No official summary available for this bill.
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8331 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 8331
To amend titles XVIII and XIX of the Social Security Act to require
skilled nursing facilities, nursing facilities, intermediate care
facilities for the intellectually disabled, and inpatient
rehabilitation facilities to permit essential caregivers access during
any period in which regular visitation is restricted.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 8, 2024
Ms. Tenney (for herself, Mr. Larson of Connecticut, Mr. Fitzpatrick,
Mr. Smith of Nebraska, Mr. Rutherford, Mr. Van Orden, Ms. Wild, Mr.
Carey, Mr. Lawler, Mr. Cleaver, Ms. Lee of Nevada, Mr. Ciscomani, Mr.
Bacon, Mr. Davis of North Carolina, Mr. Cohen, and Mr. Langworthy)
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 require
skilled nursing facilities, nursing facilities, intermediate care
facilities for the intellectually disabled, and inpatient
rehabilitation facilities to permit essential caregivers access during
any period in which regular visitation is restricted.
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 ``Essential Caregivers Act of 2024''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) According to the National Center for Health Statistics
of the Centers for Disease Control and Prevention, an estimated
1,300,000 individuals resided in nursing homes in 2020 at the
onset of the COVID-19 pandemic and nearly half of all nursing
home residents were living with a diagnosis of Alzheimer's or
other related dementia.
(2) Regulations issued pursuant to the Nursing Home Reform
Act of 1987 established basic rights and services for residents
of nursing homes, including ``the right to a dignified
existence, self-determination, and communication with and
access to persons and services inside and outside the
facility''.
(3) In March of 2020, the Centers for Medicare & Medicaid
Services instructed nursing facilities to restrict visitation
for all visitors and non-essential healthcare personnel and
cancel communal dining and group activities. Long-term care
ombudsman program representatives and State surveyors were
among those whose access to long-term care facilities was
prohibited or extremely restricted despite reopening guidance
released by the Centers for Medicare & Medicaid Services in May
of 2020.
(4) Many long-term care residents declined dramatically or
died prematurely from ``failure to thrive'' in isolation.
(5) According to the National Consumer Voice for Quality
Long-Term Care, in the first year of the COVID-19 pandemic, 1
in 5 healthcare workers resigned, retired, or were fired. This
exacerbated the longstanding problem of staff shortages that
already existed. Lack of staff, combined with the forced
absence of families, many of whom provided informal care and
support to residents, resulted in a significant decline in
residents' health and well-being. During the pandemic, pressure
ulcers in nursing home residents rose by 31 percent, the number
of residents experiencing significant weight loss rose by 49
percent, the number of residents reporting feeling down,
depressed, or hopeless rose by 40 percent, and the number of
residents prescribed antipsychotic medications rose by 77.5
percent.
(6) According to the Department of Health and Human
Services, loneliness and isolation, such as that experienced by
long-term care residents during the COVID-19 pandemic,
represent profound threats to an individual's health and well-
being.
(7) Essential Caregivers provide supplemental care for
their loved one, regardless of staff shortages, staff turnover,
or emergencies. Essential Caregivers support residents and
advocate on their behalf.
SEC. 3. RIGHT TO ESSENTIAL CAREGIVERS; ACCESS TO ESSENTIAL CAREGIVERS
DURING PERIODS WHEN VISITATION IS OTHERWISE RESTRICTED.
(a) Medicare Skilled Nursing Facilities.--Section 1819(c)(3) of the
Social Security Act (42 U.S.C. 1395i-3(c)(3)) is amended--
(1) by redesignating subparagraphs (A) through (E) as
clauses (i) through (v), respectively;
(2) by striking ``A skilled nursing facility must--'' and
inserting the following:
``(A) In general.--A skilled nursing facility
shall--''; and
(3) by adding at the end the following new subparagraph:
``(B) Access to essential caregivers during
emergency periods when visitation is otherwise
restricted.--
``(i) Designation of essential caregiver.--
Each skilled nursing facility shall recognize
the right of each resident of such facility
to--
``(I) designate and have access to
essential caregivers for such resident
at all times, including during any
period of emergency in which regular
visitation is restricted by order of a
Federal, State, or local authority or
by other operation of law; and
``(II) amend such designation at
any time.
``(ii) Presumption of designation.--For
purposes of clause (i), in the case of a
resident who is unable, by reason of cognitive
or mental disability, to make an election
described in such clause, the resident
representative (as defined in section 483.5 of
title 42, Code of Federal Regulations) of such
resident shall be permitted to make such
designation for such resident.
