skip to main content

H.R. 598: Quality Care for Nursing Home Residents and Workers During COVID–19 and Beyond Act


The text of the bill below is as of Jan 28, 2021 (Introduced).


I

117th CONGRESS

1st Session

H. R. 598

IN THE HOUSE OF REPRESENTATIVES

January 28, 2021

(for herself and Mr. Takano) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend titles XVIII and XIX of the Social Security Act to improve the quality of care in skilled nursing facilities under the Medicare program and nursing facilities under the Medicare program during the COVID–19 emergency period, and for other purposes.

1.

Short title

This Act may be cited as the Quality Care for Nursing Home Residents and Workers During COVID–19 and Beyond Act.

I

Addressing COVID–19

101.

Improving quality of care in skilled nursing facilities and nursing facilities during COVID–19 emergency period

(a)

Medicare

Section 1819 of the Social Security Act (42 U.S.C. 1395i–3) is amended by adding at the end the following new subsection:

(k)

Additional requirements during certain public health emergency

(1)

Skilled nursing facilities

(A)

In general

During the portion of the emergency period defined in paragraph (1)(B) of section 1135(g) beginning on or after the date of the enactment of this subsection, a skilled nursing facility shall comply with the quality of care requirements described in subparagraph (B), the worker safety requirements described in subparagraph (C), and the transparency requirements described in subparagraph (D).

(B)

Quality of care requirements

The quality of care requirements described in this subparagraph are each of the following:

(i)

Employ, on a full-time basis, an onsite infection preventionist who—

(I)

has primary professional training in nursing, medical technology, microbiology, epidemiology, or other related field;

(II)

is qualified by education, training, experience or certification; and

(III)

has completed specialized training in infection prevention and control.

(ii)

In the case of a resident who elects to reside with a family member of such resident for any portion of the emergency period described in subparagraph (A), guarantee the right of such resident to resume residency in the facility at any time during the 180-day period immediately following the end of such emergency period.

(iii)

Notwithstanding subparagraphs (A) and (B) of subsection (c)(2), permit a resident to remain in the facility and not discharge or transfer the resident from the facility unless—

(I)

the State survey agency approves the discharge or transfer;

(II)

in the case of a transfer, the transfer is to a facility dedicated to the care of residents who have been diagnosed with COVID–19 if the resident has been diagnosed with COVID–19, or a facility dedicated to the care of residents who have not been diagnosed with COVID–19 if the resident has not been diagnosed with COVID–19;

(III)

before effecting the discharge or transfer, the facility records the reasons in the resident’s clinical record;

(IV)

at least 72 hours in advance of the discharge or transfer, the facility provides a notice of the discharge or transfer to the resident (or legal representative of the resident, if applicable), including the reasons therefor and the items described in clause (iii) of subsection (c)(2)(B); and

(V)

the resident (or legal representative of the resident, if applicable) acknowledges receipt of the notice described in subclause (IV) and provides written consent to the discharge or transfer.

(iv)

Test (on a weekly basis) each resident for COVID–19, or, in the case that the facility does not have a sufficient number of testing kits for COVID–19, screen each resident for symptoms of COVID–19 and report (on a daily basis until the facility has a sufficient number of such testing kits) to the State survey agency that the facility does not have a sufficient number of such testing kits and what steps the facility is taking to procure a sufficient number of such testing kits.

(v)

Ensure there is an adequate number of employees to assist residents in communicating with family members and friends through phone calls, e-mail, and virtual communications on at least a weekly basis, without regard to whether a resident has been diagnosed with COVID–19.

(C)

Worker safety requirements

The worker safety requirements described in this subparagraph are each of the following:

(i)

In the case the facility is not otherwise subject to the Occupational Safety and Health Act of 1970 (or a State occupational safety and health plan that is approved under section 18(c) of such Act), comply with the Bloodborne Pathogens standard under section 1910.1030 of title 29, Code of Federal Regulations (or a successor regulation).

(ii)

In the case of a predicted shortage of personal protective equipment, report such predicted shortage to the State health department of the State in which the facility is located at least 24 hours in advance of when such predicted shortage is expected to occur.

