HR 2223 IHCommentsClose CommentsPermalink

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

April 30, 2009CommentsClose CommentsPermalink

Mr. SESTAK (for himself, Mr. EHLERS, Ms. KILPATRICK of Michigan, Mr. COURTNEY, Mrs. TAUSCHER, and Mr. UPTON) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concernedCommentsClose CommentsPermalink

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’.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 the potential to harm residents of long-term care facilities.CommentsClose CommentsPermalink





(4) A national survey of State Adult Protective Services agencies identified more than 500,000 reports of elder and vulnerable adult abuse in 2004, and a national 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





(5) 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 require criminal background checks at the Federal level.CommentsClose CommentsPermalink





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





(1) lay the foundation for a coordinated, nationwide system of comprehensive State registry and criminal background checks that would greatly enhance the chances of identifying individuals with problematic backgrounds who change jobs frequently and move across State lines to avoid detection;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 abusive workers will not be hired into positions that give them access to extremely vulnerable individuals receiving long-term care services in health care settings across the United States.CommentsClose CommentsPermalink

SEC. 3. NATIONWIDE PROGRAM FOR NATIONAL AND STATE BACKGROUND CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF LONG-TERM CARE FACILITIES AND PROVIDERS.

(a) In General- The Secretary of Health and Human Services (in this section referred to as the ‘Secretary’) shall establish a program to identify efficient, effective, and economical procedures for long-term care facilities or providers to conduct background checks on prospective direct patient access employees on a nationwide basis (in this subsection, such program shall be referred to as the ‘nationwide program’). Except for the following modifications, the Secretary shall carry out the nationwide program under similar terms and conditions as the pilot program under section 307 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108-173; 117 Stat. 2257), including the prohibition on hiring abusive workers and the authorization of the imposition of penalties by a participating State under subsection (b)(3)(A) and (b)(6), respectively, of such section 307:CommentsClose CommentsPermalink





(1) AGREEMENTS-CommentsClose CommentsPermalink





(A) 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) of such section 307;CommentsClose CommentsPermalink





(ii) that agrees to conduct background checks under the nationwide 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) 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 such subsection (c)(1), but only in the case where such agreement did not require the State to conduct background checks under the program established under subsection (a) of such section 307 on a Statewide basis;CommentsClose CommentsPermalink





(ii) that agrees to conduct background checks under the nationwide 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





(2) NONAPPLICATION OF SELECTION CRITERIA- The selection criteria required under subsection (c)(3)(B) of such section 307 shall not apply.CommentsClose CommentsPermalink





(3) REQUIRED FINGERPRINT CHECK AS PART OF CRIMINAL HISTORY BACKGROUND CHECK- The procedures established under subsection (b)(1) of such section 307 shall--CommentsClose CommentsPermalink





(A) require that the long-term care facility or provider (or the designated agent of the long-term care facility or provider) obtain State and national criminal history background checks on the prospective employee through such means as the Secretary determines appropriate that utilize a search of State-based abuse and neglect registries and databases, including the abuse and neglect registries of another State in the case where a prospective employee previously resided in that State, State criminal history records, the records of any proceedings in the State that may contain disqualifying information about prospective employees (such as proceedings conducted by State professional licensing and disciplinary boards and State Medicaid Fraud Control Units), and Federal criminal history records, including a fingerprint check using the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation; andCommentsClose CommentsPermalink





(B) require States to describe and test methods that reduce duplicative fingerprinting, including providing for the development of ‘rap back’ capability by the State such that, if a direct patient access employee of a long-term care facility or provider 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 and the State will immediately inform the long-term care facility or provider which employs the direct patient access employee of such conviction.CommentsClose CommentsPermalink





(4) STATE REQUIREMENTS- An agreement entered into under paragraph (1) shall require that a participating State--CommentsClose CommentsPermalink





(A) be responsible for monitoring compliance with the requirements of the nationwide program;CommentsClose CommentsPermalink





(B) have procedures in place to--CommentsClose CommentsPermalink





(i) conduct screening and criminal history background checks under the nationwide program in accordance with the requirements of this section;CommentsClose CommentsPermalink





(ii) monitor compliance by long-term care facilities and providers with the procedures and requirements of the nationwide program;CommentsClose CommentsPermalink





