I 115th CONGRESS 1st Session H. R. 4704 IN THE HOUSE OF REPRESENTATIVES December 20, 2017 Ms. Wasserman Schultz (for herself and Mr. Walberg ) introduced the following bill; which was referred to the Committee on Energy and Commerce , and in addition to the Committee on Ways and Means , 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 XVIII and XIX of the Social Security Act to codify the emergency preparedness final rule for skilled nursing facilities and nursing facilities as conditions of participation under the Medicare and Medicaid programs, and for other purposes.

1. Short title This Act may be cited as the Nursing Home Comfortable Air Ready for Emergencies Act or the Nursing Home CARE Act . 2. Codifying Emergency Preparedness rule for skilled nursing facilities and nursing facilities as conditions of participation under Medicare and Medicaid programs (a) Medicare Section 1819(a) of the Social Security Act ( 42 U.S.C. 1395i–3(a) ) is amended— (1) in paragraph (2), by striking at the end and ; (2) in paragraph (3), by striking the period at the end and inserting ; and ; (3) by inserting after paragraph (3) the following new paragraph: (4) beginning not later than the date of the enactment of this paragraph— (A) meets the emergency preparedness requirements applicable to skilled nursing facilities under the final rule Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers as published by the Centers for Medicare & Medicaid Services on September 16, 2016 (81 Fed. Reg. 63859); and (B) has in place alternative sources of energy capable of powering heating, ventilation, and air conditioning systems for at least 96 hours after a catastrophic natural disaster. ; and (4) by adding at the end the following: Nothing in paragraph (4)(B) shall be construed to require a skilled nursing facility to continuously maintain a supply of fuel on its premise, as long as such facility is able to demonstrate to the Secretary the ability of the facility to obtain any fuel necessary to satisfy such paragraph. . (b) Medicaid Section 1919(a) of the Social Security Act ( 42 U.S.C. 1396r(a) ) is amended— (1) in paragraph (2), by striking at the end and ; (2) in paragraph (3), by striking the period at the end and inserting ; and ; (3) by inserting after paragraph (3) the following new paragraph: (4) beginning not later than the date of the enactment of this paragraph— (A) meets the emergency preparedness requirements applicable to nursing facilities under the final rule Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers as published by the Centers for Medicare & Medicaid Services on September 16, 2016 (81 Fed. Reg. 63859); and (B) has in place alternative sources of energy capable of powering heating, ventilation, and air conditioning systems for at least 96 hours after a catastrophic natural disaster. ; and (4) by adding at the end the following new sentence: Nothing in paragraph (4)(B) shall be construed to require a nursing facility to continuously maintain a supply of fuel on its premise, as long as such facility is able to demonstrate to the Secretary the ability of the facility to obtain any fuel necessary to satisfy such paragraph. . (c) Civil money penalties (1) Increased penalty In the case of a determination to impose a civil money penalty under section 1819(h)(2)(B)(ii) of the Social Security Act ( 42 U.S.C. 1395i–3(h)(2)(B)(ii) ) or section 1919(h)(2)(C)(ii) of such Act ( 42 U.S.C. 1396r(h)(2)(C)(ii) ), with respect to a violation of paragraph (4) of section 1819(a) of such Act ( 42 U.S.C. 1395i–3(a) ) or of paragraph (4) of section 1919(a) of such Act ( 42 U.S.C. 1396r(a) ), as added by subsections (a) and (b), respectively, such penalty shall be three times the amount that would otherwise be imposed pursuant to the interim final rule, relating to the adjustment of civil money penalties for inflation, promulgated by the Department of Health and Human Services on September 6, 2016 (81 Fed. Reg. 61538). Nothing in this paragraph shall be construed as limiting the discretion of the Secretary of Health and Human Services in determining the amount of a civil monetary penalty that would otherwise be imposed before application of this paragraph. (2) Additional penalty (A) Medicare Section 1819(h)(2)(B)(ii) of the Social Security Act ( 42 U.S.C. 1395i–3(h)(2)(B)(ii) ) is amended— (i) in subclause (I), by inserting , subject to subclause (V), after exceed ; and (ii) by adding at the end the following new subclause: (V) Increased penalty In the case of noncompliance described in subclause (I) of a skilled nursing facility that results in the death of a resident of the facility, the Secretary may impose an additional civil money penalty under such subclause in an amount