I
107TH CONGRESS
2D SESSION
H. R. 5565
To amend the Social Security Act with respect to the employment of persons
with criminal backgrounds by long-term care providers.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 7, 2002
Mr. THOMPSON of California (for himself, Mr. RADANOVICH, and Mr. OWENS)
introduced the following bill; which was referred to the Committee on En-
ergy 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 jurisdic-
tion of the committee concerned
A BILL
To amend the Social Security Act with respect to the employ-
ment of persons with criminal backgrounds by long-term
care providers.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Senior Safety Protection Act of 2002’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Long-term care provider criminal background check.
Sec. 3. Expansion of state register to collect information about long-term care
provider employees other than nurse aides.
Sec. 4. Inclusion of abusive workers in the database established as part of Na-
tional Health Care Fraud and Abuse Data Collection Program.
Sec. 5. Prevention and training demonstration project.
Sec. 6. Improved background check system.
Sec. 7. State funding.
SEC. 2. LONG-TERM CARE PROVIDER CRIMINAL BACK-
GROUND CHECK.
(a) IN GENERAL.—Title XI of the Social Security Act
is amended by inserting after section 1134 the following
new sections:
‘‘SCREENING OF LONG-TERM CARE WORKERS
‘‘SEC. 1135. (a) BACKGROUND CHECKS ON APPLI-
CANTS.—Subject to subsection (b)(2), before hiring a
long-term care worker, a long-term care provider shall—
‘‘(1) give the worker written notice that the
provider is required to perform background checks
with respect to applicants;
‘‘(2) require, as a condition of employment, that
such worker—
‘‘(A) provide a written statement disclosing
any conviction for a relevant crime or finding of
patient or resident abuse;
‘‘(B) provide a statement signed by the
worker authorizing the provider to request the
search and exchange of criminal records;
‘‘(C) provide a copy of the worker’s finger-
prints;
‘‘(D) provide the worker’s social security
account number (or taxpayer identification
number) and date of birth; and
‘‘(E) provide any other identification infor-
mation the Secretary may specify in regulation;
‘‘(3) initiate a check of the registry under sec-
tions 1819(e)(2) and 1919(e)(2) in accordance with
regulations promulgated by the Secretary to deter-
mine whether such system contains any disqualifying
information with respect to such worker; and
‘‘(4) if that system does not contain any such
disqualifying information—
‘‘(A) request that the State initiate a State
and national criminal background check on
such worker in accordance with the provisions
of section 1135A; and
‘‘(B) furnish to the State the information
described in subparagraphs (B) through (D) of
paragraph (2) not more than 7 working days
after completion of the check against the sys-
tem initiated under paragraph (3).
‘‘(b) PROHIBITION ON HIRING OF ABUSIVE WORK-
ERS.—
‘‘(1) IN GENERAL.—A long-term care provider
may not knowingly employ any long-term care work-
er who has any conviction for a relevant crime or
with respect to whom a finding of patient or resident
abuse has been made.
‘‘(2) PROVISIONAL EMPLOYMENT.—
‘‘(A) IN GENERAL.—After complying with
the requirements of paragraph (1), (2), and (3)
of subsection (a), a long-term care provider may
provide for a provisional period of employment
for a long-term care worker pending completion
of the check against the data collection system
described under subsection (a)(3) and the back-
ground check described under subsection (a)(4).
Such provider shall maintain direct supervision
(or, in the case of home health care settings,
active monitoring or oversight) of the worker
during the worker’s provisional period of em-
ployment.
‘‘(B) ACTIVE MONITORING OR OVERSIGHT
DEFINED.—For purposes of subparagraph (A),
the term ‘active monitoring or oversight’ means
a good faith effort by the home health agency
supervisor to ensure the safety of the bene-
ficiary through efforts such as making follow-
up phone calls and unannounced visits.
‘‘(3) LIMITATION OF LIABILITY.—
‘‘(A) IN GENERAL.—A long-term care pro-
vider that, in denying employment for an appli-
cant (including during the period described in
subsection (b)(2)), reasonably relies upon infor-
mation about such applicant provided by the
State under section 1135A shall not be liable in
any action brought by such applicant relating to
the employment determination resulting from
the use of such information.
