PROTECT Long Term Care Facilities Act

I 116TH CONGRESS 2D SESSION H. R. 8574 To amend titles XVIII and XIX of the Social Security Act to increase enforcement under Medicare and Medicaid for skilled nursing facilities and nursing facilities during the COVID–19 emergency period and other infectious disease outbreak periods, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 9, 2020 Ms. SHERRILL (for herself, Mr. PASCRELL, Mrs. WATSON COLEMAN, Mr. SIRES, Mr. BEYER, Mr. PAYNE, Mr. DOGGETT, Ms. SHALALA, Ms. JUDY CHU of California, and Mr. KILDEE) 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 subsequently determined by the Speaker, in each case for consideration of such provi- sions as fall within the jurisdiction of the committee concerned A BILL To amend titles XVIII and XIX of the Social Security Act to increase enforcement under Medicare and Medicaid for skilled nursing facilities and nursing facilities during the COVID–19 emergency period and other infectious disease outbreak periods, 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. 3 This Act may be cited as the ‘‘Protecting Residents 4 with Oversight, Transparency, and Enforcement for Com- 5 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8574 IH passionate Treatment in Long Term Care Facilities Act’’ 1 or the ‘‘PROTECT Long Term Care Facilities Act’’. 2 SEC. 2. INCREASED ENFORCEMENT UNDER MEDICARE AND 3 MEDICAID FOR SKILLED NURSING FACILI- 4 TIES AND NURSING FACILITIES DURING THE 5 COVID–19 EMERGENCY PERIOD AND OTHER 6 INFECTIOUS DISEASE OUTBREAK PERIODS. 7 (a) ADDITIONAL FUNDING TO STATE SURVEY AGEN- 8 CIES.— 9 (1) APPROPRIATIONS.—Out of any funds in the 10 Treasury not otherwise appropriated, there is appro- 11 priated to the Secretary of Health and Human Serv- 12 ices $100,000,000 for fiscal year 2021 to be pro- 13 vided, in addition to any funds otherwise made avail- 14 able and in accordance with paragraph (2), to State 15 survey and certification agencies (described in sub- 16 section (f) of section 1128I of the Social Security 17 Act (42 U.S.C. 1320a–7j)) for the following pur- 18 poses: 19 (A) To complete surveys conducted pursu- 20 ant to the amendments made by subsection (b) 21 for facilities (as defined in subsection (a) of 22 such section 1128I). 23 (B) To increase investigations and surveys 24 performed pursuant to sections 1919(g)(4) of 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8574 IH such Act (42 U.S.C. 1396r(g)(2)) and 1 1819(g)(4) of such Act (42 U.S.C. 1395i– 2 3(g)(4)) based on criteria developed pursuant to 3 paragraph (7)(B) of section 1819(h) of such 4 Act, as added by subsection (b)(1)(C), and 5 paragraph (10)(B) of section 1919(h) of such 6 Act, as added by subsection (b)(2)(C). 7 (C) To purchase personal protective equip- 8 ment for surveyors to conduct surveys and in- 9 vestigations of facilities (as defined in sub- 10 section (a) of such section 1128I) to ensure 11 worker safety. 12 (D) To increase staffing levels at such 13 State survey and certification agencies. 14 (2) ALLOCATION OF FUNDING.—The Secretary 15 shall allocate funds appropriated under paragraph 16 (1) based on the following prioritization: 17 (A) First to State survey and certification 18 agencies (as described in subsection (f) of such 19 section 1128I) serving populations with a high 20 burden, as defined by the Secretary of Health 21 and Human Services, of COVID–19. 22 (B) Second to such agencies preparing for, 23 or working to mitigate, a COVID–19 surge or 24 any similar infectious disease outbreak. 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8574 IH (C) Third to such agencies serving a high 1 number, as defined by the Secretary, of low-in- 2 come, uninsured, or under-insured populations, 3 including medically underserved populations. 4 (D) Fourth to such agencies, as deter- 5 mined by the Secretary, based on the size of 6 their nursing home population. 7 (E) Fifth to any other such agencies. 8 (b) SPECIAL RULES DURING COVID–19 EMER- 9 GENCY PERIOD AND OTHER INFECTIOUS DISEASE OUT- 10 BREAK PERIODS.— 11 (1) MEDICARE.— 12 (A) IN GENERAL.—Section 1819(g)(2) of 13 the Social Security Act (42 U.S.C. 1395i– 14 3(g)(2)) is amended by adding at the end the 15 following new subparagraph: 16 ‘‘(F) COVID–19 EMERGENCY PERIOD AND 17 OTHER INFECTIOUS DISEASE OUTBREAK PERI- 18 ODS.— 19 ‘‘(i) IN GENERAL.