Patient Safety and Abuse Prevention Act of 2007 - Amends the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 to provide for nationwide expansion of the pilot program for national and state background checks on direct patient access employees of long-term care facilities or providers.
Amends titles XVIII (Medicare) and XIX (Medicaid) of the Social Security Act to: (1) require screening, including national criminal history background checks, of direct patient access employees of skilled nursing facilities, nursing facilities, and other long-term care facilities and providers; and (2) prohibit hiring of abusive workers.
Requires the Director of the Federal Bureau of Investigation (FBI) to ensure that the Integrated Automated Fingerprint Identification System of the FBI has the capacity to store and retrieve fingerprints from its database.
Provides that, in the case where a direct patient access employee is convicted of a crime following the initial national criminal history background check, and the employee's fingerprint matches the prints on file with the FBI, the FBI shall inform the state law enforcement department in order for the state to inform the skilled nursing facility, nursing facility, or long-term care facility or provider of such conviction.
[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3078 Introduced in House (IH)]
110th CONGRESS
1st Session
H. R. 3078
To amend titles XVIII and XIX of the Social Security Act to require
screening, including national criminal history background checks, of
direct patient access employees of skilled nursing facilities, nursing
facilities, and other long-term care facilities and providers, and to
provide for nationwide expansion of the pilot program for National and
State background checks on direct patient access employees of long-term
care facilities or providers.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 18, 2007
Mr. Mahoney of Florida (for himself, Mr. Emanuel, Mrs. Boyda of Kansas,
and Mr. Klein of Florida) introduced the following bill; which was
referred to the Committee on Energy and Commerce, and in addition to
the Committees on Ways and Means and the Judiciary, 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 require
screening, including national criminal history background checks, of
direct patient access employees of skilled nursing facilities, nursing
facilities, and other long-term care facilities and providers, and to
provide for nationwide expansion of the pilot program for National and
State background checks on direct patient access employees of long-term
care facilities or providers.
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 ``Patient Safety and Abuse Prevention
Act of 2007''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) Frail elders are a highly vulnerable population who
often lack the ability to give consent or defend themselves.
Since the best predictor of future behavior is past behavior,
individuals with histories of abuse pose a definite risk to
patients and residents of long-term care facilities.
(2) Every month, there are stories in the media of health
care employees who commit criminal misconduct on the job and
are later found, through a background check conducted after the
fact, to have a history of convictions for similar crimes.
(3) A 2006 study conducted by the Department of Health and
Human Services determined that--
(A) criminal background checks are a valuable tool
for employers during the hiring process;
(B) the use of criminal background checks during
the hiring process does not limit the pool of potential
job applicants;
(C) ``a correlation exists between criminal history
and incidences of abuse''; and
(D) the long-term care industry supports the
practice of conducting background checks on potential
employees in order to reduce the likelihood of hiring
someone who has potential to harm residents.
(4) In 2005, the Michigan Attorney General found that 10
percent of employees who were then providing services to frail
elders had criminal backgrounds.
(5) In 2004, the staffs of State Adult Protective Services
agencies received more than 500,000 reports of elder and
vulnerable adult abuse, and an ombudsman report concluded that
more than 15,000 nursing home complaints involved abuse,
including nearly 4,000 complaints of physical abuse, more than
800 complaints of sexual abuse, and nearly 1,000 complaints of
financial exploitation;
(6) The Department of Health and Human Services has
determined that while 41 States now require criminal background
checks on certified nurse aides prior to employment, only half
of those (22) require criminal background checks at the Federal
level.
(b) Purposes.--The purposes of this Act are to--
(1) create a coordinated, nationwide system of State
criminal background checks that would greatly enhance the
chances of identifying individuals with problematic backgrounds
who move across State lines;
(2) stop individuals who have a record of substantiated
abuse, or a serious criminal record, from preying on helpless
elders and individuals with disabilities; and
(3) provide assurance to long-term care employers and the
residents they care for that potentially abusive workers will
not be hired into positions of providing services to the
extremely vulnerable residents of our Nation's long-term care
facilities.
SEC. 3. NATIONWIDE EXPANSION OF PILOT PROGRAM FOR NATIONAL AND STATE
BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF
LONG-TERM CARE FACILITIES OR PROVIDERS.
