Elderly and Disabled Protection Act of 1998 - Declares that a nursing facility (including a skilled nursing facility), home health agency, or hospice program (covered facility) under the Medicare and Medicaid programs of titles XVIII and XIX of the Social Security Act may not: (1) employ an individual as a direct care employee unless the facility has requested from the State direct care employee registry a background check (including a criminal as well as an abusive work history background check); or (2) continue to employ such an individual if the background check report reveals a conviction of a disqualifying crime. Requires the covered facility to report to such registry documented findings of patient abuse by a direct care employee. Imposes civil penalties upon covered facilities that violate such requirements.
Defines "direct care employee" as a paid, nonvolunteer nurse aide, home health care aide, personal care assistant, private duty nurse aide, day attendant, housekeeper, library attendant, laundry assistant, or similar worker who performs nursing or related tasks involving direct patient care in a covered facility.
Requires the Secretary of Health and Human Services to establish methods by which State direct care registries can pool and share criminal background check summaries and documented findings of patient abuse (national registry coordination system). Requires each State to expand its direct care employee registry in order to carry out such background checks and other related functions, including reporting of summary information to the national registry coordination system.
Sets forth procedures for criminal and abusive work history background checks.
[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4789 Introduced in House (IH)]
105th CONGRESS
2d Session
H. R. 4789
To require criminal and abusive work history background checks for
direct care employees in nursing facilities, home health agencies, and
hospice programs under the Medicare and Medicaid Programs, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 10, 1998
Mr. Weller (for himself and Mr. Ney) introduced the following bill;
which was referred to the Committee on Commerce, and in addition to the
Committee on Ways and Means, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as
fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To require criminal and abusive work history background checks for
direct care employees in nursing facilities, home health agencies, and
hospice programs under the Medicare and Medicaid Programs, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Elderly and
Disabled Protection Act of 1998''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Requiring background checks for direct care employees in
nursing facilities, home health agencies,
and hospice programs.
Sec. 3. Expanded role of State direct care employee registries;
national registry coordination system;
procedures for background checks.
Sec. 4. Definitions.
SEC. 2. REQUIRING BACKGROUND CHECKS FOR DIRECT CARE EMPLOYEES IN
NURSING FACILITIES, HOME HEALTH AGENCIES, AND HOSPICE
PROGRAMS.
(a) Requirements.--
(1) In general.--A covered facility in a State--
(A) may not employ (directly or through an agency)
any individual as a direct care employee unless the
facility has requested from the State direct care
employee registry a background check;
(B) may not employ such an individual or continue
such employment if the report on such background check
reveals that the individual has been convicted of a
disqualifying crime; and
(C) shall report to such registry documented
findings of patient abuse by a direct care employee.
(2) Employment pending report.--Nothing in this subsection
shall be construed as preventing a covered facility from--
(A) seeking a background check on prospective
direct care employees before they are employed; or
(B) employing direct care employees during the
period in which a background check has been sought
under paragraph (1)(A) and before a report on such
check has been provided to the facility under paragraph
(1)(B).
(b) Penalties.--In addition to any other sanctions provided under
law--
(1) In general.--A covered facility that violates
subsection (a)(1)(A) shall be subject to a civil penalty in an
amount not to exceed--
(A) for the first such violation, $2,000; and
(B) for the second and each subsequent violation
within any 5-year period, $5,000.
(2) Knowing retention of worker.--In addition to any civil
penalty under paragraph (1), a covered facility that--
(A) knowingly continues to employ a direct care
employee in violation of subsection (a)(1)(B); or
(B) knowingly fails to submit a report required
under subsection (a)(1)(C);
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.
(c) Enforcement Through Medicare and Medicaid Programs.--
(1) Nursing facilities.--
(A) Medicare program.--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:
``(8) Requirement for background checks for direct care
personnel.--A skilled nursing facility shall comply with the
requirements of section 2(a) of the Elderly and Disabled
Protection Act of 1998 with respect to any direct care employee
it employs.''.
(B) Medicaid program.--Section 1919(b) of such Act
(42 U.S.C. 1396r(b)) is amended by adding at the end
the following new paragraph:
``(8) Requirement for background checks for direct care
personnel.--A nursing facility shall comply with the
requirements of section 2(a) of the Elderly and Disabled
Protection Act of 1998 with respect to any direct care employee
it employs.''.