—Notwithstanding 20 any other provision of this paragraph, dur- 21 ing an infectious disease outbreak period 22 (as defined in clause (ii)), with respect to 23 a State, the following shall apply: 24 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8574 IH ‘‘(I) Each skilled nursing facility 1 shall be subject to a standard survey 2 under subparagraph (A) not later 3 than 4 weeks after the beginning of 4 such period and every 6 months after 5 the date of the previous standard sur- 6 vey conducted under such subpara- 7 graph. 8 ‘‘(II) Follow-up surveys under 9 this paragraph shall be conducted 10 based on if the skilled nursing facility 11 is found to be— 12 ‘‘(aa) a facility with sub- 13 standard quality of care; 14 ‘‘(bb) a facility not in sub- 15 stantial compliance; 16 ‘‘(cc) a facility reporting less 17 than three hours of direct care 18 staff per resident per day; 19 ‘‘(dd) a facility that has re- 20 ported no registered nurses for 21 four or more days in a quarter; 22 or 23 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8574 IH ‘‘(ee) a facility with an over- 1 all score of 2 or less stars on 2 nursing home compare. 3 ‘‘(III) In the case of a skilled 4 nursing facility which is found under 5 a standard survey or extended survey 6 to be in substantial compliance, State 7 survey and certification agencies (de- 8 scribed in subsection (f) of section 9 1128I) shall have flexibility with re- 10 gards to the timing of conducting 11 such a follow-up standard survey. 12 ‘‘(IV) A skilled nursing facility 13 which is found, under a standard sur- 14 vey or extended survey, to have pro- 15 vided substandard quality of care 16 shall be treated as being identified by 17 the Secretary as having substantially 18 failed to meet applicable requirement 19 of this Act for purposes of subsection 20 (f)(8). 21 ‘‘(V) In the case of a skilled 22 nursing facility that is subject to an 23 extended survey under subparagraph 24 (B), such extended survey shall be 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8574 IH conducted as soon as practical after 1 the standard survey for such facility, 2 but not later than 4 weeks after the 3 date of completion of such standard 4 survey. 5 ‘‘(VI) A skilled nursing facility 6 which is found, under a standard sur- 7 vey or extended survey to have pro- 8 vided substandard quality of care 9 shall be surveyed at least once every 6 10 months, thereafter until the infectious 11 disease outbreak period ends. 12 ‘‘(VII) Surveys under this para- 13 graph shall be conducted in a manner 14 that prioritizes skilled nursing facili- 15 ties located in towns (or counties, if 16 municipal-level is not available) with 17 higher infection rate, as identified by 18 the Secretary, and facilities with pre- 19 vious violations of requirements of 20 this Act. 21 ‘‘(VIII) Any skilled nursing facil- 22 ity reporting (as determined by the 23 Centers for Medicare & Medicaid 24 Services) fewer than three hours of di- 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8574 IH rect care staff time per resident per 1 day, with 1⁄2 hour of registered nurse 2 time included or any skilled nursing 3 facility that has reported no registered 4 nurse for four or more days. 5 ‘‘(ii) INFECTIOUS DISEASE OUTBREAK 6 PERIOD DEFINED.—For purposes of this 7 subparagraph, the term ‘infectious disease 8 outbreak period’ means any of the fol- 9 lowing periods: 10 ‘‘(I) COVID–19 EMERGENCY PE- 11 RIOD.—The emergency period de- 12 scribed in section 1135(g)(1)(B). 13 ‘‘(II) OTHER INFECTIOUS DIS- 14 EASE OUTBREAK PERIODS.— 15 ‘‘(aa) The period beginning 16 on the date a nationwide emer- 17 gency related to a public health 18 emergency is declared pursuant 19 to the Stafford Act, a Major Dis- 20 aster Declaration, or the Na- 21 tional Emergencies Act and end- 22 ing on the date that is 6 months 23 after the date on which the dec- 24 laration pursuant to the Stafford 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8574 IH Act, a Major Disaster Declara- 1 tion, or the National Emer- 2 gencies Act, as applicable, ends, 3 whichever is the latest. 4 ‘‘(bb) The period during 5 which there exists a public health 6 emergency related to an infec- 7 tious disease outbreak declared 8 by the Secretary pursuant to sec- 9 tion 319 of the Public Health 10 Service Act. 11 ‘‘(cc) With respect to a 12 skilled nursing facility in a State 13 with respect to which the Gov- 14 ernor has declared an emergency 15 or major disaster (as defined by 16 the State) with respect to an in- 17 fectious disease outbreak, the pe- 18 riod for which such declaration is 19 in effect with respect to such 20 State.’’