Section 307 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (42 U.S.C. 1395aa note) is amended by adding
at the end the following new subsection:
``(h) Nationwide Expansion Program.--
``(1) In general.--Beginning on the date of enactment of
the Patient Safety and Abuse Prevention Act of 2007, the
Secretary shall expand the pilot program under this section to
be conducted on a nationwide basis (in this subsection, such
expanded pilot program shall be referred to as the `nationwide
expansion program'). Except for the following modifications,
the provisions of this section shall apply to the nationwide
expansion program:
``(A) Agreements.--
``(i) Newly participating states.--The
Secretary shall enter into agreements with each
State--
``(I) that the Secretary has not
entered into an agreement with under
subsection (c)(1);
``(II) that agrees to conduct
background checks under the nationwide
expansion program on a Statewide basis;
and
``(III) that submits an application
to the Secretary containing such
information and at such time as the
Secretary may specify.
``(ii) Certain previously participating
states.--The Secretary shall enter into
agreements with each State--
``(I) that the Secretary has
entered into an agreement with under
subsection (c)(1) in the case where
such agreement did not require the
State to conduct background checks
under the pilot program established
under subsection (a) on a Statewide
basis;
``(II) that agrees to conduct
background checks under the nationwide
expansion program on a Statewide basis;
and
``(III) that submits an application
to the Secretary containing such
information and at such time as the
Secretary may specify.
``(B) Nonapplication of selection criteria.--The
selection criteria required under subsection (c)(3)(B)
shall not apply.
``(C) Required fingerprint check as part of
criminal history background check.--The procedures
established under subsection (b)(1) shall require that
the facility or provider obtain State and national
criminal history background checks on the prospective
employee utilizing a search of State and Federal
criminal history records and including a fingerprint
check using the Integrated Automated Fingerprint
Identification System of the Federal Bureau of
Investigation.
``(D) Payments.--
``(i) Newly participating states.--
``(I) In general.--As part of the
application submitted by a State under
subparagraph (A)(i)(III), the State
shall guarantee, with respect to the
costs to be incurred by the State in
carrying out the nationwide expansion
program, that the State will make
available (directly or through
donations from public or private
entities) a particular amount of non-
Federal contributions.
``(II) Federal match.--The payment
amount to each State that the Secretary
enters into an agreement with under
subparagraph (A)(i) shall be 3 times
the amount that the State guarantees to
make available under subclause (I),
except that in no case may the payment
amount exceed $3,000,000.
``(ii) Previously participating states.--
``(I) In general.--As part of the
application submitted by a State under
subparagraph (A)(ii)(III), the State
shall guarantee, with respect to the
costs to be incurred by the State in
carrying out the nationwide expansion
program, that the State will make
available (directly or through
donations from public or private
entities) a particular amount of non-
Federal contributions.
``(II) Federal match.--The payment
amount to each State that the Secretary
enters into an agreement with under
subparagraph (A)(ii) shall be 3 times
the amount that the State guarantees to
make available under subclause (I),
except that in no case may the payment
amount exceed $1,500,000.
``(iii) No reservation for evaluation.--
There shall be no reservation of any portion of
the payment amount provided under clauses (i)
or (ii) for conducting an evaluation.
``(E) Evaluations and report.--
``(i) Evaluations.--The Inspector General
of the Department of Health and Human Services
shall conduct an annual evaluation of the
nationwide expansion program in each of
calendar years 2008 and 2009.
``(ii) Reports.--Not later than 6 months
after completion of the second year of the
nationwide expansion program, the Inspector
General of the Department of Health and Human
Services shall submit a report to Congress
containing the results of the annual
evaluations conducted under clause (i),
together with recommendations for the
implementation of the requirements of sections
1819(b)(9) and 1919(b)(9) of the Social
Security Act, as added by section (3)(a) of the
Patient Safety and Abuse Prevention Act of
2007.
``(2) Funding.--
``(A) Notification.--The Secretary shall notify the
Secretary of the Treasury of the amount necessary to
carry out the nationwide expansion program under this
subsection for the period of fiscal years 2008 through
2010, except that in no case shall such amount exceed
$156,000,000.
``(B) Transfer of funds.--Out of any funds in the
Treasury not otherwise appropriated, the Secretary of
the Treasury shall provide for the transfer to the
Secretary of the amount specified as necessary to carry
out the nationwide expansion program under subparagraph
(A).''.
SEC. 4. BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF LONG-
TERM CARE FACILITIES AND PROVIDERS.
