SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Essential Caregivers 
Act of 2021’’. 
SEC. 2. RIGHT TO ESSENTIAL CAREGIVERS. 
During a public health emergency declared by the 
Secretary of Health and Human Services under section 
319 of the Public Health Service Act, a resident of any 
skilled nursing facility (as defined in section 1819(a) of 
the Social Security Act (42 U.S.C. 1395i–3(a))), nursing 
facility (as defined in section 1919(a) of such Act (42 
U.S.C. 1396r(a))), inpatient rehabilitation facility de-
scribed in section 1886(a)(1)(Z) of such Act (42 U.S.C. 
1395cc(a)(1)(Z)), or intermediate care facility for the in-
tellectually disabled (as defined in section 1905(d) of such 
Act (42 U.S.C. 1396d(d)) has the right to designate two 
essential caregivers to have access to and provide assist-
ance and support to the resident at any time notwith-
standing any waiver made under section 1135 of the So-
cial Security Act (42 U.S.C. 1320b–5). The resident may 
change who is designated as an essential caregiver. 
SEC. 3. REQUIRING FACILITIES TO PERMIT ESSENTIAL 
CAREGIVERS ACCESS DURING ANY PUBLIC 
HEALTH EMERGENCY. 
(a) SKILLED NURSING FACILITIES; NURSING FA-
CILITIES.—Section 1819(c) and 1919(c) of the Social Se-
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curity Act (42 U.S.C. 1395i–3(c), 1396r(c)) are each 
amended— 
(1) in paragraph (3)— 
(A) in subparagraph (D), by striking 
‘‘and’’ at the end; 
(B) in subparagraph (E), by striking the 
period and inserting ‘‘; and’’; and 
(C) by adding at the end the following new 
subparagraph: 
‘‘(F) implement and maintain, during any 
public health emergency declared by the Sec-
retary under section 319 of the Public Health 
Service Act on or after the date of the enact-
ment of this subparagraph for the area in which 
such facility is located and notwithstanding any 
waiver made under section 1135, the essential 
caregivers program described in paragraph 
(7).’’; and 
(2) by adding at the end the following new 
paragraph: 
‘‘(7) ESSENTIAL CAREGIVERS PROGRAM.— 
‘‘(A) IN
GENERAL.—For purposes sub-
paragraph (F) of paragraph (3), the essential 
caregivers program described in this paragraph 
is a program implemented by a facility de-
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scribed in such paragraph under which such fa-
cility shall— 
‘‘(i) allow each resident of such facil-
ity the unqualified ability to elect not more 
than 2 essential caregivers (as defined in 
subparagraph (D)) to have access to, and 
provide assistance (as described in sub-
paragraph (C)(i)) to, such resident at such 
facility, and allow each such resident to 
amend such election at any time; 
‘‘(ii) permit each such caregiver so 
elected by such resident to provide such as-
sistance to such resident at such facility 
for 12 hours every day (or, in the case 
such care is end-of-life care, for an unlim-
ited number of hours every day); and 
‘‘(iii) enforce the agreement described 
in subparagraph (C)(ii) with respect to an 
essential caregiver. 
‘‘(B) PRESUMPTION
OF
ELECTION.—For 
purposes of subparagraph (A), in the case of a 
resident who is unable, by reason of physical or 
mental disability, to make an election described 
in such subparagraph, the resident representa-
tive (as defined in section 483.5 of title 42, 
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Code of Federal Regulations) of such resident 
shall be permitted to make such election for 
such resident. 
‘‘(C) ESSENTIAL CAREGIVER DEFINED.— 
For purposes of this paragraph, the term ‘es-
sential caregiver’ means, with respect to a resi-
dent of a facility described in subparagraph 
(A), an individual who— 
‘‘(i) will provide assistance consisting 
of activities of daily living, emotional sup-
port, or companionship to such resident; 
and 
‘‘(ii) agrees to follow all safety proto-
cols established by such facility, which 
shall be clearly specified in writing and be 
the same as such protocols (including safe-
ty standards and entry requirements) ap-
plicable to staff of such facility.’’. 
(b) INTERMEDIATE CARE FACILITIES FOR THE IN-
TELLECTUALLY DISABLED.—Section 1905(d) of the So-
cial Security Act (42 U.S.C. 1396d(d)) is amended— 
(1) in paragraph (2), by striking ‘‘and’’ at the 
end; 
(2) in paragraph (3), by striking the period and 
inserting ‘‘; and’’; and 
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(3) by adding at the end the following new 
paragraph: 
‘‘(4) the institution implements and maintains, 
during any public health emergency declared by the 
Secretary on or after the date of the enactment of 
this paragraph under section 319 of the Public 
Health Service Act for the area in which such insti-
tution is located and notwithstanding any waiver 
made under section 1135, the essential caregivers 
program described in section 1919(c)(7) in the same 
manner as if such institution were a nursing facil-
ity.’’. 
