I 

117TH CONGRESS 

1ST SESSION H. R. 3733 

To amend titles XVIII and XIX of the Social Security Act to require skilled 

nursing facilities, nursing facilities, intermediate care facilities for the 

intellectually disabled, and inpatient rehabilitation facilities to permit 

essential caregivers access during any public health emergency under 

the Medicare and Medicaid programs. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 4, 2021 

Ms. TENNEY (for herself, Mr. LARSON of Connecticut, Ms. STEFANIK, Mr. 

RUTHERFORD, Ms. HERRELL, Mr. CAWTHORN, Ms. SPANBERGER, Mr. 

BUDD, Mr. VAN DREW, and Mr. COHEN) introduced the following bill; 

which was referred to the Committee on Energy and 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 amend titles XVIII and XIX of the Social Security Act 

to require skilled nursing facilities, nursing facilities, intermediate care facilities for the intellectually disabled, 

and inpatient rehabilitation facilities to permit essential 

caregivers access during any public health emergency 

under the Medicare and Medicaid programs. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Essential Caregivers 

3 Act of 2021’’. 

4 SEC. 2. RIGHT TO ESSENTIAL CAREGIVERS. 

5 During a public health emergency declared by the 

6 Secretary of Health and Human Services under section 

7 319 of the Public Health Service Act, a resident of any 

8 skilled nursing facility (as defined in section 1819(a) of 

9 the Social Security Act (42 U.S.C. 1395i–3(a))), nursing 

10 facility (as defined in section 1919(a) of such Act (42 

11 U.S.C. 1396r(a))), inpatient rehabilitation facility de12 scribed in section 1886(a)(1)(Z) of such Act (42 U.S.C. 

13 1395cc(a)(1)(Z)), or intermediate care facility for the in14 tellectually disabled (as defined in section 1905(d) of such 

15 Act (42 U.S.C. 1396d(d)) has the right to designate two 

16 essential caregivers to have access to and provide assist17 ance and support to the resident at any time notwith18 standing any waiver made under section 1135 of the So19 cial Security Act (42 U.S.C. 1320b–5). The resident may 

20 change who is designated as an essential caregiver. 

21 SEC. 3. REQUIRING FACILITIES TO PERMIT ESSENTIAL 

22 CAREGIVERS ACCESS DURING ANY PUBLIC 

23 HEALTH EMERGENCY. 

24 (a) SKILLED NURSING FACILITIES; NURSING FA25 CILITIES.—Section 1819(c) and 1919(c) of the Social SeVerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733

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1 curity Act (42 U.S.C. 1395i–3(c), 1396r(c)) are each 

2 amended— 

3 (1) in paragraph (3)— 

4 (A) in subparagraph (D), by striking 

5 ‘‘and’’ at the end; 

6 (B) in subparagraph (E), by striking the 

7 period and inserting ‘‘; and’’; and 

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

9 subparagraph: 

10 ‘‘(F) implement and maintain, during any 

11 public health emergency declared by the Sec12 retary under section 319 of the Public Health 

13 Service Act on or after the date of the enact14 ment of this subparagraph for the area in which 

15 such facility is located and notwithstanding any 

16 waiver made under section 1135, the essential 

17 caregivers program described in paragraph 

18 (7).’’; and 

19 (2) by adding at the end the following new 

20 paragraph: 

21 ‘‘(7) ESSENTIAL CAREGIVERS PROGRAM.— 

22 ‘‘(A) IN GENERAL.—For purposes sub23 paragraph (F) of paragraph (3), the essential 

24 caregivers program described in this paragraph 

25 is a program implemented by a facility deVerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733

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1 scribed in such paragraph under which such fa2 cility shall— 

3 ‘‘(i) allow each resident of such facil4 ity the unqualified ability to elect not more 

5 than 2 essential caregivers (as defined in 

6 subparagraph (D)) to have access to, and 

7 provide assistance (as described in sub8 paragraph (C)(i)) to, such resident at such 

9 facility, and allow each such resident to 

10 amend such election at any time; 

11 ‘‘(ii) permit each such caregiver so 

12 elected by such resident to provide such as13 sistance to such resident at such facility 

14 for 12 hours every day (or, in the case 

15 such care is end-of-life care, for an unlim16 ited number of hours every day); and 

17 ‘‘(iii) enforce the agreement described 

18 in subparagraph (C)(ii) with respect to an 

19 essential caregiver. 

20 ‘‘(B) PRESUMPTION OF ELECTION.—For 

21 purposes of subparagraph (A), in the case of a 

22 resident who is unable, by reason of physical or 

23 mental disability, to make an election described 

24 in such subparagraph, the resident representa25 tive (as defined in section 483.5 of title 42, 


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1 Code of Federal Regulations) of such resident 

2 shall be permitted to make such election for 

3 such resident. 

4 ‘‘(C) ESSENTIAL CAREGIVER DEFINED.— 

5 For purposes of this paragraph, the term ‘es6 sential caregiver’ means, with respect to a resi7 dent of a facility described in subparagraph 

8 (A), an individual who— 

9 ‘‘(i) will provide assistance consisting 

10 of activities of daily living, emotional sup11 port, or companionship to such resident; 

12 and 

13 ‘‘(ii) agrees to follow all safety proto14 cols established by such facility, which 

15 shall be clearly specified in writing and be 

16 the same as such protocols (including safe17 ty standards and entry requirements) ap18 plicable to staff of such facility.’’. 

19 (b) INTERMEDIATE CARE FACILITIES FOR THE IN20 TELLECTUALLY DISABLED.—Section 1905(d) of the So21 cial Security Act (42 U.S.C. 1396d(d)) is amended— 

22 (1) in paragraph (2), by striking ‘‘and’’ at the 

23 end; 

24 (2) in paragraph (3), by striking the period and 

25 inserting ‘‘; and’’; and 


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1 (3) by adding at the end the following new 

2 paragraph: 

3 ‘‘(4) the institution implements and maintains, 

4 during any public health emergency declared by the 

5 Secretary on or after the date of the enactment of 

6 this paragraph under section 319 of the Public 

7 Health Service Act for the area in which such insti8 tution is located and notwithstanding any waiver 

9 made under section 1135, the essential caregivers 

10 program described in section 1919(c)(7) in the same 

11 manner as if such institution were a nursing facil12 ity.’’. 

13 (c) INPATIENT REHABILITATION FACILITIES.—Sec14 tion 1866(a)(1) of the Social Security Act (42 U.S.C. 

15 1395cc(a)(1)) is amended— 

16 (1) in subparagraph (X), by striking ‘‘and’’ at 

17 the end; 

18 (2) in subparagraph (Y), by striking the period 

19 at the end and inserting ‘‘, and’’; and 

20 (3) by inserting after subparagraph (Y) the fol21 lowing new subparagraph: 

22 ‘‘(Z) in the case of an inpatient rehabilitation 

23 facility that is located on the same campus (as de24 fined by the Secretary) as a skilled nursing facility, 

25 nursing facility (as defined in section 1919(a)), or 


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1 intermediate care facility for the intellectually dis2 abled (as described in section 1905(d)), to establish 

3 and maintain, during any public health emergency 

4 declared by the Secretary on or after the date of the 

5 enactment of this paragraph under section 319 of 

6 the Public Health Service Act for the area in which 

7 such institution is located and notwithstanding any 

8 waiver made under section 1135, the essential care9 givers program described in section 1819(c)(7) in 

10 the same manner as if such institution were a skilled 

11 nursing facility.’’. 