(a) Screening of Skilled Nursing Facility and Nursing Facility
Employee Applicants.--
(1) Medicare program.--
(A) In general.--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:
``(9) Screening of direct patient access employees.--
``(A) Screening and criminal history background
checks on applicants.--
``(i) Screening.--Beginning on January 1,
2011, before hiring a direct patient access
employee, a skilled nursing facility shall
screen the employee for any disqualifying
information in accordance with such procedures
as the State shall establish through a search
of--
``(I) State-based abuse and neglect
registries and databases, including the
abuse and neglect registries and
databases of another State in the case
where a prospective employee previously
resided in that State; and
``(II) criminal records and the
records of any proceedings that may
contain disqualifying information about
applicants, such as proceedings
conducted by State professional
licensing and disciplinary boards and
State medicaid fraud control units.
``(ii) Criminal history background
checks.--As part of such screening, the skilled
nursing facility shall request that the State
agency designated under subsection (e)(6)(E)
oversee the coordination of a State and
national criminal history background check that
utilizes a search of State and Federal criminal
history records and includes a fingerprint
check using the Integrated Automated
Fingerprint Identification System of the
Federal Bureau of Investigation.
``(iii) Use of procedures previously
established.--Nothing in this paragraph shall
be construed as preventing a State from using
procedures established for purposes of the
pilot program for National and State background
checks on direct patient access employees of
long-term care facilities or providers under
section 307 of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, or
the nationwide expansion program under
subsection (h) of such section, to satisfy the
requirements of paragraph (6).
``(B) Prohibition on hiring of abusive workers.--
``(i) In general.--Subject to clause (ii),
a skilled nursing facility may not knowingly
employ any direct patient access employee who
has any disqualifying information (as defined
in subparagraph (F)(ii)).
``(ii) Provisional employment.--Subject to
clause (iii), the State may permit a skilled
nursing facility to provide for a provisional
period of employment (not to exceed 30 days)
for a direct patient access employee--
``(I) pending completion of the
screening and background check required
under subparagraph (A); and
``(II) in the case where the
employee has appealed the results of
such screening and background check,
pending completion of the appeals
process.
``(iii) Supervision.--The facility shall
maintain direct on-site supervision of the
employee during such provisional period of
employment.
``(C) Procedures.--
``(i) In general.--The procedures
established by the State under subparagraph (A)
shall be designed to accomplish the following:
``(I) Give a prospective direct
patient access employee notice that the
skilled nursing facility is required to
perform background checks with respect
to new employees, including a
fingerprint check as part of the
national criminal history background
check conducted under subparagraph
(A)(ii) in the case of any new employee
who does not have a certificate
indicating that a fingerprint check has
been completed and has not found any
disqualifying information (as described
in subclause (V)).
``(II) Require, as a condition of
employment, that the employee--
``(aa) provide a written
statement disclosing any
disqualifying information;
``(bb) provide a statement
signed by the employee
authorizing the facility to
request a background check that
includes a search of the
registries and databases
described in clause (i)(I) of
subparagraph (A) and the
records described in clause
(i)(II) of such subparagraph
and a criminal history
background check conducted in
accordance with clause (ii) of
such subparagraph that includes
a fingerprint check using the
Integrated Automated
Fingerprint System of the
Federal Bureau of
Investigation;
``(cc) provide the facility
with a rolled set of the
employee's fingerprints or
submit to being fingerprinted;
and
``(dd) provide any other
identification information the
State may require.
``(III) Require the skilled nursing
facility to check any available
registries that would be likely to
contain disqualifying information about
a prospective employee, including the
registries and databases described in
subclause (I) of subparagraph (A)(i)
and the records described in clause
(II) of such subparagraph.
``(IV) Provide a prospective direct
patient access employee the opportunity
to request a copy of the results of the
background check conducted with respect
to such employee and to correct any
errors by providing appropriate
documentation to the State and the
facility.
``(V) Upon completion of a
fingerprint check as part of the
national criminal history background
check conducted with respect to a
direct patient access employee under
subparagraph (A)(ii), provide the
skilled nursing facility and the direct
patient access employee with a
certificate indicating that such
fingerprint check has been completed
and no disqualifying information was
found. Such certificate shall--
``(aa) be valid for 2
years; and
``(bb) in the case where
such direct patient access
employee is hired by any other
skilled nursing facility
located in the State during
such 2-year period, satisfy the
requirement that such facility
have a fingerprint check
conducted as part of such
national criminal history
background check.