(iii)

Educate each employee on the transmission of COVID–19.

(iv)

Notwithstanding any other provision of law, provide at least two weeks of paid sick leave to each employee.

(v)

Before each employee’s shift, test the employee for COVID–19, or, in the case that the facility does not have a sufficient number of testing kits for COVID–19, screen each employee for symptoms of COVID–19 and report (on a daily basis until the facility has a sufficient number of such testing kits) to the State survey agency that the facility does not have a sufficient number of such testing kits and what steps the facility is taking to procure a sufficient number of such testing kits.

(D)

Transparency requirements

The transparency requirements described in this subparagraph are each of the following:

(i)

Report (on a daily basis) to the State survey agency, the Centers for Medicare & Medicaid Services, and the Centers for Disease Control and Prevention each of the following:

(I)

The number of confirmed and suspected cases of COVID–19 among residents and staff, including the age and race or ethnicity of such residents and staff.

(II)

The number of deaths related to COVID–19 among residents and staff, including the age and race or ethnicity of such residents and staff.

(III)

The total number of deaths (without regard to whether a death is related to COVID–19) among residents and staff.

(IV)

The amount of personal protective equipment available and any projected need regarding such equipment.

(V)

Information on staffing levels that would otherwise be required to be submitted through the Payroll-Based Journal of the Centers for Medicare & Medicaid Services.

(VI)

The number of residents and staff who have been tested for COVID–19.

(ii)

In the case that a resident or employee is diagnosed with COVID–19 or dies as a result of COVID–19, notify all residents, legal representatives of residents, and employees not later than 12 hours after such diagnosis is made or such death occurs.

(iii)

At any time three or more residents or employees have newly onset COVID–19 symptoms, notify all residents, legal representatives of residents, and employees not later than 72 hours after such three or more residents or employees are known to the facility.

(iv)

In the case that a resident or employee is suspected to have or is diagnosed with COVID–19, post a notice of such suspicion or diagnosis at each entrance of the facility for the remaining portion of the emergency period described in subparagraph (A).

(v)

For each day of the portion of the emergency period described in subparagraph (A), post a notice at each entrance of the facility with the information required under subsection (b)(8) for such day.

(2)

States and Federal Government

(A)

Public availability of information

(i)

In general

As soon as possible, but not later than 24 hours after receiving any information required under paragraph (1)(D)(i), the Administrator of the Centers for Medicare & Medicaid Services, in coordination with the Director of the Centers for Disease Control and Prevention, shall make such information publicly available on the Nursing Home Compare website of the Centers for Medicare & Medicaid Services and the COVIDView website of the Centers for Disease Control and Prevention.

(ii)

HIPAA compliant information only

Information may only be made publicly available under clause (i) if the disclosure of such information would otherwise be permitted under the Federal regulations (concerning the privacy of individually identifiable health information) promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note).

(B)

Designation of COVID–19 facilities

For purposes of paragraph (1)(B)(iii)(II)—

(i)

the Administrator of the Centers for Medicare & Medicaid Services shall specify criteria (which shall include the provision of the services of a registered nurse on a 24-hour basis) for each State survey agency to carry out the designation requirement described in clause (ii) with respect to skilled nursing facilities; and

(ii)

each State survey agency shall designate a skilled nursing facility in the State as a facility dedicated to the care of residents who have been diagnosed with COVID–19 if such facility meets the criteria specified by the Administrator under clause (i).

(C)

Monitoring and surveys

A State survey agency shall—

(i)

provide onsite monitoring (or, if onsite monitoring is not feasible, remote monitoring) of all skilled nursing facilities with at least one resident or employee who has been diagnosed with COVID–19;

(ii)

in addition to surveys required under subsection (g), conduct a survey of a skilled nursing facility, in the same manner and subject to the same requirements applicable to standard surveys conducted under subsection (g), if the facility has a ratio of the number of deaths resulting from COVID–19 to the number of COVID–19 diagnoses that exceeds 5 percent, or the State survey agency receives a COVID–19 or staffing related immediate jeopardy complaint regarding the facility; and

(iii)

ensure that each survey team that conducts a survey under clause (ii) has adequate personal protective equipment while conducting such survey.