(iii) as appropriate, provide for a provisional period of employment by a long-term care facility or provider of a direct patient access employee, not to exceed 30 days, pending completion of the required criminal history background check and, in the case where the employee has appealed the results of such background check, pending completion of the appeals process, during which the employee shall be subject to direct on-site supervision (in accordance with procedures established by the State to ensure that a long-term care facility or provider furnishes such direct on-site supervision);CommentsClose CommentsPermalink





(iv) 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 the nationwide program, including the specification of criteria for appeals for direct patient access employees found to have disqualifying information which shall include consideration of the passage of time, extenuating circumstances, demonstration of rehabilitation, and relevancy of the particular disqualifying information with respect to the current employment of the individual;CommentsClose CommentsPermalink





(v) provide for the designation of 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 long-term care facility or provider (or the designated agent of the long-term care facility or provider) utilizing a search of State and Federal criminal history records, including a fingerprint check of such records;CommentsClose CommentsPermalink





(II) overseeing the design of appropriate privacy and security safeguards for use in the review of 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 long-term care facility or provider that requested the criminal history background check 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





(vi) determine which individuals are direct patient access employees (as defined in paragraph (6)(B)) for purposes of the nationwide program;CommentsClose CommentsPermalink





(vii) as appropriate, specify offenses, including convictions for violent crimes, for purposes of the nationwide program; andCommentsClose CommentsPermalink





(viii) describe and test methods that reduce duplicative fingerprinting, including providing for the development of ‘rap back’ capability such that, if a direct patient access employee of a long-term care facility or provider 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--CommentsClose CommentsPermalink





(I) the department will immediately inform the State agency designated under clause (v) and such agency will immediately inform the facility or provider which employs the direct patient access employee of such conviction; andCommentsClose CommentsPermalink





(II) the State will provide, or will require the facility to provide, to the employee a copy of the results of the criminal history background check conducted with respect to the employee at no charge in the case where the individual requests such a copy.CommentsClose CommentsPermalink





(5) PAYMENTS-CommentsClose CommentsPermalink





(A) NEWLY PARTICIPATING STATES-CommentsClose CommentsPermalink





(i) IN GENERAL- As part of the application submitted by a State under paragraph (1)(A)(iii), the State shall guarantee, with respect to the costs to be incurred by the State in carrying out the nationwide program, that the State will make available (directly or through donations from public or private entities) a particular amount of non-Federal contributions, as a condition of receiving the Federal match under clause (ii).CommentsClose CommentsPermalink





(ii) FEDERAL MATCH- The payment amount to each State that the Secretary enters into an agreement with under paragraph (1)(A) shall be 3 times the amount that the State guarantees to make available under clause (i), except that in no case may the payment amount exceed $3,000,000.CommentsClose CommentsPermalink





(B) PREVIOUSLY PARTICIPATING STATES-CommentsClose CommentsPermalink





(i) IN GENERAL- As part of the application submitted by a State under paragraph (1)(B)(iii), the State shall guarantee, with respect to the costs to be incurred by the State in carrying out the nationwide program, that the State will make available (directly or through donations from public or private entities) a particular amount of non-Federal contributions, as a condition of receiving the Federal match under clause (ii).CommentsClose CommentsPermalink





(ii) FEDERAL MATCH- The payment amount to each State that the Secretary enters into an agreement with under paragraph (1)(B) shall be 3 times the amount that the State guarantees to make available under clause (i), except that in no case may the payment amount exceed $1,500,000.CommentsClose CommentsPermalink





(6) DEFINITIONS- Under the nationwide program:CommentsClose CommentsPermalink





(A) LONG-TERM CARE FACILITY OR PROVIDER- The term ‘long-term care facility or provider’ means the following facilities or providers which receive payment for services under title XVIII or XIX of the Social Security Act:CommentsClose CommentsPermalink





(i) A skilled nursing facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C. 1395i-3(a)).CommentsClose CommentsPermalink





(ii) A nursing facility (as defined in section 1919(a) of such Act (42 U.S.C. 1396r(a)).CommentsClose CommentsPermalink





(iii) A home health agency.CommentsClose CommentsPermalink





(iv) A provider of hospice care (as defined in section 1861(dd)(1) of such Act (42 U.S.C. 1395x(dd)(1)).CommentsClose CommentsPermalink





(v) A long-term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act (42 U.S.C. 1395ww(d)(1)(B)(iv)).CommentsClose CommentsPermalink