``(ii) Elimination of unnecessary checks.--
The procedures established by the State under
subparagraph (A) shall permit a skilled nursing
facility to terminate the background check at
any stage at which the facility obtains
disqualifying information regarding a
prospective direct patient access employee.
``(iii) Development of model form of
certificate.--The Secretary shall develop a
model form of the certificate described in
clause (i)(V) that States may use to satisfy
the requirements of such clause.
``(D) Use of information; immunity from
liability.--
``(i) Use of information.--A skilled
nursing facility that obtains information about
a direct patient access employee pursuant to
screening or a criminal history background
check shall use such information only for the
purpose of determining the suitability of the
employee for employment.
``(ii) Immunity from liability.--A skilled
nursing facility that, in denying employment
for an applicant, reasonably and in good faith
relies upon credible information about such
applicant provided by a criminal history
background check shall not be liable in any
action brought by such applicant based on the
employment determination resulting from the
information.
``(iii) Prohibition on charging employees
fees for conducting background checks.--A
skilled nursing facility shall not charge a
prospective direct patient access employee a
fee for the screening or criminal history
background check conducted under this
paragraph.
``(E) Penalties.--
``(i) In general.--
``(I) State penalties.--Subject to
subclause (II), a skilled nursing
facility that violates the provisions
of this paragraph shall be subject to
such penalties as the State determines
appropriate to enforce the requirements
of this paragraph. A skilled nursing
facility shall report to the Secretary
on a quarterly basis any penalties
imposed by the State under the
preceding sentence.
``(II) Exclusion from
participation.--In any case where the
Secretary determines that a State is
not sufficiently enforcing the
requirements of this paragraph, the
Secretary may exclude a skilled nursing
facility located within the State that
violates the provisions of this
paragraph from participating in the
programs under this title and title XIX
(in accordance with the procedures of
section 1128).
``(ii) Knowing retention of worker.--In
addition to any penalty under clause (i), a
skilled nursing facility that knowingly
continues to employ a direct patient access
employee in violation of subparagraph (A) or
(B) 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 violation within any 5-year period.
``(F) Definitions.--In this paragraph:
``(i) Conviction for a relevant crime.--The
term `conviction for a relevant crime' means
any Federal or State criminal conviction for--
``(I) any offense described in
section 1128(a); and
``(II) such other types of
offenses, including violent crimes, as
the State may specify.
``(ii) Disqualifying information.--The term
`disqualifying information' means information
about a conviction for a relevant crime or a
finding of substantiated patient or resident
abuse.
``(iii) Direct patient access employee.--
The term `direct patient access employee' means
any individual who has access to a patient or
resident of a skilled nursing facility through
employment or through a contract with such
facility and has duties that involve (or may
involve) one-on-one contact with a patient or
resident of the facility, as determined by the
State for purposes of this paragraph. Such term
does not include a volunteer unless the
volunteer has duties that are equivalent to the
duties of a direct patient access employee and
those duties involve (or may involve) one-on-
one contact with a patient or resident of the
facility.''.
(B) Conforming amendment.--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) Screening of direct patient access employees.--
Beginning on January 1, 2011, the State must--
``(A) have procedures in place for the conduct of
screening and criminal history background checks under
subparagraph (A) of subsection (b)(9), in accordance
with the requirements of subparagraph (C) of such
subsection;
``(B) be responsible for monitoring compliance with
the procedures and requirements of such subsection;
``(C) as appropriate, provide for a provisional
period of employment of a direct patient access
employee under clause (ii) of subparagraph (B) of such
subsection, including procedures to ensure that a
skilled nursing facility provides direct on-site
supervision of the employee in accordance with clause
(iii) of such subparagraph;
``(D) provide an independent process by which a
provisional employee or an employee may appeal or
dispute the accuracy of the information obtained in a
background check performed under such subsection; and
``(E) designate a single State agency as
responsible for--
``(i) overseeing the coordination of any
State and national criminal history background
checks requested by a skilled nursing facility
utilizing a search of State and Federal
criminal history records, including a
fingerprint check of such records;
``(ii) reviewing, using appropriate privacy
and security safeguards, the results of any
State or national criminal history background
checks conducted regarding a prospective direct
patient access employee to determine whether
the employee has any conviction for a relevant
crime;
``(iii) immediately reporting to the
skilled nursing facility that requested the
criminal history background checks the results
of such review; and
``(iv) in the case of an employee with a
conviction for a relevant crime that is subject
to reporting under section 1128E of the Social
Security Act (42 U.S.C. 1320a-7e), reporting
the existence of such conviction to the
database established under that section;
``(F) have a system in place for determining and
levying appropriate penalties for violations of the
provisions of such subsection;
``(G) have a system in place for determining which
individuals are direct patient access employees for
purposes of subparagraph (F)(iii) of such subsection;
``(H) as appropriate, specify offenses, including
violent crimes, for purposes of subparagraph (F)(i)(II)
of such subsection; and
``(I) develop `rap back' capability such that, if a
direct patient access employee of a skilled nursing
facility is convicted of a crime following the initial
criminal history background check conducted with
respect to such employee, and the employee's
fingerprints match the prints on file with the State
law enforcement department, the department will
immediately inform the State agency designated under
subparagraph (E).''.
