I 116th CONGRESS 2d Session H. R. 8574 IN THE HOUSE OF REPRESENTATIVES October 9, 2020 Ms. Sherrill (for herself, Mr. Pascrell , Mrs. Watson Coleman , Mr. Sires , Mr. Beyer , Mr. Payne , Mr. Doggett , Ms. Shalala , Ms. Judy Chu of California , and Mr. Kildee ) 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 increase enforcement under Medicare and Medicaid for skilled nursing facilities and nursing facilities during the COVID–19 emergency period and other infectious disease outbreak periods, and for other purposes.

1. Short title This Act may be cited as the Protecting Residents with Oversight, Transparency, and Enforcement for Compassionate Treatment in Long Term Care Facilities Act or the PROTECT Long Term Care Facilities Act . 2. Increased enforcement under Medicare and Medicaid for skilled nursing facilities and nursing facilities during the COVID–19 emergency period and other infectious disease outbreak periods (a) Additional funding to State survey agencies (1) Appropriations Out of any funds in the Treasury not otherwise appropriated, there is appropriated to the Secretary of Health and Human Services $100,000,000 for fiscal year 2021 to be provided, in addition to any funds otherwise made available and in accordance with paragraph (2), to State survey and certification agencies (described in subsection (f) of section 1128I of the Social Security Act ( 42 U.S.C. 1320a–7j )) for the following purposes: (A) To complete surveys conducted pursuant to the amendments made by subsection (b) for facilities (as defined in subsection (a) of such section 1128I). (B) To increase investigations and surveys performed pursuant to sections 1919(g)(4) of such Act ( 42 U.S.C. 1396r(g)(2) ) and 1819(g)(4) of such Act ( 42 U.S.C. 1395i–3(g)(4) ) based on criteria developed pursuant to paragraph (7)(B) of section 1819(h) of such Act, as added by subsection (b)(1)(C), and paragraph (10)(B) of section 1919(h) of such Act, as added by subsection (b)(2)(C). (C) To purchase personal protective equipment for surveyors to conduct surveys and investigations of facilities (as defined in subsection (a) of such section 1128I) to ensure worker safety. (D) To increase staffing levels at such State survey and certification agencies. (2) Allocation of funding The Secretary shall allocate funds appropriated under paragraph (1) based on the following prioritization: (A) First to State survey and certification agencies (as described in subsection (f) of such section 1128I) serving populations with a high burden, as defined by the Secretary of Health and Human Services, of COVID–19. (B) Second to such agencies preparing for, or working to mitigate, a COVID–19 surge or any similar infectious disease outbreak. (C) Third to such agencies serving a high number, as defined by the Secretary, of low-income, uninsured, or under-insured populations, including medically underserved populations. (D) Fourth to such agencies, as determined by the Secretary, based on the size of their nursing home population. (E) Fifth to any other such agencies. (b) Special rules during COVID–19 emergency period and other infectious disease outbreak periods (1) Medicare (A) In general Section 1819(g)(2) of the Social Security Act ( 42 U.S.C. 1395i–3(g)(2) ) is amended by adding at the end the following new subparagraph: (F) COVID–19 emergency period and other infectious disease outbreak periods (i) In general Notwithstanding any other provision of this paragraph, during an infectious disease outbreak period (as defined in clause (ii)), with respect to a State, the following shall apply: (I) Each skilled nursing facility shall be subject to a standard survey under subparagraph (A) not later than 4 weeks after the beginning of such period and every 6 months after the date of the previous standard survey conducted under such subparagraph. (II) Follow-up surveys under this paragraph shall be conducted based on if the skilled nursing facility is found to be— (aa) a facility with substandard quality of care; (bb) a facility not in substantial compliance; (cc) a facility reporting less than three hours of direct care staff per resident per day; (dd) a facility that has reported no registered nurses for four or more days in a quarter; or (ee) a facility with an overall score of 2 or less stars on nursing home compare. (III) In the case of a skilled nursing facility which is found under a standard survey or extended survey to be in substantial compliance, State survey and certification agencies (described in subsection (f) of section 1128I) shall have flexibility with regards to the timing of conducting such a follow-up standard survey. (IV) A skilled nursing facility which is found, under a standard survey or extended survey, to have provided substandard quality of care shall be treated