Protecting Residents with Oversight, Transparency, and Enforcement for Compassionate Treatment in Long Term Care Facilities Act or the PROTECT Long Term Care Facilities Act
This bill establishes a series of requirements for Medicare skilled nursing facilities and Medicaid nursing facilities during declared emergencies relating to infectious disease outbreaks, including specific survey and reporting requirements, and provides funds for state survey agencies to conduct related investigations.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8574 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 8574
To amend titles XVIII and XIX of the Social Security Act to increase
enforcement under Medicare and Medicaid for skilled nursing facilities
and nursing facilities during the COVID-19 emergency period and other
infectious disease outbreak periods, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 9, 2020
Ms. Sherrill (for herself, Mr. Pascrell, Mrs. Watson Coleman, Mr.
Sires, Mr. Beyer, Mr. Payne, Mr. Doggett, Ms. Shalala, Ms. Judy Chu of
California, and Mr. Kildee) 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 concerned
_______________________________________________________________________
A BILL
To amend titles XVIII and XIX of the Social Security Act to increase
enforcement under Medicare and Medicaid for skilled nursing facilities
and nursing facilities during the COVID-19 emergency period and other
infectious disease outbreak periods, 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.
This Act may be cited as the ``Protecting Residents with Oversight,
Transparency, and Enforcement for Compassionate Treatment in Long Term
Care Facilities Act'' or the ``PROTECT Long Term Care Facilities Act''.
SEC. 2. INCREASED ENFORCEMENT UNDER MEDICARE AND MEDICAID FOR SKILLED
NURSING FACILITIES AND NURSING FACILITIES DURING THE
COVID-19 EMERGENCY PERIOD AND OTHER INFECTIOUS DISEASE
OUTBREAK PERIODS.
(a) Additional Funding to State Survey Agencies.--
(1) Appropriations.--Out of any funds in the Treasury not
otherwise appropriated, there is appropriated to the Secretary
of Health and Human Services $100,000,000 for fiscal year 2021
to be provided, in addition to any funds otherwise made
available and in accordance with paragraph (2), to State survey
and certification agencies (described in subsection (f) of
section 1128I of the Social Security Act (42 U.S.C. 1320a-7j))
for the following purposes:
(A) To complete surveys conducted pursuant to the
amendments made by subsection (b) for facilities (as
defined in subsection (a) of such section 1128I).
(B) To increase investigations and surveys
performed pursuant to sections 1919(g)(4) of such Act
(42 U.S.C. 1396r(g)(2)) and 1819(g)(4) of such Act (42
U.S.C. 1395i-3(g)(4)) based on criteria developed
pursuant to paragraph (7)(B) of section 1819(h) of such
Act, as added by subsection (b)(1)(C), and paragraph
(10)(B) of section 1919(h) of such Act, as added by
subsection (b)(2)(C).
(C) To purchase personal protective equipment for
surveyors to conduct surveys and investigations of
facilities (as defined in subsection (a) of such
section 1128I) to ensure worker safety.
(D) To increase staffing levels at such State
survey and certification agencies.
(2) Allocation of funding.--The Secretary shall allocate
funds appropriated under paragraph (1) based on the following
prioritization:
(A) First to State survey and certification
agencies (as described in subsection (f) of such
section 1128I) serving populations with a high burden,
as defined by the Secretary of Health and Human
Services, of COVID-19.
(B) Second to such agencies preparing for, or
working to mitigate, a COVID-19 surge or any similar
infectious disease outbreak.
(C) Third to such agencies serving a high number,
as defined by the Secretary, of low-income, uninsured,
or under-insured populations, including medically
underserved populations.
(D) Fourth to such agencies, as determined by the
Secretary, based on the size of their nursing home
population.
(E) Fifth to any other such agencies.
(b) Special Rules During COVID-19 Emergency Period and Other
Infectious Disease Outbreak Periods.--
(1) Medicare.--
(A) In general.--Section 1819(g)(2) of the Social
Security Act (42 U.S.C. 1395i-3(g)(2)) is amended by
adding at the end the following new subparagraph:
``(F) COVID-19 emergency period and other
infectious disease outbreak periods.--
``(i) In general.--Notwithstanding any
other provision of this paragraph, during an
infectious disease outbreak period (as defined
in clause (ii)), with respect to a State, the
following shall apply:
``(I) Each skilled nursing facility
shall be subject to a standard survey
under subparagraph (A) not later than 4
weeks after the beginning of such
period and every 6 months after the
date of the previous standard survey
conducted under such subparagraph.