(2) Medicaid program.--
(A) In general.--Section 1919(b) of the Social
Security Act (42 U.S.C. 1396r(b)) is amended by adding
at the end the following new paragraph:
``(9) Screening of direct patient access employees.--
``(A) Screening and criminal history background
checks on applicants.--
``(i) Screening.--Beginning on January 1,
2011, before hiring a direct patient access
employee, a nursing facility shall screen the
employee for any disqualifying information in
accordance with such procedures as the State
shall establish through a search of--
``(I) State-based abuse and neglect
registries and databases, including the
abuse and neglect registries and
databases of another State in the case
where a prospective employee previously
resided in that State; and
``(II) criminal records and the
records of any proceedings that may
contain disqualifying information about
applicants, such as proceedings
conducted by State professional
licensing and disciplinary boards and
State medicaid fraud control units.
``(ii) Criminal history background
checks.--As part of such screening, the nursing
facility shall request that the State agency
designated under subsection (e)(6)(E) oversee
the coordination of a State and national
criminal history background check that utilizes
a search of State and Federal criminal history
records and includes a fingerprint check using
the Integrated Automated Fingerprint
Identification System of the Federal Bureau of
Investigation.
``(iii) Use of procedures previously
established.--Nothing in this paragraph shall
be construed as preventing a State from using
procedures established for purposes of the
pilot program for National and State background
checks on direct patient access employees of
long-term care facilities or providers under
section 307 of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003, or
the nationwide expansion program under
subsection (h) of such section, to satisfy the
requirements of paragraph (6).
``(B) Prohibition on hiring of abusive workers.--
``(i) In general.--Subject to clause (ii),
a nursing facility may not knowingly employ any
direct patient access employee who has any
disqualifying information (as defined in
subparagraph (F)(ii)).
``(ii) Provisional employment.--Subject to
clause (iii), the State may permit a nursing
facility to provide for a provisional period of
employment (not to exceed 30 days) for a direct
patient access employee--
``(I) pending completion of the
screening and background check required
under subparagraph (A); and
``(II) in the case where the
employee has appealed the results of
such screening and background check,
pending completion of the appeals
process.
``(iii) Supervision.--The facility shall
maintain direct on-site supervision of the
employee during such provisional period of
employment.
``(C) Procedures.--
``(i) In general.--The procedures
established by the State under subparagraph (A)
shall be designed to accomplish the following:
``(I) Give a prospective direct
patient access employee notice that the
nursing facility is required to perform
background checks with respect to new
employees, including a fingerprint
check as part of the national criminal
history background check conducted
under subparagraph (A)(ii) in the case
of any new employee who does not have a
certificate indicating that a
fingerprint check has been completed
and has not found any disqualifying
information (as described in subclause
(V))
``(II) Require, as a condition of
employment, that the employee--
``(aa) provide a written
statement disclosing any
disqualifying information;
``(bb) provide a statement
signed by the employee
authorizing the facility to
request a background check that
includes a search of the
registries and databases
described in clause (i)(I) of
subparagraph (A) and the
records described in clause
(i)(II) of such subparagraph
and a criminal history
background check conducted in
accordance with clause (ii) of
such subparagraph that includes
a fingerprint check using the
Integrated Automated
Fingerprint System of the
Federal Bureau of
Investigation;
``(cc) provide the facility
with a rolled set of the
employee's fingerprints or
submit to being fingerprinted;
and
``(dd) provide any other
identification information the
State may require.