as being identified by the Secretary as having substantially failed to meet applicable requirement of this Act for purposes of subsection (f)(8). (V) In the case of a skilled nursing facility that is subject to an extended survey under subparagraph (B), such extended survey shall be conducted as soon as practical after the standard survey for such facility, but not later than 4 weeks after the date of completion of such standard survey. (VI) A skilled nursing facility which is found, under a standard survey or extended survey to have provided substandard quality of care shall be surveyed at least once every 6 months, thereafter until the infectious disease outbreak period ends. (VII) Surveys under this paragraph shall be conducted in a manner that prioritizes skilled nursing facilities located in towns (or counties, if municipal-level is not available) with higher infection rate, as identified by the Secretary, and facilities with previous violations of requirements of this Act. (VIII) Any skilled nursing facility reporting (as determined by the Centers for Medicare & Medicaid Services) fewer than three hours of direct care staff time per resident per day, with ½ hour of registered nurse time included or any skilled nursing facility that has reported no registered nurse for four or more days. (ii) Infectious disease outbreak period defined For purposes of this subparagraph, the term infectious disease outbreak period means any of the following periods: (I) COVID–19 emergency period The emergency period described in section 1135(g)(1)(B). (II) Other infectious disease outbreak periods (aa) The period beginning on the date a nationwide emergency related to a public health emergency is declared pursuant to the Stafford Act, a Major Disaster Declaration, or the National Emergencies Act and ending on the date that is 6 months after the date on which the declaration pursuant to the Stafford Act, a Major Disaster Declaration, or the National Emergencies Act, as applicable, ends, whichever is the latest. (bb) The period during which there exists a public health emergency related to an infectious disease outbreak declared by the Secretary pursuant to section 319 of the Public Health Service Act. (cc) With respect to a skilled nursing facility in a State with respect to which the Governor has declared an emergency or major disaster (as defined by the State) with respect to an infectious disease outbreak, the period for which such declaration is in effect with respect to such State. . (B) Internet portal and hotline number Section 1819(e) of the Social Security Act ( 42 U.S.C. 1395i–3(e) ) is amended by adding at the end the following new paragraph: (6) Internet portal and hotline number By not later than one year after the date of the enactment of this paragraph, the State shall have in place and maintain an Internet portal and hotline number (which may be such a portal or hotline in existence before the date of the enactment of this paragraph) for staff of nursing facilities, residents of such facilities, family of such residents, the State long-term care ombudsman (established under title III or VII of the Older Americans Act of 1965 in accordance with section 712 of the Act), or the general public to report violations of requirements of this section by such facilities. The Secretary shall establish a process under which each violation so reported shall be preliminarily investigated by a State survey and certification agency (described in subsection (f) of section 1128I) and based on the results of such preliminary investigation may be subject to a subsequent more comprehensive investigation by such agency, in coordination with the Secretary. . (C) Increased penalties Section 1819(h) of the Social Security Act ( 42 U.S.C. 1395i–3(h) ) is amended by adding at the end the following new paragraph: (7) Special rules during COVID–19 emergency period and other infectious disease outbreak periods (A) In general Notwithstanding any other provision of this subsection, during an infectious disease outbreak period (as defined in subsection (g)(2)(F)(ii)), with respect to a State, the following shall apply: (i) In the cases of an outbreak specific violation, a civil monetary penalty under paragraph (2)(B)(ii)(I) may not be waived or reduced by the Secretary. (ii) In the case of a repeat deficiency relating to any violation of a skilled nursing facility during a 15-month period, any civil monetary penalty under paragraph (2)(B)(ii)(I), shall be doubled. (iii) In the case of a second outbreak specific violation of a skilled nursing facility during such period, the facility shall be treated as being identified by the Secretary (or may be identified by the top State health official, in accordance with a process specified by the Secretary) as