(3)

Civil money penalties

The Secretary shall impose a civil money penalty against the operators of a skilled nursing facility in an amount equal to $10,000 per day for each violation of a requirement described in subparagraph (B), (C), or (D) of paragraph (1) or the reporting of false information under clause (i) of such subparagraph (D). The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).

.

(b)

Medicaid

Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended by adding at the end the following new subsection:

(k)

Additional requirements during certain public health emergency

(1)

Nursing facilities

(A)

In general

During the portion of the emergency period defined in paragraph (1)(B) of section 1135(g) beginning on or after the date of the enactment of this subsection, a nursing facility shall comply with the quality of care requirements described in subparagraph (B), the worker safety requirements described in subparagraph (C), and the transparency requirements described in subparagraph (D).

(B)

Quality of care requirements

The quality of care requirements described in this subparagraph are each of the following:

(i)

Employ, on a full-time basis, an onsite infection preventionist who—

(I)

has primary professional training in nursing, medical technology, microbiology, epidemiology, or other related field;

(II)

is qualified by education, training, experience or certification; and

(III)

has completed specialized training in infection prevention and control.

(ii)

In the case of a resident who elects to reside with a family member of such resident for any portion of the emergency period described in subparagraph (A), guarantee the right of such resident to resume residency in the facility at any time during the 180-day period immediately following the end of such emergency period.

(iii)

Notwithstanding subparagraphs (A) and (B) of subsection (c)(2), permit a resident to remain in the facility and not discharge or transfer the resident from the facility unless—

(I)

the State survey agency approves the discharge or transfer;

(II)

in the case of a transfer, the transfer is to a facility dedicated to the care of residents who have been diagnosed with COVID–19 if the resident has been diagnosed with COVID–19, or a facility dedicated to the care of residents who have not been diagnosed with COVID–19 if the resident has not been diagnosed with COVID–19;

(III)

before effecting the discharge or transfer, the facility records the reasons in the resident’s clinical record;

(IV)

at least 72 hours in advance of the discharge or transfer, the facility provides a notice of the discharge or transfer to the resident (or legal representative of the resident, if applicable), including the reasons therefor and the items described in clause (iii) of subsection (c)(2)(B); and

(V)

the resident (or legal representative of the resident, if applicable) acknowledges receipt of the notice described in subclause (IV) and provides written consent to the discharge or transfer.

(iv)

Test (on a weekly basis) each resident for COVID–19, or, in the case that the facility does not have a sufficient number of testing kits for COVID–19, screen each resident for symptoms of COVID–19 and report (on a daily basis until the facility has a sufficient number of such testing kits) to the State survey agency that the facility does not have a sufficient number of such testing kits and what steps the facility is taking to procure a sufficient number of such testing kits.

(v)

Ensure there is an adequate number of employees to assist residents in communicating with family members and friends through phone calls, e-mail, and virtual communications on at least a weekly basis, without regard to whether a resident has been diagnosed with COVID–19.

(C)

Worker safety requirements

The worker safety requirements described in this subparagraph are each of the following:

(i)

In the case the facility is not otherwise subject to the Occupational Safety and Health Act of 1970 (or a State occupational safety and health plan that is approved under section 18(c) of such Act), comply with the Bloodborne Pathogens standard under section 1910.1030 of title 29, Code of Federal Regulations (or a successor regulation).

(ii)

In the case of a predicted shortage of personal protective equipment, report such predicted shortage to the State health department of the State in which the facility is located at least 24 hours in advance of when such predicted shortage is expected to occur.

(iii)

Educate each employee on the transmission of COVID–19.

(iv)

Notwithstanding any other provision of law, provide at least two weeks of paid sick leave to each employee.

(v)

Before each employee’s shift, test the employee for COVID–19, or, in the case that the facility does not have a sufficient number of testing kits for COVID–19, screen each employee for symptoms of COVID–19 and report (on a daily basis until the facility has a sufficient number of such testing kits) to the State survey agency that the facility does not have a sufficient number of such testing kits and what steps the facility is taking to procure a sufficient number of such testing kits.