‘‘(B) DAMAGES
ACTIONS.—In a tort or
other civil action for damages that is brought
as the result of an injury, death, or loss to per-
son or property caused by an individual who a
long-term care provider employs in a position
that involves providing direct care to older
adults, the following shall apply:
‘‘(i) If the long-term care provider em-
ployed the individual in good faith and rea-
sonable reliance on the report of a criminal
records check requested under this section,
the provider shall not be found negligent
solely because of its reliance on the report,
even if the information in the report is de-
termined later to have been incomplete or
inaccurate.
‘‘(ii) If the long-term care provider
employed the individual in good faith on a
provisional basis pursuant to subsection
(b)(2), the provider shall not be found neg-
ligent solely because it employed the indi-
vidual prior to receiving the report of a
criminal records check requested under
this section.
‘‘(c) REPORTING REQUIREMENTS.—A long-term care
provider shall report to the State agency responsible for
surveys and certification of such providers any instance
in which the provider determines that a long-term care
worker has committed an act of resident neglect or abuse
or misappropriation of resident property in the course of
employment by the provider.
‘‘(d) USE OF INFORMATION.—
‘‘(1) IN GENERAL.—A long-term care provider
that obtains information about a long-term care
worker pursuant to paragraphs (3) and (4) of sub-
section (a) may use such information only for the
purpose of determining the suitability of the worker
for employment.
‘‘(2) IMMUNITY FROM LIABILITY.—A long-term
care provider that, in denying employment for an
applicant (including during the period described in
subsection (b)(2)) reasonably relies upon information
about such applicant provided by the State pursuant
to section 1135A or section 1919(e)(2) shall not be
liable in any action brought by such applicant based
on the employment determination resulting from the
information.
‘‘(e) CIVIL PENALTY.—
‘‘(1) IN GENERAL.—A long-term care provider
that violates the provisions of this section shall be
subject to a civil penalty in an amount not to
exceed—
‘‘(A) for the first such violation, $2,000;
and
‘‘(B) for the second and each subsequent
violation within any 5-year period, $5,000.
‘‘(2) KNOWING
RETENTION
OF
WORKER.—In
addition to any civil penalty under paragraph (1), a
long-term care provider that—
‘‘(A) knowingly continues to employ a
long-term care worker in violation of subsection
(a) or (b); or
‘‘(B) knowingly fails to report a long-term
care worker under subsection (c),
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 viola-
tion within any 5-year period.
‘‘(f) DEFINITIONS.—In this section and section
1135A:
‘‘(1) CONVICTION FOR A RELEVANT CRIME.—
The term ‘conviction for a relevant crime’ means any
Federal or State criminal conviction for—
‘‘(A) any offense described in paragraphs
(1) through (4) of section 1128(a); and
‘‘(B) such other types of offenses as the
Secretary may specify in regulations, taking
into account the severity and relevance of such
offenses and the time frame of when such an
offense is committed and after consultation
with representatives of long-term care pro-
viders, representatives of long-term care em-
ployees, consumer advocates, and appropriate
Federal and State officials.
‘‘(2) DISQUALIFYING INFORMATION.—The term
‘disqualifying information’ means information about
a conviction for a relevant crime or a finding of pa-
tient or resident abuse.
‘‘(3) FINDING
OF
PATIENT
OR
RESIDENT
ABUSE.—The term ‘finding of patient or resident
abuse’ means any substantiated finding by a State
agency under section 1919(g)(1)(C) or a Federal
agency 
that 
a 
long-term 
care 
worker 
has
committed—
‘‘(A) an act of patient or resident abuse or
neglect or a misappropriation of patient or resi-
dent property; or
‘‘(B) such other types of acts as the Sec-
retary may specify in regulations.
‘‘(4) LONG-TERM CARE PROVIDER.—The term
‘long-term care provider’ means—
‘‘(A) a nursing facility (as defined in sec-
tion 1919(a));
‘‘(B) a skilled nursing facility (as defined
in section 1819(a)), and includes a hospital-
based skilled nursing facility;
‘‘(C) a home health agency (as defined in
section 1861(o));
‘‘(D) a hospice program (as defined in sec-
tion 1861(dd) and section 1905(o));
‘‘(E) an assisted living facility (as defined
under section 232(b)(6) of the National Hous-
ing Act (12 U.S.C. 1751w(b)(6)); and
‘‘(F) any other facility (including any in-
termediate care facility for the mentally re-
tarded) that provides, or is a provider of, long-
term care services, hospice services, assisted liv-
ing services, or home health services and that
receives payment for such services under title
XVIII or title XIX;
and includes an agency that provides under contract
temporary staff to a long-term care provider.
