Nursing Home COVID–19 Protection and Prevention Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 6972 To protect older adults and people with disabilities living in nursing homes, intermediate care facilities, and psychiatric hospitals from COVID–19. IN THE HOUSE OF REPRESENTATIVES MAY 22, 2020 Ms. ESHOO (for herself, Ms. SCHAKOWSKY, Ms. SHALALA, Ms. DEAN, and Mr. MOULTON) introduced the following bill; which was referred to the Com- mittee on Energy and Commerce 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 (1) IN GENERAL.—Not later than 30 days after 8 the date of enactment of this Act, the Secretary 9 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 6972 IH shall carry out a program under which payments are 1 made to States and Indian Tribes in order to sup- 2 port cohorting individuals in skilled nursing facili- 3 ties, nursing facilities, intermediate care facilities, 4 and psychiatric hospitals based on COVID–19 sta- 5 tus. 6 (2) APPLICATION.—To be eligible to receive a 7 payment under this subsection, a State or Indian 8 Tribe shall submit to the Secretary an application. 9 Such application shall include evidence that the 10 State or Indian Tribe (and involved skilled nursing 11 facilities, nursing facilities, intermediate care facili- 12 ties, and psychiatric hospitals) are able to cohort in- 13 dividuals in compliance with guidance issued by the 14 Secretary during the emergency period. If feasible, 15 the Secretary shall provide for an expedited applica- 16 tion process. 17 (3) REQUIREMENTS.—To be eligible to receive 18 a payment under this subsection, a State or Indian 19 Tribe shall comply with the following: 20 (A) FOLLOWING GUIDANCE.—The State or 21 Indian Tribe shall follow the guidance estab- 22 lished by the Secretary under paragraph (5) 23 and all other guidance issued by the Secretary 24 during the emergency period. 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 6972 IH (B) REPORTING.—The State or Indian 1 Tribe shall, as determined appropriate by the 2 Secretary, periodically report to the Secretary 3 on the following: 4 (i) The convening and recommenda- 5 tions of the task force under subparagraph 6 (C), cohorting strategies being used, the 7 use of surge teams, and the technical as- 8 sistance and resources provided under sub- 9 paragraph (E). 10 (ii) The State or Indian Tribe’s dis- 11 tribution of the payments received under 12 the program under this subsection and 13 what facilities are using such payments for 14 (as permitted under paragraph (4)(B)). 15 (iii) Other items determined appro- 16 priate by the Secretary. 17 (C) TASK FORCE.— 18 (i) IN GENERAL.—The State or In- 19 dian Tribe shall establish a task force to 20 provide advice on the State or Tribe’s use 21 and distribution of payments received 22 under the program under this section, in- 23 cluding on cohorting strategies, the use of 24 surge teams, resident rights (particularly 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 6972 IH involving discharges and transfers), and 1 other topics as determined appropriate by 2 the Secretary. 3 (ii) MEMBERSHIP.—A task force es- 4 tablished under clause (i) shall include rep- 5 resentation from the following: 6 (I) Consumers, including older 7 adults age 65 and older, individuals 8 with disabilities, family caregivers, 9 and their advocates. 10 (II) Skilled nursing facilities, 11 nursing facilities, intermediate care 12 facilities, and psychiatric hospitals. 13 (III) Health care providers and 14 other congregate settings (including 15 hospitals and permanent or transi- 16 tional housing facilities) that transfer 17 residents to and from skilled nursing 18 facilities, nursing facilities, inter- 19 mediate care facilities, and psychiatric 20 hospitals. 21 (IV) Health professionals, such 22 as direct care professionals, physi- 23 cians, nurses, and pharmacists. 24 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 6972 IH (V) Experts in public health and 1 infectious diseases. 2 (VI) Experts in geriatrics and 3 long-term care medicine. 4 (VII) The State Long-Term Care 5 Ombudsman program (as described in 6 section 712(a)(1) of the Older Ameri- 7 cans Act of 1965 (42 U.S.C. 8 3058g(a)(1))). 9 (VIII) The protection and advo- 10 cacy system (as established under 11 subtitle C of title I of the Develop- 12 mental Disabilities Assistance and Bill 13 of Rights Act of 2000 (42 U.S.C. 14 15041 et seq.)). 