Nursing Home COVID–19 Protection and Prevention Act of 2020

II 116TH CONGRESS 2D SESSION S. 3768 To protect older adults and people with disabilities living in nursing homes, intermediate care facilities, and psychiatric hospitals from COVID–19. IN THE SENATE OF THE UNITED STATES MAY 19, 2020 Mr. CASEY (for himself, Mr. WHITEHOUSE, Mr. SCHUMER, Mr. JONES, Ms. WARREN, Ms. BALDWIN, Mr. MARKEY, Mrs. SHAHEEN, Mr. MENENDEZ, Mr. REED, Mr. VAN HOLLEN, Mr. BLUMENTHAL, Ms. HIRONO, Ms. CORTEZ MASTO, Ms. ROSEN, and Mr. PETERS) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To protect older adults and people with disabilities living in nursing homes, intermediate care facilities, and psy- chiatric hospitals from COVID–19. 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 4 COVID–19 Protection and Prevention Act of 2020’’. 5 SEC. 2. COVID–19 NURSING HOME PROTECTIONS. 6 (a) PROGRAM TO SUPPORT COVID–19 RESPONSE.— 7 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 3768 IS (1) IN GENERAL.—Not later than 30 days after 1 the date of enactment of this Act, the Secretary 2 shall carry out a program under which payments are 3 made to States and Indian Tribes in order to sup- 4 port cohorting individuals in skilled nursing facili- 5 ties, nursing facilities, intermediate care facilities, 6 and psychiatric hospitals based on COVID–19 sta- 7 tus. 8 (2) APPLICATION.—To be eligible to receive a 9 payment under this subsection, a State or Indian 10 Tribe shall submit to the Secretary an application. 11 Such application shall include evidence that the 12 State or Indian Tribe (and involved skilled nursing 13 facilities, nursing facilities, intermediate care facili- 14 ties, and psychiatric hospitals) are able to cohort in- 15 dividuals in compliance with guidance issued by the 16 Secretary during the emergency period. If feasible, 17 the Secretary shall provide for an expedited applica- 18 tion process. 19 (3) REQUIREMENTS.—To be eligible to receive 20 a payment under this subsection, a State or Indian 21 Tribe shall comply with the following: 22 (A) FOLLOWING GUIDANCE.—The State or 23 Indian Tribe shall follow the guidance estab- 24 lished by the Secretary under paragraph (5) 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 3768 IS and all other guidance issued by the Secretary 1 during the emergency period. 2 (B) REPORTING.—The State or Indian 3 Tribe shall, as determined appropriate by the 4 Secretary, periodically report to the Secretary 5 on the following: 6 (i) The convening and recommenda- 7 tions of the task force under subparagraph 8 (C), cohorting strategies being used, the 9 use of surge teams, and the technical as- 10 sistance and resources provided under sub- 11 paragraph (D). 12 (ii) The State or Indian Tribe’s dis- 13 tribution of the payments received under 14 the program under this subsection and 15 what facilities are using such payments for 16 (as permitted under paragraph (4)(B)). 17 (iii) Other items determined appro- 18 priate by the Secretary. 19 (C) TASK FORCE.— 20 (i) IN GENERAL.—The State or In- 21 dian Tribe shall establish a task force to 22 provide advice on the State’s or Tribe’s use 23 and distribution of payments received 24 under the program under this section, in- 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 3768 IS cluding on cohorting strategies, the use of 1 surge teams, resident rights (particularly 2 involving discharges and transfers), and 3 other topics as determined appropriate by 4 the Secretary. 5 (ii) MEMBERSHIP.—A task force es- 6 tablished under clause (i) shall include rep- 7 resentation from the following: 8 (I) Consumers, including older 9 adults age 65 and older, individuals 10 with disabilities, family caregivers, 11 and their advocates. 12 (II) Skilled nursing facilities, 13 nursing facilities, intermediate care 14 facilities, and psychiatric hospitals. 15 (III) Health care providers and 16 other congregate settings (including 17 hospitals and permanent or transi- 18 tional housing facilities) that transfer 19 residents to and from skilled nursing 20 facilities, nursing facilities, inter- 21 mediate care facilities, and psychiatric 22 hospitals. 23 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 3768 IS (IV) Health professionals, such 1 as direct care professionals, physi- 2 cians, nurses, and pharmacists. 3 (V) Experts in public health and 4 infectious diseases. 5 (VI) Experts in geriatrics and 6 long-term care medicine. 