‘‘(5) LONG-TERM
CARE
WORKER.—The term
‘long-term care worker’ means any individual (other
than a volunteer) that has direct access to a patient
of a long-term care provider under an employment
or other contract, or both, with such provider. Such
term includes an individual who is licensed or cer-
tified by the State to provide such services, and a
nonlicensed individual providing such services, as de-
fined by the Secretary, including a nurse assistant,
nurse aide, home health aide, and personal care
worker and attendant.
‘‘FEDERAL AND STATE REQUIREMENTS TO CONDUCT
BACKGROUND CHECKS
‘‘SEC. 1135A. (a) IN GENERAL.—Upon receipt of a
request by a long-term care provider pursuant to section
1135 that is accompanied by the information described in
subparagraph (B) through (D) of section 1135(a)(2), a
State, after checking appropriate State records and find-
ing no disqualifying information (as defined in section
1135(f)(2)), shall submit such request and information to
the Attorney General and shall request the Attorney Gen-
eral to conduct a search and exchange of records with re-
spect to the individual as described in subsection (b).
‘‘(b) SEARCH AND EXCHANGE OF RECORDS BY AT-
TORNEY GENERAL.—Upon receipt of a submission pursu-
ant to subsection (a), the Attorney General shall direct
a search of the records of the Federal Bureau of Investiga-
tion for any criminal history records corresponding to the
fingerprints and other positive identification information
submitted. The Attorney General shall provide any cor-
responding information resulting from the search to the
State.
‘‘(c) STATE REPORTING OF INFORMATION TO LONG-
TERM CARE PROVIDER.—Upon receipt of the information
provided by the Attorney General pursuant to subsection
(b), the State shall—
‘‘(1) review the information to determine wheth-
er the individual has any conviction for a relevant
crime (as defined section 1135(f)(1)) or has a find-
ing of patient or resident abuse;
‘‘(2) report to the long-term care provider the
results in writing of such review by indicating
whether a long-term care worker has any conviction
for a relevant crime or has a finding of patient or
resident abuse; and
‘‘(3) in the case of an individual with a convic-
tion for a relevant crime, report the existence of
such conviction of such individual to the registry re-
ferred to in sections 1818(e)(2) and 1919(e)(2).
‘‘(d) FEES FOR PERFORMANCE OF CRIMINAL BACK-
GROUND CHECKS.—
‘‘(1) NO
CHARGE
TO
PROVIDERS
OR
WORK-
ERS.—A State shall not charge a long-term care
provider or a prospective long-term care worker a fee
for initiating the criminal background check under
this section or section 1135, including fees charged
by the Attorney General, and for performing the re-
view and report required by subsection (c).
‘‘(2) FUNDING.—A State may apply under sec-
tion 7 of the Senior Safety Protection Act of 2002
for funding to perform criminal background checks.
‘‘(e) REGULATIONS.—
‘‘(1) IN
GENERAL.—In addition to the Sec-
retary’s authority to promulgate regulations under
this title, the Attorney General, in consultation with
the Secretary, may promulgate such regulations as
are necessary to carry out the Attorney General’s re-
sponsibilities under this section and section 1135,
including regulations regarding the security, con-
fidentiality, accuracy, use, destruction, and dissemi-
nation of information, audits and recordkeeping, and
the imposition of fees.
‘‘(2) APPEAL
PROCEDURES.—The Attorney
General, in consultation with the Secretary, shall
promulgate such regulations as are necessary to es-
tablish procedures by which an applicant or em-
ployee may appeal or dispute the accuracy of the in-
formation obtained in a background check conducted
under this section or section 1135. Appeals shall be
limited to instances in which an applicant or em-
ployee is incorrectly identified as the subject of the
background check, or when information about the
applicant or employee has not been updated to re-
flect changes in the applicant’s or employee’s crimi-
nal record.
‘‘(f) REPORT.—Not later than 2 years after the date
of enactment of this section, the Secretary shall submit
a report to Congress on—
‘‘(1) the number of requests for searches and
exchanges of records made under this section;
‘‘(2) the disposition of such requests; and
‘‘(3) the cost of responding to such requests.’’.
‘‘(g) LIMITATION ON PREEMPTION OF STATE LAW.—
‘‘(1) IN GENERAL.—Subject to paragraph (2),
the requirements under this section and section
1135 shall not preempt existing State laws that are
in effect on the date of the enactment of this sec-
tion.