(D)

Transparency requirements

The transparency requirements described in this subparagraph are each of the following:

(i)

Report (on a daily basis) to the State survey agency, the Centers for Medicare & Medicaid Services, and the Centers for Disease Control and Prevention each of the following:

(I)

The number of confirmed and suspected cases of COVID–19 among residents and staff, including the age and race or ethnicity of such residents and staff.

(II)

The number of deaths related to COVID–19 among residents and staff, including the age and race or ethnicity of such residents and staff.

(III)

The total number of deaths (without regard to whether a death is related to COVID–19) among residents and staff.

(IV)

The amount of personal protective equipment available and any projected need regarding such equipment.

(V)

Information on staffing levels that would otherwise be required to be submitted through the Payroll-Based Journal of the Centers for Medicare & Medicaid Services.

(VI)

The number of residents and staff who have been tested for COVID–19.

(ii)

In the case that a resident or employee is diagnosed with COVID–19 or dies as a result of COVID–19, notify all residents, legal representatives of residents, and employees not later than 12 hours after such diagnosis is made or such death occurs.

(iii)

At any time three or more residents or employees have newly onset COVID–19 symptoms, notify all residents, legal representatives of residents, and employees not later than 72 hours after such three or more residents or employees are known to the facility.

(iv)

In the case that a resident or employee is suspected to have or is diagnosed with COVID–19, post a notice of such suspicion or diagnosis at each entrance of the facility for the remaining portion of the emergency period described in subparagraph (A).

(v)

For each day of the portion of the emergency period described in subparagraph (A), post a notice at each entrance of the facility with the information required under subsection (b)(8) for such day.

(2)

States and Federal Government

(A)

Public availability of information

(i)

In general

As soon as possible, but not later than 24 hours after receiving any information required under paragraph (1)(D)(i), the Administrator of the Centers for Medicare & Medicaid Services, in coordination with the Director of the Centers for Disease Control and Prevention, shall make such information publicly available on the Nursing Home Compare website of the Centers for Medicare & Medicaid Services and the COVIDView website of the Centers for Disease Control and Prevention.

(ii)

HIPAA compliant information only

Information may only be made publicly available under clause (i) if the disclosure of such information would otherwise be permitted under the Federal regulations (concerning the privacy of individually identifiable health information) promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note).

(B)

Designation of COVID–19 facilities

For purposes of paragraph (1)(B)(iii)(II)—

(i)

the Administrator of the Centers for Medicare & Medicaid Services shall specify criteria (which shall include the provision of the services of a registered nurse on a 24-hour basis) for each State survey agency to carry out the designation requirement described in clause (ii) with respect to nursing facilities; and

(ii)

each State survey agency shall designate a nursing facility in the State as a facility dedicated to the care of residents who have been diagnosed with COVID–19 if such facility meets the criteria specified by the Administrator under clause (i).

(C)

Monitoring and surveys

A State survey agency shall—

(i)

provide onsite monitoring (or, if onsite monitoring is impractical, remote monitoring) of all nursing facilities with at least one resident or employee who has been diagnosed with COVID–19;

(ii)

in addition to surveys required under subsection (g), conduct a survey of a nursing facility, in the same manner and subject to the same requirements applicable to standard surveys conducted under subsection (g), if the facility has a ratio of the number of deaths resulting from COVID–19 to the number of COVID–19 diagnoses that exceeds 5 percent, or the State survey agency receives a COVID–19 or staffing related immediate jeopardy complaint regarding the facility; and

(iii)

ensure that each survey team that conducts a survey under clause (ii) has adequate personal protective equipment while conducting such survey.

(3)

Civil money penalties

The Secretary shall impose a civil money penalty against the operators of a nursing facility in an amount equal to $10,000 per day for each violation of a requirement described in subparagraph (B), (C), or (D) of paragraph (1) or the reporting of false information under clause (i) of such subparagraph (D). The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).

.

102.

