Quality Care for Nursing Home Residents and Workers During COVID–19 Act

II 117TH CONGRESS 1ST SESSION S. 317 To amend titles XVIII and XIX of the Social Security Act to improve the quality of care for residents of and workers in skilled nursing facili- ties and nursing facilities during the COVID–19 emergency period, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 12, 2021 Mr. BOOKER (for himself and Mr. BLUMENTHAL) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend titles XVIII and XIX of the Social Security Act to improve the quality of care for residents of and work- ers in skilled nursing facilities and nursing facilities dur- ing the COVID–19 emergency period, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Quality Care for Nurs- 4 ing Home Residents and Workers During COVID–19 5 Act’’. 6 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 317 IS SEC. 2. IMPROVING QUALITY OF CARE IN SKILLED NURS- 1 ING FACILITIES AND NURSING FACILITIES 2 DURING COVID–19 EMERGENCY PERIOD. 3 (a) MEDICARE.—Section 1819 of the Social Security 4 Act (42 U.S.C. 1395i–3) is amended by adding at the end 5 the following new subsection: 6 ‘‘(k) ADDITIONAL REQUIREMENTS DURING CERTAIN 7 PUBLIC HEALTH EMERGENCY.— 8 ‘‘(1) SKILLED NURSING FACILITIES.— 9 ‘‘(A) IN GENERAL.—During the portion of 10 the emergency period defined in paragraph 11 (1)(B) of section 1135(g) beginning on or after 12 the date of the enactment of this subsection, a 13 skilled nursing facility shall comply with the 14 quality of care requirements described in sub- 15 paragraph (B), the worker safety requirements 16 described in subparagraph (C), and the trans- 17 parency requirements described in subpara- 18 graph (D). 19 ‘‘(B) QUALITY OF CARE REQUIREMENTS.— 20 The quality of care requirements described in 21 this subparagraph are each of the following: 22 ‘‘(i) Employ, on a full-time basis, an 23 infection preventionist who— 24 ‘‘(I) has primary professional 25 training in nursing, medical tech- 26 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 317 IS nology, microbiology, epidemiology, or 1 other related field; 2 ‘‘(II) is qualified by education, 3 training, experience or certification; 4 and 5 ‘‘(III) has completed specialized 6 training in infection prevention and 7 control. 8 ‘‘(ii) In the case of a resident who 9 elects to reside with a family member of 10 such resident for any portion of the emer- 11 gency period described in subparagraph 12 (A), guarantee the right of such resident to 13 resume residency in the facility at any time 14 during the 180-day period immediately fol- 15 lowing the end of such emergency period. 16 ‘‘(iii) Notwithstanding subparagraphs 17 (A) and (B) of subsection (c)(2), permit a 18 resident to remain in the facility and not 19 discharge or transfer the resident from the 20 facility unless— 21 ‘‘(I) the State survey agency ap- 22 proves the discharge or transfer; 23 ‘‘(II) in the case of a transfer, 24 the transfer is to a facility dedicated 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 317 IS to the care of residents who have been 1 diagnosed with COVID–19 if the resi- 2 dent has been diagnosed with 3 COVID–19, or a facility dedicated to 4 the care of residents who have not 5 been diagnosed with COVID–19 if the 6 resident has not been diagnosed with 7 COVID–19; 8 ‘‘(III) before effecting the dis- 9 charge or transfer, the facility records 10 the reasons in the resident’s clinical 11 record; 12 ‘‘(IV) at least 72 hours in ad- 13 vance of the discharge or transfer, the 14 facility provides a notice of the dis- 15 charge or transfer to the resident (or 16 legal representative of the resident, if 17 applicable), including the reasons 18 therefor and the items described in 19 clause (iii) of subsection (c)(2)(B); 20 and 21 ‘‘(V) the resident (or legal rep- 22 resentative of the resident, if applica- 23 ble) acknowledges receipt of the notice 24 described in subclause (IV) and pro- 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 317 IS vides written consent to the discharge 1 or transfer. 2 ‘‘(iv) Test (on a weekly basis) each 3 resident for COVID–19, or, in the case 4 that the facility does not have a sufficient 5 number of testing kits for COVID–19, 6 screen each resident for symptoms of 7 COVID–19 and report (on a daily basis 8 until the facility has a sufficient number of 9 such testing kits) to the State survey agen- 10 cy that the facility does not have a suffi- 11 cient number of such testing kits and what 12 steps the facility is taking to procure a suf- 13 ficient number of such testing kits. 14 ‘‘(v) Ensure there is an adequate 15 number of employees to assist residents in 16 communicating with family members and 17 friends through phone calls, e-mail, and 18 virtual communications on at least a week- 19 ly basis, without regard to whether a resi- 20 dent has been diagnosed with COVID–19. 