(c) INPATIENT REHABILITATION FACILITIES.—Sec-
tion 1866(a)(1) of the Social Security Act (42 U.S.C. 
1395cc(a)(1)) is amended— 
(1) in subparagraph (X), by striking ‘‘and’’ at 
the end; 
(2) in subparagraph (Y), by striking the period 
at the end and inserting ‘‘, and’’; and 
(3) by inserting after subparagraph (Y) the fol-
lowing new subparagraph: 
‘‘(Z) in the case of an inpatient rehabilitation 
facility that is located on the same campus (as de-
fined by the Secretary) as a skilled nursing facility, 
nursing facility (as defined in section 1919(a)), or 
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intermediate care facility for the intellectually dis-
abled (as described in section 1905(d)), to establish 
and maintain, during any public health emergency 
declared by the Secretary on or after the date of the 
enactment of this paragraph under section 319 of 
the Public Health Service Act for the area in which 
such institution is located and notwithstanding any 
waiver made under section 1135, the essential care-
givers program described in section 1819(c)(7) in 
the same manner as if such institution were a skilled 
nursing facility.’’. 
(d) COMPLIANCE AND NOTIFICATION.— 
(1) AUTHORITY.—No caregiver who meets the 
definition of an essential caregiver in clause (i) of 
paragraph (7)(C) of either section 1819(c) and 
1919(c) of the Social Security Act and who upholds 
the agreement described in clause (ii) of such para-
graph shall be denied access to the skilled nursing 
facility (as defined in section 1819(a) of the Social 
Security Act (42 U.S.C. 1395i–3(a))), nursing facil-
ity (as defined in section 1919(a) of such Act (42 
U.S.C. 1396r(a))), inpatient rehabilitation facility 
described in section 1886(a)(1)(Z) of such Act (42 
U.S.C. 1395cc(a)(1)(Z)), or intermediate care facil-
ity for the intellectually disabled (as defined in sec-
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tion 1905(d) of such Act (42 U.S.C. 1396d(d)) of 
the resident involved. 
(2) NOTIFICATION.— In the event of non-com-
pliance with either such clause, such facility must 
first provide a warning to the essential caregiver and 
resident in writing citing specific issues of non-com-
pliance and providing clear guidance for corrective 
measures. 
(3) ENFORCEMENT.—Should the essential care-
giver or resident fail to take corrective action, they 
may be subsequently denied access. In such cases, 
the facility shall provide to such caregiver and such 
resident (or health care proxy of such resident), not 
later than 24 hours after such failure to allow access 
occurs, a written explanation as to why such care- 
giver was not permitted to furnish such assistance to 
such resident. Such explanation must include the 
resident’s and caregivers’ options for appeal (as de-
scribed in subsection (e)). 
(e) OPTIONS FOR RESIDENT AND CAREGIVER AP-
PEAL.— 
(1) IN GENERAL.—During any period in which 
any skilled nursing facility (as defined in section 
1819(a) of the Social Security Act (42 U.S.C. 
1395i–3(a))), nursing facility (as defined in section 
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1919(a) of such Act (42 U.S.C. 1396r(a))), inpa-
tient rehabilitation facility described in section 
1886(a)(1)(Z) 
of 
such 
Act 
(42 
U.S.C. 
1395cc(a)(1)(Z)), or intermediate care facility for 
the intellectually disabled (as defined in section 
1905(d) of such Act (42 U.S.C. 1396d(d)) is re-
quired to establish and maintain the essential care-
givers program under section 1819(c)(3)(F) of such 
Act, section 1919(c)(3) of such Act, or section 
1905(d)(4) of such Act (as added by subsections (a) 
and (b)), the Secretary of Health and Human Serv-
ices shall, not later than 15 days after the first day 
of such period, establish and maintain a process 
to— 
(A) receive appeals from residents and 
caregivers challenging a decision to deny access; 
and 
(B) investigate all such appeals within 48 
hours of receipt. 
(f) ENFORCEMENT.—With respect to appeals re-
ceived under paragraph (1), the Secretary of Heath and 
Human Services shall make a determination as to whether 
a facility described in subsection (e)(1) violated a require-
ment or prohibition in this Act or in an amendment made 
by this Act within 7 days of commencing its investigation. 
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If the Secretary determines that a facility has violated a 
requirement or prohibition in this Act or in an amendment 
made by this Act, the Secretary shall— 
(1) require the facility to establish a corrective 
action plan to prevent the recurrence of such viola-
tion within a 7-day period of receiving notice from 
the Secretary; and 
(2) impose a civil money penalty in an amount 
to be determined by the Secretary if such facility 
fails to implement the corrective action plan with the 
7-day period specified in paragraph (1). 
(g) REGULATIONS.—The Secretary of Health and 
Human Services shall, after consultation with stakeholders 
(including residents, family members, long-term care om-
budsmen, other advocates of nursing home residents, and 
nursing home providers, promulgate regulations to carry 
out this Act. 
Æ 
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