II 116th CONGRESS 2d Session S. 3768 IN THE SENATE OF THE UNITED STATES May 19, 2020 Mr. Casey (for himself, Mr. Whitehouse , Mr. Schumer , Mr. Jones , Ms. Warren , Ms. Baldwin , Mr. Markey , Mrs. Shaheen , Mr. Menendez , Mr. Reed , Mr. Van Hollen , Mr. Blumenthal , Ms. Hirono , Ms. Cortez Masto , Ms. Rosen , and Mr. Peters ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To protect older adults and people with disabilities living in nursing homes, intermediate care facilities, and psychiatric hospitals from COVID–19.

1. Short title This Act may be cited as the Nursing Home COVID–19 Protection and Prevention Act of 2020 . 2. COVID–19 nursing home protections (a) Program To support COVID–19 response (1) In general Not later than 30 days after the date of enactment of this Act, the Secretary shall carry out a program under which payments are made to States and Indian Tribes in order to support cohorting individuals in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals based on COVID–19 status. (2) Application To be eligible to receive a payment under this subsection, a State or Indian Tribe shall submit to the Secretary an application. Such application shall include evidence that the State or Indian Tribe (and involved skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals) are able to cohort individuals in compliance with guidance issued by the Secretary during the emergency period. If feasible, the Secretary shall provide for an expedited application process. (3) Requirements To be eligible to receive a payment under this subsection, a State or Indian Tribe shall comply with the following: (A) Following guidance The State or Indian Tribe shall follow the guidance established by the Secretary under paragraph (5) and all other guidance issued by the Secretary during the emergency period. (B) Reporting The State or Indian Tribe shall, as determined appropriate by the Secretary, periodically report to the Secretary on the following: (i) The convening and recommendations of the task force under subparagraph (C), cohorting strategies being used, the use of surge teams, and the technical assistance and resources provided under subparagraph (D). (ii) The State or Indian Tribe’s distribution of the payments received under the program under this subsection and what facilities are using such payments for (as permitted under paragraph (4)(B)). (iii) Other items determined appropriate by the Secretary. (C) Task force (i) In general The State or Indian Tribe shall establish a task force to provide advice on the State’s or Tribe’s use and distribution of payments received under the program under this section, including on cohorting strategies, the use of surge teams, resident rights (particularly involving discharges and transfers), and other topics as determined appropriate by the Secretary. (ii) Membership A task force established under clause (i) shall include representation from the following: (I) Consumers, including older adults age 65 and older, individuals with disabilities, family caregivers, and their advocates. (II) Skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (III) Health care providers and other congregate settings (including hospitals and permanent or transitional housing facilities) that transfer residents to and from skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (IV) Health professionals, such as direct care professionals, physicians, nurses, and pharmacists. (V) Experts in public health and infectious diseases. (VI) Experts in geriatrics and long-term care medicine. (VII) The State Long-Term Care Ombudsman program (as described in section 712(a)(1) of the Older Americans Act of 1965 ( 42 U.S.C. 3058g(a)(1) )). (VIII) The protection and advocacy system (as established under subtitle C of title I of the Developmental Disabilities Assistance and Bill of Rights Act ( 42 U.S.C. 15041 et seq.). (IX) State agencies, including the State surveying agency and the agency that administers the State plan under the Medicaid program under title XIX of the Social Security Act. (X) Other representatives as the Secretary determines appropriate. (D) Protocol to evaluate The State or Indian Tribe shall establish an expedited protocol to evaluate a facility’s ability (including a facility retrofitted under paragraph (4)(B)(i)) to cohort individuals who test positive for COVID–19, individuals who test negative for COVID–19, or individuals with unknown status or who are under observation. Such protocol shall include an infection control self-assessment and an abbreviated survey and may include a standard survey. (E) Technical assistance and resources (i) In general The State or Indian Tribe shall ensure that skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals receive technical assistance and the necessary resources to— (I) implement proper infection control protocols and practices; (II) minimize unnecessary transfers; (III) ensure adequate staffing, including the use of surge teams; (IV) effectively use and provide access