Funding for State strike teams for resident and employee safety in skilled nursing facilities and nursing facilities

(a)

In general

Of the amounts made available under subsection (c), the Secretary of Health and Human Services (referred to in this section as the Secretary) shall allocate such amounts among the States, in a manner that takes into account the percentage of skilled nursing facilities and nursing facilities in each State that have residents or employees who have been diagnosed with COVID–19, for purposes of establishing and implementing strike teams in accordance with subsection (b).

(b)

Use of funds

A State that receives funds under this section shall use such funds to establish and implement a strike team that will be deployed to a skilled nursing facility or nursing facility in the State, not later than 72 hours after three or more residents or employees of the facility are diagnosed with or suspected of having COVID–19, to assist the facility in separating residents and employees who have been exposed to COVID–19 from those residents and employees who have not been so exposed, supervising testing for COVID–19, ensuring any applicable whistleblower protections are being enforced, and such other needs as determined necessary by the strike team. Such strike team shall include members of the National Guard, public health officials from State and local health departments, experts in geriatrics and long-term care medicine, representatives of residents or consumers, and representatives of workers.

(c)

Authorization of appropriations

For purposes of carrying out this section, there is authorized to be appropriated $500,000,000.

(d)

Definitions

In this section:

(1)

Nursing facility

The term nursing facility means a nursing facility under the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).

(2)

Skilled nursing facility

The term skilled nursing facility means a skilled nursing facility under the Medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.).

103.

Reinstitution of requirements waived for skilled nursing facilities and nursing facilities during COVID–19 emergency period

(a)

In general

With respect to requirements that the Administrator of the Centers for Medicare & Medicaid Services (referred to in this section as the Administrator) waived for skilled nursing facilities and nursing facilities under section 1135 or 1812(f) of the Social Security Act (42 U.S.C. 1320b–5, 1395d(f)) for the period beginning on March 1, 2020, and ending on the last day of the emergency period defined in subsection (g)(1)(B) of such section 1135, the Administrator shall terminate the waiver of such requirements before the last day of such emergency period upon the determination that skilled nursing facilities and nursing facilities have the capacity to comply with such requirements and that such waiver is no longer necessary.

(b)

Plan for conducting waived or postponed surveys

With respect to any survey under section 1819(g) or 1919(g) of the Social Security Act (42 U.S.C. 1395i–3(g), 1396r(g)) that is waived or postponed during the period beginning on March 1, 2020, and ending on the last day of the emergency period described in subsection (a), the Administrator shall develop a plan for conducting such survey after such last day.

(c)

Training and certification of nurse aides

With respect to any nurse aide with respect to whom the Administrator waived the application of the requirements under section 483.35(d) of title 42, Code of Federal Regulations, for the period beginning on March 1, 2020, and ending on the last day of the emergency period described in subsection (a), the Administrator shall prohibit the skilled nursing facility or nursing facility employing such nurse aide from retaining such nurse aide after such last day unless such nurse aide satisfies applicable training and certification requirements under such section not later than 30 days after such last day. The Administrator shall encourage skilled nursing facilities and nursing facilities to make available applicable trainings to such aides to satisfy such requirements and provide such resources as the Administrator determines appropriate to such skilled nursing facilities and nursing facilities in order to facilitate the provision of such trainings.

(d)

Definitions

In this section:

(1)

Nursing facility

The term nursing facility means a nursing facility under the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).

(2)

Skilled nursing facility

The term skilled nursing facility means a skilled nursing facility under the Medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.).

104.

Guidance for certain residential care facilities during COVID–19 emergency period

Not later than 15 days after the date of the enactment of this Act, the Secretary of Health and Human Services (referred to in this section as the Secretary) shall issue guidance for long-term health care facilities, including assisted living facilities, other residential care facilities, and such facilities that are temporary during the emergency period defined in section 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 1320b–5(g)(1)(B)), that are not subject to oversight by the Centers for Medicare & Medicaid Services on providing access to virtual visitation during any portion of such emergency period in which in-person visitation is restricted and ensuring appropriate infection control and prevention and employee safety during such emergency period. Such guidance shall include—

(1)

steps that health care facilities described in this subsection should take to provide residents with access to virtual visitation, including through the purchase or installation of devices purchased for the use or benefit of individual or multiple residents, that allows residents to communicate with their families during such emergency period;

(2)

options for such facilities in notifying residents and resident representatives of such access to virtual visitation and how the facility is addressing any operational issues related to such access to virtual visitation; and

(3)

steps that health care facilities described in this subsection should take to provide residents and employees with appropriate infection control and prevention, based on requirements for skilled nursing facilities under subsection (k) of section 1819 of the Social Security Act (42 U.S.C. 1395i–3), as added by section 2(a), and requirements for nursing facilities under subsection (k) of section 1919 of such Act (42 U.S.C. 1396r), as added by section 2(b).

