I
105TH CONGRESS
2D SESSION
H. R. 4592
To amend titles XI and XVIII of the Social Security Act to establish a
program to ensure that home health agencies do not employ individuals
who have a history of patient or resident abuse or have been convicted
of certain crimes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 17, 1998
Mr. STARK introduced the following bill; which was referred to the Committee
on Ways and Means, and in addition to the Committee on Commerce,
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 XI and XVIII of the Social Security Act
to establish a program to ensure that home health agen-
cies do not employ individuals who have a history of
patient or resident abuse or have been convicted of cer-
tain crimes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Home Health Patient
Protection Act of 1998’’.
SEC. 2. ESTABLISHMENT OF PROGRAM TO PREVENT ABUSE
OF HOME HEALTH PATIENTS.
(a) HOME HEALTH AGENCY REQUIREMENTS.—
(1) MEDICARE PROGRAM.—Section 1891(a) of
the Social Security Act (42 U.S.C. 1395bbb(a)) is
amended by adding at the end the following:
‘‘(7) SCREENING
OF
HOME
HEALTH
AGENCY
WORKERS.—
‘‘(A) BACKGROUND
CHECKS
ON
APPLI-
CANTS.—Subject to subparagraph (B)(ii), be-
fore hiring an individual, a home health agen-
cy—
‘‘(i) gives the individual written notice
that the agency is required to perform
background checks with respect to appli-
cants;
‘‘(ii) requires, as a condition of em-
ployment, that such individual—
‘‘(I) provide a written statement
disclosing any conviction for a rel-
evant crime or finding of patient or
resident abuse;
‘‘(II) provide a statement signed
by the individual authorizing the
agency to request the search and ex-
change of criminal records;
‘‘(III) provide in person a copy of
the individual’s fingerprints; and
‘‘(IV) provide any other identi-
fication information the Secretary
may specify in regulation;
‘‘(iii) initiates a check of the registry
under section 1128F in accordance with
regulations promulgated by the Secretary
to determine whether such registry con-
tains any disqualifying information with
respect to such individual; and
‘‘(iv) if such registry does not contain
any such disqualifying information—
‘‘(I) requests that the State initi-
ate a State and national criminal
background check on such individual
in accordance with the provisions of
subsection (e)(7); and
‘‘(II) furnishes to the State the
information described in subclauses
(II) through (IV) of clause (ii) not
later than 7 days (excluding Satur-
days, Sundays, and legal public holi-
days under section 6103(a) of title 5,
United States Code) after completion
of the check against the registry initi-
ated under clause (iii).
‘‘(B) PROHIBITION ON HIRING OF ABUSIVE
WORKERS.—
‘‘(i) IN GENERAL.—The home health
agency does not knowingly employ any in-
dividual who has any conviction for a rel-
evant crime or with respect to whom a
finding of patient or resident abuse has
been made.
‘‘(ii) PROBATIONARY EMPLOYMENT.—
After complying with the requirements of
clauses (i), (ii), and (iii) of subparagraph
(A), a home health agency may provide for
a probationary period of employment (not
to exceed 90 days) for an individual pend-
ing completion of the check against the
registry described under subparagraph
(A)(iii) and the background check de-
scribed under subparagraph (A)(iv). Such
agency shall maintain supervision of the
individual during the individual’s proba-
tionary period of employment.
‘‘(C) REPORTING
REQUIREMENTS.—The
home health agency reports to the State any in-
stance in which the agency determines that an
individual has committed an act of patient ne-
glect or abuse or misappropriation of patient
property in the course of employment by the
agency.
‘‘(D) USE OF INFORMATION.—
‘‘(i) IN
GENERAL.—A home health
agency that obtains information about an
individual pursuant to clauses (iii) and (iv)
of subparagraph (A) may use such infor-
mation only for the purpose of determining
the suitability of the individual for employ-
ment.
‘‘(ii) IMMUNITY FROM LIABILITY.—A
home health agency that, in denying em-
ployment for an applicant, reasonably re-
lies upon information about an individual
provided by the State pursuant to sub-
section (e)(7) shall not be liable in any ac-
tion brought by the individual based on the
employment determination resulting from
the incompleteness or inaccuracy of the in-
formation.
‘‘(iii) CRIMINAL
PENALTY.—Whoever
knowingly violates the provisions of clause
(i) shall be fined in accordance with title
18, United States Code, imprisoned for not
more than 2 years, or both.
‘‘(E) DEFINITIONS.—For purposes of this
paragraph:
‘‘(i) CONVICTION
FOR
A
RELEVANT
CRIME.—The term ‘conviction for a rel-
evant crime’ means any State or Federal
criminal conviction for—
‘‘(I) any offense described in
paragraphs (1) through (4) of section
1128(a); and
‘‘(II) such other types of offenses
as the Secretary may specify in regu-
lations.
‘‘(ii) FINDING OF PATIENT OR RESI-
DENT ABUSE.—The term ‘finding of pa-
tient or resident abuse’ means any sub-
stantiated finding by a State agency under
subsection (g)(1)(E)(i) or a Federal agency
that an individual has committed—
‘‘(I) an act of patient or resident
abuse or neglect or a misappropriation
of patient property; or
‘‘(II) such other types of acts as
the Secretary may specify in regula-
tions.