(2) Home health agencies and hospice programs.--
(A) Medicare program.--
(i) Home health agencies.--Section 1891(a)
of such Act (42 U.S.C. 1395bbb(a)) is amended
by adding at the end the following:
``(7) The agency complies with the requirements of section
2(a) of the Elderly and Disabled Protection Act of 1998 with
respect to any direct care employee it employs.''.
(ii) Hospice programs.--Section
1861(dd)(2)(G) of such Act (42 U.S.C.
1395x(dd)(2)(G)) is amended by inserting before
the period at the end the following: ``,
including compliance with the requirements of
section 2(a) of the Elderly and Disabled
Protection Act of 1998 with respect to any
direct care employee it employs''.
(B) Medicaid program.--Section 1902(a)(57) of such
Act (42 U.S.C. 1396a(a)(57)) is amended--
(i) by inserting ``(A)'' after ``(57)'';
and
(ii) by adding at the end the following:
``(B) provide that each provider of home health care or
personal care services and each hospice program receiving funds
under the plan shall comply with the requirements of section
2(a) of the Elderly and Disabled Protection Act of 1998 with
respect to any direct care employee it employs;''.
(d) Effective Dates.--The requirements of subsection (a) shall
apply with respect to a covered facility--
(1) beginning as of such date (specified by the Secretary
and not later than 60 days after the date the Secretary has
established the national registry coordination system under
section 3(b)), with respect to the hiring of individuals as a
direct care employee by the facility on and after such date;
and
(2) as of 1 year after the date described in paragraph (1),
with respect to individuals first employed as such an employee
before the date described in such paragraph.
SEC. 3. EXPANDED ROLE OF STATE DIRECT CARE EMPLOYEE REGISTRIES;
NATIONAL REGISTRY COORDINATION SYSTEM; PROCEDURES FOR
BACKGROUND CHECKS.
(a) Expanded Role of Registry.--
(1) In general.--Each State shall expand its direct care
employee registry established under sections 1819(e)(2) and
1919(e)(2) of the Social Security Act to carry out the
following functions:
(A) Receipt of requests.--The registry shall
provide for the receipt of requests for background
checks described in section 2(a)(1).
(B) Conduct of background checks.--Upon receipt of
such a request with respect to an individual, the
registry, in coordination with the national registry
coordination system established by the Secretary under
subsection (b) and in accordance with this section,
shall provide for the performance of (or the collection
of information concerning) a background check
(including a criminal background check and an abusive
work history background check) requested under section
2(a) and for the submittal of a background check report
(as defined in paragraph (2)) on such check to the
requesting facility.
(C) Provision of information to national registry
coordination system.--The registry shall provide for
the reporting to the national registry coordination
system of--
(i) a criminal background check summary (as
defined in paragraph (3)) on any individual on
whom it obtains a criminal background check
under subsection (c)(3); and
(ii) the identity of any individual for
whom the registry has documented findings of
patient abuse and such additional information
as the State registry involved may disclose
concerning such findings.
(2) Background check report defined.--For purposes of this
section, the term ``background check report'' means, with
respect to a background check concerning an individual, a
statement containing the following:
(A) Whether the individual has been convicted of a
disqualifying crime.
(B) Whether there are documented findings of
patient abuse by the individual in a State direct care
employee registry and, if so, such additional
information as the State registry involved may disclose
concerning such findings.
Such report shall not include information from the criminal
background check other than the information described in
subparagraph (A).
(3) Criminal background check summary defined.--For
purposes of this section, the term ``criminal background check
summary'' means, with respect to a criminal background check
concerning an individual, the following information:
(A) The identity of the individual.
(B) The date of the criminal background check.
(C) Whether the check revealed that--
(i) the individual had not been convicted
of any crime,
(ii) the individual has been convicted of a
national disqualifying crime, or
(iii) the individual has been convicted of
a crime that is not a national disqualifying
crime.
(4) Conforming medicare and medicaid amendments.--Sections
1819(e)(2) and 1919(e)(2) of the Social Security Act (42 U.S.C.
