Essential Caregivers Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 3733 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 public health emergency under the Medicare and Medicaid programs. IN THE HOUSE OF REPRESENTATIVES JUNE 4, 2021 Ms. TENNEY (for herself, Mr. LARSON of Connecticut, Ms. STEFANIK, Mr. RUTHERFORD, Ms. HERRELL, Mr. CAWTHORN, Ms. SPANBERGER, Mr. BUDD, Mr. VAN DREW, and Mr. COHEN) 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 subse- quently 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, in- termediate care facilities for the intellectually disabled, and inpatient rehabilitation facilities to permit essential caregivers access during any public health emergency under the Medicare and Medicaid programs. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 3733 IH SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Essential Caregivers 2 Act of 2021’’. 3 SEC. 2. RIGHT TO ESSENTIAL CAREGIVERS. 4 During a public health emergency declared by the 5 Secretary of Health and Human Services under section 6 319 of the Public Health Service Act, a resident of any 7 skilled nursing facility (as defined in section 1819(a) of 8 the Social Security Act (42 U.S.C. 1395i–3(a))), nursing 9 facility (as defined in section 1919(a) of such Act (42 10 U.S.C. 1396r(a))), inpatient rehabilitation facility de- 11 scribed in section 1886(a)(1)(Z) of such Act (42 U.S.C. 12 1395cc(a)(1)(Z)), or intermediate care facility for the in- 13 tellectually disabled (as defined in section 1905(d) of such 14 Act (42 U.S.C. 1396d(d)) has the right to designate two 15 essential caregivers to have access to and provide assist- 16 ance and support to the resident at any time notwith- 17 standing any waiver made under section 1135 of the So- 18 cial Security Act (42 U.S.C. 1320b–5). The resident may 19 change who is designated as an essential caregiver. 20 SEC. 3. REQUIRING FACILITIES TO PERMIT ESSENTIAL 21 CAREGIVERS ACCESS DURING ANY PUBLIC 22 HEALTH EMERGENCY. 23 (a) SKILLED NURSING FACILITIES; NURSING FA- 24 CILITIES.—Section 1819(c) and 1919(c) of the Social Se- 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 3733 IH curity Act (42 U.S.C. 1395i–3(c), 1396r(c)) are each 1 amended— 2 (1) in paragraph (3)— 3 (A) in subparagraph (D), by striking 4 ‘‘and’’ at the end; 5 (B) in subparagraph (E), by striking the 6 period and inserting ‘‘; and’’; and 7 (C) by adding at the end the following new 8 subparagraph: 9 ‘‘(F) implement and maintain, during any 10 public health emergency declared by the Sec- 11 retary under section 319 of the Public Health 12 Service Act on or after the date of the enact- 13 ment of this subparagraph for the area in which 14 such facility is located and notwithstanding any 15 waiver made under section 1135, the essential 16 caregivers program described in paragraph 17 (7).’’; and 18 (2) by adding at the end the following new 19 paragraph: 20 ‘‘(7) ESSENTIAL CAREGIVERS PROGRAM.— 21 ‘‘(A) IN GENERAL.—For purposes sub- 22 paragraph (F) of paragraph (3), the essential 23 caregivers program described in this paragraph 24 is a program implemented by a facility de- 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 3733 IH scribed in such paragraph under which such fa- 1 cility shall— 2 ‘‘(i) allow each resident of such facil- 3 ity the unqualified ability to elect not more 4 than 2 essential caregivers (as defined in 5 subparagraph (D)) to have access to, and 6 provide assistance (as described in sub- 7 paragraph (C)(i)) to, such resident at such 8 facility, and allow each such resident to 9 amend such election at any time; 10 ‘‘(ii) permit each such caregiver so 11 elected by such resident to provide such as- 12 sistance to such resident at such facility 13 for 12 hours every day (or, in the case 14 such care is end-of-life care, for an unlim- 15 ited number of hours every day); and 16 ‘‘(iii) enforce the agreement described 17 in subparagraph (C)(ii) with respect to an 18 essential caregiver. 19 ‘‘(B) PRESUMPTION OF ELECTION.—For 20 purposes of subparagraph (A), in the case of a 21 resident who is unable, by reason of physical or 22 mental disability, to make an election described 23 in such subparagraph, the resident representa- 24 tive (as defined in section 483.5 of title 42, 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 3733 IH Code of Federal Regulations) of such resident 1 shall be permitted to make such election for 2 such resident. 3 ‘‘(C) ESSENTIAL CAREGIVER DEFINED.— 4 For purposes of this paragraph, the term ‘es- 5 sential caregiver’ means, with respect to a resi- 6 dent of a facility described in subparagraph 7 (A), an individual who— 8 ‘‘(i) will provide assistance consisting 9 of activities of daily living, emotional sup- 10 port, or companionship to such resident; 11 and 12 ‘‘(ii) agrees to follow all safety proto- 13 cols established by such facility, which 14 shall be clearly specified in writing and be 15 the same as such protocols (including safe- 16 ty standards and entry requirements) ap- 17 plicable to staff of such facility.’’. 18 (b) INTERMEDIATE CARE FACILITIES FOR THE IN- 19 TELLECTUALLY DISABLED.—Section 1905(d) of the So- 20 cial Security Act (42 U.S.C. 1396d(d)) is amended— 21 (1) in paragraph (2), by striking ‘‘and’’ at the 22 end; 23 (2) in paragraph (3), by striking the period and 24 inserting ‘‘; and’’; and 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 3733 IH (3) by adding at the end the following new 1 paragraph: 2 ‘‘(4) the institution implements and maintains, 3 during any public health emergency declared by the 4 Secretary on or after the date of the enactment of 5 this paragraph under section 319 of the Public 6 Health Service Act for the area in which such insti- 7 tution is located and notwithstanding any waiver 8 made under section 1135, the essential caregivers 9 program described in section 1919(c)(7) in the same 10 manner as if such institution were a nursing facil- 11 ity.’’