``(II) Follow-up surveys under this
paragraph shall be conducted based on
if the skilled nursing facility is
found to be--
``(aa) a facility with
substandard quality of care;
``(bb) a facility not in
substantial compliance;
``(cc) a facility reporting
less than three hours of direct
care staff per resident per
day;
``(dd) a facility that has
reported no registered nurses
for four or more days in a
quarter; or
``(ee) a facility with an
overall score of 2 or less
stars on nursing home compare.
``(III) In the case of a skilled
nursing facility which is found under a
standard survey or extended survey to
be in substantial compliance, State
survey and certification agencies
(described in subsection (f) of section
1128I) shall have flexibility with
regards to the timing of conducting
such a follow-up standard survey.
``(IV) A skilled nursing facility
which is found, under a standard survey
or extended survey, to have provided
substandard quality of care shall be
treated as being identified by the
Secretary as having substantially
failed to meet applicable requirement
of this Act for purposes of subsection
(f)(8).
``(V) In the case of a skilled
nursing facility that is subject to an
extended survey under subparagraph (B),
such extended survey shall be conducted
as soon as practical after the standard
survey for such facility, but not later
than 4 weeks after the date of
completion of such standard survey.
``(VI) A skilled nursing facility
which is found, under a standard survey
or extended survey to have provided
substandard quality of care shall be
surveyed at least once every 6 months,
thereafter until the infectious disease
outbreak period ends.
``(VII) Surveys under this
paragraph shall be conducted in a
manner that prioritizes skilled nursing
facilities located in towns (or
counties, if municipal-level is not
available) with higher infection rate,
as identified by the Secretary, and
facilities with previous violations of
requirements of this Act.
``(VIII) Any skilled nursing
facility reporting (as determined by
the Centers for Medicare & Medicaid
Services) fewer than three hours of
direct care staff time per resident per
day, with \1/2\ hour of registered
nurse time included or any skilled
nursing facility that has reported no
registered nurse for four or more days.
``(ii) Infectious disease outbreak period
defined.--For purposes of this subparagraph,
the term `infectious disease outbreak period'
means any of the following periods:
``(I) COVID-19 emergency period.--
The emergency period described in
section 1135(g)(1)(B).
``(II) Other infectious disease
outbreak periods.--
``(aa) The period beginning
on the date a nationwide
emergency related to a public
health emergency is declared
pursuant to the Stafford Act, a
Major Disaster Declaration, or
the National Emergencies Act
and ending on the date that is
6 months after the date on
which the declaration pursuant
to the Stafford Act, a Major
Disaster Declaration, or the
National Emergencies Act, as
applicable, ends, whichever is
the latest.
``(bb) The period during
which there exists a public
health emergency related to an
infectious disease outbreak
declared by the Secretary
pursuant to section 319 of the
Public Health Service Act.
``(cc) With respect to a
skilled nursing facility in a
State with respect to which the
Governor has declared an
emergency or major disaster (as
defined by the State) with
respect to an infectious
disease outbreak, the period
for which such declaration is
in effect with respect to such
State.''.
(B) Internet portal and hotline number.--Section
1819(e) of the Social Security Act (42 U.S.C. 1395i-
3(e)) is amended by adding at the end the following new
paragraph:
``(6) Internet portal and hotline number.--By not later
than one year after the date of the enactment of this
paragraph, the State shall have in place and maintain an
Internet portal and hotline number (which may be such a portal
or hotline in existence before the date of the enactment of
this paragraph) for staff of nursing facilities, residents of
such facilities, family of such residents, the State long-term
care ombudsman (established under title III or VII of the Older
Americans Act of 1965 in accordance with section 712 of the
Act), or the general public to report violations of
requirements of this section by such facilities. The Secretary
shall establish a process under which each violation so
reported shall be preliminarily investigated by a State survey
and certification agency (described in subsection (f) of
section 1128I) and based on the results of such preliminary
investigation may be subject to a subsequent more comprehensive
investigation by such agency, in coordination with the
Secretary.''.
(C) Increased penalties.--Section 1819(h) of the
Social Security Act (42 U.S.C. 1395i-3(h)) is amended
by adding at the end the following new paragraph:
``(7) Special rules during covid-19 emergency period and
other infectious disease outbreak periods.--
``(A) In general.--Notwithstanding any other
provision of this subsection, during an infectious
disease outbreak period (as defined in subsection
(g)(2)(F)(ii)), with respect to a State, the following
shall apply:
``(i) In the cases of an outbreak specific
violation, a civil monetary penalty under
paragraph (2)(B)(ii)(I) may not be waived or
reduced by the Secretary.