II

Staffing and Safety

201.

Minimum nurse staffing requirements for skilled nursing facilities under Medicare program and nursing facilities under Medicaid program

(a)

Medicare

(1)

In general

Subparagraph (C) of section 1819(b)(4) of the Social Security Act (42 U.S.C. 1395i–3(b)(4)) is amended—

(A)

in clause (i)—

(i)

by amending the clause heading to read as follows: General requirements before 2023; and

(ii)

by striking Except as provided in clause (ii), and inserting Except as provided in clause (iii), with respect to skilled nursing facility services provided before January 1, 2023,;

(B)

by redesignating clause (ii) as clause (iii); and

(C)

by inserting after clause (i) the following new clause:

(ii)

General requirements after 2022

(I)

In general

With respect to skilled nursing facility services provided on or after January 1, 2023, a skilled nursing facility must—

(aa)

provide nursing services that are sufficient to meet the nursing needs of its residents on a 24-hour basis, to be divided into day shifts, evening shifts, and night shifts;

(bb)

provide for minimum nurse staffing levels with respect to each such shift, in accordance with this clause; and

(cc)

ensure that, in carrying out items (aa) and (bb), a total minimum of 4.1 hours of care is provided per resident per day, with 0.75 hours of care of such total minimum provided by a registered professional nurse, 0.54 hours of care of such total minimum provided by a licensed practical nurse, and 2.81 hours of care of such total minimum provided by a nurse aide (as defined in paragraph (5)(F)).

(II)

Day shifts

With respect to a day shift, the skilled nursing facility must have—

(aa)

at least 1 registered professional nurse for every 28 residents, with a minimum of 0.29 hours of care provided per resident during each such shift;

(bb)

at least 1 licensed practical nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during each such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 7 residents, with a minimum of 1.14 hours of care provided per resident during each such shift.

(III)

Evening shifts

With respect to an evening shift, the skilled nursing facility must have—

(aa)

at least 1 registered professional nurse for every 30 residents, with a minimum of 0.26 hours of care provided per resident during each such shift;

(bb)

at least 1 licensed practical nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during each such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 7 residents, with a minimum of 1.14 hours of care provided per resident during each such shift.

(IV)

Night shifts

With respect to a night shift, the skilled nursing facility must have—

(aa)

at least 1 registered professional nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during such shift;

(bb)

at least 1 licensed practical nurse for every 56 residents, with a minimum of 0.14 hours of care provided per resident during such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 15 residents, with a minimum of 0.53 hours of care provided per resident during such shift.

(V)

Secretarial authority to establish higher minimum nurse staffing levels

The Secretary may establish and require skilled nursing facilities (or, at the Secretary’s discretion, only skilled nursing facilities that have a higher percentage of residents with extensive care needs, as determined by the Secretary) to provide for minimum nurse staffing levels that are higher than the levels required under this clause.

(VI)

Rule of construction regarding State authority to establish higher minimum nurse staffing levels

Nothing in this clause may be construed as preventing a State from establishing or requiring skilled nursing facilities in the State to provide for minimum nurse staffing levels that are higher than the levels required under this clause.

(VII)

Clarification with respect to minimum hours of care provided per resident requirements

In complying with the minimum hours of care provided per resident requirements under this clause, a skilled nursing facility may not count any time spent by a registered professional nurse, licensed practical nurse, or nurse aide on administrative services towards compliance with such requirements.

(VIII)

Definitions

In this clause:

(aa)

Administrative services

The term administrative services means food preparation, housekeeping, laundry services, maintenance services, and other noncaregiving-related services, as determined by the Secretary.