``(III) Require the nursing
facility to check any available
registries that would be likely to
contain disqualifying information about
a prospective employee, including the
registries and databases described in
subclause (I) of subparagraph (A)(i)
and the records described in clause
(II) of such subparagraph.
``(IV) Provide a prospective direct
patient access employee the opportunity
to request a copy of the results of the
background check conducted with respect
to such employee and to correct any
errors by providing appropriate
documentation to the State and the
nursing facility.
``(V) Upon completion of a
fingerprint check as part of the
national criminal history background
check conducted with respect to a
direct patient access employee under
subparagraph (A)(ii), provide the
nursing facility and the direct patient
access employee with a certificate
indicating that such fingerprint check
has been completed and no disqualifying
information was found. Such certificate
shall--
``(aa) be valid for 2
years; and
``(bb) in the case where
such direct patient access
employee is hired by any other
nursing facility located in the
State during such 2-year
period, satisfy the requirement
that such facility have a
fingerprint check conducted as
part of such national criminal
history background check.
``(ii) Elimination of unnecessary checks.--
The procedures established by the State under
subparagraph (A) shall permit a nursing
facility to terminate the background check at
any stage at which the facility obtains
disqualifying information regarding a
prospective direct patient access employee.
``(iii) Development of model form of
certificate.--The Secretary shall develop a
model form of the certificate described in
clause (i)(V) that States may use to satisfy
the requirements of such clause.
``(D) Use of information; immunity from
liability.--
``(i) Use of information.--A nursing
facility that obtains information about a
direct patient access employee pursuant to
screening or a criminal history background
check shall use such information only for the
purpose of determining the suitability of the
employee for employment.
``(ii) Immunity from liability.--A nursing
facility that, in denying employment for an
applicant, reasonably and in good faith relies
upon credible information about such applicant
provided by a criminal history background check
shall not be liable in any action brought by
such applicant based on the employment
determination resulting from the information.
``(iii) Prohibition on charging employees
fees for conducting background checks.--A
nursing facility shall not charge a prospective
direct patient access employee a fee for the
screening or criminal history background check
conducted under this paragraph.
``(E) Penalties.--
``(i) In general.--
``(I) State penalties.--Subject to
subclause (II), a nursing facility that
violates the provisions of this
paragraph shall be subject to such
penalties as the State determines
appropriate to enforce the requirements
of this paragraph. A nursing facility
shall report to the Secretary on a
quarterly basis any penalties imposed
by the State under the preceding
sentence.
``(II) Exclusion from
participation.--In any case where the
Secretary determines that a State is
not sufficiently enforcing the
requirements of this paragraph, the
Secretary may exclude a nursing
facility located within the State that
violates the provisions of this
paragraph from participating in the
programs under this title and title
XVIII (in accordance with the
procedures of section 1128).
``(ii) Knowing retention of worker.--In
addition to any penalty under clause (i), a
nursing facility that knowingly continues to
employ a direct patient access employee in
violation of subparagraph (A) or (B) 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
violation within any 5-year period.
``(F) Definitions.--In this paragraph:
``(i) Conviction for a relevant crime.--The
term `conviction for a relevant crime' means
any Federal or State criminal conviction for--
``(I) any offense described in
section 1128(a); and
``(II) such other types of
offenses, including violent crimes, as
the State may specify.
``(ii) Disqualifying information.--The term
`disqualifying information' means information
about a conviction for a relevant crime or a
finding of substantiated patient or resident
abuse.
``(iii) Direct patient access employee.--
The term `direct patient access employee' means
any individual who has access to a patient or
resident of a nursing facility through
employment or through a contract with such
facility and has duties that involve (or may
involve) one-on-one contact with a patient or
resident of the facility, as determined by the
State for purposes of this paragraph. Such term
does not include a volunteer unless the
volunteer has duties that are equivalent to the
duties of a direct patient access employee and
those duties involve (or may involve) one-on-
one contact with a patient or resident of the
facility.''.
