I
105TH CONGRESS
1ST SESSION
H. R. 2953
To require criminal and abusive work history background checks for nurse
and home health aides in nursing facilities, home health agencies, and
hospice programs under the Medicare and Medicaid programs, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 8, 1997
Mr. KENNEDY of Massachusetts (for himself, Mr. REGULA, Mr. MARTINEZ,
Mrs. MORELLA, Mrs. MALONEY of New York, Mr. BARRETT of Wiscon-
sin, Mr. WEYGAND, and Mr. LIPINSKI) introduced the following bill;
which was referred to the Committee on Commerce, and in addition to
the Committee on Ways and Means, for a period to be subsequently de-
termined by the Speaker, in each case for consideration of such provisions
as fall within the jurisdiction of the committee concerned
A BILL
To require criminal and abusive work history background
checks for nurse and home health aides in nursing facili-
ties, home health agencies, and hospice programs under
the Medicare and Medicaid programs, and for other pur-
poses.
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
‘‘Elder Care Safety Act of 1997’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Requiring background checks for nurse and home health aides in nurs-
ing facilities, home health agencies, and hospice programs.
Sec. 3. Expanded role of State nursing registries; national registry coordination
system; procedures for background checks.
Sec. 4. Prevention and training demonstration project.
Sec. 5. Recommendations on personnel-to-patient levels.
Sec. 6. Definitions.
SEC. 2. REQUIRING BACKGROUND CHECKS FOR NURSE
AND HOME HEALTH AIDES IN NURSING FA-
CILITIES, HOME HEALTH AGENCIES, AND
HOSPICE PROGRAMS.
(a) REQUIREMENTS.—
(1) IN
GENERAL.—A covered facility in a
State—
(A) may not employ (directly or through
an agency) any individual as a nurse or home
health aide unless the facility has requested
from the State nurse and home health aide reg-
istry a background check;
(B) may not employ such an individual or
continue such employment if the report on such
background check reveals that the individual
has been convicted of a disqualifying crime; and
(C) shall report to such registry docu-
mented findings of patient abuse by a nurse or
home health aide.
(2) EMPLOYMENT PENDING REPORT.—Nothing
in this subsection shall be construed as preventing a
covered facility from—
(A) seeking a background check on pro-
spective nurse or home health aides before they
are employed, or
(B) employing nurse or home health aides
during the period in which a background check
has been sought under paragraph (1)(A) and
before a report on such check has been provided
to the facility under paragraph (1)(B).
(b) PENALTIES.—In addition to any other sanctions
provided under law—
(1) IN GENERAL.—A covered facility that vio-
lates subsection (a)(1)(A) 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 ad-
dition to any civil penalty under paragraph (1), a
covered facility that—
(A) knowingly continues to employ a nurse
or home health aide in violation of subsection
(a)(1)(B), or
(B) knowingly fails to submit a report re-
quired under subsection (a)(1)(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.
(c) ENFORCEMENT THROUGH MEDICARE AND MED-
ICAID PROGRAMS.—
(1) NURSING FACILITIES.—
(A) 
MEDICARE
PROGRAM.—Section
1819(b) of the Social Security Act (42 U.S.C.
1395i–3(b)) is amended by adding at the end
the following new paragraph:
‘‘(8) REQUIREMENT FOR BACKGROUND CHECKS
FOR NURSING PERSONNEL.—A skilled nursing facil-
ity shall comply with the requirements of section
2(a) of the Elder Care Safety Act of 1997 with re-
spect to any nurse or home health aide it employs.’’
(B) 
MEDICAID
PROGRAM.—Section
1919(b) of such Act (42 U.S.C. 1396r(b)) is
amended by adding at the end the following
new paragraph:
‘‘(8) REQUIREMENT FOR BACKGROUND CHECKS
FOR NURSING PERSONNEL.—A nursing facility shall
comply with the requirements of section 2(a) of the
Elder Care Safety Act of 1997 with respect to any
nurse or home health aide it employs.’’.
