HR 3078 IHCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

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 concernedCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Patient Safety and Abuse Prevention Act of 2007'.CommentsClose CommentsPermalink

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings- Congress makes the following findings:CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(3) A 2006 study conducted by the Department of Health and Human Services determined that--CommentsClose CommentsPermalink





(A) criminal background checks are a valuable tool for employers during the hiring process;CommentsClose CommentsPermalink





(B) the use of criminal background checks during the hiring process does not limit the pool of potential job applicants;CommentsClose CommentsPermalink





(C) `a correlation exists between criminal history and incidences of abuse'; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(4) In 2005, the Michigan Attorney General found that 10 percent of employees who were then providing services to frail elders had criminal backgrounds.CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(b) Purposes- The purposes of this Act are to--CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(2) stop individuals who have a record of substantiated abuse, or a serious criminal record, from preying on helpless elders and individuals with disabilities; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink





`(h) Nationwide Expansion Program-CommentsClose CommentsPermalink





`(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:CommentsClose CommentsPermalink





`(A) AGREEMENTS-CommentsClose CommentsPermalink





`(i) NEWLY PARTICIPATING STATES- The Secretary shall enter into agreements with each State--CommentsClose CommentsPermalink





`(I) that the Secretary has not entered into an agreement with under subsection (c)(1);CommentsClose CommentsPermalink





`(II) that agrees to conduct background checks under the nationwide expansion program on a Statewide basis; andCommentsClose CommentsPermalink





`(III) that submits an application to the Secretary containing such information and at such time as the Secretary may specify.CommentsClose CommentsPermalink





`(ii) CERTAIN PREVIOUSLY PARTICIPATING STATES- The Secretary shall enter into agreements with each State--CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(II) that agrees to conduct background checks under the nationwide expansion program on a Statewide basis; andCommentsClose CommentsPermalink





`(III) that submits an application to the Secretary containing such information and at such time as the Secretary may specify.CommentsClose CommentsPermalink





`(B) NONAPPLICATION OF SELECTION CRITERIA- The selection criteria required under subsection (c)(3)(B) shall not apply.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(D) PAYMENTS-CommentsClose CommentsPermalink





`(i) NEWLY PARTICIPATING STATES-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(ii) PREVIOUSLY PARTICIPATING STATES-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(E) EVALUATIONS AND REPORT-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(2) FUNDING-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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).'.CommentsClose CommentsPermalink

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-CommentsClose CommentsPermalink





(1) MEDICARE PROGRAM-CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(9) SCREENING OF DIRECT PATIENT ACCESS EMPLOYEES-CommentsClose CommentsPermalink





`(A) SCREENING AND CRIMINAL HISTORY BACKGROUND CHECKS ON APPLICANTS-CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(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; andCommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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).CommentsClose CommentsPermalink





`(B) PROHIBITION ON HIRING OF ABUSIVE WORKERS-CommentsClose CommentsPermalink





`(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)).CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(I) pending completion of the screening and background check required under subparagraph (A); andCommentsClose CommentsPermalink





`(II) in the case where the employee has appealed the results of such screening and background check, pending completion of the appeals process.CommentsClose CommentsPermalink





`(iii) SUPERVISION- The facility shall maintain direct on-site supervision of the employee during such provisional period of employment.CommentsClose CommentsPermalink





`(C) PROCEDURES-CommentsClose CommentsPermalink





`(i) IN GENERAL- The procedures established by the State under subparagraph (A) shall be designed to accomplish the following:CommentsClose CommentsPermalink





`(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)).CommentsClose CommentsPermalink





`(II) Require, as a condition of employment, that the employee--CommentsClose CommentsPermalink

`(aa) provide a written statement disclosing any disqualifying information;CommentsClose CommentsPermalink

`(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;CommentsClose CommentsPermalink

`(cc) provide the facility with a rolled set of the employee's fingerprints or submit to being fingerprinted; andCommentsClose CommentsPermalink

`(dd) provide any other identification information the State may require.CommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink

`(aa) be valid for 2 years; andCommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(D) USE OF INFORMATION; IMMUNITY FROM LIABILITY-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(E) PENALTIES-CommentsClose CommentsPermalink





`(i) IN GENERAL-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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).CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(F) DEFINITIONS- In this paragraph:CommentsClose CommentsPermalink





`(i) CONVICTION FOR A RELEVANT CRIME- The term `conviction for a relevant crime' means any Federal or State criminal conviction for--CommentsClose CommentsPermalink





`(I) any offense described in section 1128(a); andCommentsClose CommentsPermalink





`(II) such other types of offenses, including violent crimes, as the State may specify.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(6) SCREENING OF DIRECT PATIENT ACCESS EMPLOYEES- Beginning on January 1, 2011, the State must--CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(B) be responsible for monitoring compliance with the procedures and requirements of such subsection;CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(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; andCommentsClose CommentsPermalink





`(E) designate a single State agency as responsible for--CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(iii) immediately reporting to the skilled nursing facility that requested the criminal history background checks the results of such review; andCommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(F) have a system in place for determining and levying appropriate penalties for violations of the provisions of such subsection;CommentsClose CommentsPermalink





`(G) have a system in place for determining which individuals are direct patient access employees for purposes of subparagraph (F)(iii) of such subsection;CommentsClose CommentsPermalink