``(ii) In the case of a repeat deficiency
relating to any violation of a skilled nursing
facility during a 15-month period, any civil
monetary penalty under paragraph (2)(B)(ii)(I),
shall be doubled.
``(iii) In the case of a second outbreak
specific violation of a skilled nursing
facility during such period, the facility shall
be treated as being identified by the Secretary
(or may be identified by the top State health
official, in accordance with a process
specified by the Secretary) as having
substantially failed to meet applicable
requirement of this Act for purposes of
subsection (f)(8) for the remainder of such
period.
``(B) Outbreak specific violation.--For purposes of
this paragraph, the Secretary, through the Centers for
Medicare & Medicaid Services, shall develop the
following:
``(i) In the case of an infectious disease
outbreak period with respect to COVID-19,
criteria for determining an outbreak specific
violation with respect to COVID-19, including--
``(I) criteria specified by the
Centers for Disease Control and
Prevention relating to infection rates,
mortality rates, and hospitalization
rates; and
``(II) criteria for staff
shortages, overcrowding (and ability to
cohort), and insufficient personal
protective equipment.
``(ii) In the case of an infectious disease
outbreak period other than with respect to
COVID-19, criteria for determining an outbreak
specific violation specific to such outbreak
period.''.
(D) Reporting.--Section 1819(d)(4) of the Social
Security Act (42 U.S.C. 1395i-3(d)(4)) is amended by
adding at the end the following new subparagraph:
``(C) COVID-19 and infectious disease outbreak
reporting and notification.--
``(i) In general.--A skilled nursing
facility must, with respect to an infectious
disease outbreak period (as defined in
subsection (g)(2)(F)(ii))--
``(I) electronically submit, at a
frequency specified by the Secretary,
but no less than once weekly and in a
standardized format specified by the
Secretary, to the National Healthcare
Safety Network of the Centers for
Disease Control and Prevention
information on--
``(aa) the number of
suspected and confirmed cases
among residents and staff of
the facility, of--
``(AA) in the case
of the period described
in subclause (I) of
such section, COVID-19
(including with respect
to residents of the
facility previously
treated for COVID-19);
and
``(BB) in the case
of the period described
in subclause (II) of
such section, the
infectious disease that
is the reason for which
such period is declared
(including with respect
to residents of the
facility previously
treated for such
infectious disease);
``(bb) the number of deaths
(including residents who die
outside the facility and deaths
related to COVID-19 or the
infectious disease, as
applicable) among residents and
staff of the facility;
``(cc) the amount of
personal protective equipment
and hand hygiene supplies in
the facility, including how
many days supply;
``(dd) ventilator capacity
and related supplies in the
facility;
``(ee) the number of
resident beds at the facility
and census;
``(ff) access to COVID-19
or the infectious disease, as
applicable, testing available
in the facility for residents
of the facility;
``(gg) any staffing
shortages; and
``(hh) any other
information specified by the
Secretary; and
``(II) in the case of the
occurrence at the facility of either a
single confirmed infection of COVID-19
or the infectious disease (as
applicable) or of three or more
residents or staff at the facility with
new-onset of respiratory symptoms
occurring within 72 hours of each
other, inform residents of the
facility, representatives of such
residents, and families of the
residents of such occurrence by not
later than 5 p.m. on the calendar day
following such occurrence.
``(ii) Information.--The information
provided under clause (ii)(II) must--
``(I) not include personally
identifiable information;
``(II) include information on
mitigating actions implemented to
prevent or reduce the risk of
transmission, including if normal
operations of the facility will be
altered; and
``(III) include any cumulative
updates for residents, representatives,
and families at least weekly (or, in
the case of a subsequent occurrence
described in such clause (ii)(II), by
not later than 5 p.m. on the calendar
day following such subsequent
occurrence).
``(iii) CMS posting.--The information
submitted under clause (ii)(I) shall be
publicly posted on a weekly basis by the
Centers for Medicare & Medicaid Service to
support protecting the health and safety of
residents, personnel, and the general
public.''.
