Emergency Support for Nursing Homes and Elder Justice Reform Act of 2020

II 116TH CONGRESS 2D SESSION S. 4182 To provide nursing homes with resources for responding to the COVID– 19 public health emergency to protect the health and safety of residents and workers, to reauthorize funding for programs under the Elder Justice Act of 2009, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 2, 2020 Mr. GRASSLEY (for himself, Mr. DAINES, and Ms. MCSALLY) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To provide nursing homes with resources for responding to the COVID–19 public health emergency to protect the health and safety of residents and workers, to reauthor- ize funding for programs under the Elder Justice Act of 2009, 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Emergency Support for Nursing Homes and Elder Jus- 5 tice Reform Act of 2020’’. 6 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4182 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Providing resources for personal protective equipment and testing. Sec. 4. Promoting transparency about COVID–19-related cases and fatalities and staffing levels in long-term care facilities. Sec. 5. Establishing strike teams. Sec. 6. Promoting identification and reporting of potential abuse or neglect in long-term care facilities. Sec. 7. Promoting quality of life of long-term care facility residents through televisitation. Sec. 8. Upgrading nursing home compare and the Five-Star rating system. Sec. 9. Enhancing Federal oversight of nursing homes participating in Medi- care or Medicaid. Sec. 10. Continuing funding for programs to prevent and prosecute elder abuse and neglect. Sec. 11. Increasing resources to investigate abuse or neglect and extend services to victims. Sec. 12. Protecting Americans with dementia. Sec. 13. Reducing racial and ethnic disparities in long-term care facilities. Sec. 14. Establishing reciprocity with Drug Enforcement Administration to ad- dress improper prescribing of controlled substances. SEC. 2. DEFINITIONS. 3 In this Act: 4 (1) COVID–19 PUBLIC HEALTH EMERGENCY 5 PERIOD.—The term ‘‘COVID–19 public health emer- 6 gency period’’ means the period beginning on the 7 first day of the emergency period defined in para- 8 graph (1)(B) of section 1135(g) of the Social Secu- 9 rity Act (42 U.S.C. 1320b–5(g)) and ending on the 10 last day of the calendar quarter in which the last 11 day of such emergency period occurs. 12 (2) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 13 has the meaning given that term in section 4 of the 14 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4182 IS Indian Self-Determination and Education Assistance 1 Act (25 U.S.C. 5304). 2 (3) LONG-TERM CARE FACILITY.—The term 3 ‘‘long-term care facility’’ has the meaning given that 4 term in section 2011(15) of the Social Security Act 5 (42 U.S.C. 1397j(15)). 6 (4) NURSING FACILITY.—The term ‘‘nursing 7 facility’’ has the meaning given that term in section 8 1919(a) of the Social Security Act (42 U.S.C. 9 1396r(a)). 10 (5) PARTICIPATING PROVIDER.—The term 11 ‘‘participating provider’’ means a skilled nursing fa- 12 cility or a nursing facility that has been assigned a 13 national provider identifier number by the Secretary 14 and has executed an agreement to participate in the 15 Medicare program established under title XVIII of 16 the Social Security Act (42 U.S.C. 1395 et seq.) or 17 the Medicaid program established under title XIX of 18 such Act (42 U.S.C. 1396 et seq.). 19 (6) SECRETARY.—The term ‘‘Secretary’’ means 20 the Secretary of Health and Human Services. 21 (7) SKILLED NURSING FACILITY.—The term 22 ‘‘skilled nursing facility’’ has the meaning given that 23 term in section 1819(a) of the Social Security Act 24 (42 U.S.C. 1395i–3(a)). 25 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4182 IS (8) STATE.—Except as otherwise provided, the 1 term ‘‘State’’ has the meaning given such term for 2 purposes of title XIX of the Social Security Act (42 3 U.S.C. 1396 et seq.). 4 (9) TRIBAL ORGANIZATION.—The term ‘‘tribal 5 organization’’ has the meaning given that term in 6 section 4 of the Indian Self-Determination and Edu- 7 cation Assistance Act (25 U.S.C. 5304). 8 (10) OTHER TERMS.—Each other term has the 9 meaning given the term for purposes of subtitle B 10 of title XX of the Social Security Act (42 U.S.C. 11 1397j et seq.). 12 SEC. 3. PROVIDING RESOURCES FOR PERSONAL PROTEC- 13 TIVE EQUIPMENT AND TESTING. 14 (a) IN GENERAL.