‘‘(iii) 
DISQUALIFYING
INFORMA-
TION.—The term ‘disqualifying informa-
tion’ means information about a conviction
for a relevant crime or a finding of patient
or resident abuse.’’.
(b) EXPANSION OF STATE NURSING REGISTRIES TO
COLLECT INFORMATION ABOUT HOME HEALTH AGENCY
WORKERS.—
(1) MEDICARE PROGRAM.—Section 1819 of the
Social Security Act (42 U.S.C. 1395i–3) is amend-
ed—
(A) in subsection (e)(2)—
(i) in the paragraph heading, by strik-
ing ‘‘NURSE AIDE REGISTRY’’ and insert-
ing ‘‘NURSE
AIDE
AND
HOME
HEALTH
WORKER REGISTRY’’;
(ii) in subparagraph (A)—
(I) by striking ‘‘By not later than
January 1, 1989, the ’’ and inserting
‘‘The’’;
(II) by striking ‘‘a registry of all
individuals’’ and inserting ‘‘a registry
of (I) all individuals’’; and
(III) by inserting before the pe-
riod ‘‘, and (II) all home health agen-
cy workers with respect to whom the
State has made a finding described in
subparagraph (B)’’;
(iii) in subparagraph (B)—
(I) by inserting ‘‘and for the in-
clusion of findings by the State under
subsection (g)(1)(E)(i) concerning any
conviction for a relevant crime or
finding of patient or resident abuse or
misappropriation of resident or pa-
tient funds by a home health agency
worker’’ after ‘‘individual listed in the
registry’’; and
(II) by inserting ‘‘or patient’’
after ‘‘resident’’ each place it appears;
and
(iv) in subparagraph (C), by inserting
‘‘or home health care worker’’ after ‘‘nurse
aide’’; and
(B) in subsection (g)(1)—
(i) by redesignating subparagraph (E)
as subparagraph (F), and
(ii) by inserting after subparagraph
(D) the following new subparagraph:
‘‘(E) INVESTIGATIONS AND REMOVAL-OF-
NAME AUTHORITIES FOR HOME HEALTH AGEN-
CY WORKERS.—
‘‘(i) 
INVESTIGATIONS.—The 
State
shall provide, through an appropriate agen-
cy with responsibility for licensing or ap-
proval of home health agencies (as de-
scribed in section 1861(o)(4)), for a proc-
ess for the receipt and timely review and
investigation of allegations of neglect and
abuse and misappropriation of patient
property by a home health agency worker
used by a home health agency in providing
services to such a patient. The State shall,
after providing the individual involved with
a written notice of the allegations (includ-
ing a statement of the availability of a
hearing for the individual to rebut the alle-
gations) and the opportunity for a hearing
on the record, make a written finding as to
the accuracy of the allegations. If the State
finds that a home health agency worker
has neglected or abused a patient or mis-
appropriated patient property, the State
shall notify the worker and the registry of
such finding and, if applicable, the appro-
priate licensure authority. A State shall
not make a finding that an individual has
neglected a patient if the individual dem-
onstrates that such neglect was caused by
factors beyond the control of the individ-
ual.
‘‘(ii) REMOVAL OF NAME FROM REG-
ISTRY.—In the case of a finding of neglect
under clause (i), the State shall establish a
procedure to permit a worker to petition
the State to have his or her name removed
from the registry upon a determination by
the State that—
‘‘(I) the employment and per-
sonal history of the worker does not
reflect a pattern of abusive behavior
or neglect; and
‘‘(II) the neglect involved in the
original finding was a singular occur-
rence.
‘‘(iii) TIMING OF DETERMINATION.—
In no case shall a determination on a peti-
tion submitted under clause (ii) be made
prior to the expiration of the 1-year period
beginning on the date on which the name
of the petitioner was added to the registry
under clause (i).’’.
(c) STATE AND FEDERAL REQUIREMENT TO CON-
DUCT BACKGROUND CHECKS.—
(1) MEDICARE PROVISION.—Section 1819(e) of
such Act is amended by adding at the end the fol-
lowing new paragraph:
‘‘(7) STATE
AND
FEDERAL
REQUIREMENTS
CONCERNING
CRIMINAL
BACKGROUND
CHECKS
ON
HOME HEALTH AGENCY EMPLOYEES.—
‘‘(A) IN GENERAL.—Upon receipt of a re-
quest by a home health agency pursuant to sec-
tion 1891(a)(7) that is accompanied by the in-
formation described in subclauses (II) through
(IV) of section 1891(a)(7)(A)(ii), a State, after
checking appropriate State records and finding
no disqualifying information (as defined in sec-
tion 1891(a)(7)(E)), shall submit such request
and information to the Attorney General and
shall request the Attorney General to conduct a
search and exchange of records with respect to
the individual as described in subparagraph
(B).