15 (IX) State agencies, including the 16 State surveying agency and the agen- 17 cy that administers the State plan 18 under the Medicaid program under 19 title XIX of the Social Security Act 20 (42 U.S.C. 1396 et seq.). 21 (X) Other representatives as the 22 Secretary determines appropriate. 23 (D) PROTOCOL TO EVALUATE.—The State 24 or Indian Tribe shall establish an expedited 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 6972 IH protocol to evaluate a facility’s ability (including 1 a facility retrofitted under paragraph (4)(B)(i)) 2 to cohort individuals who test positive for 3 COVID–19, individuals who test negative for 4 COVID–19, or individuals with unknown status 5 or who are under observation regarding 6 COVID–19. Such protocol shall include an in- 7 fection control self-assessment and an abbre- 8 viated survey and may include a standard sur- 9 vey. 10 (E) TECHNICAL ASSISTANCE AND RE- 11 SOURCES.— 12 (i) IN GENERAL.—The State or In- 13 dian Tribe shall ensure that skilled nursing 14 facilities, nursing facilities, intermediate 15 care facilities, and psychiatric hospitals re- 16 ceive technical assistance and the nec- 17 essary resources to— 18 (I) implement proper infection 19 control protocols and practices; 20 (II) minimize unnecessary trans- 21 fers; 22 (III) ensure adequate staffing, 23 including the use of surge teams; 24 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 6972 IH (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) conduct other activities, as 9 determined appropriate by the Sec- 10 retary. 11 (ii) REQUIREMENT FOR TECHNICAL 12 ASSISTANCE.—The technical assistance re- 13 quired under clause (i) shall be provided 14 by— 15 (I) quality improvement organi- 16 zations under part B of title XI of the 17 Social Security Act (42 U.S.C. 1320c 18 et seq.); or 19 (II) other independent organiza- 20 tions of a similar type that do not 21 have conflicts of interest and are 22 deemed appropriate by the Secretary. 23 (4) USE OF FUNDS.— 24 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 6972 IH (A) IN GENERAL.—A State or Indian 1 Tribe that receives a payment under the pro- 2 gram under this subsection shall use funds to 3 support skilled nursing facilities, nursing facili- 4 ties, intermediate care facilities, and psychiatric 5 hospitals that cohort, and provide services to, 6 individuals who test positive for COVID–19, in- 7 dividuals who test negative for COVID–19, and 8 individuals with unknown status or who are 9 under observation regarding COVID–19. Such 10 cohorting and services shall be in compliance 11 with all guidance issued by the Secretary during 12 the emergency period. 13 (B) PERMISSIBLE USES AND AUTHORIZED 14 COSTS.—States and Indian Tribes shall use the 15 payments received under the program under 16 this subsection for the following purposes: 17 (i) To retrofit non-traditional facility- 18 based settings, such as hotels, dormitories, 19 schools, churches, and other temporary or 20 permanent shelters, for temporary use as 21 skilled nursing facilities, nursing facilities, 22 intermediate care facilities, and psychiatric 23 hospitals. 24 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 6972 IH (ii) To support skilled nursing facili- 1 ties, nursing facilities, intermediate care 2 facilities, and psychiatric hospitals with the 3 establishment of specialized units within 4 such facilities. 5 (iii) To provide testing kits or other 6 supplies needed for rapid turnaround to 7 test staff members and residents of skilled 8 nursing facilities, nursing facilities, inter- 9 mediate care facilities, and psychiatric hos- 10 pitals for COVID–19. 11 (iv) To provide personal protective 12 equipment to staff members of skilled 13 nursing facilities, nursing facilities, inter- 14 mediate care facilities, psychiatric hos- 15 pitals, and, where appropriate, to residents 16 of such facilities. 17 (v) To safely facilitate necessary 18 transfers to and from skilled nursing facili- 19 ties, nursing facilities, intermediate care 20 facilities, and psychiatric hospitals. 21 (vi) To safely facilitate voluntary dis- 22 charges to home and community-based set- 23 tings from skilled nursing facilities, nurs- 24 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 6972 IH ing facilities, intermediate care facilities, 1 and psychiatric hospitals. 