``(iii) Access to essential caregivers
during emergency periods when visitation is
otherwise restricted.--During a period of
emergency in which regular visitation is
restricted by order of a Federal, State, or
local authority or by other operation of law,
including any period in which a waiver or
modification of requirements pursuant to
section 1135 is in effect, a skilled nursing
facility shall--
``(I) not deny in-person access to
a resident by an essential caregiver of
the resident except as provided in this
subparagraph;
``(II) allow at least 1 essential
caregiver to have access to and provide
assistance to such resident at such
facility every day and at any time; and
``(III) enforce the agreement
described in clause (vii)(III) with
respect to an essential caregiver.
``(iv) Restrictions on access.--
``(I) In general.--During a period
of emergency in which regular
visitation is restricted by order of a
Federal, State, or local authority or
by other operation of law, including
any period in which a waiver or
modification of requirements pursuant
to section 1135 is in effect, a skilled
nursing facility may deny access to a
resident by an essential caregiver of
the resident for--
``(aa) an initial period of
not longer than 7 days; and
``(bb) one additional
period of not longer than 7
days (in addition to the
initial period described in
item (aa)) if the department of
health of the State in which
the facility is located
approves the denial of access
for such additional period.
``(II) Rule of application.--For
purposes of subclause (I), a period of
emergency in which regular visitation
is restricted by order of a Federal,
State, or local authority or by other
operation of law shall begin on the
date that such order or other operation
of law takes effect and shall end on
the date that such order or other
operation of law expires or is
otherwise terminated. During any such
period, the maximum number of days for
which a skilled nursing facility may
deny access to a resident by an
essential caregiver of the resident is
7 total days (or, subject to the
approval of the department of health of
the State in which the facility is
located, 14 total days).
``(v) Compliance and notification.--
``(I) Authority.--No essential
caregiver who upholds the agreement
described in clause (vii)(III) shall be
denied access to the skilled nursing
facility of the resident involved.
``(II) Notification.-- If an
essential caregiver fails to comply
with an agreement with a skilled
nursing facility described in clause
(vii)(III), the facility must first
provide a warning to the essential
caregiver and resident in writing
citing specific issues of non-
compliance and providing clear guidance
for corrective measures.
``(III) Enforcement.--If an
essential caregiver or resident, after
receiving a notification of
noncompliance described in subclause
(II), fails to take corrective action,
the essential caregiver may
subsequently be denied access to the
resident. In such cases, the facility
shall provide to such caregiver and
such resident (or health care proxy of
such resident), not later than 24 hours
after such denial of access occurs, a
written explanation as to why such
caregiver was denied access to such
resident. Such explanation must include
the resident's and caregiver's options
for appeal under the processes
established under clause (vi).
``(vi) Options for residents and caregivers
to appeal denials of access.--
``(I) In general.--Not later than 2
years after the date of enactment of
this subparagraph, the Secretary shall
issue a final rule establishing a
process for residents and caregivers to
appeal denials of access.
``(II) Appeals process.--The agency
responsible for overseeing the appeals
process established under subclause (I)
shall--
``(aa) receive appeals from
residents and essential
caregivers challenging a
decision by a skilled nursing
facility to deny access under
clause (v); and
``(bb) investigate all such
appeals within 48 hours of
receipt.
``(III) Burden of proof.--During an
appeal received under the appeals
process established under subclause
(I), if a skilled nursing facility
defends a decision to deny access to an
essential caregiver under clause (v) on
the basis that the essential caregiver
violated the agreement described in
clause (vii)(III), the skilled nursing
facility shall have the burden of proof
in demonstrating that the essential
caregiver violated such agreement.
``(IV) Resolution of appeal.--With
respect to an appeal received under the
appeals process established under
subclause (I), the agency responsible
for overseeing the appeal shall make a
determination as to whether a skilled
nursing facility violated a requirement
or prohibition of this subparagraph
within 48 hours of commencing its
investigation. If the agency determines
that a facility has violated such a
requirement or prohibition the agency
shall--
``(aa) require the facility
to allow immediate access to
the essential caregiver in
question;
``(bb) require the facility
to establish a corrective
action plan to prevent the
recurrence of such violation
within a 7-day period of
receiving notice from the
agency; and
``(cc) impose a civil money
penalty in an amount to be
determined by the agency (not
to exceed $5,000) if such
facility fails to implement the
corrective action plan with the
7-day period specified in item
(bb).