(bb)

Day shift

The term day shift means, with respect to a day and a skilled nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 6 a.m. in the time zone in which such facility is located and not later than 8 a.m. in such time zone.

(cc)

Evening shift

The term evening shift means, with respect to a day and a skilled nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 2 p.m. in the time zone in which such facility is located and not later than 4 p.m. in such time zone.

(dd)

Night shift

The term night shift means, with respect to a day and a skilled nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 10 p.m. in the time zone in which such facility is located and not later than midnight in such time zone.

.

(2)

Enforcement

Section 1819(h) of the Social Security Act (42 U.S.C. 1395i–3(h)) is amended—

(A)

in paragraph (1), by striking If a State finds, on the basis of a standard and inserting Subject to paragraph (7), if a State finds, on the basis of a standard;

(B)

in paragraph (2), by striking With respect to and inserting Subject to paragraph (7), with respect to; and

(C)

by adding at the end the following new paragraph:

(7)

Special enforcement process with respect to minimum nurse staffing requirements

(A)

In general

If a State finds, on the basis of a standard, extended, or partial extended survey under subsection (g)(2) or otherwise, that a skilled nursing facility does not meet the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to skilled nursing facility services provided on or after January 1, 2023, the State shall recommend to the Secretary that the Secretary take such actions as described in subclauses (I) and (II) of subparagraph (B)(i).

(B)

Secretarial authority

(i)

In general

With respect to any skilled nursing facility in a State, if the Secretary finds, or pursuant to a recommendation of the State under subparagraph (A) finds, that a skilled nursing facility does not meet the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to skilled nursing facility services provided on or after January 1, 2023, the Secretary shall—

(I)

deny any further payments under this title with respect to all individuals entitled to benefits under this title who are admitted to the facility after the effective date of the finding; and

(II)

impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).

(ii)

Reduction of civil money penalties in certain circumstances

Subject to clause (iii), in the case where a skilled nursing facility self-reports and promptly corrects a deficiency for which a penalty was imposed under clause (i)(II) not later than 10 calendar days after the date of such imposition, the Secretary may reduce the amount of the penalty imposed by—

(I)

not more than 50 percent; or

(II)

in the case that the facility was penalized under this subsection within the three-year period preceding the date of such imposition, not more than 25 percent.

(iii)

Prohibitions on reduction for certain deficiencies

(I)

Repeat deficiencies

The Secretary may not reduce the amount of a penalty under clause (ii) if the Secretary had reduced a penalty imposed on the skilled nursing facility in the preceding year under such clause with respect to a repeat deficiency.

(II)

Certain other deficiencies

The Secretary may not reduce the amount of a penalty under clause (ii) if the penalty is imposed on the skilled nursing facility for a deficiency that is found to result in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident or residents of the facility, or results in the death of a resident of the facility.

(iv)

Repeated noncompliance

In the case of a skilled nursing facility which, on three consecutive standard surveys conducted under subsection (g)(2), has been found as not meeting the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to skilled nursing facility services provided on or after January 1, 2023, the Secretary may (regardless of the remedies provided for under clause (i))—

(I)

appoint temporary management to oversee the operation of the facility and to assure the health and safety of the facility’s residents in accordance with clause (iii) of paragraph (2)(B), except that the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) shall be substituted for all the requirements of subsections (b), (c), and (d) under such clause;

(II)

monitor the facility under subsection (g)(4)(B) with respect to such minimum staffing requirements until the facility has demonstrated to the satisfaction of the Secretary that the facility is in compliance, and will remain in compliance, with such minimum staffing requirements; or

(III)

subject to section 1128I(h), terminate the facility’s participation under this title.

If the facility’s participation under this title is terminated under this clause, the State shall provide for the safe and orderly transfer of the residents eligible under this title, consistent with the requirements of subsection (c)(2) and section 1128I(h).
(v)

Public notice of violations

(I)

Internet website

The Secretary shall publish on the internet website of the Department of Health and Human Services the names of skilled nursing facilities that have violated the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to skilled nursing facility services provided on or after January 1, 2023.