‘‘(2) 
NATIONAL
FLOOR.—Notwithstanding
paragraph (1), States shall work with the Attorney
General to avoid duplicative requirements under this
section and section 1135.’’.
(b) EFFECTIVE DATE.—The amendments made by
this section shall apply to any individual applying for em-
ployment or hired for such employment by any long-term
care provider on or after the date which is the later of—
(1) 6 months after the date of the enactment
of this Act; or
(2) upon implementation by the State of the re-
quirements under this Act.
SEC. 3. EXPANSION OF STATE REGISTER TO COLLECT IN-
FORMATION ABOUT LONG-TERM CARE PRO-
VIDER EMPLOYEES OTHER THAN NURSE
AIDES.
(a) MEDICAID PROGRAM.—Section 1919 of the Social
Security Act (42 U.S.C. 1396r) is amended—
(1) in subsection (e)(2)—
(A) in the paragraph heading, by striking
‘‘NURSE AIDE REGISTRY’’ and inserting ‘‘LONG-
TERM CARE REGISTRY’’;
(B) in subparagraph (A)—
(i) by striking ‘‘By not later than
January 1, 1989, the’’ and inserting
‘‘The’’;
(ii) by striking ‘‘a registry of all indi-
viduals’’ and inserting ‘‘a registry of (i) all
individuals’’; and
(iii) by inserting before the period ‘‘,
and (ii) all other long-term care provider
employees with respect to whom the State
has made a finding described in subpara-
graph (B)’’;
(C) in subparagraph (B), by striking ‘‘in-
volving an individual listed in the registry’’ and
inserting ‘‘involving a long-term care em-
ployee’’; and
(D) in subparagraph (C), by striking
‘‘nurse aide’’ and inserting ‘‘long-term care em-
ployee or applicant for employment’’; and
(2) in subsection (g)(1)—
(A) in subparagraph (C)—
(i) in the first sentence, by striking
‘‘nurse aide’’ and inserting ‘‘long-term care
employee’’; and
(ii) in the third sentence, by striking
‘‘nurse aide’’ and inserting ‘‘long-term care
employee’’ each place it appears; and
(B) in subparagraph (D)—
(i) 
in 
the 
heading, 
by 
striking
‘‘NURSE
AIDE
REGISTRY’’ and inserting
‘‘LONG-TERM CARE PROVIDER REGISTRY’’;
and
(ii) by striking ‘‘nurse aide’’ and in-
serting ‘‘long-term care provider employee’’
each place it appears.
(b) MEDICARE PROGRAM.—Section 1819 of the So-
cial Security Act (42 U.S.C. 1395i–3) is amended—
(1) in subsection (e)(2)—
(A) in the paragraph heading, by striking
‘‘NURSE AIDE REGISTRY’’ and inserting ‘‘LONG-
TERM CARE EMPLOYEE REGISTRY’’;
(B) in subparagraph (A)—
(i) by striking ‘‘By not later than
January 1, 1989, the’’ and inserting
‘‘The’’;
(ii) by striking ‘‘a registry of all indi-
viduals’’ and inserting ‘‘a registry of (i) all
individuals’’; and
(iii) by inserting before the period ‘‘,
and (ii) all other long-term care employees
with respect to whom the State has made
a finding described in subparagraph (B)’’;
(C) in subparagraph (B), by striking ‘‘in-
volving an individual listed in the registry’’ and
inserting ‘‘involving a long-term care em-
ployee’’; and
(D) in subparagraph (C), by striking
‘‘nurse aide’’ and inserting ‘‘skilled long-term
care provider employee or applicant for employ-
ment’’; and
(2) in subsection (g)(1)—
(A) in subparagraph (C)—
(i) in the first sentence, by striking
‘‘nurse aide’’ and inserting ‘‘skilled long-
term care employee’’; and
(ii) in the third sentence, by striking
‘‘nurse aide’’ and inserting ‘‘long-term care
employee’’ each place it appears; and
(B) in subparagraph (D)—
(i) 
in 
the 
heading, 
by 
striking
‘‘NURSE
AIDE
REGISTRY’’ and inserting
‘‘LONG-TERM CARE EMPLOYEE REGISTRY’’;
and
(ii) by striking ‘‘nurse aide’’ and in-
serting ‘‘long-term care employee’’ each
place it appears.
