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come or resources or otherwise be taken into account (A)
for purposes of determining the eligibility of the individ-
ual, or the family or household of the individual, for assist-
ance under a State plan approved under title XIX, or for
aid, assistance, or benefits in any form under any Federal
program, or any State or local program financed in whole
or in part with Federal funds, which conditions such eligi-
bility to any extent upon the income or resources of the
individual, family, or household, or (B) for purposes of de-
termining the amount or extent of such aid, assistance,
or benefits.
‘‘(3) An enforcing agency may suspend imposition of
an order of assessment against a facility if the facility can
provide assurances, satisfactory to the agency, that the fa-
cility has taken such actions as will prevent the reoccur-
rence of the violation (and similar violations) from which
the order results. To the extent that the enforcing agency
determines, based on a later complaint or investigation,
that such actions have not been taken in accordance with
such assurances, the agency shall reimpose such an order.
‘‘(d)(1)(A) Not later than 60 days after the final ac-
tion of an enforcing agency with respect to a complaint
or suspension of an order of assessment under this section,
any person adversely affected or aggrieved by the action
is entitled to judicial review thereof in the appropriate
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United States district court or State court of competent
jurisdiction. The provisions of sections 701(b)(2), and 702
through 706 of title 5, United States Code, shall apply
to such reviews.
‘‘(B) Where a patient or facility brings an action for
review of a determination by an enforcing agency which
is not in the patient’s or facility’s favor, respectively, and
the action is determined to constitute harassment of the
facility or patient, respectively, the patient or facility shall
be liable to the enforcing agency for all the agency’s legal
fees and costs (including reasonable attorney’s fees) in
connection with the action.
‘‘(2)(A) If an enforcing agency has issued a final
order of an assessment of a penalty against a facility
and—
‘‘(i) the order has not been suspended under
subsection (c)(3), the facility shall pay the amount
of the penalty to the enforcing agency within 60
days after the date the order becomes final, or
‘‘(ii) the order has been suspended but has been
reimposed, the facility shall pay the amount of the
penalty to the enforcing agency within 60 days after
the date the order was reimposed.
‘‘(B)(i) The agency will hold any such amounts paid
to it in escrow and, except as provided in clause (ii), shall
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make payment of it, in accordance with subsection (b)(2),
at the end of the applicable 60-day period described in
subparagraph (A).
‘‘(ii) If judicial review of such an order of an enforc-
ing agency has been sought, the agency shall make pay-
ment of any penalty collected at the conclusion of the re-
view and in accordance with the order of the court.
‘‘(3) If a facility fails to make timely payment of a
civil penalty according to paragraph (2), the enforcing
agency shall recover the amount assessed (plus interest
at currently prevailing rates from the last date of such
60-day period) in an action brought in any appropriate
district court of the United States or State court of com-
petent jurisdiction and shall hold or transfer it in the man-
ner provided in that paragraph.
‘‘(e) The imposition of a civil penalty under this sec-
tion shall not preclude, and shall be in addition to, any
other monetary damages recoverable by, or other relief
available to, patients or enforcing agencies as a result of
violation of patients’ rights.
‘‘(f) For purposes of this section, the term ‘enforcing
agency’ means, with respect to an alleged violation occur-
ring in a State in which the Secretary—
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‘‘(1) has entered into an agreement under sec-
tion 1864(d)(1), the appropriate State or local agen-
cy or agencies specified in that agreement, or
‘‘(2) has not entered into such an agreement,
such office within the Department of Health, Edu-
cation, and Welfare as the Secretary shall designate
by regulation.’’.
(c) Section 1864 of such Act is amended by adding
at the end the following new subsection:
‘‘(d)(1) The Secretary shall make an agreement with
any State which is able and willing to do so and has an
agreement under subsection (a) under which the agency
(or agencies) under subsection (a) will serve as an appro-
priate agency for the purpose of enforcing patients’ rights
under section 1883. The Secretary shall pay for the serv-
ices of such an agency in the manner prescribed in sub-
section (b).
‘‘(2) Any agreement under this section with a State
with regard to determining whether a facility meets the
standards relating to patients’ rights and described in sec-
tion 1882 shall include a provision that each routine cer-
tification survey of such a facility shall include a private
meeting between patients and survey personnel to discuss
patients’ experiences within the facility as regards such
rights and compliance with such standards generally.’’.
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(d) Section 1865(a) of such Act is amended by insert-
ing after the second sentence the following new sentence:
‘‘No institution shall be so deemed to meet standards re-
lating to patients’ rights and described in section 1882
unless the accreditation survey of the institution includes
a private meeting between patients and survey personnel
to discuss patients’ experiences within the institution as
regards such rights and compliance with such standards
generally.’’.
SEC. 2. The Secretary of Health, Education, and
Welfare shall first publish proposed regulations for carry-
ing out the amendments made by this Act not later than
six months after the date of the enactment of this Act
and such regulations shall first become final and fully ef-
fective on the first day of the ninth month which begins
after the date of the enactment of this Act.
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