‘‘(B) 
SEARCH
AND
EXCHANGE
OF
RECORDS BY ATTORNEY GENERAL.—Upon re-
ceipt of a submission pursuant to subparagraph
(A), the Attorney General shall direct a search
of the records of the Federal Bureau of Inves-
tigation for any criminal history records cor-
responding to the fingerprints or other positive
identification information submitted. The Attor-
ney General shall provide any corresponding in-
formation resulting from the search to the
State.
‘‘(C) STATE REPORTING OF INFORMATION
TO NURSING FACILITY.—Upon receipt of the in-
formation provided by the Attorney General
pursuant to subparagraph (B), the State
shall—
‘‘(i) review the information to deter-
mine whether the individual has any con-
viction for a relevant crime (as defined in
section 1891(a)(7)(E)); and
‘‘(ii) report to the home health agency
the results of such review.
‘‘(D) FEES FOR PERFORMANCE OF CRIMI-
NAL BACKGROUND CHECKS.—
‘‘(i) AUTHORITY TO CHARGE FEES.—
‘‘(I) ATTORNEY GENERAL.—The
Attorney General may charge a rea-
sonable fee, not to exceed $50 per re-
quest, to any State requesting a
search and exchange of records pursu-
ant to this paragraph and section
1891(a)(7) for conducting the search
and providing the records. Such fees
shall be available to the Attorney Gen-
eral, or, in the Attorney General’s dis-
cretion, to the Federal Bureau of In-
vestigation, until expended.
‘‘(II) 
STATE.—A 
State 
may
charge a home health agency a fee for
initiating the criminal background
check under this paragraph and sec-
tion 
1891(a)(7), 
including 
fees
charged by the Attorney General, and
for performing the review and report
required by subparagraph (C). The
amount of such fee shall not exceed
the actual cost of such activities.
‘‘(ii) TREATMENT OF FEES FOR PUR-
POSES OF COST REPORTS.—An entity may
not include a fee assessed pursuant to this
subparagraph as an allowable item on a
cost report under this title or title XIX.
‘‘(E) REGULATIONS.—In addition to the
Secretary’s authority to promulgate regulations
under this title, the Attorney General, in con-
sultation with the Secretary, may promulgate
such regulations as are necessary to carry out
the Attorney General’s responsibilities under
this paragraph and section 1891(a)(7), includ-
ing regulations regarding the security, confiden-
tiality, accuracy, use, destruction, and dissemi-
nation of information, audits and record-
keeping, and the imposition of fees.
‘‘(F) REPORT.—Not later than 2 years
after the date of enactment of this paragraph,
the Attorney General shall submit a report to
Congress on the number of requests for
searches and exchanges of records made under
this paragraph and the disposition of such re-
quests.’’.
(d) ESTABLISHMENT OF NATIONAL REGISTRY OF
ABUSIVE HOME HEALTH WORKERS.—Title XI of the So-
cial Security Act is amended by adding after section
1128E (42 U.S.C. 1320a–7e) the following new section:
‘‘NATIONAL REGISTRY OF ABUSIVE HOME HEALTH
WORKERS
‘‘SEC. 1128F. (a) IN GENERAL.—The Secretary shall
establish a national data collection program for the report-
ing of information described in subsection (b), with access
as set forth in subsection (c), and shall maintain a data-
base of the information collected under this section.
‘‘(b) REPORTING
OF INFORMATION.—Each State
shall report the information collected pursuant to sections
1819(e)(2)(B) with respect to home health workers in
such form and manner as the Secretary may prescribe by
regulation.
‘‘(c) ACCESS TO REPORTED INFORMATION.—
‘‘(1) AVAILABILITY.—The information in the
database maintained under this section shall be
available, pursuant to procedures maintained under
this section, to—
‘‘(A) Federal and State government agen-
cies;
‘‘(B) home health agencies participating in
the program under title XVIII;
‘‘(C) such other persons as the Secretary
may specify by regulation,
but only for the purpose of determining the suit-
ability for employment by a home health agency.
‘‘(2) INFORMATION.—The information in the
database shall be exempt from disclosure under sec-
tion 552 of title 5, United States Code.
‘‘(3) FEES FOR DISCLOSURE.—
‘‘(A) IN GENERAL.—The Secretary may es-
tablish or approve reasonable fees for the dis-
closure of information in such database. The
amount of such a fee shall be sufficient to re-
cover the full costs of operating the database.
Such fees shall be available to the Secretary or,
in the Secretary’s discretion, to the agency des-
ignated under this section to cover such costs.
‘‘(B) AVAILABILITY OF FEES.—Fees col-
lected pursuant to this subsection shall remain
available until expended, in the amounts pro-
vided in appropriation acts, for necessary ex-
penses related to the purposes for which the
fees were assessed.
‘‘(C) TREATMENT OF FEES FOR PURPOSES
OF COST REPORTS.—An entity may not include
a fee assessed pursuant to this subsection as an
allowable item on a cost report under this
title.’’.
(e) EFFECTIVE DATE.—The amendments made by
this section take effect on the date of the enactment of
this Act, without regard to whether implementing regula-
tions are in effect as of such date.
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