1395i-3(e)(2), 1396r(e)(2)) are each amended--
(A) in subparagraph (C), by striking ``A State''
and inserting ``Subject to section 3(e) of the Elderly
and Disabled Protection Act of 1998, a State'', and
(B) by adding at the end the following new
subparagraph:
``(D) Expanded functions.--Effective not later than
90 days after the date of the establishment of the
national registry coordination system under section
3(b) of the Elderly and Disabled Protection Act of
1998, the State shall--
``(i) modify the operations of its registry
so it performs the functions required under
section 3(a) of such Act; and
``(ii) provide for the specification of a
State agency that is separate from the registry
and that will be responsible for the
performance of criminal background checks under
such section.''.
(b) National Registry Coordination System.--
(1) Establishment.--The Secretary shall establish methods
by which State direct care registries can pool and share
information regarding individuals concerning criminal
background check summaries and the existence of documented
findings of patient abuse.
(2) Deadline for establishing system.--The Secretary shall
provide for the establishment of the national registry
coordination system by not later than 1 year after the date of
the enactment of this Act.
(3) Consultation with fbi on criminal background checks.--
In carrying out this Act with respect to criminal background
checks, the Secretary shall consult with the Director of the
Federal Bureau of Investigation.
(c) Procedures for Criminal Background Checks.--A registry shall
carry out its responsibilities under subsection (a)(1)(B), in relation
to a criminal background check with respect to an individual, in a
manner consistent with the following:
(1) Determination of whether recent criminal background
check done.--The registry shall determine whether the registry
(or, through the national registry coordination system, the
direct care employee registry of another State) has obtained a
criminal background check on the individual within the previous
year.
(2) Use of previous background check.--If there has been
such a check done within such period, if the check revealed
that--
(A) the individual had not been convicted of any
crime, the registry need not request a new criminal
background check and may assume that the individual has
not been convicted of any disqualifying crime;
(B) the individual has been convicted of a national
or state disqualifying crime, the registry need not
request a new criminal background check and shall treat
the individual as having been convicted of a
disqualifying crime; or
(C) the individual has been convicted of a crime
that is not a national or state disqualifying crime and
the State has disqualifying crimes that are other than
national disqualifying crimes, the registry shall
request a criminal background check as provided under
paragraph (3).
(3) Requesting state criminal background check agency to
obtain criminal background check.--If there has not been such a
check done within such period or in the case described in
paragraph (2)(C), the registry shall request the State criminal
background check agency of the State--
(A) to perform a criminal background check on the
individual;
(B) to determine, on the basis of such check,
whether the individual--
(i) has not been convicted of any crime;
(ii) has been convicted of a national
disqualifying crime; or
(iii) has been convicted of a crime that is
a State disqualifying crime; and
(C) to submit to the registry a criminal background
check summary on the individual.
(4) Application of certain procedures for criminal
background checks.--Under regulations of the Secretary, the
following provisions in section 3 of the National Child
Protection Act of 1993 (Public Law 103-209) shall apply to
criminal background checks required of a direct care employee
with respect to a covered facility to be performed under this
Act in the same manner as they apply to providers with respect
to qualified entities:
(A) Subsection (a)(2) (relating to access to
records and timeliness of response).
(B) Subsection (b) (relating to guidelines on
background checks), other than paragraph (1)(B), except
that denial of unsupervised access under paragraph
(1)(E) shall be treated for purposes of this section as
a denial of unsupervised access to patients in covered
facilities and determinations under paragraph (4) shall
be made only with respect to crimes relating to patient
abuse.
(C) Subsection (c) (relating to authority of
Attorney General).
(D) Subsection (d) (relating to limitation on
liability).
(d) Procedures for Abusive Work History Background Checks.--A
registry shall carry out its responsibilities under subsection
(a)(1)(B), in relation to abusive work history background check with
respect to an individual, in a manner consistent with the following:
(1) Inclusion of information on documented findings of
patient abuse.--The registry shall maintain a list of all
individuals in the State who are (or were) direct care
employees and with respect to whom there are specific
documented findings of patient abuse, as well as any brief
statement of the individual disputing the findings. Such
findings shall be made available in the same manner as findings
described in sections 1819(c)(2)(B) and 1919(c)(2)(B) of the
Social Security Act.