(B) Conforming amendment.--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:
``(8) Screening of direct patient access employees.--
Beginning on January 1, 2011, the State must--
``(A) have procedures in place for the conduct of
screening and criminal history background checks under
subparagraph (A) of subsection (b)(9), in accordance
with the requirements of subparagraph (C) of such
subsection;
``(B) be responsible for monitoring compliance with
the procedures and requirements of such subsection;
``(C) as appropriate, provide for a provisional
period of employment of a direct patient access
employee under clause (ii) of subparagraph (B) of such
subsection, including procedures to ensure that a
nursing facility provides direct on-site supervision of
the employee in accordance with clause (iii) of such
subparagraph;
``(D) provide an independent process by which a
provisional employee or an employee may appeal or
dispute the accuracy of the information obtained in a
background check performed under such subsection; and
``(E) designate a single State agency as
responsible for--
``(i) overseeing the coordination of any
State and national criminal history background
checks requested by a nursing facility
utilizing a search of State and Federal
criminal history records, including a
fingerprint check of such records;
``(ii) reviewing, using appropriate privacy
and security safeguards, the results of any
State or national criminal history background
checks conducted regarding a prospective direct
patient access employee to determine whether
the employee has any conviction for a relevant
crime;
``(iii) immediately reporting to the
nursing facility that requested the criminal
history background checks the results of such
review; and
``(iv) in the case of an employee with a
conviction for a relevant crime that is subject
to reporting under section 1128E of the Social
Security Act (42 U.S.C. 1320a-7e), reporting
the existence of such conviction to the
database established under that section;
``(F) have a system in place for determining and
levying appropriate penalties for violations of the
provisions of such subsection;
``(G) have a system in place for determining which
individuals are direct patient access employees for
purposes of subparagraph (F)(iii) of such subsection;
``(H) as appropriate, specify offenses, including
violent crimes, for purposes of subparagraph (F)(i)(II)
of such subsection; and
``(I) develop `rap back' capability such that, if a
direct patient access employee of a nursing facility is
convicted of a crime following the initial criminal
history background check conducted with respect to such
employee, and the employee's fingerprints match the
prints on file with the State law enforcement
department, the department will immediately inform the
State agency designated under subparagraph (E).''.
(b) Application to Other Long-Term Care Facilities or Providers.--
(1) Medicare.--Part E of title XVIII of the Social Security
Act (42 U.S.C. 1395x et seq.) is amended by adding at the end
the following:
``application of skilled nursing facility preventive abuse provisions
to long-term care facilities and providers
``Sec. 1898. (a) The provisions of section 1819(b)(9) shall apply
to a long-term care facility or provider (as defined in subsection (b))
in the same manner as such provisions apply to a skilled nursing
facility.
``(b) Long-Term Care Facility or Provider.--In this section, the
term `long-term care facility or provider' means the following
facilities or providers which receive payment for services under this
title or title XIX:
``(1) A home health agency.
``(2) A provider of hospice care.
``(3) A long-term care hospital.
``(4) A provider of personal care services.
``(5) A provider of adult day care.
``(6) A residential care provider that arranges for, or
directly provides, long-term care services, including an
assisted living facility that provides a level of care
established by the Secretary.
``(7) An intermediate care facility for the mentally
retarded (as defined in section 1905(d)).''.
(2) Medicaid.--Section 1902(a) of the Social Security Act
(42 U.S.C. 1396a) is amended--
(A) in paragraph (69), by striking ``and'' at the
end;
(B) in paragraph (70)(B)(iv), by striking the
period at the end and inserting ``; and''; and
(C) by inserting after paragraph (70)(B)(iv) the
following:
``(71) provide that the provisions of section 1919(b)(9)
apply to a long-term care facility or provider (as defined in
section 1898(b)) in the same manner as such provisions apply to
a nursing facility.''.
(3) Effective date.--The amendments made by this subsection
shall take effect on January 1, 2011.
(c) Payments.--
(1) Procedures to reimburse costs of national background
check.--
(A) In general.--The Secretary of Health and Human
Services shall establish procedures to reimburse the
costs of conducting national criminal history
background checks under sections 1819(b)(9),
1919(b)(9), 1898, and 1902(a)(71) of the Social
Security Act, as added by subsections (a)(1), (a)(2),
(b)(1), and (b)(2), respectively, through the following
mechanisms, in such proportion as the Secretary
determines appropriate:
(i) By providing payments to skilled
nursing facilities and long-term care
facilities or providers for costs incurred as
are attributable to the conduct of such
national criminal history background checks
under such section 1819(b)(9).
(ii) By making a payment, from sums
appropriated therefore, under section 1903(a)
of the Social Security Act (42 U.S.C. 1396b(a))
to each State which has a plan approved under
title XIX of the Social Security Act (42 U.S.C.