having substantially failed to meet applicable requirement of this Act for purposes of subsection (f)(8) for the remainder of such period. (B) Outbreak specific violation For purposes of this paragraph, the Secretary, through the Centers for Medicare & Medicaid Services, shall develop the following: (i) In the case of an infectious disease outbreak period with respect to COVID–19, criteria for determining an outbreak specific violation with respect to COVID–19, including— (I) criteria specified by the Centers for Disease Control and Prevention relating to infection rates, mortality rates, and hospitalization rates; and (II) criteria for staff shortages, overcrowding (and ability to cohort), and insufficient personal protective equipment. (ii) In the case of an infectious disease outbreak period other than with respect to COVID–19, criteria for determining an outbreak specific violation specific to such outbreak period. . (D) Reporting Section 1819(d)(4) of the Social Security Act ( 42 U.S.C. 1395i–3(d)(4) ) is amended by adding at the end the following new subparagraph: (C) COVID–19 and Infectious Disease Outbreak Reporting and notification (i) In general A skilled nursing facility must, with respect to an infectious disease outbreak period (as defined in subsection (g)(2)(F)(ii))— (I) electronically submit, at a frequency specified by the Secretary, but no less than once weekly and in a standardized format specified by the Secretary, to the National Healthcare Safety Network of the Centers for Disease Control and Prevention information on— (aa) the number of suspected and confirmed cases among residents and staff of the facility, of— (AA) in the case of the period described in subclause (I) of such section, COVID–19 (including with respect to residents of the facility previously treated for COVID–19); and (BB) in the case of the period described in subclause (II) of such section, the infectious disease that is the reason for which such period is declared (including with respect to residents of the facility previously treated for such infectious disease); (bb) the number of deaths (including residents who die outside the facility and deaths related to COVID–19 or the infectious disease, as applicable) among residents and staff of the facility; (cc) the amount of personal protective equipment and hand hygiene supplies in the facility, including how many days supply; (dd) ventilator capacity and related supplies in the facility; (ee) the number of resident beds at the facility and census; (ff) access to COVID–19 or the infectious disease, as applicable, testing available in the facility for residents of the facility; (gg) any staffing shortages; and (hh) any other information specified by the Secretary; and (II) in the case of the occurrence at the facility of either a single confirmed infection of COVID–19 or the infectious disease (as applicable) or of three or more residents or staff at the facility with new-onset of respiratory symptoms occurring within 72 hours of each other, inform residents of the facility, representatives of such residents, and families of the residents of such occurrence by not later than 5 p.m. on the calendar day following such occurrence. (ii) Information The information provided under clause (ii)(II) must— (I) not include personally identifiable information; (II) include information on mitigating actions implemented to prevent or reduce the risk of transmission, including if normal operations of the facility will be altered; and (III) include any cumulative updates for residents, representatives, and families at least weekly (or, in the case of a subsequent occurrence described in such clause (ii)(II), by not later than 5 p.m. on the calendar day following such subsequent occurrence). (iii) CMS posting The information submitted under clause (ii)(I) shall be publicly posted on a weekly basis by the Centers for Medicare & Medicaid Service to support protecting the health and safety of residents, personnel, and the general public. . (2) Medicaid (A) In general Section 1919(g)(2) of the Social Security Act ( 42 U.S.C. 1396r(g)(2) ) is amended by adding at the end the following new subparagraph: (F) COVID–19 emergency period and other infectious disease outbreak periods (i) In general Notwithstanding any other provision of this paragraph, during an infectious disease outbreak period (as defined in clause (ii)), with respect to a State, the following shall apply: (I) Each nursing facility shall be subject to a standard survey under subparagraph (A) not later than 4 weeks after the beginning of such period and every 6 months after the date of the previous standard survey conducted under such subparagraph. (II) Follow-up surveys under this paragraph shall be conducted based on if the skilled nursing