(2) HOME
HEALTH
AGENCIES
AND
HOSPICE
PROGRAMS.—
(A) MEDICARE PROGRAM.—
(i) HOME
HEALTH
AGENCIES.—Sec-
tion 1891(a) of such Act (42 U.S.C.
1395bbb(a)) is amended by adding at the
end the following:
‘‘(7) The agency complies with the requirements
of section 2(a) of the Elder Care Safety Act of 1997
with respect to any nurse or home health aide it em-
ploys.’’.
(ii) 
HOSPICE
PROGRAMS.—Section
1861(dd)(2)(G) of such Act (42 U.S.C.
1395x(dd)(2)(G)) is amended by inserting
before the period at the end the following:
‘‘, including compliance with the require-
ments of section 2(a) of the Elder Care
Safety Act of 1997 with respect to any
nurse or home health aide it employs’’.
(B) 
MEDICAID
PROGRAM.—Section
1902(a)(57) 
of 
such 
Act 
(42 
U.S.C.
1396a(a)(57)) is amended—
(i) by inserting ‘‘(A)’’ after ‘‘(57)’’,
and
(ii) by adding at the end the follow-
ing:
‘‘(B) provide that each provider of home health
care or personal care services and each hospice pro-
gram receiving funds under the plan shall comply
with the requirements of section 2(a) of the Elder
Care Safety Act of 1997 with respect to any nurse
or home health aide it employs;’’.
(d) EFFECTIVE DATES.—The requirements of sub-
section (a) shall apply with respect to a covered facility—
(1) beginning as of such date (specified by the
Secretary and not later than 60 days after the date
the Secretary has established the national registry
coordination system under section 3(b)), with re-
spect to the hiring of individuals as a nurse or home
health aide by the facility on and after such date;
and
(2) as of 1 year after the date described in
paragraph (1), with respect to individuals first em-
ployed as such an aide before the date described in
such paragraph.
SEC. 3. EXPANDED ROLE OF STATE NURSING REGISTRIES;
NATIONAL REGISTRY COORDINATION SYS-
TEM; 
PROCEDURES 
FOR 
BACKGROUND
CHECKS.
(a) EXPANDED ROLE OF REGISTRY.—
(1) IN GENERAL.—Each State shall expand its
nurse aide registry established under sections
1819(e)(2) and 1919(e)(2) of the Social Security
Act to carry out the following functions:
(A) RECEIPT OF REQUESTS.—The registry
shall provide for the receipt of requests for
background checks described in section 2(a)(1).
(B) 
CONDUCT
OF
BACKGROUND
CHECKS.—Upon receipt of such a request with
respect to an individual, the registry, in coordi-
nation with the national registry coordination
system established by the Secretary under sub-
section (b) and in accordance with this section,
shall provide for the performance of (or the col-
lection of information concerning) a background
check (including a criminal background check
and an abusive work history background check)
requested under section 2(a) and for the sub-
mittal of a background check report (as defined
in paragraph (2)) on such check to the request-
ing facility.
(C) PROVISION OF INFORMATION TO NA-
TIONAL
REGISTRY
COORDINATION
SYSTEM.—
The registry shall provide for the reporting to
the national registry coordination system of—
(i) a criminal background check sum-
mary (as defined in paragraph (3)) on any
individual on whom it obtains a criminal
background check under subsection (c)(3);
and
(ii) the identity of any individual for
whom the registry has documented find-
ings of patient abuse and such additional
information as the State registry involved
may disclose concerning such findings.
(2) BACKGROUND CHECK REPORT DEFINED.—
For purposes of this section, the term ‘‘background
check report’’ means, with respect to a background
check concerning an individual, a statement contain-
ing the following:
(A) Whether the individual has been con-
victed of a disqualifying crime.
(B) Whether there are documented find-
ings of patient abuse by the individual in a
State nurse and home health aide registry and,
if so, such additional information as the State
registry involved may disclose concerning such
findings.
Such report shall not include information from the
criminal background check other than the informa-
tion described in subparagraph (A).
(3) CRIMINAL BACKGROUND CHECK SUMMARY
DEFINED.—For purposes of this section, the term
‘‘criminal background check summary’’ means, with
respect to a criminal background check concerning
an individual, the following information:
(A) The identity of the individual.
