I

105TH CONGRESS

2D SESSION H. R. 4789

To require criminal and abusive work history background checks for direct

care employees in nursing facilities, home health agencies, and hospice

programs under the Medicare and Medicaid Programs, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 10, 1998

Mr. WELLER (for himself and Mr. NEY) introduced the following bill; which

was referred to the Committee on Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined

by the Speaker, in each case for consideration of such provisions as fall

within the jurisdiction of the committee concerned

A BILL

To require criminal and abusive work history background

checks for direct care employees in nursing facilities,

home health agencies, and hospice programs under the

Medicare and Medicaid Programs, and for other purposes.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Elderly and Disabled Protection Act of 1998’’.
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1 (b) TABLE OF CONTENTS.—The table of contents of

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Requiring background checks for direct care employees in nursing facilities, home health agencies, and hospice programs.

Sec. 3. Expanded role of State direct care employee registries; national registry

coordination system; procedures for background checks.

Sec. 4. Definitions.

3 SEC. 2. REQUIRING BACKGROUND CHECKS FOR DIRECT

4 CARE EMPLOYEES IN NURSING FACILITIES,

5 HOME HEALTH AGENCIES, AND HOSPICE

6 PROGRAMS.

7 (a) REQUIREMENTS.—

8 (1) IN GENERAL.—A covered facility in a

9 State—

10 (A) may not employ (directly or through

11 an agency) any individual as a direct care em12 ployee unless the facility has requested from the

13 State direct care employee registry a back14 ground check;

15 (B) may not employ such an individual or

16 continue such employment if the report on such

17 background check reveals that the individual

18 has been convicted of a disqualifying crime; and

19 (C) shall report to such registry docu20 mented findings of patient abuse by a direct

21 care employee.
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1 (2) EMPLOYMENT PENDING REPORT.—Nothing

2 in this subsection shall be construed as preventing a

3 covered facility from—

4 (A) seeking a background check on pro5 spective direct care employees before they are

6 employed; or

7 (B) employing direct care employees dur8 ing the period in which a background check has

9 been sought under paragraph (1)(A) and before

10 a report on such check has been provided to the

11 facility under paragraph (1)(B).

12 (b) PENALTIES.—In addition to any other sanctions

13 provided under law—

14 (1) IN GENERAL.—A covered facility that vio15 lates subsection (a)(1)(A) shall be subject to a civil

16 penalty in an amount not to exceed—

17 (A) for the first such violation, $2,000;

18 and

19 (B) for the second and each subsequent

20 violation within any 5-year period, $5,000.

21 (2) KNOWING RETENTION OF WORKER.—In ad22 dition to any civil penalty under paragraph (1), a

23 covered facility that—
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1 (A) knowingly continues to employ a direct

2 care employee in violation of subsection

3 (a)(1)(B); or

4 (B) knowingly fails to submit a report re5 quired under subsection (a)(1)(C);

6 shall be subject to a civil penalty in an amount not

7 to exceed $5,000 for the first such violation, and

8 $10,000 for the second and each subsequent viola9 tion within any 5-year period.

10 (c) ENFORCEMENT THROUGH MEDICARE AND MED11 ICAID PROGRAMS.—

12 (1) NURSING FACILITIES.—

13 (A) MEDICARE PROGRAM.—Section

14 1819(b) of the Social Security Act (42 U.S.C.

15 1395i–3(b)) is amended by adding at the end

16 the following new paragraph:

17 ‘‘(8) REQUIREMENT FOR BACKGROUND CHECKS

18 FOR DIRECT CARE PERSONNEL.—A skilled nursing

19 facility shall comply with the requirements of section

20 2(a) of the Elderly and Disabled Protection Act of

21 1998 with respect to any direct care employee it em22 ploys.’’.

23 (B) MEDICAID PROGRAM.—Section

24 1919(b) of such Act (42 U.S.C. 1396r(b)) is
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1 amended by adding at the end the following

2 new paragraph:

3 ‘‘(8) REQUIREMENT FOR BACKGROUND CHECKS

4 FOR DIRECT CARE PERSONNEL.—A nursing facility

5 shall comply with the requirements of section 2(a) of

6 the Elderly and Disabled Protection Act of 1998

7 with respect to any direct care employee it em8 ploys.’’.

9 (2) HOME HEALTH AGENCIES AND HOSPICE

10 PROGRAMS.—

11 (A) MEDICARE PROGRAM.—

12 (i) HOME HEALTH AGENCIES.—Sec13 tion 1891(a) of such Act (42 U.S.C.

14 1395bbb(a)) is amended by adding at the

15 end the following:

16 ‘‘(7) The agency complies with the requirements

17 of section 2(a) of the Elderly and Disabled Protec18 tion Act of 1998 with respect to any direct care em19 ployee it employs.’’.

20 (ii) HOSPICE PROGRAMS.—Section

21 1861(dd)(2)(G) of such Act (42 U.S.C.

22 1395x(dd)(2)(G)) is amended by inserting

23 before the period at the end the following:

24 ‘‘, including compliance with the require25 ments of section 2(a) of the Elderly and
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1 Disabled Protection Act of 1998 with re2 spect to any direct care employee it em3 ploys’’.

4 (B) MEDICAID PROGRAM.—Section

5 1902(a)(57) of such Act (42 U.S.C.

6 1396a(a)(57)) is amended—

7 (i) by inserting ‘‘(A)’’ after ‘‘(57)’’;

8 and

9 (ii) by adding at the end the follow10 ing:

11 ‘‘(B) provide that each provider of home health

12 care or personal care services and each hospice pro13 gram receiving funds under the plan shall comply

14 with the requirements of section 2(a) of the Elderly

15 and Disabled Protection Act of 1998 with respect to

16 any direct care employee it employs;’’.

17 (d) EFFECTIVE DATES.—The requirements of sub18 section (a) shall apply with respect to a covered facility—

19 (1) beginning as of such date (specified by the

20 Secretary and not later than 60 days after the date

21 the Secretary has established the national registry

22 coordination system under section 3(b)), with re23 spect to the hiring of individuals as a direct care em24 ployee by the facility on and after such date; and
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1 (2) as of 1 year after the date described in

2 paragraph (1), with respect to individuals first em3 ployed as such an employee before the date de4 scribed in such paragraph.

5 SEC. 3. EXPANDED ROLE OF STATE DIRECT CARE EM6 PLOYEE REGISTRIES; NATIONAL REGISTRY

7 COORDINATION SYSTEM; PROCEDURES FOR

8 BACKGROUND CHECKS.

9 (a) EXPANDED ROLE OF REGISTRY.—

10 (1) IN GENERAL.—Each State shall expand its

11 direct care employee registry established under sec12 tions 1819(e)(2) and 1919(e)(2) of the Social Secu13 rity Act to carry out the following functions:

14 (A) RECEIPT OF REQUESTS.—The registry

15 shall provide for the receipt of requests for

16 background checks described in section 2(a)(1).

17 (B) CONDUCT OF BACKGROUND

18 CHECKS.—Upon receipt of such a request with

19 respect to an individual, the registry, in coordi20 nation with the national registry coordination

21 system established by the Secretary under sub22 section (b) and in accordance with this section,

23 shall provide for the performance of (or the col24 lection of information concerning) a background

25 check (including a criminal background check
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1 and an abusive work history background check)

2 requested under section 2(a) and for the sub3 mittal of a background check report (as defined

4 in paragraph (2)) on such check to the request5 ing facility.

6 (C) PROVISION OF INFORMATION TO NA7 TIONAL REGISTRY COORDINATION SYSTEM.—

8 The registry shall provide for the reporting to

9 the national registry coordination system of—

10 (i) a criminal background check sum11 mary (as defined in paragraph (3)) on any

12 individual on whom it obtains a criminal

13 background check under subsection (c)(3);

14 and

15 (ii) the identity of any individual for

16 whom the registry has documented find17 ings of patient abuse and such additional

18 information as the State registry involved

19 may disclose concerning such findings.

20 (2) BACKGROUND CHECK REPORT DEFINED.—

21 For purposes of this section, the term ‘‘background

22 check report’’ means, with respect to a background

23 check concerning an individual, a statement contain24 ing the following:
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1 (A) Whether the individual has been con2 victed of a disqualifying crime.