facility is found to be— (aa) a facility with substandard quality of care; (bb) a facility not in substantial compliance; (cc) a facility reporting less than three hours of direct care staff per resident per day; (dd) a facility that has reported no registered nurses for four or more days in a quarter; or (ee) a facility with an overall score of 2 or less stars on nursing home compare. (III) In the case of a nursing facility which is found under a standard survey or extended survey to be in substantial compliance, State survey and certification agencies (described in subsection (f) of section 1128I) shall have flexibility with regards to the timing of conducting such a follow-up standard survey. (IV) A nursing facility which is found, under a standard survey or extended survey, to have provided substandard quality of care shall be treated as being identified by the Secretary as having substantially failed to meet applicable requirement of this Act for purposes of subsection (f)(10). (V) In the case of a nursing facility that is subject to an extended survey under subparagraph (B), such extended survey shall be conducted as soon as practical after the standard survey for such facility, but not later than 4 weeks after the date of completion of such standard survey. (VI) A nursing facility which is found, under a standard survey or extended survey to have provided substandard quality of care shall be surveyed at least once every 6 months, thereafter until the infectious disease outbreak period ends. (VII) Surveys under this paragraph shall be conducted in a manner that prioritizes nursing facilities located in towns (or counties, if municipal-level is not available) with higher infection rate, as identified by the Secretary, and facilities with previous violations of requirements of this Act. (VIII) Any skilled nursing facility reporting (as determined by the Centers for Medicare & Medicaid Services) fewer than three hours of direct care staff time per resident per day, with ½ hour of registered nurse time included or any skilled nursing facility that has reported no registered nurse for four or more days. (ii) Infectious disease outbreak period defined For purposes of this subparagraph, the term infectious disease outbreak period means any of the following periods: (I) COVID–19 emergency period The emergency period described in section 1135(g)(1)(B). (II) Other infectious disease outbreak periods (aa) The period beginning on the date a nationwide emergency related to a public health emergency is declared pursuant to the Stafford Act, a Major Disaster Declaration, or the National Emergencies Act and ending on the date that is 6 months after the date on which the declaration pursuant to the Stafford Act, a Major Disaster Declaration, or the National Emergencies Act, as applicable, ends, whichever is the latest. (bb) The period during which there exists a public health emergency related to an infectious disease outbreak declared by the Secretary pursuant to section 319 of the Public Health Service Act. (cc) With respect to a nursing facility in a State with respect to which the Governor has declared an emergency or major disaster (as defined by the State) with respect to an infectious disease outbreak, the period for which such declaration is in effect with respect to such State. . (B) Internet portal and hotline number Section 1919(e) of the Social Security Act ( 42 U.S.C. 1396r(e) ) is amended by adding at the end the following new paragraph: (9) Internet portal and hotline number By not later than one year after the date of the enactment of this paragraph, the State shall have in place and maintain an Internet portal and hotline number (which may be such a portal or hotline in existence before the date of the enactment of this paragraph) for staff of nursing facilities, residents of such facilities, family of such residents, the State long-term care ombudsman (established under title III or VII of the Older Americans Act of 1965 in accordance with section 712 of the Act), or the general public to report violations of requirements of this section by such facilities. The Secretary shall establish a process under which each violation so reported shall be preliminarily investigated by a State survey and certification agency (described in subsection (f) of section 1128I) and based on the results of such preliminary investigation may be subject to a subsequent more comprehensive investigation by such agency, in coordination with the Secretary. . (C) Increased penalties Section 1919(h) of the Social Security Act ( 42 U.S.C. 1396r(h) ) is amended by adding at the end the following new paragraph: (10) Special rules during COVID–19 emergency period and other infectious disease outbreak periods (A) In general Notwithstanding any other