Ensuring Seniors’ Access to Quality Care Act

II 118TH CONGRESS 1ST SESSION S. 1749 To amend titles XVIII and XIX of the Social Security Act with respect to nursing facility requirements, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mr. WARNER (for himself and Mr. SCOTT of South Carolina) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend titles XVIII and XIX of the Social Security Act with respect to nursing facility requirements, 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 ‘‘Ensuring Seniors’ Ac- 4 cess to Quality Care Act’’. 5 SEC. 2. TRAINING AND COMPETENCY EVALUATION PRO- 6 GRAMS. 7 (a) MEDICARE.—Section 1819(f)(2) of the Social Se- 8 curity Act (42 U.S.C. 1395i–3(f)(2)) is amended— 9 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1749 IS (1) in subparagraph (A)(iv)(I), by striking 1 ‘‘(unless the facility is described in subparagraph 2 (B)(iii)(I))’’; 3 (2) in subparagraph (B)— 4 (A) in clause (i)— 5 (i) by striking ‘‘(subject to clause 6 (iii))’’; and 7 (ii) by inserting ‘‘and’’ after the semi- 8 colon; 9 (B) in clause (ii), by striking ‘‘; and’’ and 10 inserting a period; and 11 (C) by striking clause (iii); 12 (3) by striking ‘‘A State may not delegate 13 (through subcontract or otherwise) its responsibility 14 under clause (iii)(II) to the skilled nursing facility.’’; 15 (4) by striking subparagraphs (C) and (D); and 16 (5) by adding at the end the following: 17 ‘‘(C) DISAPPROVAL OF NURSE AIDE TRAIN- 18 ING AND COMPETENCY EVALUATION PROGRAMS 19 AND NURSE AIDE COMPETENCY EVALUATION 20 PROGRAMS.— 21 ‘‘(i) IN GENERAL.—With respect to a 22 State, the Secretary shall, in consultation 23 with such State, disapprove, for a period 24 not to exceed 2 years, a nurse aide train- 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1749 IS ing and competency evaluation program or 1 a nurse aide competency evaluation pro- 2 gram offered by or in a skilled nursing fa- 3 cility if such facility— 4 ‘‘(I) has been assessed a civil 5 monetary penalty under subsection 6 (h)(2)(B)(ii) or section 7 1919(h)(2)(A)(ii) of not less than 8 $10,697 for providing substandard 9 quality of care; and 10 ‘‘(II) has not, in the determina- 11 tion of the Secretary, corrected the 12 deficiencies in quality of care for 13 which such civil monetary penalty was 14 assessed. 15 ‘‘(ii) RESCISSION OF DISAPPROVAL.— 16 The Secretary shall rescind a disapproval 17 under clause (i) upon demonstration by a 18 skilled nursing facility that— 19 ‘‘(I) all deficiencies for which the 20 civil monetary penalty described in 21 clause (i)(I) was assessed have been 22 remedied; 23 ‘‘(II) the facility has not received 24 deficiencies related to direct patient 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1749 IS harm for substandard quality of care 1 deficiencies in the prior 2 years; and 2 ‘‘(III) the Secretary certifies that 3 the civil monetary penalty assessed 4 under clause (i)(I) did not result in 5 immediate jeopardy for direct patient 6 harm or injury related to an abuse or 7 neglect deficiency. 8 For purposes of rescinding disapproval 9 under this clause, the Secretary may re- 10 quire additional oversight of the skilled 11 nursing facility for a period not to exceed 12 the period of disapproval imposed under 13 clause (i) with respect to such facility.’’. 14 (b) MEDICAID.—Section 1919(f)(2) of the Social Se- 15 curity Act (42 U.S.C. 1396r(f)(2)) is amended— 16 (1) in subparagraph (A)(iv)(I), by striking 17 ‘‘(unless the facility is described in subparagraph 18 (B)(iii)(I))’’; 19 (2) in subparagraph (B)— 20 (A) in clause (i), by inserting ‘‘and’’ after 21 the semicolon; 22 (B) in clause (ii), by striking ‘‘; and’’ and 23 inserting a period; 24 (C) by striking clause (iii); and 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1749 IS (D) by striking ‘‘A State may not delegate 1 (through subcontract or otherwise) its responsi- 2 bility under clause (iii)(II) to the nursing facil- 3 ity.’’; 4 (3) by striking subparagraphs (C) and (D); and 5 (4) by adding at the end the following: 6 ‘‘(C) DISAPPROVAL OF NURSE AIDE TRAIN- 7 ING AND COMPETENCY EVALUATION PROGRAMS 8 AND NURSE AIDE COMPETENCY EVALUATION 9 PROGRAMS.— 10 ‘‘(i) IN GENERAL.—With respect to a 11 State, the Secretary shall, in consultation 12 with such State, disapprove, for a period 13 not to exceed 2 years, a nurse aide train- 14 ing and competency evaluation program or 15 a nurse aide competency evaluation pro- 16 gram offered by or in a nursing facility if 17 such facility— 18 ‘‘(I) has been assessed a civil 19 monetary penalty under section 20 1819(h)(2)(B)(ii) or subsection 21 (h)(2)(A)(ii) of not less than $10,697 22 for providing substandard quality of 23 care; and 24 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1749 IS ‘‘(II) has not, in the determina- 1 tion of the Secretary, corrected the 2 deficiencies in quality of care for 3 which such civil monetary penalty was 4 assessed. 