(2) Medicaid.--
(A) In general.--Section 1919(g)(2) of the Social
Security Act (42 U.S.C. 1396r(g)(2)) is amended by
adding at the end the following new subparagraph:
``(F) COVID-19 emergency period and other
infectious disease outbreak periods.--
``(i) In general.--Notwithstanding any
other provision of this paragraph, during an
infectious disease outbreak period (as defined
in clause (ii)), with respect to a State, the
following shall apply:
``(I) Each nursing facility shall
be subject to a standard survey under
subparagraph (A) not later than 4 weeks
after the beginning of such period and
every 6 months after the date of the
previous standard survey conducted
under such subparagraph.
``(II) Follow-up surveys under this
paragraph shall be conducted based on
if the skilled nursing facility is
found to be--
``(aa) a facility with
substandard quality of care;
``(bb) a facility not in
substantial compliance;
``(cc) a facility reporting
less than three hours of direct
care staff per resident per
day;
``(dd) a facility that has
reported no registered nurses
for four or more days in a
quarter; or
``(ee) a facility with an
overall score of 2 or less
stars on nursing home compare.
``(III) In the case of a nursing
facility which is found under a
standard survey or extended survey to
be in substantial compliance, State
survey and certification agencies
(described in subsection (f) of section
1128I) shall have flexibility with
regards to the timing of conducting
such a follow-up standard survey.
``(IV) A nursing facility which is
found, under a standard survey or
extended survey, to have provided
substandard quality of care shall be
treated as being identified by the
Secretary as having substantially
failed to meet applicable requirement
of this Act for purposes of subsection
(f)(10).
``(V) In the case of a nursing
facility that is subject to an extended
survey under subparagraph (B), such
extended survey shall be conducted as
soon as practical after the standard
survey for such facility, but not later
than 4 weeks after the date of
completion of such standard survey.
``(VI) A nursing facility which is
found, under a standard survey or
extended survey to have provided
substandard quality of care shall be
surveyed at least once every 6 months,
thereafter until the infectious disease
outbreak period ends.
``(VII) Surveys under this
paragraph shall be conducted in a
manner that prioritizes nursing
facilities located in towns (or
counties, if municipal-level is not
available) with higher infection rate,
as identified by the Secretary, and
facilities with previous violations of
requirements of this Act.
``(VIII) Any skilled nursing
facility reporting (as determined by
the Centers for Medicare & Medicaid
Services) fewer than three hours of
direct care staff time per resident per
day, with \1/2\ hour of registered
nurse time included or any skilled
nursing facility that has reported no
registered nurse for four or more days.
``(ii) Infectious disease outbreak period
defined.--For purposes of this subparagraph,
the term `infectious disease outbreak period'
means any of the following periods:
``(I) COVID-19 emergency period.--
The emergency period described in
section 1135(g)(1)(B).
``(II) Other infectious disease
outbreak periods.--
``(aa) The period beginning
on the date a nationwide
emergency related to a public
health emergency is declared
pursuant to the Stafford Act, a
Major Disaster Declaration, or
the National Emergencies Act
and ending on the date that is
6 months after the date on
which the declaration pursuant
to the Stafford Act, a Major
Disaster Declaration, or the
National Emergencies Act, as
applicable, ends, whichever is
the latest.
``(bb) The period during
which there exists a public
health emergency related to an
infectious disease outbreak
declared by the Secretary
pursuant to section 319 of the
Public Health Service Act.
``(cc) With respect to a
nursing facility in a State
with respect to which the
Governor has declared an
emergency or major disaster (as
defined by the State) with
respect to an infectious
disease outbreak, the period
for which such declaration is
in effect with respect to such
State.''.
(B) Internet portal and hotline number.--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:
``(9) Internet portal and hotline number.--By not later
than one year after the date of the enactment of this
paragraph, the State shall have in place and maintain an
Internet portal and hotline number (which may be such a portal
or hotline in existence before the date of the enactment of
this paragraph) for staff of nursing facilities, residents of
such facilities, family of such residents, the State long-term
care ombudsman (established under title III or VII of the Older
Americans Act of 1965 in accordance with section 712 of the
Act), or the general public to report violations of
requirements of this section by such facilities. The Secretary
shall establish a process under which each violation so
reported shall be preliminarily investigated by a State survey
and certification agency (described in subsection (f) of
section 1128I) and based on the results of such preliminary
investigation may be subject to a subsequent more comprehensive
investigation by such agency, in coordination with the
Secretary.''.