—A portion of any payments re- 15 ceived or funds made available on or after July 1, 2020, 16 for responding to the public health or fiscal impacts re- 17 lated to the Coronavirus Disease (COVID–19) under Fed- 18 eral legislation enacted on or after that date which pri- 19 marily makes appropriations for the coronavirus response 20 and related activities, shall be used for the purposes de- 21 scribed in subsection (b), notwithstanding the original 22 purpose for which the amounts were appropriated to make 23 such payments or funds available, or any other provision 24 of law restricting the use of such payments or funds. 25 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4182 IS (b) PURPOSES DESCRIBED.—The purposes described 1 in this subsection are the following: 2 (1) To establish and maintain a supply of per- 3 sonal protective equipment at a level that is suffi- 4 cient, as determined by the Centers for Disease Con- 5 trol and Prevention, in collaboration with the Sec- 6 retary and the Administrator of the Federal Emer- 7 gency Management Agency, to provide for the safety 8 of— 9 (A) personnel employed by participating 10 providers and long-term care facilities, includ- 11 ing licensed assisted living or residential care 12 facilities, during the COVID–19 public health 13 emergency period; and 14 (B) State survey agency personnel who 15 conduct audits or investigations of participating 16 providers and long-term care facilities, includ- 17 ing licensed assisted living or residential care 18 facilities, during the COVID–19 public health 19 emergency period. 20 (2) To provide regular COVID–19 testing for 21 personnel and residents of participating providers 22 and long-term care facilities, including licensed as- 23 sisted living or residential care facilities (at no cost 24 to such personnel and residents), at a level that is 25 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4182 IS sufficient, based on the needs of the locality and its 1 circumstances, as determined by the Director of the 2 Centers for Disease Control and Prevention, in col- 3 laboration with the Secretary and the Administrator 4 of the Federal Emergency Management Agency, to 5 provide for the safety of such personnel and resi- 6 dents. A State shall provide such testing during the 7 90-day period that begins on the date on which the 8 Secretary, after consultation with the Director of the 9 Centers for Disease Control and Prevention, deter- 10 mines the State is able to conduct such testing at 11 such level and notifies the State of the date on 12 which the testing period is to start. 13 (c) STANDARDS AND GUIDANCE.—Not later than 30 14 days after the date of enactment of this Act, the Director 15 of the Centers for Disease Control and Prevention, in col- 16 laboration with the Secretary and the Administrator of the 17 Federal Emergency Management Agency, shall issue de- 18 tailed guidance to States on compliance with the require- 19 ments of this section as it relates to participating pro- 20 viders and long-term care facilities, including licensed as- 21 sisted living or residential care facilities. 22 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4182 IS SEC. 4. PROMOTING TRANSPARENCY ABOUT COVID–19-RE- 1 LATED CASES AND FATALITIES AND STAFF- 2 ING LEVELS IN LONG-TERM CARE FACILI- 3 TIES. 4 (a) COLLECTION AND REPORTING OF STAFFING 5 DATA BY PARTICIPATING PROVIDERS.—The Secretary 6 shall develop a plan for ensuring that participating pro- 7 viders shall resume compliance with the requirement, 8 under section 1128I(g) of the Social Security Act (42 9 U.S.C. 1320a–7j(g)), to electronically submit direct care 10 staffing information based on payroll and other auditable 11 data (including measures to ensure that the submitted 12 data includes direct care staffing information for the en- 13 tire duration of the emergency period). 14 (b) COLLECTION AND REPORTING OF DATA RE- 15 LATED TO COVID–19 BY PARTICIPATING PROVIDERS 16 AND LONG-TERM CARE FACILITIES.— 17 (1) IN GENERAL.— 18 (A) REPORTING OF COVID–19 CASES AND 19 FATALITIES BY PARTICIPATING PROVIDERS AND 20 LONG-TERM CARE FACILITIES.—The Secretary 21 shall ensure that participating providers and 22 long-term care facilities report all suspected and 23 confirmed cases of COVID–19 among personnel 24 and residents of the provider or facility, all 25 COVID–19-related fatalities among personnel 26 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4182 IS and residents of the provider or facility, and all 1 fatalities among personnel and residents of the 2 provider or facility, whether related to COVID– 3 19 or unrelated to COVID–19, for the period 4 beginning on January 1, 2020, to the Sec- 5 retary. 