Quality Care for Nursing Home Residents Act

II 117TH CONGRESS 1ST SESSION S. 315 To amend titles XVIII and XIX of the Social Security Act to ensure quality care for residents of skilled nursing facilities and nursing facilities, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 12, 2021 Mr. BLUMENTHAL (for himself and Mr. BOOKER) 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 ensure quality care for residents of skilled nursing facilities and nursing facilities, and for other purposes. 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 Act’’. 5 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 315 IS SEC. 2. MINIMUM NURSE STAFFING REQUIREMENTS FOR 1 SKILLED NURSING FACILITIES UNDER MEDI- 2 CARE PROGRAM AND NURSING FACILITIES 3 UNDER MEDICAID PROGRAM. 4 (a) MEDICARE.— 5 (1) IN GENERAL.—Subparagraph (C) of section 6 1819(b)(4) of the Social Security Act (42 U.S.C. 7 1395i–3(b)(4)) is amended— 8 (A) in clause (i)— 9 (i) by amending the clause heading to 10 read as follows: ‘‘GENERAL REQUIRE- 11 MENTS BEFORE 2022’’; and 12 (ii) by striking ‘‘Except as provided in 13 clause (ii),’’ and inserting ‘‘Except as pro- 14 vided in clause (iii), with respect to skilled 15 nursing facility services provided before 16 January 1, 2022,’’; 17 (B) by redesignating clause (ii) as clause 18 (iii); and 19 (C) by inserting after clause (i) the fol- 20 lowing new clause: 21 ‘‘(ii) GENERAL REQUIREMENTS AFTER 22 2021.— 23 ‘‘(I) IN GENERAL.—With respect 24 to skilled nursing facility services pro- 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 315 IS vided on or after January 1, 2022, a 1 skilled nursing facility must— 2 ‘‘(aa) provide nursing serv- 3 ices that are sufficient to meet 4 the nursing needs of its residents 5 on a 24-hour basis, to be divided 6 into day shifts, evening shifts, 7 and night shifts; 8 ‘‘(bb) provide for minimum 9 nurse staffing levels with respect 10 to each such shift, in accordance 11 with this clause; and 12 ‘‘(cc) ensure that, in car- 13 rying out items (aa) and (bb), a 14 total minimum of 4.1 hours of 15 care is provided per resident per 16 day, with 0.75 hours of care of 17 such total minimum provided by 18 a registered professional nurse, 19 0.54 hours of care of such total 20 minimum provided by a licensed 21 practical nurse, and 2.81 hours 22 of care of such total minimum 23 provided by a nurse aide (as de- 24 fined in paragraph (5)(F)). 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 315 IS ‘‘(II) DAY SHIFTS.—With respect 1 to a day shift, the skilled nursing fa- 2 cility must have— 3 ‘‘(aa) at least 1 registered 4 professional nurse for every 28 5 residents, with a minimum of 6 0.29 hours of care provided per 7 resident during each such shift; 8 ‘‘(bb) at least 1 licensed 9 practical nurse for every 40 resi- 10 dents, with a minimum of 0.20 11 hours of care provided per resi- 12 dent during each such shift; and 13 ‘‘(cc) at least 1 nurse aide 14 (as defined in paragraph (5)(F)) 15 for every 7 residents, with a min- 16 imum of 1.14 hours of care pro- 17 vided per resident during each 18 such shift. 19 ‘‘(III) EVENING SHIFTS.—With 20 respect to an evening shift, the skilled 21 nursing facility must have— 22 ‘‘(aa) at least 1 registered 23 professional nurse for every 30 24 residents, with a minimum of 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 315 IS 0.26 hours of care provided per 1 resident during each such shift; 2 ‘‘(bb) at least 1 licensed 3 practical nurse for every 40 resi- 4 dents, with a minimum of 0.20 5 hours of care provided per resi- 6 dent during each such shift; and 7 ‘‘(cc) at least 1 nurse aide 8 (as defined in paragraph (5)(F)) 9 for every 7 residents, with a min- 10 imum of 1.14 hours of care pro- 11 vided per resident during each 12 such shift. 13 ‘‘(IV) NIGHT SHIFTS.—With re- 14 spect to a night shift, the skilled nurs- 15 ing facility must have— 16 ‘‘(aa) at least 1 registered 17 professional nurse for every 40 18 residents, with a minimum of 19 0.20 hours of care provided per 20 resident during such shift; 21 ‘‘(bb) at least 1 licensed 22 practical nurse for every 56 resi- 23 dents, with a minimum of 0.14 24 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 315 IS hours of care provided per resi- 1 dent during such shift; and 2 ‘‘(cc) at least 1 nurse aide 3 (as defined in paragraph (5)(F)) 4 for every 15 residents, with a 5 minimum of 0.53 hours of care 6 provided per resident during such 7 shift. 8 ‘‘(V) SECRETARIAL AUTHORITY 9 TO ESTABLISH HIGHER MINIMUM 10 NURSE STAFFING LEVELS.—The Sec- 11 retary may establish and require 12 skilled nursing facilities (or, at the 13 Secretary’s discretion, only skilled 14 nursing facilities that have a higher 15 percentage of residents with extensive 16 care needs, as determined by the Sec- 17 retary) to provide for minimum nurse 18 staffing levels that are higher than 19 the levels required under this clause. 20 ‘‘(VI) RULE OF CONSTRUCTION 21 REGARDING STATE AUTHORITY TO ES- 22 TABLISH HIGHER MINIMUM NURSE 23 STAFFING LEVELS.—Nothing in this 24 clause may be construed as preventing 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 315 IS a State from establishing or requiring 1 skilled nursing facilities in the State 2 to provide for minimum nurse staffing 3 levels that are higher than the levels 4 required under this clause. 5 ‘‘(VII) CLARIFICATION WITH RE- 6 SPECT TO MINIMUM HOURS OF CARE 7 PROVIDED PER RESIDENT REQUIRE- 8 MENTS.—In complying with the min- 9 imum hours of care provided per resi- 10 dent requirements under this clause, a 11 skilled nursing facility may not count 12 any time spent by a registered profes- 13 sional nurse, licensed practical nurse, 14 or nurse aide on administrative serv- 15 ices towards compliance with such re- 16 quirements. 17 ‘‘(VIII) DEFINITIONS.—In this 18 clause: 19 ‘‘(aa) ADMINISTRATIVE 20 SERVICES.—The term ‘adminis- 21 trative services’ means food prep- 22 aration, housekeeping, laundry 23 services, maintenance services, 24 and other noncaregiving-related 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 315 IS services, as determined by the 1 Secretary. 2 ‘‘(bb) DAY SHIFT.—The 3 term ‘day shift’ means, with re- 4 spect to a day and a skilled nurs- 5 ing facility, an assigned work 6 shift that is a period of 8 con- 7 secutive hours, beginning not 8 sooner than 6 a.m. in the time 9 zone in which such facility is lo- 10 cated and not later than 8 a.m. 11 in such time zone. 12 ‘‘(cc) EVENING SHIFT.—The 13 term ‘evening shift’ means, with 14 respect to a day and a skilled 15 nursing facility, an assigned work 16 shift that is a period of 8 con- 17 secutive hours, beginning not 18 sooner than 2 p.m. in the time 19 zone in which such facility is lo- 20 cated and not later than 4 p.m. 21 in such time zone. 22 ‘‘(dd) NIGHT SHIFT.—The 23 term ‘night shift’ means, with re- 24 spect to a day and a skilled nurs- 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 315 IS ing facility, an assigned work 1 shift that is a period of 8 con- 2 secutive hours, beginning not 3 sooner than 10 p.m. in the time 4 zone in which such facility is lo- 5 cated and not later than mid- 6 night in such time zone.’’. 7 (2) ENFORCEMENT.—Section 1819(h) of the 8 Social Security Act (42 U.S.C. 1395i–3(h)) is 9 amended— 10 (A) in paragraph (1), by striking ‘‘If a 11 State finds, on the basis of a standard’’ and in- 12 serting ‘‘Subject to paragraph (7), if a State 13 finds, on the basis of a standard’’; 14 (B) in paragraph (2), by striking ‘‘With 15 respect to’’ and inserting ‘‘Subject to paragraph 16 (7), with respect to’’; and 17 (C) by adding at the end the following new 18 paragraph: 19 ‘‘(7) SPECIAL ENFORCEMENT PROCESS WITH 20 RESPECT TO MINIMUM NURSE STAFFING REQUIRE- 21 MENTS.— 22 ‘‘(A) IN GENERAL.—If a State finds, on 23 the basis of a standard, extended, or partial ex- 24 tended survey under subsection (g)(2) or other- 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 315 IS wise, that a skilled nursing facility does not 1 meet the minimum staffing requirements of 2 clause (ii) of subsection (b)(4)(C) with respect 3 to skilled nursing facility services provided on 4 or after January 1, 2022, the State shall rec- 5 ommend to the Secretary that the Secretary 6 take such actions as described in subclauses (I) 7 and (II) of subparagraph (B)(i). 8 ‘‘(B) SECRETARIAL AUTHORITY.— 9 ‘‘(i) IN GENERAL.—With respect to 10 any skilled nursing facility in a State, if 11 the Secretary finds, or pursuant to a rec- 12 ommendation of the State under subpara- 13 graph (A) finds, that a skilled nursing fa- 14 cility does not meet the minimum staffing 15 requirements of clause (ii) of subsection 16 (b)(4)(C) with respect to skilled nursing 17 facility services provided on or after Janu- 18 ary 1, 2022, the Secretary shall— 19 ‘‘(I) deny any further payments 20 under this title with respect to all in- 21 dividuals entitled to benefits under 22 this title who are admitted to the fa- 23 cility after the effective date of the 24 finding; and 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 315 IS ‘‘(II) impose a civil money pen- 1 alty in an amount not to exceed 2 $10,000 for each day of noncompli- 3 ance. The provisions of section 1128A 4 (other than subsections (a) and (b)) 5 shall apply to a civil money penalty 6 under the previous sentence in the 7 same manner as such provisions apply 8 to a penalty or proceeding under sec- 9 tion 1128A(a). 10 ‘‘(ii) REDUCTION OF CIVIL MONEY 11 PENALTIES IN CERTAIN CIR- 12 CUMSTANCES.—Subject to clause (iii), in 13 the case where a skilled nursing facility 14 self-reports and promptly corrects a defi- 15 ciency for which a penalty was imposed 16 under clause (i)(II) not later than 10 cal- 17 endar days after the date of such imposi- 18 tion, the Secretary may reduce the amount 19 of the penalty imposed by— 20 ‘‘(I) not more than 50 percent; or 21 ‘‘(II) in the case that the facility 22 was penalized under this subsection 23 within the three-year period preceding 24 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 315 IS the date of such imposition, not more 1 than 25 percent. 2 ‘‘(iii) PROHIBITIONS ON REDUCTION 3 FOR CERTAIN DEFICIENCIES.— 4 ‘‘(I) REPEAT DEFICIENCIES.— 5 The Secretary may not reduce the 6 amount of a penalty under clause (ii) 7 if the Secretary had reduced a penalty 8 imposed on the skilled nursing facility 9 in the preceding year under such 10 clause with respect to a repeat defi- 11 ciency. 12 ‘‘(II) CERTAIN OTHER DEFI- 13 CIENCIES.—The Secretary may not 14 reduce the amount of a penalty under 15 clause (ii) if the penalty is imposed on 16 the skilled nursing facility for a defi- 17 ciency that is found to result in a pat- 18 tern of harm or widespread harm, im- 19 mediately jeopardizes the health or 20 safety of a resident or residents of the 21 facility, or results in the death of a 22 resident of the facility. 23 ‘‘(iv) REPEATED NONCOMPLIANCE.— 24 In the case of a skilled nursing facility 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 315 IS which, on three consecutive standard sur- 1 veys conducted under subsection (g)(2), 2 has been found as not meeting the min- 3 imum staffing requirements of clause (ii) 4 of subsection (b)(4)(C) with respect to 5 skilled nursing facility services provided on 6 or after January 1, 2022, the Secretary 7 may (regardless of the remedies provided 8 for under clause (i))— 9 ‘‘(I) appoint temporary manage- 10 ment to oversee the operation of the 11 facility and to assure the health and 12 safety of the facility’s residents in ac- 13 cordance with clause (iii) of para- 14 graph (2)(B), except that ‘the min- 15 imum staffing requirements of clause 16 (ii) of subsection (b)(4)(C)’ shall be 17 substituted for ‘all the requirements 18 of subsections (b), (c), and (d)’ under 19 such clause; 20 ‘‘(II) monitor the facility under 21 subsection (g)(4)(B) with respect to 22 such minimum staffing requirements 23 until the facility has demonstrated to 24 the satisfaction of the Secretary that 25 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 315 IS the facility is in compliance, and will 1 remain in compliance, with such min- 2 imum staffing requirements; or 3 ‘‘(III) subject to section 4 1128I(h), terminate the facility’s par- 5 ticipation under this title. 6 If the facility’s participation under this 7 title is terminated under this clause, the 8 State shall provide for the safe and orderly 9 transfer of the residents eligible under this 10 title, consistent with the requirements of 11 subsection (c)(2) and section 1128I(h). 12 ‘‘(v) PUBLIC NOTICE OF VIOLA- 13 TIONS.— 14 ‘‘(I) INTERNET WEBSITE.—The 15 Secretary shall publish on the internet 16 website of the Department of Health 17 and Human Services the names of 18 skilled nursing facilities that have vio- 19 lated the minimum staffing require- 20 ments of clause (ii) of subsection 21 (b)(4)(C) with respect to skilled nurs- 22 ing facility services provided on or 23 after January 1, 2022. 24 VerDate Sep 11 2014 19:09 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S315.IS S315 pamtmann on DSKBC07HB [Text truncated for display. 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