21 ‘‘(C) WORKER SAFETY REQUIREMENTS.— 22 The worker safety requirements described in 23 this subparagraph are each of the following: 24 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 317 IS ‘‘(i) In the case the facility is not oth- 1 erwise subject to the Occupational Safety 2 and Health Act of 1970 (or a State occu- 3 pational safety and health plan that is ap- 4 proved under section 18(c) of such Act), 5 comply with the Bloodborne Pathogens 6 standard under section 1910.1030 of title 7 29, Code of Federal Regulations (or a suc- 8 cessor regulation). 9 ‘‘(ii) In the case of a predicted short- 10 age of personal protective equipment, re- 11 port such predicted shortage to the State 12 health department of the State in which 13 the facility is located at least 24 hours in 14 advance of when such predicted shortage is 15 expected to occur. 16 ‘‘(iii) Educate each employee on the 17 transmission of COVID–19. 18 ‘‘(iv) Notwithstanding any other pro- 19 vision of law, provide at least two weeks of 20 paid sick leave to each employee. 21 ‘‘(v) Before each employee’s shift, test 22 the employee for COVID–19, or, in the 23 case that the facility does not have a suffi- 24 cient number of testing kits for COVID– 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 317 IS 19, screen each employee for symptoms of 1 COVID–19 and report (on a daily basis 2 until the facility has a sufficient number of 3 such testing kits) to the State survey agen- 4 cy that the facility does not have a suffi- 5 cient number of such testing kits and what 6 steps the facility is taking to procure a suf- 7 ficient number of such testing kits. 8 ‘‘(D) TRANSPARENCY REQUIREMENTS.— 9 The transparency requirements described in 10 this subparagraph are each of the following: 11 ‘‘(i) Report (on a daily basis) to the 12 State survey agency, the Centers for Medi- 13 care & Medicaid Services, and the Centers 14 for Disease Control and Prevention each of 15 the following: 16 ‘‘(I) The number of confirmed 17 and suspected cases COVID–19 18 among residents and staff, including 19 the age and race or ethnicity of such 20 residents and staff. 21 ‘‘(II) The number of deaths re- 22 lated to COVID–19 among residents 23 and staff, including the age and race 24 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 317 IS or ethnicity of such residents and 1 staff. 2 ‘‘(III) The total number of 3 deaths (without regard to whether a 4 death is related to COVID–19) among 5 residents and staff. 6 ‘‘(IV) The amount of personal 7 protective equipment available and 8 any projected need regarding such 9 equipment. 10 ‘‘(V) Information on staffing lev- 11 els that would otherwise be required 12 to be submitted through the Payroll- 13 Based Journal of the Centers for 14 Medicare & Medicaid Services. 15 ‘‘(VI) The number of residents 16 and staff who have been tested for 17 COVID–19. 18 ‘‘(ii) In the case that a resident or 19 employee is diagnosed with COVID–19 or 20 dies as a result of COVID–19, notify all 21 residents, legal representatives of residents, 22 and employees not later than 12 hours 23 after such diagnosis is made or such death 24 occurs. 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 317 IS ‘‘(iii) At any time three or more resi- 1 dents or employees have newly onset 2 COVID–19 symptoms, notify all residents, 3 legal representatives of residents, and em- 4 ployees not later than 72 hours after such 5 three or more residents or employees are 6 known to the facility. 7 ‘‘(iv) In the case that a resident or 8 employee is suspected to have or is diag- 9 nosed with COVID–19, post a notice of 10 such suspicion or diagnosis at each en- 11 trance of the facility for the remaining por- 12 tion of the emergency period described in 13 subparagraph (A). 14 ‘‘(v) For each day of the portion of 15 the emergency period described in subpara- 16 graph (A), post a notice at each entrance 17 of the facility with the information re- 18 quired under subsection (b)(8) for such 19 day. 20 ‘‘(2) STATES AND FEDERAL GOVERNMENT.— 21 ‘‘(A) PUBLIC AVAILABILITY OF INFORMA- 22 TION.