2 (vii) To provide additional staffing 3 (including the use of surge teams) associ- 4 ated with the COVID–19 pandemic for 5 skilled nursing facilities, nursing facilities, 6 intermediate care facilities, and psychiatric 7 hospitals, which may include providing pre- 8 mium or hazard pay, overtime pay, en- 9 hanced payment rates, paid sick and fam- 10 ily medical leave, childcare, temporary 11 housing, transportation, and other sup- 12 portive services for staff members. 13 (viii) To provide support for individ- 14 uals who have no other mechanism to pay 15 for their care at skilled nursing facilities, 16 nursing facilities, intermediate care facili- 17 ties, and psychiatric hospitals and are un- 18 able to pay. 19 (ix) Other purposes relating to the 20 cohorting and services described in sub- 21 paragraph (A). 22 (5) ADDITIONAL GUIDANCE.—For purposes of 23 the program under this subsection, not later than 30 24 days after the date of enactment of this Act (and 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 6972 IH prior to making any payments to States or Indian 1 Tribes under the program) the Secretary shall estab- 2 lish guidance on the following: 3 (A) Which skilled nursing facilities, nurs- 4 ing facilities, intermediate care facilities, and 5 psychiatric hospitals are permitted to cohort in- 6 dividuals who test positive for COVID–19, indi- 7 viduals who test negative for COVID–19, and 8 individuals with unknown status or who are 9 under observation regarding COVID–19. Such 10 guidance shall account for— 11 (i) the facility’s history of compliance 12 with the requirements of participation 13 under titles XVIII and XIX of the Social 14 Security Act (42 U.S.C. 1395 et seq., 1396 15 et seq.), including requirements relating to 16 infection control and emergency prepared- 17 ness; 18 (ii) the facility’s current or past affili- 19 ation (as either a candidate or participant) 20 with the special focus facility program 21 under section 1819(f)(8) of such Act (42 22 U.S.C. 1395i–3(f)(8)) and section 23 1919(f)(10) of such Act (42 U.S.C. 24 1396r(f)(10)); and 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 6972 IH (iii) the facility’s ability to treat high- 1 severity residents, as applicable. 2 (B) Consumer protections for residents of 3 skilled nursing facilities, nursing facilities, in- 4 termediate care facilities, and psychiatric hos- 5 pitals affected by COVID–19 cohorting policies, 6 including by— 7 (i) prohibiting facilities from dis- 8 charging residents for failure to pay for 9 services; and 10 (ii) requiring written notification to be 11 provided to residents and their family and 12 legal representatives at least 72 hours 13 prior to discharge or transfers, with such 14 notice containing— 15 (I) information on the rights of 16 the resident; 17 (II) contact information for the 18 State Long-Term Care Ombudsman 19 program (as described in section 20 712(a)(1) of the Older Americans Act 21 of 1965 (42 U.S.C. 3058g(a)(1))); 22 and 23 (III) contact information for the 24 protection and advocacy system (as 25 VerDate Sep 11 2014 04:10 Jun 14, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H6972.IH H6972 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 6972 IH established under subtitle C of title I 1 of the Developmental Disabilities As- 2 sistance and Bill of Rights Act of 3 2000 (42 U.S.C. 15041 et seq.). 4 (C) Strategies to effectively cohort resi- 5 dents of skilled nursing facilities, nursing facili- 6 ties, intermediate care facilities, and psychiatric 7 hospitals based on COVID–19 status, includ- 8 ing— 9 (i) the temporary utilization of non- 10 traditional facility-based settings, such as 11 hotels, dormitories, schools, churches, and 12 other temporary or permanent shelters, as 13 skilled nursing facilities, nursing facilities, 14 intermediate care facilities, and psychiatric 15 hospitals; 16 (ii) how to safely and effectively move, 17 shelter in place, and cohort within facili- 18 ties; 19 (iii) how to establish separate facilities 20 for individuals who test positive for 21 COVID–19; 22 (iv) how to establish separate facilities 23 for individuals who test negative for 24 COVID–19; 25 VerDate Sep 11 2014 04:10 [Text truncated for display. 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