to testing and personal protective equipment, including guidance on how to effectively use personal protective equipment when access is limited; (V) safely transition residents to home and community-based settings; and (VI) other topics, as determined appropriate by the Secretary. (ii) Requirement for technical assistance The technical assistance required under clause (i) shall be provided by— (I) quality improvement organizations under part B of title XI of the Social Security Act; or (II) other independent organizations of a similar type that do not have conflicts of interest and are deemed appropriate by the Secretary. (4) Use of funds (A) In general A State or Indian Tribe that receives a payment under the program under this subsection shall use funds to support skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals that cohort, and provide services to, individuals who test positive for COVID–19, individuals who test negative for COVID–19, and individuals with unknown status or who are under observation. Such cohorting shall be in compliance with all guidance issued by the Secretary during the emergency period. (B) Permissible uses and authorized costs States and Indian Tribes shall use the payments received under the program under this subsection for the following purposes: (i) To retrofit non-traditional facility-based settings, such as hotels, dormitories, schools, churches, and other temporary or permanent shelters, for temporary use as skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (ii) To support skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals with the establishment of specialized units within such facilities. (iii) To provide testing kits or other supplies needed for rapid turnaround to test staff members and residents of skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals for COVID–19. (iv) To provide personal protective equipment to staff members of skilled nursing facilities, nursing facilities, intermediate care facilities, psychiatric hospitals and, where appropriate, to residents of such facilities. (v) To safely facilitate necessary transfers to and from skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (vi) To safely facilitate voluntary discharges to home and community-based settings from skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (vii) To provide additional staffing (including the use of surge teams) associated with the COVID–19 pandemic for skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals, which may include providing premium or hazard pay, overtime pay, enhanced payment rates, paid sick and family medical leave, childcare, temporary housing, transportation, and other supportive services for staff members. (viii) To provide support for individuals who have no other mechanism to pay for their care at skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals and are unable to pay. (ix) Other purposes relating to the cohorting described in subparagraph (A). (5) Additional guidance For purposes of the program under this subsection, not later than 30 days after the date of enactment of this Act (and prior to making any payments to States or Indian Tribes under the program) the Secretary shall establish guidance on the following: (A) Which skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals are permitted to cohort individuals who test positive for COVID–19, individuals who test negative for COVID–19, and individuals with unknown status or who are under observation. Such guidance shall account for— (i) the facility’s history of compliance with the requirements of participation under titles XVIII and XIX of the Social Security Act, including requirements relating to infection control and emergency preparedness; (ii) the facility’s current or past affiliation (as either a candidate or participant) with the special focus facility program under section 1819(f)(8) of such Act ( 42 U.S.C. 1395i–3(f)(8) ) and section 1919(f)(10) of such Act ( 42 U.S.C. 1396r(f)(10) ); and (iii) the facility’s ability to treat high-severity residents, as applicable. (B) Consumer protections for residents of skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals affected by COVID–19 cohorting policies, including by— (i) prohibiting facilities from discharging residents for failure to pay for services; and (ii) requiring written notification to be provided to residents and their family and legal representatives at least 72 hours prior to discharge or transfers, with such notice containing— (I) information on the rights of the resident; (II) contact information for the State Long-Term Care Ombudsman program (as described in section 712(a)(1) of the Older Americans Act of 1965 ( 42 U.S.C. 3058g(a)(1) )); and (III) contact information for the protection and advocacy system (as established under subtitle C of title I of the Developmental Disabilities Assistance and Bill of Rights Act ( 42 U.S.C. 15041 et seq.). (C) Strategies to effectively cohort residents of skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals based on COVID–19 status, including— (i) the temporary utilization of non-traditional facility-based settings, such as hotels, dormitories, schools, churches, and other temporary or permanent shelters, as skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals; (ii) how to safely and effectively move, shelter in place, and cohort within facilities; (iii) how to establish separate facilities for individuals who test positive for COVID–19; (iv) how to establish separate facilities for individuals who test negative for COVID–19; (v) proper procedures for conducting COVID–19 testing, sending tests to be analyzed, and effective use of COVID–19 testing; (vi) adequate staffing, with contingency plans during shortages, including the use of— (I) separate staffing according to COVID–19 status; and (II) surge teams; (vii) effective use of personal protective equipment, including in cases where access to an adequate supply of personal protective equipment is limited; (viii) how to minimize resident transfers to and from the facilities; (ix) how to safely effectuate resident transfers to home and community-based settings from the facilities; and (x) how to uphold resident rights in accordance with titles XVIII and XIX of the Social Security Act. (6) Report Not later than 2 years after the date of the enactment of this section, the Secretary shall submit to the appropriate Committees of Congress a report on the program under this section, together with recommendations for such legislation and administrative action as the Secretary determines appropriate. (7) Funding Out of any monies in the Treasury of the United States not otherwise appropriated, there are appropriated to the Secretary $20,000,000,000 for fiscal year 2020 for making payments to States and Indian Tribes under this subsection. Amounts appropriated under the preceding sentence shall remain available until expended. (b) COVID–19 data collection and disclosure (1) Data collection and publication by the Secretary (A) In general Beginning after the date of enactment of this Act and continuing through the end of the emergency period, or through a later date determined appropriate by the Secretary, the Secretary shall make publicly available on the Nursing Home Compare websites described in sections 1819(i) and 1919(i) of the Social Security Act ( 42 U.S.C. 1395i–3(i) ; 42 U.S.C. 1396r(i) ) and on the internet website of the Centers for Medicare & Medicaid Services information, within each State, Indian Tribe, and each skilled nursing facility, nursing facility, intermediate care facility, and psychiatric hospitals, on the following: (i) The number of suspected and confirmed COVID–19 cases among residents in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (ii) The number of suspected and confirmed COVID–19 cases among staff persons in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (iii) The number of total deaths and COVID–19 deaths (among both residents and staff persons, including by age, gender, race, and ethnicity) in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (iv) Personal protective equipment and hand hygiene supplies in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (v) Ventilator capacity and supplies available in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (vi) Resident beds and census in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (vii) Access to testing in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (viii) Staffing shortages in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (ix) Other items determined appropriate by the Secretary. (B) Update The data described in subparagraph (A) shall be updated not less frequently than on a daily basis. (C) Data sharing and transfer The Secretary shall share the data described in subparagraph (A) with— (i) the Department of Veterans Affairs; (ii) the Federal Emergency Management Agency; (iii) States; (iv) Indian Tribes; and (v) other entities determined appropriate by the Secretary. (D) Privacy The Secretary shall take all necessary steps to protect the privacy of individual residents and staff persons associated with the affected skilled nursing facility, nursing facility, intermediate care facility, or psychiatric hospital. (2) Disclosure by facilities (A) In general Beginning after the date of enactment of this Act and continuing through the end of the emergency period, or through a later date determined appropriate by the Secretary, the Secretary shall ensure that skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals provide notification when a case of COVID–19 is confirmed among a resident or staff person or when 3 or more residents or staff exhibit the new-onset of respiratory symptoms occurring within 72 hours of each other to the following: (i) Residents of such facility and residents’ family or legal representative. (ii) State Long-Term Care Ombudsman programs (as described in section 712(a)(1) of the Older Americans Act of 1965 ( 42 U.S.C. 3058g(a)(1) )). (iii) The