``(vii) Definition of essential
caregiver.--For purposes of this subparagraph,
the term `essential caregiver' means, with
respect to a resident of a skilled nursing
facility, an individual who--
``(I) is designated by or on behalf
of the resident pursuant to clause (i)
or clause (ii);
``(II) will provide assistance to
such resident, which may include
assistance with activities of daily
living or providing emotional support
or companionship to such resident; and
``(III) agrees to follow all safety
protocols established by such facility,
which shall be clearly specified in
writing and may be no more restrictive
than the safety protocols (including
safety standards and entry
requirements) applicable to staff of
such facility.''.
(b) Medicaid Nursing Facilities.--Section 1919(c)(3) of the Social
Security Act (42 U.S.C. 1396r(c)(3)) is amended--
(1) by redesignating subparagraphs (A) through (E) as
clauses (i) through (v), respectively;
(2) by striking ``A nursing facility must--'' and inserting
the following:
``(A) In general.--A nursing facility shall--'';
and
(3) by adding at the end the following new subparagraph:
``(B) Access to essential caregivers during
emergency periods when visitation is otherwise
restricted.--
``(i) Designation of essential caregiver.--
Each nursing facility shall recognize the right
of each resident of such facility to--
``(I) designate and have access to
essential caregivers for such resident
at all times, including during any
period of emergency in which regular
visitation is restricted by order of a
Federal, State, or local authority or
by other operation of law; and
``(II) amend such designation at
any time.
``(ii) Presumption of designation.--For
purposes of clause (i), in the case of a
resident who is unable, by reason of cognitive
or mental disability, to make an election
described in such clause, the resident
representative (as defined in section 483.5 of
title 42, Code of Federal Regulations) of such
resident shall be permitted to make such
designation for such resident.
``(iii) Access to essential caregivers
during emergency periods when visitation is
otherwise restricted.--During a period of
emergency in which regular visitation is
restricted by order of a Federal, State, or
local authority or by other operation of law,
including any period in which a waiver or
modification of requirements pursuant to
section 1135 is in effect, a nursing facility
shall--
``(I) not deny in-person access to
a resident by an essential caregiver of
the resident except as provided in this
subparagraph;
``(II) allow at least 1 essential
caregiver to have access to and provide
assistance to such resident at such
facility every day and at any time; and
``(III) enforce the agreement
described in clause (vii)(III) with
respect to an essential caregiver.
``(iv) Restrictions on access.--
``(I) In general.--During a period
of emergency in which regular
visitation is restricted by order of a
Federal, State, or local authority or
by other operation of law, including
any period in which a waiver or
modification of requirements pursuant
to section 1135 is in effect, a nursing
facility may deny access to a resident
by an essential caregiver of the
resident for--
``(aa) an initial period of
not longer than 7 days; and
``(bb) one additional
period of not longer than 7
days (in addition to the
initial period described in
item (aa)) if the department of
health of the State in which
the facility is located
approves the denial of access
for such additional period.
``(II) Rule of application.--For
purposes of subclause (I), a period of
emergency in which regular visitation
is restricted by order of a Federal,
State, or local authority or by other
operation of law shall begin on the
date that such order or other operation
of law takes effect and shall end on
the date that such order or other
operation of law expires or is
otherwise terminated. During any such
period, the maximum number of days for
which a nursing facility may deny
access to a resident by an essential
caregiver of the resident is 7 total
days (or, subject to the approval of
the department of health of the State
in which the facility is located, 14
total days).
``(v) Compliance and notification.--
``(I) Authority.--No essential
caregiver who upholds the agreement
described in clause (vii)(III) shall be
denied access to the nursing facility
of the resident involved.
``(II) Notification.-- If an
essential caregiver fails to comply
with an agreement with a nursing
facility described in clause
(vii)(III), the facility must first
provide a warning to the essential
caregiver and resident in writing
citing specific issues of non-
compliance and providing clear guidance
for corrective measures.
``(III) Enforcement.--If an
essential caregiver or resident, after
receiving a notification of
noncompliance described in subclause
(II), fails to take corrective action,
the essential caregiver may
subsequently be denied access to the
resident. In such cases, the facility
shall provide to such caregiver and
such resident (or health care proxy of
such resident), not later than 24 hours
after such denial of access occurs, a
written explanation as to why such
caregiver was denied access to such
resident. Such explanation must include
the resident's and caregiver's options
for appeal under the processes
established under clause (vi).
``(vi) Options for residents and caregivers
to appeal denials of access.--
``(I) In general.--Not later than 2
years after the date of enactment of
this subparagraph, the Secretary shall
issue a final rule establishing a
process for residents and caregivers to
appeal denials of access.