(B) The date of the criminal background
check.
(C) Whether the check revealed that—
(i) the individual had not been con-
victed of any crime,
(ii) the individual has been convicted
of a national disqualifying crime, or
(iii) the individual has been convicted
of a crime that is not a national disqualify-
ing crime.
(4) CONFORMING
MEDICARE
AND
MEDICAID
AMENDMENTS.—Sections 1819(e)(2) and 1919(e)(2)
of the Social Security Act (42 U.S.C. 1395i–3(e)(2),
1396r(e)(2)) are each amended—
(A) in subparagraph (C), by striking ‘‘A
State’’ and inserting ‘‘Subject to section 3(e) of
the Elder Care Safety Act of 1997, a State’’,
and
(B) by adding at the end the following new
subparagraph:
‘‘(D) EXPANDED
FUNCTIONS.—Effective
not later than 90 days after the date of the es-
tablishment of the national registry coordina-
tion system under section 3(b) of the Elder
Care Safety Act of 1997, the State shall—
‘‘(i) modify the operations of its reg-
istry so it performs the functions required
under section 3(a) of such Act, and
‘‘(ii) provide for the specification of a
State agency that is separate from the reg-
istry and that will be responsible for the
performance of criminal background checks
under such section.’’.
(b) NATIONAL REGISTRY COORDINATION SYSTEM.—
(1) ESTABLISHMENT.—The Secretary shall es-
tablish methods by which State nurse and home
health aide registries can pool and share information
regarding individuals concerning criminal back-
ground check summaries and the existence of docu-
mented findings of patient abuse.
(2) DEADLINE FOR ESTABLISHING SYSTEM.—
The Secretary shall provide for the establishment of
the national registry coordination system by not
later than 1 year after the date of the enactment of
this Act.
(3) CONSULTATION
WITH
FBI
ON
CRIMINAL
BACKGROUND
CHECKS.—In carrying out this Act
with respect to criminal background checks the Sec-
retary shall consult with the Director of the Federal
Bureau of Investigation.
(c) PROCEDURES
FOR
CRIMINAL
BACKGROUND
CHECKS.—A registry shall carry out its responsibilities
under subsection (a)(1)(B), in relation to a criminal back-
ground check with respect to an individual, in a manner
consistent with the following:
(1) DETERMINATION
OF
WHETHER
RECENT
CRIMINAL
BACKGROUND
CHECK
DONE.—The reg-
istry shall determine whether the registry (or,
through the national registry coordination system,
the nurse and home health aide registry of another
State) has obtained a criminal background check on
the individual within the previous year.
(2) USE OF PREVIOUS BACKGROUND CHECK.—
If there has been such a check done within such pe-
riod, if the check revealed that—
(A) the individual had not been convicted
of any crime, the registry need not request a
new criminal background check and may as-
sume that the individual has not been convicted
of any disqualifying crime;
(B) the individual has been convicted of a
national disqualifying crime, the registry need
not request a new criminal background check
and shall treat the individual as having been
convicted of a disqualifying crime; or
(C) the individual has been convicted of a
crime that is not a national disqualifying crime
and the State has disqualifying crimes that are
other than national disqualifying crimes, the
registry shall request a criminal background
check as provided under paragraph (3).
(3) 
REQUESTING
STATE
CRIMINAL
BACK-
GROUND
CHECK
AGENCY
TO
OBTAIN
CRIMINAL
BACKGROUND CHECK.—If there has not been such a
check done within such period or in the case de-
scribed in paragraph (2)(C), the registry shall re-
quest the State criminal background check agency of
the State—
(A) to perform a criminal background
check on the individual;
(B) to determine, on the basis of such
check, whether the individual—
(i) has not been convicted of any
crime, or
(ii) has been convicted of a national
disqualifying crime, or
(iii) has been convicted of a crime
that is a State disqualifying crime; and
(C) to submit to the registry a criminal
background check summary on the individual.