6 (B) TIMING AND MANNER OF REPORT- 7 ING.—Such data shall be reported to the Sec- 8 retary by participating providers and long-term 9 care facilities in a format and manner that is 10 consistent with any data that the Secretary has 11 directed participating providers to furnish to 12 the Centers for Disease Control and Prevention 13 on or after May 8, 2020, and, beginning on the 14 date that is 15 days after the date of enactment 15 of this Act, shall be collected and reported to 16 the Secretary by participating providers and 17 long-term care facilities on a daily basis. 18 (C) PUBLICATION OF DATA.—Not later 19 than 15 days after the date of enactment of 20 this Act, the Secretary shall make the data col- 21 lected under this paragraph publicly available 22 and shall update such data on a daily basis. 23 (2) COLLECTION AND REPORTING OF DEMO- 24 GRAPHIC DATA.—The Secretary shall post the fol- 25 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4182 IS lowing information with respect to participating pro- 1 viders and long-term care facilities on the official 2 internet website of the Federal Government for 3 Medicare beneficiaries (commonly referred to as the 4 ‘‘Nursing Home Compare’’ Medicare website) (or a 5 successor website) aggregated by State: 6 (A) The age, gender, race, ethnicity, dis- 7 ability, and preferred language of the residents 8 of participating providers with suspected or 9 confirmed COVID–19 infections. 10 (B) With respect to residents of partici- 11 pating providers and long-term care facilities 12 who died on or after January 1, 2020, the age, 13 gender, race, ethnicity, disability, and preferred 14 language of— 15 (i) all of such residents; and 16 (ii) all of such residents whose deaths 17 are related to COVID–19. 18 (3) CONFIDENTIALITY.—Any information re- 19 ported under this subsection that is made available 20 to the public shall be made so available in a manner 21 that protects the identity of residents of partici- 22 pating providers and long-term care facilities. 23 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4182 IS SEC. 5. ESTABLISHING STRIKE TEAMS. 1 (a) IN GENERAL.—A portion of any payments re- 2 ceived or funds made available on or after July 1, 2020, 3 for responding to the public health or fiscal impacts re- 4 lated to the Coronavirus Disease (COVID–19) under Fed- 5 eral legislation enacted on or after that date which pri- 6 marily makes appropriations for the coronavirus response 7 and related activities, shall be used to establish and sup- 8 port the operation of statewide or regional strike teams 9 that meet the requirements of subsection (b) to respond 10 to COVID–19-related crises in participating providers, 11 notwithstanding the original purpose for which the 12 amounts were appropriated to make such payments or 13 funds available, or any other provision of law restricting 14 the use of such payments or funds. 15 (b) STRIKE TEAM REQUIREMENTS.—The require- 16 ments of this section with respect to a strike team of a 17 State are the following: 18 (1) Strike teams may include assessment, test- 19 ing, and clinical teams, and the State shall establish 20 a mission for each such team by written directive, 21 which may include performing medical examinations, 22 conducting COVID–19 testing, and assisting partici- 23 pating providers with the implementation of quar- 24 antine, isolation, or disinfection procedures. 25 VerDate Sep 11 2014 17:28 Jul 14, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4182.IS S4182 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4182 IS (2) Each strike team shall be comprised of indi- 1 viduals who have relevant skills, qualifications, and 2 experience to serve as members of 1 or more of the 3 assessment, testing, and clinical teams described in 4 paragraph (1), such as employees of the State or 5 any of its political subdivisions, members of the mili- 6 tia on State activity duty, members of COVID–19 7 response teams sent to the State by the Secretary, 8 or other individuals designated by the State agency 9 with primary responsibility for promoting resident 10 and employee safety in participating providers. 11 (3) Strike teams and members of such teams 12 shall be subject to the State’s oversight and direc- 13 tion and team members shall receive a State-issued 14 letter of authorization describing— 15 (A) the individua [Text truncated for display. 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