(vi) A provider of personal care services.CommentsClose CommentsPermalink





(vii) A provider of adult day care.CommentsClose CommentsPermalink





(viii) 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





(ix) An intermediate care facility for the mentally retarded (as defined in section 1905(d) of such Act (42 U.S.C. 1396d(d)).CommentsClose CommentsPermalink





(x) Any other facility or provider of long-term care services under such titles as the participating State determines appropriate.CommentsClose CommentsPermalink





(B) DIRECT PATIENT ACCESS EMPLOYEE- The term ‘direct patient access employee’ means any individual who has access to a patient or resident of a long-term care facility or provider through employment or through a contract with such facility or provider and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider, as determined by the State for purposes of the nationwide program. 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 long-term care facility or provider.CommentsClose CommentsPermalink





(7) EVALUATION AND REPORT-CommentsClose CommentsPermalink





(A) EVALUATION- The Inspector General of the Department of Health and Human Services shall conduct an evaluation of the nationwide program.CommentsClose CommentsPermalink





(B) REPORT- Not later than 180 days after the completion of the nationwide program, the Inspector General of the Department of Health and Human Services shall submit a report to Congress containing the results of the evaluation conducted under subparagraph (A).CommentsClose CommentsPermalink





(b) Funding-CommentsClose CommentsPermalink





(1) NOTIFICATION- The Secretary of Health and Human Services shall notify the Secretary of the Treasury of the amount necessary to carry out the nationwide program under this section for the period of fiscal years 2010 through 2012, except that in no case shall such amount exceed $160,000,000.CommentsClose CommentsPermalink





(2) 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 Health and Human Services of the amount specified as necessary to carry out the nationwide program under paragraph (1). Such amount shall remain available until expended.CommentsClose CommentsPermalink

SEC. 4. MANDATORY STATE USE OF NATIONAL CORRECT CODING INITIATIVE.

(a) In General- Section 1903(r) of the Social Security Act (42 U.S.C. 1396b(r)), as amended by section 3(a) of the QI Program Supplemental Funding Act of 2008 (Public Law 110-379), is amended--CommentsClose CommentsPermalink





(1) in paragraph (1)(B)--CommentsClose CommentsPermalink





(A) in clause (ii), by striking ‘and’ at the end;CommentsClose CommentsPermalink





(B) in clause (iii), by adding ‘and’ after the semicolon; andCommentsClose CommentsPermalink





(C) by adding at the end the following new clause:CommentsClose CommentsPermalink





‘(iv) effective for claims filed on or after October 1, 2010, incorporate compatible methodologies of the National Correct Coding Initiative administered by the Secretary (or any successor initiative to promote correct coding and to control improper coding leading to inappropriate payment) and such other methodologies of that Initiative (or such other national correct coding methodologies) as the Secretary identifies in accordance with paragraph (4);’; andCommentsClose CommentsPermalink





(2) by adding at the end the following new paragraph:CommentsClose CommentsPermalink





‘(4) Not later than September 1, 2010, the Secretary shall do the following:CommentsClose CommentsPermalink





‘(A) Identify those methodologies of the National Correct Coding Initiative administered by the Secretary (or any successor initiative to promote correct coding and to control improper coding leading to inappropriate payment) which are compatible to claims filed under this title.CommentsClose CommentsPermalink





‘(B) Identify those methodologies of such Initiative (or such other national correct coding methodologies) that should be incorporated into claims filed under this title with respect to items or services for which States provide medical assistance under this title and no national correct coding methodologies have been established under such Initiative with respect to title XVIII.CommentsClose CommentsPermalink





‘(C) Notify States of--CommentsClose CommentsPermalink





‘(i) the methodologies identified under subparagraphs (A) and (B) (and of any other national correct coding methodologies identified under subparagraph (B)); andCommentsClose CommentsPermalink





‘(ii) how States are to incorporate such methodologies into claims filed under this title.CommentsClose CommentsPermalink





‘(D) Submit a report to Congress that includes the notice to States under subparagraph (C) and an analysis supporting the identification of the methodologies made under subparagraphs (A) and (B).’.CommentsClose CommentsPermalink





(b) Extension for State Law Amendment- In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) which the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendment made by subsection (a)(1)(C), the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session is considered to be a separate regular session of the State legislature.CommentsClose CommentsPermalink