12 (d) COMPLIANCE AND NOTIFICATION.— 

13 (1) AUTHORITY.—No caregiver who meets the 

14 definition of an essential caregiver in clause (i) of 

15 paragraph (7)(C) of either section 1819(c) and 

16 1919(c) of the Social Security Act and who upholds 

17 the agreement described in clause (ii) of such para18 graph shall be denied access to the skilled nursing 

19 facility (as defined in section 1819(a) of the Social 

20 Security Act (42 U.S.C. 1395i–3(a))), nursing facil21 ity (as defined in section 1919(a) of such Act (42 

22 U.S.C. 1396r(a))), inpatient rehabilitation facility 

23 described in section 1886(a)(1)(Z) of such Act (42 

24 U.S.C. 1395cc(a)(1)(Z)), or intermediate care facil25 ity for the intellectually disabled (as defined in secVerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733

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

2 the resident involved. 

3 (2) NOTIFICATION.— In the event of non-com4 pliance with either such clause, such facility must 

5 first provide a warning to the essential caregiver and 

6 resident in writing citing specific issues of non-com7 pliance and providing clear guidance for corrective 

8 measures. 

9 (3) ENFORCEMENT.—Should the essential care10 giver or resident fail to take corrective action, they 

11 may be subsequently denied access. In such cases, 

12 the facility shall provide to such caregiver and such 

13 resident (or health care proxy of such resident), not 

14 later than 24 hours after such failure to allow access 

15 occurs, a written explanation as to why such care16 giver was not permitted to furnish such assistance to 

17 such resident. Such explanation must include the 

18 resident’s and caregivers’ options for appeal (as de19 scribed in subsection (e)). 

20 (e) OPTIONS FOR RESIDENT AND CAREGIVER AP21 PEAL.— 

22 (1) IN GENERAL.—During any period in which 

23 any skilled nursing facility (as defined in section 

24 1819(a) of the Social Security Act (42 U.S.C. 

25 1395i–3(a))), nursing facility (as defined in section 


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1 1919(a) of such Act (42 U.S.C. 1396r(a))), inpa2 tient rehabilitation facility described in section 

3 1886(a)(1)(Z) of such Act (42 U.S.C. 

4 1395cc(a)(1)(Z)), or intermediate care facility for 

5 the intellectually disabled (as defined in section 

6 1905(d) of such Act (42 U.S.C. 1396d(d)) is re7 quired to establish and maintain the essential care8 givers program under section 1819(c)(3)(F) of such 

9 Act, section 1919(c)(3) of such Act, or section 

10 1905(d)(4) of such Act (as added by subsections (a) 

11 and (b)), the Secretary of Health and Human Serv12 ices shall, not later than 15 days after the first day 

13 of such period, establish and maintain a process 

14 to— 

15 (A) receive appeals from residents and 

16 caregivers challenging a decision to deny access; 

17 and 

18 (B) investigate all such appeals within 48 

19 hours of receipt. 

20 (f) ENFORCEMENT.—With respect to appeals re21 ceived under paragraph (1), the Secretary of Heath and 

22 Human Services shall make a determination as to whether 

23 a facility described in subsection (e)(1) violated a require24 ment or prohibition in this Act or in an amendment made 

25 by this Act within 7 days of commencing its investigation. 


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1 If the Secretary determines that a facility has violated a 

2 requirement or prohibition in this Act or in an amendment 

3 made by this Act, the Secretary shall— 

4 (1) require the facility to establish a corrective 

5 action plan to prevent the recurrence of such viola6 tion within a 7-day period of receiving notice from 

7 the Secretary; and 

8 (2) impose a civil money penalty in an amount 

9 to be determined by the Secretary if such facility 

10 fails to implement the corrective action plan with the 

11 7-day period specified in paragraph (1). 

12 (g) REGULATIONS.—The Secretary of Health and 

13 Human Services shall, after consultation with stakeholders 

14 (including residents, family members, long-term care om15 budsmen, other advocates of nursing home residents, and 

16 nursing home providers, promulgate regulations to carry 

17 out this Act. 

Æ 


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