provision of this subsection, during an infectious disease outbreak period (as defined in subsection (g)(2)(F)(ii)), with respect to a State, the following shall apply: (i) In the cases of an outbreak specific violation, a civil monetary penalty under paragraph (3)(B)(ii)(I) may not be waived or reduced by the Secretary. (ii) In the case of a repeat deficiency relating to any violation of a nursing facility during a 15-month period, any civil monetary penalty under paragraph (3)(B)(ii)(I) shall be doubled. (iii) In the case of a second outbreak specific violation of a nursing facility during such period, the facility shall be treated as being identified by the Secretary (or may be identified by the top State health official, in accordance with a process specified by the Secretary) as having substantially failed to meet applicable requirement of this Act for purposes of subsection (f)(10) for the remainder of such period. (B) Outbreak specific violation For purposes of this paragraph, the Secretary, through the Centers for Medicare & Medicaid Services, shall develop the following: (i) In the case of an infectious disease outbreak period with respect to COVID–19, criteria for determining an outbreak specific violation with respect to COVID–19, including— (I) Criteria specified by the Centers for Disease Control and Prevention relating to infection rates, mortality rates, and hospitalization rates. (II) Criteria for staff shortages, overcrowding (and ability to cohort), and insufficient personal protective equipment. (ii) In the case of an infectious disease outbreak period other than with respect to COVID–19, criteria for determining an outbreak specific violation specific to such outbreak period. . (D) Reporting Section 1919(d)(4) of the Social Security Act ( 42 U.S.C. 1396r(d)(4) ) is amended by adding at the end the following new subparagraph: (C) COVID–19 and infectious disease outbreak reporting and notification (i) In general A nursing facility must, with respect to an infectious disease outbreak period (as defined in subsection (g)(2)(F)(ii))— (I) electronically submit, at a frequency specified by the Secretary, but no less than once weekly and in a standardized format specified by the Secretary, to the National Healthcare Safety Network of the Centers for Disease Control and Prevention information on— (aa) the number of suspected and confirmed cases among residents and staff of the facility, of— (AA) in the case of the period described in subclause (I) of such section, COVID–19 (including with respect to residents of the facility previously treated for COVID–19); and (BB) in the case of the period described in subclause (II) of such section, the infectious disease that is the reason for which such period is declared (including with respect to residents of the facility previously treated for such infectious disease); (bb) the number of deaths (including residents who die outside the facility and deaths related to COVID–19 or the infectious disease, as applicable) among residents and staff of the facility; (cc) the amount of personal protective equipment and hand hygiene supplies in the facility, including how many days supply; (dd) ventilator capacity and related supplies in the facility; (ee) the number of resident beds at the facility and census; (ff) access to COVID–19 or the infectious disease, as applicable, testing available in the facility for residents of the facility; (gg) any staffing shortages; and (hh) any other information specified by the Secretary; and (II) in the case of the occurrence at the facility of either a single confirmed infection of COVID–19 or the infectious disease (as applicable) or of three or more residents or staff at the facility with new-onset of respiratory symptoms occurring within 72 hours of each other, inform residents of the facility, representatives of such residents, and families of the residents of such occurrence by not later than 5 p.m. on the calendar day following such occurrence. (ii) Information The information provided under clause (ii)(II) must— (I) not include personally identifiable information; (II) include information on mitigating actions implemented to prevent or reduce the risk of transmission, including if normal operations of the facility will be altered; and (III) include any cumulative updates for residents, representatives, and families at least weekly (or, in the case of a subsequent occurrence described in such clause (ii)(II), by not later than 5 p.m. on the calendar day following such subsequent occurrence). (iii) CMS posting The information submitted under clause (ii)(I) shall be publicly posted on a weekly basis by the Centers for Medicare & Medicaid Service to support protecting the health and safety of residents, personnel, and the general public .