7 (VII) The State Long-Term Care 8 Ombudsman program (as described in 9 section 712(a)(1) of the Older Ameri- 10 cans Act of 1965 (42 U.S.C. 11 3058g(a)(1))). 12 (VIII) The protection and advo- 13 cacy system (as established under 14 subtitle C of title I of the Develop- 15 mental Disabilities Assistance and Bill 16 of Rights Act (42 U.S.C. 15041 et 17 seq.). 18 (IX) State agencies, including the 19 State surveying agency and the agen- 20 cy that administers the State plan 21 under the Medicaid program under 22 title XIX of the Social Security Act. 23 (X) Other representatives as the 24 Secretary determines appropriate. 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 3768 IS (D) PROTOCOL TO EVALUATE.—The State 1 or Indian Tribe shall establish an expedited 2 protocol to evaluate a facility’s ability (including 3 a facility retrofitted under paragraph (4)(B)(i)) 4 to cohort individuals who test positive for 5 COVID–19, individuals who test negative for 6 COVID–19, or individuals with unknown status 7 or who are under observation. Such protocol 8 shall include an infection control self-assess- 9 ment and an abbreviated survey and may in- 10 clude a standard survey. 11 (E) TECHNICAL ASSISTANCE AND RE- 12 SOURCES.— 13 (i) IN GENERAL.—The State or In- 14 dian Tribe shall ensure that skilled nursing 15 facilities, nursing facilities, intermediate 16 care facilities, and psychiatric hospitals re- 17 ceive technical assistance and the nec- 18 essary resources to— 19 (I) implement proper infection 20 control protocols and practices; 21 (II) minimize unnecessary trans- 22 fers; 23 (III) ensure adequate staffing, 24 including the use of surge teams; 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 3768 IS (IV) effectively use and provide 1 access to testing and personal protec- 2 tive equipment, including guidance on 3 how to effectively use personal protec- 4 tive equipment when access is limited; 5 (V) safely transition residents to 6 home and community-based settings; 7 and 8 (VI) other topics, as determined 9 appropriate by the Secretary. 10 (ii) REQUIREMENT FOR TECHNICAL 11 ASSISTANCE.—The technical assistance re- 12 quired under clause (i) shall be provided 13 by— 14 (I) quality improvement organi- 15 zations under part B of title XI of the 16 Social Security Act; or 17 (II) other independent organiza- 18 tions of a similar type that do not 19 have conflicts of interest and are 20 deemed appropriate by the Secretary. 21 (4) USE OF FUNDS.— 22 (A) IN GENERAL.—A State or Indian 23 Tribe that receives a payment under the pro- 24 gram under this subsection shall use funds to 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 3768 IS support skilled nursing facilities, nursing facili- 1 ties, intermediate care facilities, and psychiatric 2 hospitals that cohort, and provide services to, 3 individuals who test positive for COVID–19, in- 4 dividuals who test negative for COVID–19, and 5 individuals with unknown status or who are 6 under observation. Such cohorting shall be in 7 compliance with all guidance issued by the Sec- 8 retary during the emergency period. 9 (B) PERMISSIBLE USES AND AUTHORIZED 10 COSTS.—States and Indian Tribes shall use the 11 payments received under the program under 12 this subsection for the following purposes: 13 (i) To retrofit non-traditional facility- 14 based settings, such as hotels, dormitories, 15 schools, churches, and other temporary or 16 permanent shelters, for temporary use as 17 skilled nursing facilities, nursing facilities, 18 intermediate care facilities, and psychiatric 19 hospitals. 20 (ii) To support skilled nursing facili- 21 ties, nursing facilities, intermediate care 22 facilities, and psychiatric hospitals with the 23 establishment of specialized units within 24 such facilities. 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 3768 IS (iii) To provide testing kits or other 1 supplies needed for rapid turnaround to 2 test staff members and residents of skilled 3 nursing facilities, nursing facilities, inter- 4 mediate care facilities, and psychiatric hos- 5 pitals for COVID–19. 6 (iv) To provide personal protective 7 equipment to staff members of skilled 8 nursing facilities, nursing facilities, inter- 9 mediate care facilities, psychiatric hospitals 10 and, where appropriate, to residents of 11 such facilities. 12 (v) To safely facilitate necessary 13 transfers to and from skilled nursing facili- 14 ties, nursing facilities, intermediate care 15 facilities, and psychiatric hospitals. 