States provide medical 
        assistance under this title and no national correct coding 
        methodologies have been established under such Initiative with 
        respect to title XVIII.
            ``(C) Notify States of--
                    ``(i) the methodologies identified under 
                subparagraphs (A) and (B) (and of any other national 
                correct coding methodologies identified under 
                subparagraph (B)); and
                    ``(ii) how States are to incorporate such 
                methodologies into claims filed under this title.
            ``(D) Submit a report to Congress that includes the notice 
        to States under subparagraph (C) and an analysis supporting the 
        identification of the methodologies made under subparagraphs 
        (A) and (B).''.
    (b) Extension for State Law Amendment.--In the case of a State plan 
under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) 
which the Secretary of Health and Human Services determines requires 
State legislation in order for the plan to meet the additional 
requirements imposed by the amendment made by subsection (a)(1)(C), the 
State plan shall not be regarded as failing to comply with the 
requirements of such title solely on the basis of its failure to meet 
these additional requirements before the first day of the first 
calendar quarter beginning after the close of the first regular session 
of the State legislature that begins after the date of enactment of 
this Act. For purposes of the previous sentence, in the case of a State 
that has a 2-year legislative session, each year of the session is 
considered to be a separate regular session of the State legislature.

SEC. 5. FUNDING FOR THE MEDICARE IMPROVEMENT FUND.

    Section 1898(b)(1) of the Social Security Act, as added by section 
7002(a) of the Supplemental Appropriations Act, 2008 (Public Law 110-
252) and amended by section 188(a)(2) of the Medicare Improvements for 
Patients and Providers Act of 2008 (Public Law 110-275), is amended to 
read as follows:
            ``(1) In general.--There shall be available to the Fund, 
        for expenditures from the Fund for services furnished during--
                    ``(A) fiscal year 2014, $2,220,000,000; and
                    ``(B) fiscal years 2014 through 2017, 
                $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.''.
                                                      Calendar No. 1035

110th CONGRESS

  2d Session

                                S. 1577

                          [Report No. 110-474]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

           September 22 (legislative day, September 17), 2008

        Reported with an amendment and an amendment to the title
```