1396 et seq.), for each quarter, beginning with
the quarter commencing on January 1, 2011, in
an amount equal to 90 percent of the sums
expended with respect to costs incurred during
such quarter as are attributable to the conduct
of such national criminal history background
checks under such section 1919(b)(9).
(B) Funding for payments for costs incurred under
medicare program.--The Secretary of Health and Human
Services shall provide for the transfer, in appropriate
part from the Federal Hospital Insurance Trust Fund
established under section 1817 of the Social Security
Act (42 U.S.C. 1395i) and the Federal Supplementary
Insurance Trust Fund established under section 1841 of
such Act (42 U.S.C. 1395t), of such funds as are
necessary to make payments under subparagraph (A)(i)
for fiscal year 2011 and each fiscal year thereafter.
(C) Determination of appropriate proportion.--In
establishing the procedures under subparagraph (A), the
Secretary of Health and Human Services shall determine
what proportion of payments using the mechanisms
described in such subparagraph would result in an
equitable allocation of the costs of such reimbursement
between the Medicare program under title XVIII of the
Social Security Act and the Medicaid program under
title XIX of such Act.
(2) Ensuring no duplicative payments.--The procedures
established under paragraph (1)(A) shall ensure that no
duplicative payments are made for the costs of conducting such
national criminal history background checks, including any
duplication of payments made under the pilot program for
national and State background checks on direct patient access
employees of long-term care facilities or providers under
section 307 of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2007, including the nationwide expansion
program under subsection (h) of such section, as added by
section 3.
(3) Submission of costs incurred by facilities in
performing checks.--
(A) In general.--The procedures established under
paragraph (1)(A) shall provide a process, such as
through submission of a bill, by which a skilled
nursing facility, a nursing facility, and a long-term
care facility or provider may submit information
regarding the costs incurred by such facility in
conducting national criminal history background checks
under sections 1819(b)(9), 1919(b)(9), 1898, and
1902(a)(71) of the Social Security Act, as added by
subsections (a)(1), (a)(2), (b)(1), and (b)(2),
respectively.
(B) Model forms.--The Secretary of Health and Human
Services shall develop model forms that may be used by
a skilled nursing facility, a nursing facility, and a
long-term care facility or provider to submit a claim
for reimbursement of the costs described in paragraph
(1)(A) that contains the information described in
subparagraph (A).
(4) Regulations.--Not later than 3 years after the date of
enactment of this Act, the Secretary of Health and Human
Services shall promulgate regulations to carry out this
subsection.
SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FEDERAL BUREAU OF
INVESTIGATION.
(a) Development of Rap Back Capabilities.--
(1) In general.--Not later than January 1, 2011, the
Director of the Federal Bureau of Investigation (in this
section referred to as the ``Director'') shall ensure that the
Integrated Automated Fingerprint Identification System of the
Federal Bureau of Investigation has the capacity to store and
retrieve fingerprints from its database.
(2) Notification of conviction of direct patient access
employee.--In the case where a direct patient access employee
(as defined in subparagraph (F)(iii) of sections 1819(b)(9) and
1919(b)(9) of the Social Security Act, as added by section
4(a)) is convicted of a crime following the initial national
criminal history background check conducted with respect to
such employee under such sections 1819(b)(9) and 1919(b)(9),
and the employee's fingerprint matches the prints on file with
the Federal Bureau of Investigation, the Bureau shall inform
the State law enforcement department, in order for the State to
inform the skilled nursing facility, nursing facility, or long-
term care facility or provider of such conviction in accordance
with the requirements of sections 1819(e)(6)(I) and
1919(e)(8)(I) of the Social Security Act, as added by section
4(a).
(b) Reasonable Fee for National Criminal History Background Checks
Conducted on Employees of Long-Term Care Facilities.--The Director may
charge a reasonable fee, in consultation with the Secretary of Health
and Human Services, for a national criminal history background check
using the Integrated Automated Fingerprint Identification System of the
Federal Bureau of Investigation that is conducted under section
1819(b)(9), 1919(b)(9), 1898, or 1902(a)(71) of the Social Security
Act, as added by subsections (a)(1), (a)(2), (b)(1), and (b)(2) of
section 4, respectively, that represents the actual cost of conducting
such national criminal history background check.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and the Judiciary, 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.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and the Judiciary, 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.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and the Judiciary, 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.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and the Judiciary, 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.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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