. 21 (B) INTERNET PORTAL AND HOTLINE 22 NUMBER.—Section 1819(e) of the Social Secu- 23 rity Act (42 U.S.C. 1395i–3(e)) is amended by 24 adding at the end the following new paragraph: 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8574 IH ‘‘(6) INTERNET PORTAL AND HOTLINE NUM- 1 BER.—By not later than one year after the date of 2 the enactment of this paragraph, the State shall 3 have in place and maintain an Internet portal and 4 hotline number (which may be such a portal or hot- 5 line in existence before the date of the enactment of 6 this paragraph) for staff of nursing facilities, resi- 7 dents of such facilities, family of such residents, the 8 State long-term care ombudsman (established under 9 title III or VII of the Older Americans Act of 1965 10 in accordance with section 712 of the Act), or the 11 general public to report violations of requirements of 12 this section by such facilities. The Secretary shall es- 13 tablish a process under which each violation so re- 14 ported shall be preliminarily investigated by a State 15 survey and certification agency (described in sub- 16 section (f) of section 1128I) and based on the re- 17 sults of such preliminary investigation may be sub- 18 ject to a subsequent more comprehensive investiga- 19 tion by such agency, in coordination with the Sec- 20 retary.’’. 21 (C) INCREASED PENALTIES.—Section 22 1819(h) of the Social Security Act (42 U.S.C. 23 1395i–3(h)) is amended by adding at the end 24 the following new paragraph: 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 8574 IH ‘‘(7) SPECIAL RULES DURING COVID–19 EMER- 1 GENCY PERIOD AND OTHER INFECTIOUS DISEASE 2 OUTBREAK PERIODS.— 3 ‘‘(A) IN GENERAL.—Notwithstanding any 4 other provision of this subsection, during an in- 5 fectious disease outbreak period (as defined in 6 subsection (g)(2)(F)(ii)), with respect to a 7 State, the following shall apply: 8 ‘‘(i) In the cases of an outbreak spe- 9 cific violation, a civil monetary penalty 10 under paragraph (2)(B)(ii)(I) may not be 11 waived or reduced by the Secretary. 12 ‘‘(ii) In the case of a repeat deficiency 13 relating to any violation of a skilled nurs- 14 ing facility during a 15-month period, any 15 civil monetary penalty under paragraph 16 (2)(B)(ii)(I), shall be doubled. 17 ‘‘(iii) In the case of a second outbreak 18 specific violation of a skilled nursing facil- 19 ity during such period, the facility shall be 20 treated as being identified by the Secretary 21 (or may be identified by the top State 22 health official, in accordance with a proc- 23 ess specified by the Secretary) as having 24 substantially failed to meet applicable re- 25 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 8574 IH quirement of this Act for purposes of sub- 1 section (f)(8) for the remainder of such pe- 2 riod. 3 ‘‘(B) OUTBREAK SPECIFIC VIOLATION.— 4 For purposes of this paragraph, the Secretary, 5 through the Centers for Medicare & Medicaid 6 Services, shall develop the following: 7 ‘‘(i) In the case of an infectious dis- 8 ease outbreak period with respect to 9 COVID–19, criteria for determining an 10 outbreak specific violation with respect to 11 COVID–19, including— 12 ‘‘(I) criteria specified by the Cen- 13 ters for Disease Control and Preven- 14 tion relating to infection rates, mor- 15 tality rates, and hospitalization rates; 16 and 17 ‘‘(II) criteria for staff shortages, 18 overcrowding (and ability to cohort), 19 and insufficient personal protective 20 equipment. 21 ‘‘(ii) In the case of an infectious dis- 22 ease outbreak period other than with re- 23 spect to COVID–19, criteria for deter- 24 VerDate Sep 11 2014 03:26 Nov 01, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H8574.IH H8574 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 8574 IH mining an outbreak specific violation spe- 1 cific to such outbreak period.’’. 2 (D) REPORTING.—Section 1819(d)(4) of 3 the Social Security Act (42 U.S.C. 1395i– 4 3(d)(4)) is amended by adding at the end the 5 following new subparagraph: 6 ‘‘(C) COVID–19 AND INFECTIOUS DIS- 7 EASE OUTBREAK REPORTING AND NOTIFICA- 8 TION.— 9 ‘‘(i) IN GENERAL.—A skilled nursing 10 facility must, with respect to an infectious 11 disease outbreak period (as defined in sub- 12 section (g)(2)(F)(ii))— 13 ‘‘(I) electronically submit, at a 14 frequency specified by the Secretary, 15 but no less than once weekly and in a 16 standardized f [Text truncated for display. 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