TITLE III--COMBATTING WASTE, FRAUD, AND ABUSE
SEC. 307. PILOT PROGRAM FOR NATIONAL AND STATE BACKGROUND
CHECKS ON DIRECT PATIENT ACCESS EMPLOYEES OF LONG-TERM CARE FACILITIES OR PROVIDERS.
(a) AUTHORITY TO CONDUCT PROGRAM- The Secretary,
in consultation with the Attorney General, shall establish a pilot 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.
(1) IN GENERAL- Under the pilot program,
a long-term care facility or provider in a participating State, prior to employing
a direct patient access employee that is first hired on or after the commencement
date of the pilot program in the State, shall conduct a background check on
the employee in accordance with such procedures as the participating State
shall establish.
(A) IN GENERAL- The procedures
established by a participating State under paragraph (1) should be designed
to--
(i) give a prospective
direct access patient employee notice that the long-term care facility
or provider is required to perform background checks with respect to new
employees;
(ii) require, as
a condition of employment, that the employee--
(I) provide
a written statement disclosing any disqualifying information;
(II) provide
a statement signed by the employee authorizing the facility to request
national and State criminal history background checks;
(III)
provide the facility with a rolled set of the employee's fingerprints;
and
(IV) provide
any other identification information the participating State may require;
(iii) require the
facility or provider to check any available registries that would be likely
to contain disqualifying information about a prospective employee of a
long-term care facility or provider; and
(iv) permit the facility
or provider to obtain State and national criminal history background checks
on the prospective employee through a 10-fingerprint check that utilizes
State criminal records and the Integrated Automated Fingerprint Identification
System of the Federal Bureau of Investigation.
(B) ELIMINATION OF UNNECESSARY
CHECKS- The procedures established by a participating State under paragraph
(1) shall permit a long-term care facility or provider to terminate the
background check at any stage at which the facility or provider obtains
disqualifying information regarding a prospective direct patient access
employee.
(3) Prohibition on hiring of abusive
workers-
(A) IN GENERAL- A long-term
care facility or provider may not knowingly employ any direct patient access
employee who has any disqualifying information.
(B) PROVISIONAL EMPLOYMENT-
(i) IN GENERAL- Under
the pilot program, a participating State may permit a long-term care facility
or provider to provide for a provisional period of employment for a direct
patient access employee pending completion of a background check, subject
to such supervision during the employee's provisional period of employment
as the participating State determines appropriate.
(ii) SPECIAL CONSIDERATION
FOR CERTAIN FACILITIES AND PROVIDERS- In determining what constitutes
appropriate supervision of a provisional employee, a participating State
shall take into account cost or other burdens that would be imposed on
small rural long-term care facilities or providers, as well as the nature
of care delivered by such facilities or providers that are home health
agencies or providers of hospice care.
(4) USE OF INFORMATION; IMMUNITY FROM
LIABILITY-
(A) USE OF INFORMATION- A participating
State shall ensure that a long-term care facility or provider that obtains
information about a direct patient access employee pursuant to a background
check uses such information only for the purpose of determining the suitability
of the employee for employment.
(B) IMMUNITY FROM LIABILITY-
A participating State shall ensure that a long-term care facility or provider
that, in denying employment for an individual selected for hire as a direct
patient access employee (including during any period of provisional employment),
reasonably relies upon information obtained through a background check of
the individual, shall not be liable in any action brought by the individual
based on the employment determination resulting from the information.
(5) AGREEMENTS WITH EMPLOYMENT AGENCIES-
A participating State may establish procedures for facilitating the conduct
of background checks on prospective direct patient access employees that are
hired by a long-term care facility or provider through an employment agency
(including a temporary employment agency).
(6) PENALTIES- A participating State
may impose such penalties as the State determines appropriate to enforce the
requirements of the pilot program conducted in that State.
(c) PARTICIPATING STATES-
(1) IN GENERAL- The Secretary shall
enter into agreements with not more than 10 States to conduct the pilot program
under this section in such States.
(2) REQUIREMENTS FOR STATES- An agreement
entered into under paragraph (1) shall require that a participating State--
(A) be responsible for monitoring
compliance with the requirements of the pilot program;
(B) have procedures 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 pilot
program; and
(i) review 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;
(ii) immediately
report to the entity that requested the criminal history background checks
the results of such review; and
(iii) 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), report the existence of such conviction to the database established
under that section.
(3) APPLICATION AND SELECTION CRITERIA-
(A) APPLICATION- A State seeking
to participate in the pilot program established under this section, shall
submit an application to the Secretary containing such information and at
such time as the Secretary may specify.
(i) IN GENERAL- In
selecting States to participate in the pilot program, the Secretary shall
establish criteria to ensure--
(I) geographic
diversity;
(II) the
inclusion of a variety of long-term care facilities or providers;
(III) the
evaluation of a variety of payment mechanisms for covering the costs
of conducting the background checks required under the pilot program;
and
(IV) the
evaluation of a variety of penalties (monetary and otherwise) used by
participating States to enforce the requirements of the pilot program
in such States.
(ii) ADDITIONAL CRITERIA-
The Secretary shall, to the greatest extent practicable, select States
to participate in the pilot program in accordance with the following:
(I) At least
one participating State should permit long-term care facilities or providers
to provide for a provisional period of employment pending completion
of a background check and at least one such State should not permit
such a period of employment.