(C) Increased penalties.--Section 1919(h) of the
Social Security Act (42 U.S.C. 1396r(h)) is amended by
adding at the end the following new paragraph:
``(10) Special rules during covid-19 emergency period and
other infectious disease outbreak periods.--
``(A) In general.--Notwithstanding any other
provision of this subsection, during an infectious
disease outbreak period (as defined in subsection
(g)(2)(F)(ii)), with respect to a State, the following
shall apply:
``(i) In the cases of an outbreak specific
violation, a civil monetary penalty under
paragraph (3)(B)(ii)(I) may not be waived or
reduced by the Secretary.
``(ii) In the case of a repeat deficiency
relating to any violation of a nursing facility
during a 15-month period, any civil monetary
penalty under paragraph (3)(B)(ii)(I) shall be
doubled.
``(iii) In the case of a second outbreak
specific violation of a nursing facility during
such period, the facility shall be treated as
being identified by the Secretary (or may be
identified by the top State health official, in
accordance with a process specified by the
Secretary) as having substantially failed to
meet applicable requirement of this Act for
purposes of subsection (f)(10) for the
remainder of such period.
``(B) Outbreak specific violation.--For purposes of
this paragraph, the Secretary, through the Centers for
Medicare & Medicaid Services, shall develop the
following:
``(i) In the case of an infectious disease
outbreak period with respect to COVID-19,
criteria for determining an outbreak specific
violation with respect to COVID-19, including--
``(I) Criteria specified by the
Centers for Disease Control and
Prevention relating to infection rates,
mortality rates, and hospitalization
rates.
``(II) Criteria for staff
shortages, overcrowding (and ability to
cohort), and insufficient personal
protective equipment.
``(ii) In the case of an infectious disease
outbreak period other than with respect to
COVID-19, criteria for determining an outbreak
specific violation specific to such outbreak
period.''.
(D) Reporting.--Section 1919(d)(4) of the Social
Security Act (42 U.S.C. 1396r(d)(4)) is amended by
adding at the end the following new subparagraph:
``(C) COVID-19 and infectious disease outbreak
reporting and notification.--
``(i) In general.--A nursing facility must,
with respect to an infectious disease outbreak
period (as defined in subsection
(g)(2)(F)(ii))--
``(I) electronically submit, at a
frequency specified by the Secretary,
but no less than once weekly and in a
standardized format specified by the
Secretary, to the National Healthcare
Safety Network of the Centers for
Disease Control and Prevention
information on--
``(aa) the number of
suspected and confirmed cases
among residents and staff of
the facility, of--
``(AA) in the case
of the period described
in subclause (I) of
such section, COVID-19
(including with respect
to residents of the
facility previously
treated for COVID-19);
and
``(BB) in the case
of the period described
in subclause (II) of
such section, the
infectious disease that
is the reason for which
such period is declared
(including with respect
to residents of the
facility previously
treated for such
infectious disease);
``(bb) the number of deaths
(including residents who die
outside the facility and deaths
related to COVID-19 or the
infectious disease, as
applicable) among residents and
staff of the facility;
``(cc) the amount of
personal protective equipment
and hand hygiene supplies in
the facility, including how
many days supply;
``(dd) ventilator capacity
and related supplies in the
facility;
``(ee) the number of
resident beds at the facility
and census;
``(ff) access to COVID-19
or the infectious disease, as
applicable, testing available
in the facility for residents
of the facility;
``(gg) any staffing
shortages; and
``(hh) any other
information specified by the
Secretary; and
``(II) in the case of the
occurrence at the facility of either a
single confirmed infection of COVID-19
or the infectious disease (as
applicable) or of three or more
residents or staff at the facility with
new-onset of respiratory symptoms
occurring within 72 hours of each
other, inform residents of the
facility, representatives of such
residents, and families of the
residents of such occurrence by not
later than 5 p.m. on the calendar day
following such occurrence.
``(ii) Information.--The information
provided under clause (ii)(II) must--
``(I) not include personally
identifiable information;
``(II) include information on
mitigating actions implemented to
prevent or reduce the risk of
transmission, including if normal
operations of the facility will be
altered; and
``(III) include any cumulative
updates for residents, representatives,
and families at least weekly (or, in
the case of a subsequent occurrence
described in such clause (ii)(II), by
not later than 5 p.m. on the calendar
day following such subsequent
occurrence).
``(iii) CMS posting.--The information
submitted under clause (ii)(I) shall be
publicly posted on a weekly basis by the
Centers for Medicare & Medicaid Service to
support protecting the health and safety of
residents, personnel, and the general public''.
<all>
Introduced in House
Introduced in House
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 concerned.
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 concerned.
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