3 (B) Whether there are documented find4 ings of patient abuse by the individual in a

5 State direct care employee registry and, if so,

6 such additional information as the State reg7 istry involved may disclose concerning such

8 findings.

9 Such report shall not include information from the

10 criminal background check other than the informa11 tion described in subparagraph (A).

12 (3) CRIMINAL BACKGROUND CHECK SUMMARY

13 DEFINED.—For purposes of this section, the term

14 ‘‘criminal background check summary’’ means, with

15 respect to a criminal background check concerning

16 an individual, the following information:

17 (A) The identity of the individual.

18 (B) The date of the criminal background

19 check.

20 (C) Whether the check revealed that—

21 (i) the individual had not been con22 victed of any crime,

23 (ii) the individual has been convicted

24 of a national disqualifying crime, or
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1 (iii) the individual has been convicted

2 of a crime that is not a national disqualify3 ing crime.

4 (4) CONFORMING MEDICARE AND MEDICAID

5 AMENDMENTS.—Sections 1819(e)(2) and 1919(e)(2)

6 of the Social Security Act (42 U.S.C. 1395i–3(e)(2),

7 1396r(e)(2)) are each amended—

8 (A) in subparagraph (C), by striking ‘‘A

9 State’’ and inserting ‘‘Subject to section 3(e) of

10 the Elderly and Disabled Protection Act of

11 1998, a State’’, and

12 (B) by adding at the end the following new

13 subparagraph:

14 ‘‘(D) EXPANDED FUNCTIONS.—Effective

15 not later than 90 days after the date of the es16 tablishment of the national registry coordina17 tion system under section 3(b) of the Elderly

18 and Disabled Protection Act of 1998, the State

19 shall—

20 ‘‘(i) modify the operations of its reg21 istry so it performs the functions required

22 under section 3(a) of such Act; and

23 ‘‘(ii) provide for the specification of a

24 State agency that is separate from the reg25 istry and that will be responsible for the
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1 performance of criminal background checks

2 under such section.’’.

3 (b) NATIONAL REGISTRY COORDINATION SYSTEM.—

4 (1) ESTABLISHMENT.—The Secretary shall es5 tablish methods by which State direct care registries

6 can pool and share information regarding individuals

7 concerning criminal background check summaries

8 and the existence of documented findings of patient

9 abuse.

10 (2) DEADLINE FOR ESTABLISHING SYSTEM.—

11 The Secretary shall provide for the establishment of

12 the national registry coordination system by not

13 later than 1 year after the date of the enactment of

14 this Act.

15 (3) CONSULTATION WITH FBI ON CRIMINAL

16 BACKGROUND CHECKS.—In carrying out this Act

17 with respect to criminal background checks, the Sec18 retary shall consult with the Director of the Federal

19 Bureau of Investigation.

20 (c) PROCEDURES FOR CRIMINAL BACKGROUND

21 CHECKS.—A registry shall carry out its responsibilities

22 under subsection (a)(1)(B), in relation to a criminal back23 ground check with respect to an individual, in a manner

24 consistent with the following:
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1 (1) DETERMINATION OF WHETHER RECENT

2 CRIMINAL BACKGROUND CHECK DONE.—The reg3 istry shall determine whether the registry (or,

4 through the national registry coordination system,

5 the direct care employee registry of another State)

6 has obtained a criminal background check on the in7 dividual within the previous year.

8 (2) USE OF PREVIOUS BACKGROUND CHECK.—

9 If there has been such a check done within such pe10 riod, if the check revealed that—

11 (A) the individual had not been convicted

12 of any crime, the registry need not request a

13 new criminal background check and may as14 sume that the individual has not been convicted

15 of any disqualifying crime;

16 (B) the individual has been convicted of a

17 national or state disqualifying crime, the reg18 istry need not request a new criminal back19 ground check and shall treat the individual as

20 having been convicted of a disqualifying crime;

21 or

22 (C) the individual has been convicted of a

23 crime that is not a national or state disqualify24 ing crime and the State has disqualifying

25 crimes that are other than national disqualify-
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1 ing crimes, the registry shall request a criminal

2 background check as provided under paragraph

3 (3).