(4) APPLICATION
OF
CERTAIN
PROCEDURES
FOR CRIMINAL BACKGROUND CHECKS.—Under regu-
lations of the Secretary, the following provisions in
section 3 of the National Child Protection Act of
1993 (Public Law 103–209) shall apply to criminal
background checks required of a nurse or home
health aide with respect to a covered facility to be
performed under this Act in the same manner as
they apply to providers with respect to qualified enti-
ties:
(A) Subsection (a)(2) (relating to access to
records and timeliness of response).
(B) Subsection (b) (relating to guidelines
on background checks), other than paragraph
(1)(B), except that denial of unsupervised ac-
cess under paragraph (1)(E) shall be treated
for purposes of this section as a denial of unsu-
pervised access to patients in covered facilities
and determinations under paragraph (4) shall
be made only with respect to crimes relating to
patient abuse.
(C) Subsection (c) (relating to authority of
Attorney General).
(D) Subsection (d) (relating to limitation
on liability).
(d) PROCEDURES
FOR ABUSIVE WORK HISTORY
BACKGROUND CHECKS.—A registry shall carry out its re-
sponsibilities under subsection (a)(1)(B), in relation to
abusive work history background check with respect to an
individual, in a manner consistent with the following:
(1) INCLUSION
OF
INFORMATION
ON
DOCU-
MENTED FINDINGS OF PATIENT ABUSE.—The reg-
istry shall maintain a list of all individuals in the
State who are (or were) nurse or home health aides
and with respect to whom there are specific docu-
mented findings of patient abuse, as well as any
brief statement of the individual disputing the find-
ings. Such findings shall be made available in the
same manner as findings described in sections
1819(c)(2)(B) and 1919(c)(2)(B) of the Social Secu-
rity Act.
(2) FORWARDING
INFORMATION
ON
INDIVID-
UALS
WITH
DOCUMENTED
FINDINGS
OF
PATIENT
ABUSE.—If the registry has a documented finding
described in paragraph (1) with respect to an indi-
vidual, the registry—
(A) shall provide the national registry co-
ordination system with—
(i) information on the identity of the
individual and the State,
(ii) information on the fact that such
a finding was made, and
(iii) such additional information re-
specting the finding as the Secretary may
require; and
(B) shall provide, to another State nurse
and home health aide registry that requests in-
formation on an individual for whom such a
documented finding has been made through the
system, information respecting the finding.
(e) FEES.—A State may assess a covered facility a
fee for the conduct of a background check under section
2(a) in an amount that does not exceed the actual cost
to the State of obtaining the criminal background check
and the abusive work history background check on an indi-
vidual. Such a facility may recover from the individual in-
volved all or such portion of the fee as the State may au-
thorize.
SEC. 4. 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—
(1) best practices in patient abuse prevention
training (including behavior training and interven-
tions) for managers and staff of hospital and health
care facilities,
(2) other methods of patient abuse prevention.
(b) ELIGIBILITY.—To be eligible to receive a grant
under subsection (a), an entity shall be a public or private
nonprofit entity and prepare and submit to the Secretary
of Health and Human Services an application 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 facility
staffing and management (including appropriate
nursing personnel-to-patient levels) with a focus on
staff training, staff stress management, and staff
supervision;
(3) examine the use of patient abuse prevention
training programs by long-term care entities; and
(4) identify and disseminate best practices for
preventing and reducing patient abuse.
(d) AUTHORIZATION OF APPROPRIATIONS.—There is
authorized to be appropriated such sums as may be nec-
essary to carry out this section.
(e) REPORTS.—The Secretary shall submit to Con-
gress periodic reports on grants provided under this sec-
tion.
SEC. 5. RECOMMENDATIONS ON PERSONNEL-TO-PATIENT
LEVELS.
Not later than 1 year after the date of the enactment
of this Act, the Secretary shall submit to Congress a re-
port that includes—
(1) recommendations on the appropriateness of
requiring minimum nurse and home health aide per-
sonnel-to-patient levels in order to avoid patient
abuse, and
(2) if such a requirement is appropriate, rec-
ommendations on the levels that should be required
for different types of covered facilities.
SEC. 6. DEFINITIONS.
