Essential Caregivers Act of 2021
Bill: H.R.3733 | Sponsor: Rep. Tenney, Claudia (R-NY)
Policy area: Health

Summary:
Essential Caregivers Act of 2021
This bill requires skilled nursing facilities, nursing facilities, intermediate care facilities for the intellectually disabled, and nearby inpatient rehabilitation facilities to establish an essential caregivers program during a public health emergency.
Under the program, facilities must allow each resident to select up to two essential caregivers to provide daily living assistance, emotional support, or companionship during the emergency. Facilities must afford such caregivers 12 hours of access to residents each day (or unlimited access for end-of-life care), and caregivers must agree to follow facility protocols for staff safety. Facilities may deny access to caregivers who violate protocols, subject to certain notification requirements; the Centers for Medicare & Medicaid Services must establish an appeals process relating to such decisions and may take specified enforcement actions against facilities that violate the bill's requirements.

To amend titles XVIII and XIX of the Social Security Act to require 
   skilled nursing facilities, nursing facilities, intermediate care 
       facilities for the intellectually disabled, and inpatient 
rehabilitation facilities to permit essential caregivers access during 
 any public health emergency under the Medicare and Medicaid programs.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

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 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)) has the right to designate two 
essential caregivers to have access to and provide assistance and 
support to the resident at any time notwithstanding any waiver made 
under section 1135 of the Social 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 Facilities.--Section 
1819(c) and 1919(c) of the Social Security 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 Secretary under 
                section 319 of the Public Health Service Act on or 
                after the date of the enactment 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 subparagraph (F) of 
                paragraph (3), the essential caregivers program 
                described in this paragraph is a program implemented by 
                a facility described in such paragraph under which such 
                facility shall--
                            ``(i) allow each resident of such facility 
                        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 
                        subparagraph (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 
                        assistance to such resident at such facility 
                        for 12 hours every day (or, in the case such 
                        care is end-of-life care, for an unlimited 
                        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 representative (as defined in section 483.5 of 
                title 42, 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 `essential caregiver' means, 
                with respect to a resident of a facility described in 
                subparagraph (A), an individual who--
                            ``(i) will provide assistance consisting of 
                        activities of daily living, emotional support, 
                        or companionship to such resident; and
                            ``(ii) agrees to follow all safety 
                        protocols established by such facility, which 
                        shall be clearly specified in writing and be 
                        the same as such protocols (including safety 
                        standards and entry requirements) applicable to 
                        staff of such facility.''.
    (b) Intermediate Care Facilities for the Intellectually Disabled.--
Section 1905(d) of the Social 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
            (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 
        institution 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 facility.''.
    (c) Inpatient Rehabilitation Facilities.--Section 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 following new 
        subparagraph:
            ``(Z) in the case of an inpatient rehabilitation facility 
        that is located on the same campus (as defined by the 
        Secretary) as a skilled nursing facility, nursing facility (as 
        defined in section 1919(a)), or intermediate care facility for 
        the intellectually disabled (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 caregivers 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 
        paragraph 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 facility (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 
        facility for the intellectually disabled (as defined in section 
        1905(d) of such Act (42 U.S.C. 1396d(d)) of the resident 
        involved.
            (2) Notification.-- In the event of non-compliance with 
        either such clause, such facility must first provide a warning 
        to the essential caregiver and resident in writing citing 
        specific issues of non-compliance and providing clear guidance 
        for corrective measures.
            (3) Enforcement.--Should the essential caregiver 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 described in subsection 
        (e)).
    (e) Options for Resident and Caregiver Appeal.--
            (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 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 facility for the intellectually disabled (as 
        defined in section 1905(d) of such Act (42 U.S.C. 1396d(d)) is 
        required to establish and maintain the essential caregivers 
        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 Services 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 received 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 requirement or prohibition in this Act or in an amendment 
made by this Act within 7 days of commencing its investigation. 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 violation 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 ombudsmen, other advocates of nursing home 
residents, and nursing home providers, promulgate regulations to carry 
out this Act.
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