4 (3) REQUESTING STATE CRIMINAL BACK5 GROUND CHECK AGENCY TO OBTAIN CRIMINAL

6 BACKGROUND CHECK.—If there has not been such a

7 check done within such period or in the case de8 scribed in paragraph (2)(C), the registry shall re9 quest the State criminal background check agency of

10 the State—

11 (A) to perform a criminal background

12 check on the individual;

13 (B) to determine, on the basis of such

14 check, whether the individual—

15 (i) has not been convicted of any

16 crime;

17 (ii) has been convicted of a national

18 disqualifying crime; or

19 (iii) has been convicted of a crime

20 that is a State disqualifying crime; and

21 (C) to submit to the registry a criminal

22 background check summary on the individual.

23 (4) APPLICATION OF CERTAIN PROCEDURES

24 FOR CRIMINAL BACKGROUND CHECKS.—Under regu25 lations of the Secretary, the following provisions in
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1 section 3 of the National Child Protection Act of

2 1993 (Public Law 103–209) shall apply to criminal

3 background checks required of a direct care em4 ployee with respect to a covered facility to be per5 formed under this Act in the same manner as they

6 apply to providers with respect to qualified entities:

7 (A) Subsection (a)(2) (relating to access to

8 records and timeliness of response).

9 (B) Subsection (b) (relating to guidelines

10 on background checks), other than paragraph

11 (1)(B), except that denial of unsupervised ac12 cess under paragraph (1)(E) shall be treated

13 for purposes of this section as a denial of unsu14 pervised access to patients in covered facilities

15 and determinations under paragraph (4) shall

16 be made only with respect to crimes relating to

17 patient abuse.

18 (C) Subsection (c) (relating to authority of

19 Attorney General).

20 (D) Subsection (d) (relating to limitation

21 on liability).

22 (d) PROCEDURES FOR ABUSIVE WORK HISTORY

23 BACKGROUND CHECKS.—A registry shall carry out its re24 sponsibilities under subsection (a)(1)(B), in relation to
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1 abusive work history background check with respect to an

2 individual, in a manner consistent with the following:

3 (1) INCLUSION OF INFORMATION ON DOCU4 MENTED FINDINGS OF PATIENT ABUSE.—The reg5 istry shall maintain a list of all individuals in the

6 State who are (or were) direct care employees and

7 with respect to whom there are specific documented

8 findings of patient abuse, as well as any brief state9 ment of the individual disputing the findings. Such

10 findings shall be made available in the same manner

11 as findings described in sections 1819(c)(2)(B) and

12 1919(c)(2)(B) of the Social Security Act.

13 (2) FORWARDING INFORMATION ON INDIVID14 UALS WITH DOCUMENTED FINDINGS OF PATIENT

15 ABUSE.—If the registry has a documented finding

16 described in paragraph (1) with respect to an indi17 vidual, the registry—

18 (A) shall provide the national registry co19 ordination system with—

20 (i) information on the identity of the

21 individual and the State;

22 (ii) information on the fact that such

23 a finding was made; and
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1 (iii) such additional information re2 specting the finding as the Secretary may

3 require; and

4 (B) shall provide, to another State direct

5 care employee registry that requests informa6 tion on an individual for whom such a docu7 mented finding has been made through the sys8 tem, information respecting the finding.

9 (e) FEES.—A State may assess a covered facility a

10 fee for the conduct of a background check under section

11 2(a) in an amount that does not exceed the actual cost

12 to the State of obtaining the criminal background check

13 and the abusive work history background check on an indi14 vidual. Such a facility may recover all of the fee from the

15 individual involved.