protection and advocacy system (as established under subtitle C of title I of the Developmental Disabilities Assistance and Bill of Rights Act ( 42 U.S.C. 15041 et seq.). (B) Timing The notification required under subparagraph (A) shall be provided— (i) within 12 hours of the confirmation of a COVID–19 case or the confirmation of 3 or more residents or staff persons exhibiting new-onset respiratory symptoms with 72 hours of each other; and (ii) in the most expedient manner available, to be followed-up with written notification to residents of the facility and residents’ family or legal representative. (3) HHS study and report on COVID–19 outbreaks (A) Study (i) In general The Secretary shall conduct a study on COVID–19 outbreaks in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. Such study shall include an analysis of— (I) the characteristics of skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals that experienced COVID–19 outbreaks; (II) the size of the outbreaks; (III) the number of deaths of residents and staff persons from COVID–19; and (IV) the total number of deaths of residents. (ii) Characteristics The characteristics described in clause (i) shall include— (I) the facility’s history of compliance with the requirements of participation under titles XVIII and XIX of the Social Security Act, including requirements relating to infection control and emergency preparedness; (II) the facility’s current or past affiliation (as either a candidate or participant) with the special focus facility program under section 1819(f)(8) of such Act ( 42 U.S.C. 1395i–3(f)(8) ) and section 1919(f)(10) of such Act ( 42 U.S.C. 1396r(f)(10) ); (III) the facility’s resident size, including the number of occupied beds; (IV) the facility’s geographic location; and (V) the facility’s for-profit or non-profit status. (B) Report Not later than 6 months after the end of the emergency period, and every 6 months thereafter through the end of the 2-year period that begins at the end of the emergency period, the Secretary shall submit to the appropriate Committees of Congress a report containing the results of the study conducted under paragraph (1), together with recommendations for such legislation and administrative action as the Secretary determines appropriate. (c) Monthly briefings on the COVID–19 response (1) Monthly briefings Not later than 15 days after the date of enactment of this Act, and at least once every 30 days thereafter through the end of the emergency period, the Secretary shall brief the appropriate Committees of Congress (including all members of such Committees) on the COVID–19 outbreak in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals and the response by the Secretary to such outbreak. (2) Report Not later than 1 year after the date of enactment of this Act, the Inspector General of the Department of Health and Human Services shall submit to Congress a report that evaluates the response of the Secretary to the COVID–19 outbreak in skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals such as guidance, rules, or waivers established by the Secretary. (d) Rule of construction Nothing in this section shall be construed to affect the requirements or conditions of participation under titles XVIII and XIX of the Social Security Act with respect to skilled nursing facilities, nursing facilities, intermediate care facilities, and psychiatric hospitals. (e) Definitions In this section: (1) Appropriate Committees of Congress The term appropriate Committee of Congress means— (A) the Committee on Finance of the Senate; (B) the Committee on Health, Education, Labor, and Pensions of the Senate; (C) the Special Committee on Aging of the Senate; (D) the Committee on Ways and Means of the House of Representatives; and (E) the Committee on Energy and Commerce of the House of Representatives. (2) Emergency period The term Emergency period means the emergency period described in section 1135(g)(1)(B) of the Social Security Act ( 42 U.S.C. 1395b–5(g)(1)(B) ). (3) Indian Tribe The term Indian Tribe has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 ). (4) Intermediate care facility The term intermediate care facility means an intermediate care facility described in section 1905(d) of the Social Security Act ( 42 U.S.C. 1396d(d) ). (5) Nursing facility The term nursing facility has the meaning given that term in section 1919(a) of the Social Security Act ( 42 U.S.C. 1396r(a) ). (6) Psychiatric hospital The term psychiatric hospital has the meaning given that term in section 1861(f) of the Social Security Act ( 42 U.S.C. 1395x(f) ). (7) Secretary The term Secretary means the Secretary of Health and Human Services. (8) Skilled nursing facility The term skilled nursing facility has the meaning given that term in section 1819(a) of the Social Security Act ( 42 U.S.C. 1395i–3(a) ). (9) State The term State means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa. (10) Surge team The term surge team means a short-term staffing team.