(II) At
least one participating State should establish procedures under which
employment agencies (including temporary employment agencies) may contact
the State directly to conduct background checks on prospective direct
patient access employees.
(III)
At least one participating State should include patient abuse prevention
training (including behavior training and interventions) for managers
and employees of long-term care facilities and providers as part of
the pilot program conducted in that State.
(iii) INCLUSION
OF STATES WITH EXISTING PROGRAMS- Nothing in this section shall be construed
as prohibiting any State which, as of the date of the enactment of this
Act, has procedures for conducting background checks on behalf of any
entity described in subsection (g)(5) from being selected to participate
in the pilot program conducted under this section.
(d) PAYMENTS- Of the amounts made available
under subsection (f) to conduct the pilot program under this section, the Secretary
shall--
(1) make payments to participating
States for the costs of conducting the pilot program in such States; and
(2) reserve up to 4 percent of such
amounts to conduct the evaluation required under subsection (e).
(e) EVALUATION- The Secretary, in consultation
with the Attorney General, shall conduct by grant, contract, or interagency
agreement an evaluation of the pilot program conducted under this section. Such
evaluation shall--
(1) review the various procedures implemented
by participating States for long-term care facilities or providers to conduct
background checks of direct patient access employees and identify the most
efficient, effective, and economical procedures for conducting such background
checks;
(2) assess the costs of conducting
such background checks (including start-up and administrative costs);
(3) consider the benefits and problems
associated with requiring employees or facilities or providers to pay the
costs of conducting such background checks;
(4) consider whether the costs of conducting
such background checks should be allocated between the medicare and medicaid
programs and if so, identify an equitable methodology for doing so;
(5) determine the extent to which conducting
such background checks leads to any unintended consequences, including a reduction
in the available workforce for such facilities or providers;
(6) review forms used by participating
States in order to develop, in consultation with the Attorney General, a model
form for such background checks;
(7) determine the effectiveness of
background checks conducted by employment agencies; and
(8) recommend appropriate procedures
and payment mechanisms for implementing a national criminal background check
program for such facilities and providers.
(f) FUNDING- Out of any funds in the Treasury
not otherwise appropriated, there are appropriated to the Secretary to carry
out the pilot program under this section for the period of fiscal years 2004
through 2007, $25,000,000.
(g) DEFINITIONS- In this section:
(1) CONVICTION FOR A RELEVANT CRIME-
The term `conviction for a relevant crime' means any Federal or State criminal
conviction for--
(A) any offense described in
section 1128(a) of the Social Security Act (42 U.S.C. 1320a-7); and
(B) such other types of offenses
as a participating State may specify for purposes of conducting the pilot
program in such State.
(2) DISQUALIFYING INFORMATION- The
term `disqualifying information' means a conviction for a relevant crime or
a finding of patient or resident abuse.
(3) FINDING OF PATIENT OR RESIDENT
ABUSE- The term `finding of patient or resident abuse' means any substantiated
finding by a State agency under section 1819(g)(1)(C) or 1919(g)(1)(C) of
the Social Security Act (42 U.S.C. 1395i-3(g)(1)(C), 1396r(g)(1)(C)) or a
Federal agency that a direct patient access employee has committed--
(A) an act of patient or resident
abuse or neglect or a misappropriation of patient or resident property;
or
(B) such other types of acts
as a participating State may specify for purposes of conducting the pilot
program in such State.
(4) DIRECT PATIENT ACCESS EMPLOYEE-
The term `direct patient access employee' means any individual (other than
a volunteer) that 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, as determined by a participating State for purposes of conducting
the pilot program in such State.
(5) LONG-TERM CARE FACILITY OR PROVIDER-
(A) IN GENERAL- 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:
(i) A skilled nursing
facility (as defined in section 1819(a) of the Social Security Act) (42
U.S.C. 1395i-3(a)).
(ii) A nursing facility
(as defined in section 1919(a) in such Act) (42 U.S.C. 1396r(a)).
(iii) A home health
agency.
(iv) A provider of
hospice care (as defined in section 1861(dd)(1) of such Act) (42 U.S.C.
1395x(dd)(1)).
(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)).
(vi) A provider of
personal care services.
(vii) A residential
care provider that arranges for, or directly provides, long-term care
services.
(viii) An intermediate
care facility for the mentally retarded (as defined in section 1905(d)
of such Act) 42 U.S.C. 1396d(d)).
(B) ADDITIONAL FACILITIES OR
PROVIDERS- During the first year in which a pilot program under this section
is conducted in a participating State, the State may expand the list of
facilities or providers under subparagraph (A) (on a phased-in basis or
otherwise) to include such other facilities or providers of long-term care
services under such titles as the participating State determines appropriate.
(C) EXCEPTIONS- Such term does
not include--
(i) any facility or
entity that provides, or is a provider of, services described in subparagraph
(A) that are exclusively provided to an individual pursuant to a self-directed
arrangement that meets such requirements as the participating State may
establish in accordance with guidance from the Secretary; or
(ii) any such arrangement
that is obtained by a patient or resident functioning as an employer.
(6) PARTICIPATING STATE- The term `participating
State' means a State with an agreement under subsection (c)(1).