SEC. 4. INCLUSION OF ABUSIVE WORKERS IN THE DATA-
BASE ESTABLISHED AS PART OF NATIONAL
HEALTH CARE FRAUD AND ABUSE DATA COL-
LECTION PROGRAM.
(a) COVERAGE OF LONG-TERM CARE WORKERS.—
Section 1128E(g)(2) of the Social Security Act (42 U.S.C.
1320a–7e(g)(2)) is amended by adding at the end the fol-
lowing: ‘‘Such term also includes any individual of a long-
term care provider (other than a volunteer) that has direct
access to a patient or resident of such a provider under
an employment or other contract, or both, with the pro-
vider (including individuals who are licensed or certified
by the Secretary to provide services at or through the pro-
vider, and non-licensed individuals, as defined by the Sec-
retary, providing services at or through the provider, in-
cluding nurse assistants, nurse aides, home health aides,
and personal care workers and attendants)’’.
(b) MANDATORY CHECK OF DATABASE BY LONG-
TERM CARE FACILITIES OR PROVIDERS.—Section 1135
of the Social Security Act, as added by section 2(a), is
amended by adding at the end the following new sub-
section:
‘‘(g) MANDATORY CHECK OF DATABASE BY LONG-
TERM CARE FACILITIES OR PROVIDERS.—A long-term
care provider shall check the registry maintained under
sections 1818(e)(2) and 1919(e)(2) prior to hiring under
an employment or other contract, or both, any individual
as an employee of such a provider who will have direct
access to a patient or resident of the provider (including
individuals who are licensed or certified by the State to
provide services at or through the provider, and non-
licensed individuals, as defined by the Secretary, that will
provide services at or through the provider, including
nurse assistants, nurse aides, home health aides, and per-
sonal care workers and attendants).’’.
(c) DEFINITION OF LONG-TERM CARE PROVIDER.—
Section 1128E(g) of the Social Security Act (42 U.S.C.
1320a–7e(g)) is amended by adding at the end the fol-
lowing:
‘‘(6) LONG-TERM CARE PROVIDER.—The term
‘long-term care provider’ has the meaning given such
term in section 1135(f)(4).’’.
SEC. 5. PREVENTION AND TRAINING DEMONSTRATION
PROJECT.
(a) ESTABLISHMENT.—The Secretary of Health and
Human Services shall establish a demonstration program
to provide grants to develop information on best practices
in patient abuse prevention training (including behavior
training and interventions) for managers and staff of long-
term care facilities.
(b) ELIGIBILITY.—To be eligible to receive a grant
under subsection (a), an entity shall be a public or private
entity and prepare and submit to the Secretary an applica-
tion at such time, in such manner, and containing such
information as the Secretary may require.
(c) USE
OF FUNDS.—Amounts received under a
grant under this section shall be used to—
(1) examine ways to improve collaboration be-
tween State health care survey and provider certifi-
cation agencies, long-term care ombudsman pro-
grams, the long-term care industry, and local com-
munity members;
(2) examine patient care issues relating to regu-
latory oversight, community involvement, and pro-
vider staffing and management with a focus on staff
training, staff stress management, and staff super-
vision;
(3) examine the use of patient abuse prevention
training programs by long-term care entities, includ-
ing the training program developed by the National
Association of Attorneys General, and the extent to
which such programs are used; and
(4) identify and disseminate best practices for
preventing and reducing patient abuse.
(d) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated such sums as may be
necessary to carry out this section.
SEC. 6. IMPROVED BACKGROUND CHECK SYSTEM.
(a) The ESTABLISHMENT.—The Secretary of Health
and Human Services and the Attorney General shall es-
tablish a more efficient background check system that pro-
vides for a more immediate determination of criminal sta-
tus.
(b) IMPLEMENTATION.—The Secretary of Health and
Human Services and the Attorney General shall imple-
ment such more efficient background check system under
subsection (a) not later than 5 years after the date of the
enactment of this Act.
(c) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated such sums as may be
necessary to carry out this section.
SEC. 7. STATE FUNDING.
(a) IN GENERAL.—The Secretary of Health and
Human Services, upon application by a State, may provide
an annual grant to carry out the provisions of this Act.
(b) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated to carry out the provi-
sions of this Act (other than sections 5 and 6)
$50,000,000 in each of fiscal years 2003 through 2007.
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