For purposes of this Act:
(1) BACKGROUND
CHECK; CRIMINAL
BACK-
GROUND
CHECK; ABUSIVE
WORK
HISTORY
BACK-
GROUND CHECK.—
(A) 
BACKGROUND
CHECK.—The 
term
‘‘background check’’ includes a criminal back-
ground check and an abusive work history back-
ground check.
(B) CRIMINAL BACKGROUND CHECK.—The
term ‘‘criminal background check’’ means a
check of the criminal history record system
maintained by the Federal Bureau of Investiga-
tion based on fingerprint identification or any
other method of positive identification for the
purpose of determining whether an individual
has been convicted of a disqualifying crime.
(C) ABUSIVE WORK HISTORY BACKGROUND
CHECK.—The term ‘‘abusive work history back-
ground check’’ means, with respect to an indi-
vidual, a check of State nurse and home health
aide registries for the purpose of determining
whether there is a documented finding that the
individual was involved in patient abuse.
(2) COVERED
FACILITY.—The term ‘‘covered
facility’’ means a nursing facility (including a skilled
nursing facility), home health agency, or hospice
program which receives payment under any Federal
funded program.
(3) DISQUALIFYING
CRIME; 
NATIONAL
DIS-
QUALIFYING
CRIME; 
STATE
DISQUALIFYING
CRIME.—
(A) DISQUALIFYING
CRIME.—The term
‘‘disqualifying crime’’ means, with respect to an
individual for employment in a State, a criminal
offense that is a national disqualifying crime or
a State disqualifying crime in that State.
(B) NATIONAL
DISQUALIFYING
CRIME.—
The 
term 
‘‘national 
disqualifying 
crime’’
means—
(i) a criminal offense described in sec-
tion 1128(a) of the Social Security Act, or
(ii) felony homicide, battery, or as-
sault (including sexual assault),
regardless of the date of conviction for the
crime.
(C) STATE
DISQUALIFYING
CRIME.—The
term ‘‘State disqualifying crime’’ means, with
respect to a State, such criminal offenses (other
than national disqualifying crimes) as the State
may under law treat as a State disqualifying
crime for purposes of this Act and for such pe-
riod of time as the State may provide.
(4) NATIONAL REGISTRY COORDINATION SYS-
TEM.—The term ‘‘national registry coordination sys-
tem’’ means such system established under section
3(b).
(5) NURSE AND HOME HEALTH AIDE.—
(A) IN GENERAL.—The term ‘‘nurse and
home health aide’’ means a nurse aide, nurse
assistant, home health aide, personal care work-
er, attendant, or similar worker who performs
nursing or related tasks involving direct patient
contact in a covered facility.
(B) EXCLUSIONS.—Such term does not in-
clude an individual—
(i) who is a physician, physician as-
sistant, 
nurse 
practitioner, 
physical,
speech, or occupational therapist, physical
or occupational therapy assistant, reg-
istered professional nurse, licensed prac-
tical nurse, or licensed or certified social
worker, or registered dietician;
(ii) who volunteers to provide such
services without monetary compensation;
or
(iii) who meets such other require-
ments as the Secretary may specify.
(C) LICENSED HEALTH PROFESSIONAL.—
The term ‘‘licensed health professional’’ means
(6) PATIENT
ABUSE.—The term ‘‘patient
abuse’’ means such incidence of abuse, neglect, mis-
treatment, or misappropriation of property of an in-
dividual receiving services in a covered facility as the
Secretary shall specify in regulations.
(7) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Health and Human Services.
(8) STATE
CRIMINAL
BACKGROUND
CHECK
AGENCY.—The term ‘‘State criminal background
check agency’’ means, with respect to a State, the
State agency specified by the State to provide for
the conduct of criminal background checks under
this Act.
(9) STATE
NURSE
AND
HOME
HEALTH
AIDE
REGISTRY.—The term ‘‘State nurse and home health
aide registry’’ means a nurse aide registry that is es-
tablished 
under 
sections 
1819(e)(2)(A) 
and
1919(e)(2)(A) of the Social Security Act and that
provides for functions required of such a registry
under section 3 of this Act.
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