`(H) as appropriate, specify offenses, including violent crimes, for purposes of subparagraph (F)(i)(II) of such subsection; andCommentsClose CommentsPermalink





`(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).'.CommentsClose CommentsPermalink





(2) MEDICAID PROGRAM-CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(9) SCREENING OF DIRECT PATIENT ACCESS EMPLOYEES-CommentsClose CommentsPermalink





`(A) SCREENING AND CRIMINAL HISTORY BACKGROUND CHECKS ON APPLICANTS-CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(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; andCommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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).CommentsClose CommentsPermalink





`(B) PROHIBITION ON HIRING OF ABUSIVE WORKERS-CommentsClose CommentsPermalink





`(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)).CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink





`(I) pending completion of the screening and background check required under subparagraph (A); andCommentsClose CommentsPermalink





`(II) in the case where the employee has appealed the results of such screening and background check, pending completion of the appeals process.CommentsClose CommentsPermalink





`(iii) SUPERVISION- The facility shall maintain direct on-site supervision of the employee during such provisional period of employment.CommentsClose CommentsPermalink





`(C) PROCEDURES-CommentsClose CommentsPermalink





`(i) IN GENERAL- The procedures established by the State under subparagraph (A) shall be designed to accomplish the following:CommentsClose CommentsPermalink





`(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))CommentsClose CommentsPermalink





`(II) Require, as a condition of employment, that the employee--CommentsClose CommentsPermalink

`(aa) provide a written statement disclosing any disqualifying information;CommentsClose CommentsPermalink

`(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;CommentsClose CommentsPermalink

`(cc) provide the facility with a rolled set of the employee's fingerprints or submit to being fingerprinted; andCommentsClose CommentsPermalink

`(dd) provide any other identification information the State may require.CommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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--CommentsClose CommentsPermalink

`(aa) be valid for 2 years; andCommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink

`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(D) USE OF INFORMATION; IMMUNITY FROM LIABILITY-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(E) PENALTIES-CommentsClose CommentsPermalink





`(i) IN GENERAL-CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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).CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(F) DEFINITIONS- In this paragraph:CommentsClose CommentsPermalink





`(i) CONVICTION FOR A RELEVANT CRIME- The term `conviction for a relevant crime' means any Federal or State criminal conviction for--CommentsClose CommentsPermalink





`(I) any offense described in section 1128(a); andCommentsClose CommentsPermalink





`(II) such other types of offenses, including violent crimes, as the State may specify.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





`(8) SCREENING OF DIRECT PATIENT ACCESS EMPLOYEES- Beginning on January 1, 2011, the State must--CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(B) be responsible for monitoring compliance with the procedures and requirements of such subsection;CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(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; andCommentsClose CommentsPermalink





`(E) designate a single State agency as responsible for--CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(iii) immediately reporting to the nursing facility that requested the criminal history background checks the results of such review; andCommentsClose CommentsPermalink





`(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;CommentsClose CommentsPermalink





`(F) have a system in place for determining and levying appropriate penalties for violations of the provisions of such subsection;CommentsClose CommentsPermalink





`(G) have a system in place for determining which individuals are direct patient access employees for purposes of subparagraph (F)(iii) of such subsection;CommentsClose CommentsPermalink





`(H) as appropriate, specify offenses, including violent crimes, for purposes of subparagraph (F)(i)(II) of such subsection; andCommentsClose CommentsPermalink





`(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).'.CommentsClose CommentsPermalink





(b) Application to Other Long-Term Care Facilities or Providers-CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink

`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.CommentsClose CommentsPermalink





`(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:CommentsClose CommentsPermalink





`(1) A home health agency.CommentsClose CommentsPermalink





`(2) A provider of hospice care.CommentsClose CommentsPermalink





`(3) A long-term care hospital.CommentsClose CommentsPermalink





`(4) A provider of personal care services.CommentsClose CommentsPermalink





`(5) A provider of adult day care.CommentsClose CommentsPermalink





`(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.CommentsClose CommentsPermalink





`(7) An intermediate care facility for the mentally retarded (as defined in section 1905(d)).'.CommentsClose CommentsPermalink





(2) MEDICAID- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a) is amended--CommentsClose CommentsPermalink





(A) in paragraph (69), by striking `and' at the end;CommentsClose CommentsPermalink





(B) in paragraph (70)(B)(iv), by striking the period at the end and inserting `; and'; andCommentsClose CommentsPermalink





(C) by inserting after paragraph (70)(B)(iv) the following:CommentsClose CommentsPermalink





`(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.'.CommentsClose CommentsPermalink





(3) EFFECTIVE DATE- The amendments made by this subsection shall take effect on January 1, 2011.CommentsClose CommentsPermalink





(c) Payments-CommentsClose CommentsPermalink





(1) PROCEDURES TO REIMBURSE COSTS OF NATIONAL BACKGROUND CHECK-CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(3) SUBMISSION OF COSTS INCURRED BY FACILITIES IN PERFORMING CHECKS-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 5. BACKGROUND CHECKS PROVIDED BY THE FEDERAL BUREAU OF INVESTIGATION.

(a) Development of Rap Back Capabilities-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink