Nursing Home Reform Modernization Act of 2021

II 117TH CONGRESS 1ST SESSION S. 782 To amend titles XVIII and XIX of the Social Security Act to modernize Federal nursing home protections and to enhance care quality and trans- parency for nursing home residents and their families. IN THE SENATE OF THE UNITED STATES MARCH 16, 2021 Mr. CASEY (for himself and Mr. TOOMEY) 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 modernize Federal nursing home protections and to enhance care quality and transparency for nursing home residents and their families. 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 ‘‘Nursing Home Reform 4 Modernization Act of 2021’’. 5 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 782 IS SEC. 2. IMPROVEMENTS TO NURSING FACILITIES UNDER 1 THE MEDICARE AND MEDICAID PROGRAMS. 2 (a) ADVISORY COUNCIL ON SKILLED NURSING FA- 3 CILITY RANKINGS UNDER MEDICARE AND NURSING FA- 4 CILITY RANKINGS UNDER MEDICAID.— 5 (1) ESTABLISHMENT.—Not later than 1 year 6 after the date of enactment of this Act, the Sec- 7 retary of Health and Human Services shall establish 8 the Advisory Council on Skilled Nursing Facility 9 Rankings under Medicare and Nursing Facility 10 Rankings under Medicaid (in this subsection re- 11 ferred to as the ‘‘Advisory Council’’). 12 (2) MEMBERSHIP.—The Secretary shall ensure 13 that the membership of the Advisory Council in- 14 cludes equal representation from the following: 15 (A) Consumers with nursing home experi- 16 ence, including adults age 65 and older, individ- 17 uals with disabilities, family caregivers, and 18 their advocates. 19 (B) Skilled nursing facilities and nursing 20 facilities, including nonprofit facilities. 21 (C) Academics with expertise in nursing 22 home oversight. 23 (D) Health professionals with nursing 24 home experience, such as physicians, nurses, 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 782 IS pharmacists, certified nursing assistants, and 1 direct care professionals. 2 (E) Professionals with expertise in quality 3 measurement. 4 (F) Professionals with expertise in emer- 5 gency management. 6 (G) State surveying agencies. 7 (H) State Long-Term Care Ombudsman 8 programs. 9 (I) The Medicare Payment Advisory Com- 10 mission. 11 (J) The Medicaid and CHIP Payment and 12 Access Commission. 13 (K) The Centers for Medicare & Medicaid 14 Services. 15 (L) Other representatives as the Secretary 16 determines appropriate. 17 (3) DUTIES.— 18 (A) STUDY.—The Advisory Council shall 19 conduct a study of processes for ranking skilled 20 nursing facilities and nursing facilities under 21 paragraph (9) of section 1819(f) of the Social 22 Security Act, as added by subsection (b)(1) and 23 under paragraph (11) of section 1919(f) of 24 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 782 IS such Act, as added by subsection (c)(1). Such 1 study shall include an analysis of— 2 (i) which available, verifiable data 3 sources and measures are best for appro- 4 priately designating facilities in— 5 (I) the high-rated facility pro- 6 gram under paragraph (10) of such 7 section 1819(f) and under paragraph 8 (12) of such section 1919(f); and 9 (II) the low-rated facility pro- 10 gram under paragraph (8) of such 11 section 1819(f) and under paragraph 12 (10) of such section 1919(f); 13 (ii) the appropriate frequency with 14 which to update the rankings for the high- 15 rated and low-rated facility programs de- 16 scribed in clause (i); 17 (iii) how best to ensure that skilled 18 nursing facilities and nursing facilities ap- 19 propriately report adverse events; 20 (iv) how surveyors can clearly provide 21 the rationale for giving deficiencies to such 22 skilled nursing facilities and nursing facili- 23 ties and how this can be done in a timely 24 manner; 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 782 IS (v) how to manage suspensions from 1 the high-rated facility program described 2 in clause (i)(I) and the need for additional 3 consumer protections to administer such 4 high-rated facility program; 5 (vi) the availability or potential devel- 6 opment of, or modifications to, measures 7 or verifiable data sources on topics, includ- 8 ing avoidable hospital readmissions, emer- 9 gency room visits, risk-adjusted mortality, 10 discharges to the community, involuntary 11 discharges, situations involving the inap- 12 propriate administration of medications by 13 a facility, and emergency management; and 14 (vii) the development of, or modifica- 15 tions to, data collection, verifiable data 16 sources, and potential measures to assess 17 the financial stability of a facility. 18 (B) FINDINGS AND RECOMMENDATIONS.— 19 (i) IN GENERAL.—Not later than 2 20 years after the date of enactment of this 21 Act, the Advisory Council shall submit to 22 the Secretary the findings of the Advisory 23 Council under the study conducted under 24 subparagraph (A), together with rec- 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 782 IS ommendations for such legislation and ad- 1 ministrative action as the Advisory Council 2 determines appropriate. 3 (ii) PUBLIC AVAILABILITY.—Upon re- 4 ceiving the findings and recommendations 5 under clause (i), the Secretary shall make 6 the findings and recommendations avail- 7 able to the public on the internet website 8 of the Centers for Medicare & Medicaid 9 Services. 10 (4) SUNSET.—The Advisory Council shall ter- 11 minate upon the submission of the report to the Sec- 12 retary under paragraph (3)(B)(i). 13 (b) MEDICARE PROGRAM REVISIONS.— 14 (1) ESTABLISHMENT OF RANKINGS AND HIGH- 15 RATED FACILITY PROGRAM.— 16 (A) IN GENERAL.—Section 1819(f) of the 17 Social Security Act (42 U.S.C. 1395i–3(f)) is 18 amended by adding at the end the following 19 new paragraphs: 20 ‘‘(9) RANKING PROCESS.— 21 ‘‘(A) PROCESS.— 22 ‘‘(i) ESTABLISHMENT.—The Secretary 23 shall establish a process to rank skilled 24 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 782 IS nursing facilities based on compliance with 1 the applicable requirements of this Act. 2 ‘‘(ii) DATA.—The process established 3 under clause (i) shall include the use of at 4 least the preceding 3 years of health in- 5 spection data, if appropriate, and other 6 data as determined appropriate by the Sec- 7 retary. 8 ‘‘(iii) FINDINGS AND RECOMMENDA- 9 TIONS OF THE ADVISORY COUNCIL ON 10 SKILLED NURSING FACILITY RANKINGS 11 UNDER MEDICARE AND NURSING FACILITY 12 RANKINGS UNDER MEDICAID.—In estab- 13 lishing the process under clause (i), the 14 Secretary shall take into account the find- 15 ings and recommendations of the Advisory 16 Council that are submitted to the Sec- 17 retary under section 2(a)(3)(B)(i) of the 18 Nursing Home Reform Modernization Act 19 of 2021. 20 ‘‘(B) RANKING.— 21 ‘‘(i) IN GENERAL.—Under the process 22 established under subparagraph (A), the 23 Secretary shall use the rankings of skilled 24 nursing facilities to categorize facilities 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 782 IS into highest and lowest groups for the pur- 1 poses specified in clause (ii). 2 ‘‘(ii) TIMING AND USE OF 3 RANKINGS.—Not later than 2 years after 4 the date the Secretary receives the findings 5 and recommendations described in sub- 6 paragraph (A)(iii), the Secretary shall use 7 the rankings under clause (i) for purposes 8 of carrying out— 9 ‘‘(I) the high-rated facility pro- 10 gram under paragraph (10); and 11 ‘‘(II) the low-rated facility pro- 12 gram under paragraph (8). 13 ‘‘(10) HIGH-RATED FACILITY PROGRAM.— 14 ‘‘(A) ESTABLISHMENT.— 15 ‘‘(i) IN GENERAL.—Not later than 2 16 years after the date the Secretary receives 17 the findings and recommendations de- 18 scribed in paragraph (9)(A)(iii), the Sec- 19 retary shall establish and implement a 20 high-rated facility program to encourage 21 and reward compliance with the require- 22 ments of this Act. 23 ‘‘(ii) REPORT.—In establishing the 24 high-rated facility program, the Secretary 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 782 IS shall take into account the findings and 1 recommendations described in paragraph 2 (9)(A)(iii). 3 ‘‘(iii) REGULATIONS.—The Secretary 4 shall establish the high-rated facility pro- 5 gram under clause (i) through notice and 6 comment rulemaking. 7 ‘‘(B) DESIGNATION.—Under the high- 8 rated facility program, subject to subparagraph 9 (D), the Secretary shall designate the highest 10 rated skilled nursing facilities under the 11 rankings under paragraph (9)(B) as high-rated 12 skilled nursing facilities. 13 ‘‘(C) DISTINCTION ON NURSING HOME 14 COMPARE WEBSITE.—A skilled nursing facility 15 that is designated as a high-rated skilled nurs- 16 ing facility under subparagraph (B) shall re- 17 ceive a high-rated distinction on the official 18 Internet website of the Federal Government for 19 comparing nursing homes pursuant to sub- 20 section (i)(1)(C). 21 ‘‘(D) SUSPENSION OF HIGH-RATED STA- 22 TUS.— 23 ‘‘(i) IN GENERAL.