. 12 (c) INPATIENT REHABILITATION FACILITIES.—Sec- 13 tion 1866(a)(1) of the Social Security Act (42 U.S.C. 14 1395cc(a)(1)) is amended— 15 (1) in subparagraph (X), by striking ‘‘and’’ at 16 the end; 17 (2) in subparagraph (Y), by striking the period 18 at the end and inserting ‘‘, and’’; and 19 (3) by inserting after subparagraph (Y) the fol- 20 lowing new subparagraph: 21 ‘‘(Z) in the case of an inpatient rehabilitation 22 facility that is located on the same campus (as de- 23 fined by the Secretary) as a skilled nursing facility, 24 nursing facility (as defined in section 1919(a)), or 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 3733 IH intermediate care facility for the intellectually dis- 1 abled (as described in section 1905(d)), to establish 2 and maintain, during any public health emergency 3 declared by the Secretary on or after the date of the 4 enactment of this paragraph under section 319 of 5 the Public Health Service Act for the area in which 6 such institution is located and notwithstanding any 7 waiver made under section 1135, the essential care- 8 givers program described in section 1819(c)(7) in 9 the same manner as if such institution were a skilled 10 nursing facility.’’. 11 (d) COMPLIANCE AND NOTIFICATION.— 12 (1) AUTHORITY.—No caregiver who meets the 13 definition of an essential caregiver in clause (i) of 14 paragraph (7)(C) of either section 1819(c) and 15 1919(c) of the Social Security Act and who upholds 16 the agreement described in clause (ii) of such para- 17 graph shall be denied access to the skilled nursing 18 facility (as defined in section 1819(a) of the Social 19 Security Act (42 U.S.C. 1395i–3(a))), nursing facil- 20 ity (as defined in section 1919(a) of such Act (42 21 U.S.C. 1396r(a))), inpatient rehabilitation facility 22 described in section 1886(a)(1)(Z) of such Act (42 23 U.S.C. 1395cc(a)(1)(Z)), or intermediate care facil- 24 ity for the intellectually disabled (as defined in sec- 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 3733 IH tion 1905(d) of such Act (42 U.S.C. 1396d(d)) of 1 the resident involved. 2 (2) NOTIFICATION.— In the event of non-com- 3 pliance with either such clause, such facility must 4 first provide a warning to the essential caregiver and 5 resident in writing citing specific issues of non-com- 6 pliance and providing clear guidance for corrective 7 measures. 8 (3) ENFORCEMENT.—Should the essential care- 9 giver or resident fail to take corrective action, they 10 may be subsequently denied access. In such cases, 11 the facility shall provide to such caregiver and such 12 resident (or health care proxy of such resident), not 13 later than 24 hours after such failure to allow access 14 occurs, a written explanation as to why such care- 15 giver was not permitted to furnish such assistance to 16 such resident. Such explanation must include the 17 resident’s and caregivers’ options for appeal (as de- 18 scribed in subsection (e)). 19 (e) OPTIONS FOR RESIDENT AND CAREGIVER AP- 20 PEAL.— 21 (1) IN GENERAL.—During any period in which 22 any skilled nursing facility (as defined in section 23 1819(a) of the Social Security Act (42 U.S.C. 24 1395i–3(a))), nursing facility (as defined in section 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 3733 IH 1919(a) of such Act (42 U.S.C. 1396r(a))), inpa- 1 tient rehabilitation facility described in section 2 1886(a)(1)(Z) of such Act (42 U.S.C. 3 1395cc(a)(1)(Z)), or intermediate care facility for 4 the intellectually disabled (as defined in section 5 1905(d) of such Act (42 U.S.C. 1396d(d)) is re- 6 quired to establish and maintain the essential care- 7 givers program under section 1819(c)(3)(F) of such 8 Act, section 1919(c)(3) of such Act, or section 9 1905(d)(4) of such Act (as added by subsections (a) 10 and (b)), the Secretary of Health and Human Serv- 11 ices shall, not later than 15 days after the first day 12 of such period, establish and maintain a process 13 to— 14 (A) receive appeals from residents and 15 caregivers challenging a decision to deny access; 16 and 17 (B) investigate all such appeals within 48 18 hours of receipt. 19 (f) ENFORCEMENT.—With respect to appeals re- 20 ceived under paragraph (1), the Secretary of Heath and 21 Human Services shall make a determination as to whether 22 a facility described in subsection (e)(1) violated a require- 23 ment or prohibition in this Act or in an amendment made 24 by this Act within 7 days of commencing its investigation. 25 VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 3733 IH If the Secretary determines that a facility has violated a 1 requirement or prohibition in this Act or in an amendment 2 made by this Act, the Secretary shall— 3 (1) require the facility to establish a corrective 4 action plan to prevent the recurrence of such viola- 5 tion within a 7-day period of receiving notice from 6 the Secretary; and 7 (2) impose a civil money penalty in an amount 8 to be determined by the Secretary if such facility 9 fails to implement the corrective action plan with the 10 7-day period specified in paragraph (1). 11 (g) REGULATIONS.—The Secretary of Health and 12 Human Services shall, after consultation with stakeholders 13 (including residents, family members, long-term care om- 14 budsmen, other advocates of nursing home residents, and 15 nursing home providers, promulgate regulations to carry 16 out this Act. 17 Æ VerDate Sep 11 2014 04:25 Jul 03, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H3733.IH H3733 pbinns on DSKJLVW7X2PROD with BILLS