(2) Forwarding information on individuals with documented
findings of patient abuse.--If the registry has a documented
finding described in paragraph (1) with respect to an
individual, the registry--
(A) shall provide the national registry
coordination system with--
(i) information on the identity of the
individual and the State;
(ii) information on the fact that such a
finding was made; and
(iii) such additional information
respecting the finding as the Secretary may
require; and
(B) shall provide, to another State direct care
employee registry that requests information on an
individual for whom such a documented finding has been
made through the system, information respecting the
finding.
(e) Fees.--A State may assess a covered facility a fee for the
conduct of a background check under section 2(a) in an amount that does
not exceed the actual cost to the State of obtaining the criminal
background check and the abusive work history background check on an
individual. Such a facility may recover all of the fee from the
individual involved.
SEC. 4. DEFINITIONS.
For purposes of this Act:
(1) Background check; criminal background check; abusive
work history background check.--
(A) Background check.--The term ``background
check'' includes a criminal background check and an
abusive work history background check.
(B) Criminal background check.--The term ``criminal
background check'' means a check of the criminal
history record system maintained by the Federal Bureau
of Investigation based on fingerprint identification or
any other method of positive identification for the
purpose of determining whether an individual has been
convicted of a disqualifying crime.
(C) Abusive work history background check.--The
term ``abusive work history background check'' means,
with respect to an individual, a check of State direct
care employee registries for the purpose of determining
whether there is a documented finding that the
individual was involved in patient abuse.
(2) Covered facility.--The term ``covered facility'' means
a nursing facility (including a skilled nursing facility), home
health agency, or hospice program which receives payment under
any federally funded program.
(3) Direct care employee.--
(A) In general.--The term ``direct care employee''
means a nurse aide, home health care aide, personal
care assistant, private duty nurse aide, day attendant,
housekeeper, library attendant, laundry assistant, or
similar worker who performs nursing or related tasks
involving direct patient care in a covered facility.
(B) Exclusions.--Such term does not include an
individual--
(i) who is a physician, physician
assistant, nurse practitioner, physical,
speech, or occupational therapist, physical or
occupational therapy assistant, registered
professional nurse, licensed practical nurse,
or licensed or certified social worker, or
registered dietitian;
(ii) who volunteers to provide such
services without monetary compensation; or
(iii) who meets such other requirements as
the Secretary may specify.
(4) Disqualifying crime; national disqualifying crime;
state disqualifying crime.--
(A) Disqualifying crime.--The term ``disqualifying
crime'' means, with respect to an individual applying
for employment in a State, a criminal offense that is a
national disqualifying crime or a State disqualifying
crime in that State.
(B) National disqualifying crime.--The term
``national disqualifying crime'' means--
(i) a criminal offense described in section
1128(a) of the Social Security Act; or
(ii) felony homicide, battery, or assault
(including sexual assault),
regardless of the date of conviction for the crime.
(C) State disqualifying crime.--The term ``State
disqualifying crime'' means, with respect to a State,
such criminal offenses (other than national
disqualifying crimes) as the State may under law treat
as a State disqualifying crime for purposes of this Act
and for such period of time as the State may provide.
(5) National registry coordination system.--The term
``national registry coordination system'' means a system
established under section 3(b).
(6) Patient abuse.--The term ``patient abuse'' means such
incidence of abuse, neglect, mistreatment, or misappropriation
of property of an individual receiving services in a covered
facility as the Secretary shall specify in regulations.
(7) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(8) State criminal background check agency.--The term
``State criminal background check agency'' means, with respect
to a State, the State agency specified by the State to provide
for the conduct of criminal background checks under this Act.
(9) State direct care employee registry.--The term ``State
direct care employee registry'' means a nurse aide registry
that is established under sections 1819(e)(2)(A) and
1919(e)(2)(A) of the Social Security Act and that provides for
functions required of such a registry under section 3 of this
Act.
<all>
Introduced in House
Introduced in House
Referred to House Commerce
Referred to the Committee on Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to House Ways and Means
Referred to the Subcommittee on Health and Environment.
Llama 3.2 · runs locally in your browser
Ask anything about this bill. The AI reads the full text to answer.
Enter to send · Shift+Enter for new line