—The Secretary 24 shall suspend a skilled nursing facility’s 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 782 IS designation under subparagraph (B) if the 1 Secretary determines that there are cir- 2 cumstances warranting such suspension. 3 ‘‘(ii) CIRCUMSTANCES.—In estab- 4 lishing the circumstances under clause (i), 5 the Secretary shall take into account— 6 ‘‘(I) findings from Federal sur- 7 veys and investigations; 8 ‘‘(II) findings from State surveys 9 conducted under subsection (g)(2)(A); 10 ‘‘(III) findings from State inves- 11 tigations and surveys conducted under 12 subsection (g)(4), including a high 13 number of substantiated complaints, 14 the frequency and severity of substan- 15 tiated complaints, and how the com- 16 plaints are handled by the facility; 17 ‘‘(IV) situations involving 18 changes of ownership, administration, 19 or management of a skilled nursing 20 facility, or the director of nursing; 21 ‘‘(V) situations involving the in- 22 appropriate administration of medica- 23 tions by a facility; 24 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 782 IS ‘‘(VI) situations involving invol- 1 untary discharges of residents; and 2 ‘‘(VII) other factors determined 3 appropriate by the Secretary. 4 ‘‘(iii) NO REINSTATEMENT PRIOR TO 5 NEXT STANDARD SURVEY.—If a skilled 6 nursing facility’s designation is suspended 7 under clause (i), such designation shall not 8 be reinstated prior to a subsequent survey 9 as specified under subsection 10 (g)(2)(A)(iii).’’. 11 (B) ASSESSMENT OF HIGH-RATED DES- 12 IGNATION IN SPECIAL SURVEYS.—Section 13 1819(g)(2)(A)(iii)(II) of the Social Security Act 14 (42 U.S.C. 1395i–3(g)(2)(A)(iii)(II)) is amend- 15 ed— 16 (i) by inserting ‘‘(or, in the case of a 17 facility that is designated as a high-rated 18 skilled nursing facility under subsection 19 (f)(10), shall be conducted)’’ after ‘‘may be 20 conducted’’; and 21 (ii) by adding at the end the following 22 new sentence: ‘‘On and after the date the 23 Secretary implements the high-rated facil- 24 ity program under subsection (f)(10), any 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 782 IS survey conducted, pursuant to the pre- 1 ceding sentence, of a facility that is des- 2 ignated as a high-rated skilled nursing fa- 3 cility under such subsection shall include 4 an assessment of whether such designation 5 should continue or be suspended under 6 subparagraph (D) of such subsection.’’. 7 (2) IMPROVEMENTS TO THE SPECIAL FOCUS 8 FACILITY PROGRAM.— 9 (A) APPROPRIATE PARTICIPATION.—Sec- 10 tion 1819(f)(8) of the Social Security Act (42 11 U.S.C. 1395i–3(f)(8)) is amended— 12 (i) in subparagraph (A), by striking 13 ‘‘The Secretary’’ and inserting ‘‘Subject to 14 the succeeding provisions of this sub- 15 section, the Secretary’’; and 16 (ii) by adding at the end the following 17 new subparagraph: 18 ‘‘(C) APPROPRIATE PARTICIPATION.—Not 19 later than 1 year after the date of enactment of 20 the Nursing Home Reform Modernization Act 21 of 2021, the Secretary shall ensure that the 22 number of facilities participating in the special 23 focus facility program is not less than 3.5 per- 24 cent of all skilled nursing facilities.’’. 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 782 IS (B) CONVERSION OF THE SPECIAL FOCUS 1 FACILITY PROGRAM TO THE LOW-RATED FACIL- 2 ITY PROGRAM AND ADDITIONAL REQUIRE- 3 MENTS.—Section 1819(f)(8) of the Social Secu- 4 rity Act (42 U.S.C. 1395i–3(f)(8)), as amended 5 by subparagraph (A), is amended— 6 (i) in subparagraph (B), by inserting 7 the following before the period at the end: 8 ‘‘(or, on and after the date the Secretary 9 makes the conversion described in subpara- 10 graph (D), at a frequency determined ap- 11 propriate by the Secretary (but in no case 12 less than once every 6 months))’’; and 13 (ii) by adding at the end the following 14 new subparagraphs: 15 ‘‘(D) CONVERSION TO THE LOW-RATED 16 FACILITY PROGRAM.— 17 ‘‘(i) IN GENERAL.—On the same date 18 that the Secretary implements the high- 19 rated facility program under paragraph 20 (10), the Secretary shall convert the spe- 21 cial focus facility program under this sub- 22 section to the low-rated facility program. 23 ‘‘(ii) REGULATIONS.—The Secretary 24 shall carry out the conversion under clause 25 VerDate Sep 11 2014 19:11 Apr 11, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S782.IS S782 pamtmann on D [Text truncated for display. 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