16 SEC. 4. DEFINITIONS.

17 For purposes of this Act:

18 (1) BACKGROUND CHECK; CRIMINAL BACK19 GROUND CHECK; ABUSIVE WORK HISTORY BACK20 GROUND CHECK.—

21 (A) BACKGROUND CHECK.—The term

22 ‘‘background check’’ includes a criminal back23 ground check and an abusive work history back24 ground check.
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1 (B) CRIMINAL BACKGROUND CHECK.—The

2 term ‘‘criminal background check’’ means a

3 check of the criminal history record system

4 maintained by the Federal Bureau of Investiga5 tion based on fingerprint identification or any

6 other method of positive identification for the

7 purpose of determining whether an individual

8 has been convicted of a disqualifying crime.

9 (C) ABUSIVE WORK HISTORY BACKGROUND

10 CHECK.—The term ‘‘abusive work history back11 ground check’’ means, with respect to an indi12 vidual, a check of State direct care employee

13 registries for the purpose of determining wheth14 er there is a documented finding that the indi15 vidual was involved in patient abuse.

16 (2) COVERED FACILITY.—The term ‘‘covered

17 facility’’ means a nursing facility (including a skilled

18 nursing facility), home health agency, or hospice

19 program which receives payment under any federally

20 funded program.

21 (3) DIRECT CARE EMPLOYEE.—

22 (A) IN GENERAL.—The term ‘‘direct care

23 employee’’ means a nurse aide, home health

24 care aide, personal care assistant, private duty

25 nurse aide, day attendant, housekeeper, library
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1 attendant, laundry assistant, or similar worker

2 who performs nursing or related tasks involving

3 direct patient care in a covered facility.

4 (B) EXCLUSIONS.—Such term does not in5 clude an individual—

6 (i) who is a physician, physician as7 sistant, nurse practitioner, physical,

8 speech, or occupational therapist, physical

9 or occupational therapy assistant, reg10 istered professional nurse, licensed prac11 tical nurse, or licensed or certified social

12 worker, or registered dietitian;

13 (ii) who volunteers to provide such

14 services without monetary compensation;

15 or

16 (iii) who meets such other require17 ments as the Secretary may specify.

18 (4) DISQUALIFYING CRIME; NATIONAL DIS19 QUALIFYING CRIME; STATE DISQUALIFYING

20 CRIME.—

21 (A) DISQUALIFYING CRIME.—The term

22 ‘‘disqualifying crime’’ means, with respect to an

23 individual applying for employment in a State,

24 a criminal offense that is a national disqualify-
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1 ing crime or a State disqualifying crime in that

2 State.

3 (B) NATIONAL DISQUALIFYING CRIME.—

4 The term ‘‘national disqualifying crime’’

5 means—

6 (i) a criminal offense described in sec7 tion 1128(a) of the Social Security Act; or

8 (ii) felony homicide, battery, or as9 sault (including sexual assault),

10 regardless of the date of conviction for the

11 crime.

12 (C) STATE DISQUALIFYING CRIME.—The

13 term ‘‘State disqualifying crime’’ means, with

14 respect to a State, such criminal offenses (other

15 than national disqualifying crimes) as the State

16 may under law treat as a State disqualifying

17 crime for purposes of this Act and for such pe18 riod of time as the State may provide.

19 (5) NATIONAL REGISTRY COORDINATION SYS20 TEM.—The term ‘‘national registry coordination sys21 tem’’ means a system established under section 3(b).

22 (6) PATIENT ABUSE.—The term ‘‘patient

23 abuse’’ means such incidence of abuse, neglect, mis24 treatment, or misappropriation of property of an in-
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1 dividual receiving services in a covered facility as the

2 Secretary shall specify in regulations.

3 (7) SECRETARY.—The term ‘‘Secretary’’ means

4 the Secretary of Health and Human Services.

5 (8) STATE CRIMINAL BACKGROUND CHECK

6 AGENCY.—The term ‘‘State criminal background

7 check agency’’ means, with respect to a State, the

8 State agency specified by the State to provide for

9 the conduct of criminal background checks under

10 this Act.

11 (9) STATE DIRECT CARE EMPLOYEE REG12 ISTRY.—The term ‘‘State direct care employee reg13 istry’’ means a nurse aide registry that is established

14 under sections 1819(e)(2)(A) and 1919(e)(2)(A) of

15 the Social Security Act and that provides for func16 tions required of such a registry under section 3 of

17 this Act.

Æ