``(II) Appeals process.--The agency
responsible for overseeing the appeals
process established under subclause (I)
shall--
``(aa) receive appeals from
residents and essential
caregivers challenging a
decision by a nursing facility
to deny access under clause
(v); and
``(bb) investigate all such
appeals within 48 hours of
receipt.
``(III) Burden of proof.--During an
appeal received under the appeals
process established under subclause
(I), if a nursing facility defends a
decision to deny access to an essential
caregiver under clause (v) on the basis
that the essential caregiver violated
the agreement described in clause
(vii)(III), the nursing facility shall
have the burden of proof in
demonstrating that the essential
caregiver violated such agreement.
``(IV) Resolution of appeal.--With
respect to an appeal received under the
appeals process established under
subclause (I), the agency responsible
for overseeing the appeal shall make a
determination as to whether a nursing
facility violated a requirement or
prohibition of this subparagraph within
48 hours of commencing its
investigation. If the agency determines
that a facility has violated such a
requirement or prohibition the agency
shall--
``(aa) require the facility
to allow immediate access to
the essential caregiver in
question;
``(bb) require the facility
to establish a corrective
action plan to prevent the
recurrence of such violation
within a 7-day period of
receiving notice from the
agency; and
``(cc) impose a civil money
penalty in an amount to be
determined by the agency (not
to exceed $5,000) if such
facility fails to implement the
corrective action plan with the
7-day period specified in item
(bb).
``(vii) Definition of essential
caregiver.--For purposes of this subparagraph,
the term `essential caregiver' means, with
respect to a resident of a nursing facility, an
individual who--
``(I) is designated by or on behalf
of the resident pursuant to clause (i)
or clause (ii);
``(II) will provide assistance to
such resident, which may include
assistance with of activities of daily
living or providing emotional support
or companionship to such resident; and
``(III) agrees to follow all safety
protocols established by such facility,
which shall be clearly specified in
writing and may be no more restrictive
than the safety protocols (including
safety standards and entry
requirements) applicable to staff of
such facility.''.
(c) Intermediate Care Facilities for the Intellectually Disabled.--
Section 1905(d) of the Social Security Act (42 U.S.C. 1396d(d)) is
amended--
(1) in paragraph (2), by striking ``and'' at the end;
(2) in paragraph (3), by striking the period and inserting
``; and''; and
(3) by adding at the end the following new paragraph:
``(4) the institution complies with the requirements
relating to the designation of, and access to residents by,
essential caregivers described in section 1919(c)(3)(B) in the
same manner as if such institution were a nursing facility.''.
(d) Inpatient Rehabilitation Facilities.--Section 1866(a)(1) of the
Social Security Act (42 U.S.C. 1395cc(a)(1)) is amended--
(1) in subparagraph (X), by striking ``and'' at the end;
(2) in subparagraph (Y), by striking the period at the end
and inserting ``, and''; and
(3) by inserting after subparagraph (Y) the following new
subparagraph:
``(Z) in the case of an inpatient rehabilitation facility
that is located on the same campus (as defined by the
Secretary) as a skilled nursing facility, nursing facility (as
defined in section 1919(a)), or intermediate care facility for
the intellectually disabled (as described in section 1905(d)),
to comply with the requirements relating to the designation of,
and access to residents by, essential caregivers described in
section 1819(c)(3)(B) in the same manner as if such institution
were a skilled nursing facility.''.
(e) Regulations.--The Secretary of Health and Human Services shall,
after consultation with stakeholders (including residents, family
members, long-term care ombudsmen, other advocates of nursing home
residents, and nursing home providers), promulgate regulations to carry
out this Act and the amendments made by this Act.
(f) Rules of Construction.--
(1) No new authority for state and local officials to
restrict visitation at nursing facilities.--Nothing in this
section or the amendments made by this section shall be
construed as creating any new authority for State or local
officials to restrict visitation at nursing facilities.
(2) No new authority for nursing facilities to unilaterally
restrict visitation.--Nothing in this section or the amendments
made by this section shall be construed as creating any new
authority for a skilled nursing facility or nursing facility
(as such terms are defined in sections 1819 and 1919 of the
Social Security Act, respectively (42 U.S.C. 1395i-3, 1396r))
to restrict visitation.
(g) Effective Date.--The amendments made by this Act shall take
effect on the date that is 24 months after the date of the enactment of
this Act, and shall apply with respect to periods beginning on or after
such date in which regular visitation at nursing facilities is
restricted by order of a Federal, State, or local authority or by other
operation of law.
<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.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Health.
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