5 ‘‘(ii) RESCISSION OF DISAPPROVAL.— 6 The Secretary shall rescind a disapproval 7 under clause (i) upon demonstration by a 8 nursing facility that— 9 ‘‘(I) all deficiencies for which the 10 civil monetary penalty described in 11 clause (i)(I) was assessed have been 12 remedied; 13 ‘‘(II) the facility has not received 14 deficiencies related to direct patient 15 harm for substandard quality of care 16 deficiencies in the prior 2 years; and 17 ‘‘(III) the Secretary certifies that 18 the civil monetary penalty assessed 19 under clause (i)(I) did not result in 20 immediate jeopardy for direct patient 21 harm or injury related to an abuse or 22 neglect deficiency. 23 For purposes of rescinding disapproval 24 under this clause, the Secretary may re- 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1749 IS quire additional oversight of the nursing 1 facility for a period not to exceed the pe- 2 riod of disapproval imposed under clause 3 (i) with respect to such facility.’’. 4 (c) REGULATIONS.—Not later than 180 days after 5 the date of enactment of this Act, the Secretary of Health 6 and Human Services shall promulgate regulations as nec- 7 essary to implement the amendments made by this section. 8 (d) APPLICABILITY.— 9 (1) IN GENERAL.— 10 (A) TIMING OF DETERMINATIONS.—The 11 amendments made by subsections (a)(4) and 12 (b)(4) of this section shall apply only to a civil 13 monetary penalty if the relevant covered deter- 14 mination was made on or after the date of en- 15 actment of this Act. 16 (B) COVERED DETERMINATION DE- 17 FINED.—The term ‘‘covered determination’’ 18 means, with respect to a skilled nursing facility 19 or a nursing facility in a State, a determination 20 by the State or the Secretary of Health and 21 Human Services that the facility has provided 22 a substandard quality of care for which a civil 23 monetary penalty described in section 24 1819(f)(2)(C)(i)(I) or 1919(f)(2)(C)(i)(I) of the 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1749 IS Social Security Act (as such sections have been 1 amended by this Act) may be assessed. 2 (2) PREVIOUSLY PROHIBITED PROGRAMS.— 3 (A) WAIVER.—With respect to a skilled 4 nursing facility or a nursing facility subject, on 5 the day before the date of enactment of this 6 Act, to a prohibition under item (a) of either 7 section 1819(f)(2)(B)(iii)(I) or section 8 1919(f)(2)(B)(iii)(I) of the Social Security Act 9 (as in effect on the day before such date of en- 10 actment), such prohibition shall no longer apply 11 to the facility on or after such date of enact- 12 ment. 13 (B) SURVEY OR CIVIL MONETARY PEN- 14 ALTY.—With respect to a skilled nursing facil- 15 ity or a nursing facility subject, on the day be- 16 fore the date of enactment of this Act, to a pro- 17 hibition under item (b) or (c) of either section 18 1819(f)(2)(B)(iii)(I) or section 19 1919(f)(2)(B)(iii)(I) of the Social Security Act 20 (as in effect on the day before such date of en- 21 actment), such prohibition shall no longer apply 22 to the facility on or after such date of enact- 23 ment upon a determination by the Secretary of 24 Health and Human Services that the facility 25 VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1749 IS has corrected the issue that resulted in such 1 prohibition. 2 SEC. 3. PERMITTING MEDICARE AND MEDICAID PRO- 3 VIDERS TO ACCESS THE NATIONAL PRACTI- 4 TIONER DATA BANK TO CONDUCT EMPLOYEE 5 BACKGROUND CHECKS. 6 Section 1921(b)(6) of the Social Security Act (42 7 U.S.C. 1396r–2(b)(6)) is amended— 8 (1) by striking ‘‘and other health care entities 9 (as defined in section 431 of the Health Care Qual- 10 ity Improvement Act of 1986)’’ and inserting ‘‘, 11 other health care entities (as defined in section 431 12 of the Health Care Quality Improvement Act of 13 1986), providers of services (as defined in section 14 1861(u)), suppliers (as defined in section 1861(d)), 15 and providers of items or services under a State plan 16 under this title (or a waiver of such a plan)’’; and 17 (2) by striking ‘‘such hospitals or other health 18 care entities’’ and inserting ‘‘such hospitals, health 19 care entities, providers, or suppliers’’. 20 Æ VerDate Sep 11 2014 21:07 May 22, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S1749.IS S1749 pbinns on DSKJLVW7X2PROD with $$_JOB