16 (vi) To safely facilitate voluntary dis- 17 charges to home and community-based set- 18 tings from skilled nursing facilities, nurs- 19 ing facilities, intermediate care facilities, 20 and psychiatric hospitals. 21 (vii) To provide additional staffing 22 (including the use of surge teams) associ- 23 ated with the COVID–19 pandemic for 24 skilled nursing facilities, nursing facilities, 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 3768 IS intermediate care facilities, and psychiatric 1 hospitals, which may include providing pre- 2 mium or hazard pay, overtime pay, en- 3 hanced payment rates, paid sick and fam- 4 ily medical leave, childcare, temporary 5 housing, transportation, and other sup- 6 portive services for staff members. 7 (viii) To provide support for individ- 8 uals who have no other mechanism to pay 9 for their care at skilled nursing facilities, 10 nursing facilities, intermediate care facili- 11 ties, and psychiatric hospitals and are un- 12 able to pay. 13 (ix) Other purposes relating to the 14 cohorting described in subparagraph (A). 15 (5) ADDITIONAL GUIDANCE.—For purposes of 16 the program under this subsection, not later than 30 17 days after the date of enactment of this Act (and 18 prior to making any payments to States or Indian 19 Tribes under the program) the Secretary shall estab- 20 lish guidance on the following: 21 (A) Which skilled nursing facilities, nurs- 22 ing facilities, intermediate care facilities, and 23 psychiatric hospitals are permitted to cohort in- 24 dividuals who test positive for COVID–19, indi- 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 3768 IS viduals who test negative for COVID–19, and 1 individuals with unknown status or who are 2 under observation. Such guidance shall account 3 for— 4 (i) the facility’s history of compliance 5 with the requirements of participation 6 under titles XVIII and XIX of the Social 7 Security Act, including requirements relat- 8 ing to infection control and emergency pre- 9 paredness; 10 (ii) the facility’s current or past affili- 11 ation (as either a candidate or participant) 12 with the special focus facility program 13 under section 1819(f)(8) of such Act (42 14 U.S.C. 1395i–3(f)(8)) and section 15 1919(f)(10) of such Act (42 U.S.C. 16 1396r(f)(10)); and 17 (iii) the facility’s ability to treat high- 18 severity residents, as applicable. 19 (B) Consumer protections for residents of 20 skilled nursing facilities, nursing facilities, in- 21 termediate care facilities, and psychiatric hos- 22 pitals affected by COVID–19 cohorting policies, 23 including by— 24 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 3768 IS (i) prohibiting facilities from dis- 1 charging residents for failure to pay for 2 services; and 3 (ii) requiring written notification to be 4 provided to residents and their family and 5 legal representatives at least 72 hours 6 prior to discharge or transfers, with such 7 notice containing— 8 (I) information on the rights of 9 the resident; 10 (II) contact information for the 11 State Long-Term Care Ombudsman 12 program (as described in section 13 712(a)(1) of the Older Americans Act 14 of 1965 (42 U.S.C. 3058g(a)(1))); 15 and 16 (III) contact information for the 17 protection and advocacy system (as 18 established under subtitle C of title I 19 of the Developmental Disabilities As- 20 sistance and Bill of Rights Act (42 21 U.S.C. 15041 et seq.). 22 (C) Strategies to effectively cohort resi- 23 dents of skilled nursing facilities, nursing facili- 24 ties, intermediate care facilities, and psychiatric 25 VerDate Sep 11 2014 01:55 Jun 11, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3768.IS S3768 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 3768 IS hospitals based on COVID–19 status, includ- 1 ing— 2 (i) the temporary utilization of non- 3 traditional facility-based settings, such as 4 hotels, dormitories, schools, churches, and 5 other temporary or permanent shelters, as 6 skilled nursing facilities, nursing facilities, 7 intermediate care facilities, and psychiatric 8 hospitals; 9 (ii) how to safely and effectively move, 10 shelter in place, and cohort within facili- 11 ties; 12 (iii) how to establish separate facilities 13 for individuals who test positive for 14 COVID–19; 15 (iv) how to establish separate facilities 16 for individuals who test negative for 17 COVID–19; 18 (v) proper procedures for conducting 19 COVID–19 testing, sending tests to be 2 [Text truncated for display. 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