— 23 ‘‘(i) IN GENERAL.—As soon as pos- 24 sible, but not later than 24 hours after re- 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 317 IS ceiving any information required under 1 paragraph (1)(D)(i), the Administrator of 2 the Centers for Medicare & Medicaid Serv- 3 ices, in coordination with the Director of 4 the Centers for Disease Control and Pre- 5 vention, shall make such information pub- 6 licly available on the Nursing Home Com- 7 pare website of the Centers for Medicare & 8 Medicaid Services and the COVIDView 9 website of the Centers for Disease Control 10 and Prevention. 11 ‘‘(ii) HIPAA COMPLIANT INFORMA- 12 TION ONLY.—Information may only be 13 made publicly available under clause (i) if 14 the disclosure of such information would 15 otherwise be permitted under the Federal 16 regulations (concerning the privacy of indi- 17 vidually identifiable health information) 18 promulgated under section 264(c) of the 19 Health Insurance Portability and Account- 20 ability Act of 1996 (42 U.S.C. 1320d–2 21 note). 22 ‘‘(B) DESIGNATION OF COVID–19 FACILI- 23 TIES.—For purposes of paragraph 24 (1)(B)(iii)(II)— 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 317 IS ‘‘(i) the Administrator of the Centers 1 for Medicare & Medicaid Services shall 2 specify criteria (which shall include the 3 provision of the services of a registered 4 nurse on a 24-hours basis) for each State 5 survey agency to carry out the designation 6 requirement described in clause (ii) with 7 respect to skilled nursing facilities; and 8 ‘‘(ii) each State survey agency shall 9 designate a skilled nursing facility in the 10 State as a facility dedicated to the care of 11 residents who have been diagnosed with 12 COVID–19 if such facility meets the cri- 13 teria specified by the Administrator under 14 clause (i). 15 ‘‘(C) REMOTE MONITORING AND SUR- 16 VEYS.—A State survey agency shall— 17 ‘‘(i) remotely monitor all skilled nurs- 18 ing facilities with at least one resident or 19 employee who has been diagnosed with 20 COVID–19; 21 ‘‘(ii) in addition to surveys required 22 under subsection (g), conduct a survey of 23 a skilled nursing facility, in the same man- 24 ner and subject to the same requirements 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 317 IS applicable to standard surveys conducted 1 under subsection (g), if the facility has a 2 ratio of the number of deaths resulting 3 from COVID–19 to the number of 4 COVID–19 diagnoses that exceeds 5 per- 5 cent, or the State survey agency receives a 6 COVID–19 or staffing related immediate 7 jeopardy complaint regarding the facility; 8 and 9 ‘‘(iii) ensure that each survey team 10 that conducts a survey under clause (ii) 11 has adequate personal protective equip- 12 ment while conducting such survey. 13 ‘‘(3) CIVIL MONEY PENALTIES.—The Secretary 14 shall impose a civil money penalty against the opera- 15 tors of a skilled nursing facility in an amount equal 16 to $10,000 per day for each violation of a require- 17 ment described in subparagraph (B), (C), or (D) of 18 paragraph (1) or the reporting of false information 19 under clause (i) of such subparagraph (D). The pro- 20 visions of section 1128A (other than subsections (a) 21 and (b)) shall apply to a civil money penalty under 22 the previous sentence in the same manner as such 23 provisions apply to a penalty or proceeding under 24 section 1128A(a).’’. 25 VerDate Sep 11 2014 19:10 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S317.IS S317 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 317 IS (b) MEDICAID.—Section 1919 of the Social Security 1 Act (42 U.S.C. 1396r) is amended by adding at the end 2 the following new subsection: 3 ‘‘(k) ADDITIONAL REQUIREMENTS DURING CERTAIN 4 PUBLIC HEALTH EMERGENCY.— 5 ‘‘(1) NURSING FACILITIES.— 6 ‘‘(A) IN GENERAL.—During the portion of 7 the emergency period defined in paragraph 8 (1)(B) of section 1135(g) beginning on or after 9 the date of the enactment of this subsection, a 10 nursing facility shall comply with the quality of 11 care requirements described in subparagraph 12 (B), the worker safety requirements described 13 in subparagraph (C), and the transparency re- 14 quirements described in subparagraph (D). 15 ‘‘(B) QUALITY OF CARE REQUIREMENTS.— 16 The quality of care requirements described in 17 this subparagraph are each of the following: 18 ‘‘(i) Employ, on a full-time basis, an 19 infection preventionist who— 20 ‘ [Text truncated for display. Full text available on Congress.gov.]