not to exceed $100,000. . (B) Medicaid Section 1919(h)(3)(C)(ii) of the Social Security Act ( 42 U.S.C. 1396r(h)(3)(C)(ii) ) is amended— (i) in subclause (I), by inserting , subject to subclause (V), after exceed ; and (ii) by adding at the end the following new subclause: (V) Increased penalty In the case of noncompliance described in subclause (I) of a nursing facility that results in the death of a resident of the facility, the Secretary may impose an additional civil monetary penalty under such subclause in an amount not to exceed $100,000. . (3) State survey agencies compliance review The Secretary of Health and Human Services shall direct State survey agencies, in consultation with emergency preparedness experts, to review findings related to the final rule Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers as published by the Centers for Medicare & Medicaid Services on September 16, 2016 (81 Fed. Reg. 63859) and make a determination of whether a skilled nursing facility or nursing facility is substantially compliant or non-compliant (as defined by the Secretary) with such rule, with special attention given to Ftags E–0001, E–0004, E–0013, E–0020, E–0025, E–0036, 0037, and E–0041. If a State survey agency makes a determination of substantial non-compliance for any such facility in a State, the agency shall then inform those facilities of that finding, and request that this be noted as an indicator on Nursing Home Compare. 3. Loan fund (a) Establishment The Secretary of Health and Human Services shall, subject to subsection (e), establish a loan program that provides loans to qualifying nursing facilities and skilled nursing facilities for costs relating to coming into compliance with the requirement of paragraph (4) of section 1819(a) of the Social Security Act ( 42 U.S.C. 1395i–3(a) ) and paragraph (4) of section 1919(a) of such Act ( 42 U.S.C. 1396r(a) ), as added by section 2. (b) Application No loan may be provided under this section to a qualifying nursing facility or skilled nursing facility, except pursuant to an application that is submitted and approved in a time, manner, and form specified by the Secretary. A loan under this section shall be on such terms and conditions and meet such requirements as the Secretary determines appropriate. (c) Selection (1) In general The Secretary shall establish criteria for selecting among qualifying nursing facilities and skilled nursing facilities that apply for a loan under this section. (2) Qualifying facilities For purposes of this section, qualifying nursing facilities and skilled nursing facilities are nursing facilities under section 1919 of the Social Security Act ( 42 U.S.C. 1396r ) and skilled nursing facilities under section 1819 of such Act ( 42 U.S.C. 1395i–3 ) that— (A) have a monthly rate of less than $6,000 for private rooms; or (B) have fewer than 50 beds. (d) Fees The Secretary may charge such fees as determined appropriate with respect to a loan issued under this section, in an amount established annually by the Secretary, as necessary to reduce to zero the cost (as defined in section 502 of the Federal Credit Reform Act of 1990) to the Department of Health and Human Services of making loans under this section, which amounts shall be paid to and retained by the Secretary. (e) Limitation Commitments for loans authorized under this section shall not exceed— (1) $50,000,000 in fiscal year 2018; (2) $50,000,000 in fiscal year 2019; and (3) $100,000,000 for the duration of the loan program. 4. Prioritization under all-hazards public health emergency preparedness and response plan (a) In general Section 319C–1(b)(2)(A) of the Public Health Service Act (42 U.S.C. 247d–3a(b)(2)(A)) is amended— (1) in clause (viii), by striking at the end and ; (2) in clause (ix), by adding at the end and ; and (3) by inserting after clause (ix) the following new clause: (x) a description of— (I) the measures the entity has in place prioritizing nursing facilities and skilled nursing facilities with respect to public health emergency preparedness in the same manner as such plan prioritizes hospitals, while ensuring that, in prioritizing nursing facilities, skilled nursing facilities, and hospitals, the entity retains the discretion to prioritize among such facilities; and (II) information on the plans of each electric utility company within the entity’s jurisdiction to ensure that such facilities remain functioning or return to functioning as soon as practicable during power outages caused by natural hazards, including severe weather events; . (b) Effective date The amendments made by subsection (a) shall apply with respect to cooperative agreements awarded on or after the date of the enactment of this Act.