(II)

Change of ownership

With respect to a skilled nursing facility whose name is published under subclause (I) and has a change of ownership, as determined by the Secretary, after the date of such publication, the Secretary shall remove the name of such facility from the website described under such subclause after the 1-year period beginning on the date of such change of ownership.

.

(3)

Conforming amendment

Item (a) of section 1819(f)(2)(B)(iii)(I) of the Social Security Act (42 U.S.C. 1395i–3(f)(2)(B)(iii)(I)) is amended by striking subsection (b)(4)(C)(ii)(II) and inserting subsection (b)(4)(C)(iii)(II).

(b)

Medicaid

(1)

In general

Subparagraph (C) of section 1919(b)(4) of the Social Security Act (42 U.S.C. 1396r(b)(4)) is amended—

(A)

in clause (i)—

(i)

in the clause heading, by inserting after General requirements the following before 2023;

(ii)

in the matter preceding subclause (I), by inserting after October 1, 1990, the following: and before January 1, 2023,;

(iii)

in subclause (I), by striking clause (ii) and inserting clause (iii); and

(iv)

in subclause (II), by striking clause (ii) and inserting clause (iii);

(B)

by redesignating clauses (ii) and (iii) as clauses (iii) and (iv), respectively; and

(C)

by inserting after clause (i) the following new clause:

(ii)

General requirements after 2022

(I)

In general

With respect to nursing facility services provided on or after January 1, 2023, a nursing facility must—

(aa)

provide nursing services that are sufficient to meet the nursing needs of its residents on a 24-hour basis, to be divided into day shifts, evening shifts, and night shifts;

(bb)

provide for minimum nurse staffing levels with respect to each such shift, in accordance with this clause; and

(cc)

ensure that, in carrying out items (aa) and (bb), a total minimum of 4.1 hours of care is provided per resident per day, with 0.75 hours of care of such total minimum provided by a registered professional nurse, 0.54 hours of care of such total minimum provided by a licensed practical nurse, and 2.81 hours of care of such total minimum provided by a nurse aide (as defined in paragraph (5)(F)).

(II)

Day shifts

With respect to a day shift, the nursing facility must have—

(aa)

at least 1 registered professional nurse for every 28 residents, with a minimum of 0.29 hours of care provided per resident during each such shift;

(bb)

at least 1 licensed practical nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during each such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 7 residents, with a minimum of 1.14 hours of care provided per resident during each such shift.

(III)

Evening shifts

With respect to an evening shift, the nursing facility must have—

(aa)

at least 1 registered professional nurse for every 30 residents, with a minimum of 0.26 hours of care provided per resident during each such shift;

(bb)

at least 1 licensed practical nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during each such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 7 residents, with a minimum of 1.14 hours of care provided per resident during each such shift.

(IV)

Night shifts

With respect to a night shift, the nursing facility must have—

(aa)

at least 1 registered professional nurse for every 40 residents, with a minimum of 0.20 hours of care provided per resident during such shift;

(bb)

at least 1 licensed practical nurse for every 56 residents, with a minimum of 0.14 hours of care provided per resident during such shift; and

(cc)

at least 1 nurse aide (as defined in paragraph (5)(F)) for every 15 residents, with a minimum of 0.53 hours of care provided per resident during such shift.

(V)

Secretarial authority to establish higher minimum nurse staffing levels

The Secretary may establish and require nursing facilities (or, at the Secretary’s discretion, only nursing facilities that have a higher percentage of residents with extensive care needs, as determined by the Secretary) to provide for minimum nurse staffing levels that are higher than the levels required under this clause.

(VI)

Rule of construction regarding State authority to establish higher minimum nurse staffing levels

Nothing in this clause may be construed as preventing a State from establishing or requiring nursing facilities in the State to provide for minimum nurse staffing levels that are higher than the levels required under this clause.

(VII)

Clarification with respect to minimum hours of care provided per resident requirements

In complying with the minimum hours of care provided per resident requirements under this clause, a nursing facility may not count any time spent by a registered professional nurse, licensed practical nurse, or nurse aide on administrative services towards compliance with such requirements.

(VIII)

Definitions

In this clause:

(aa)

Administrative services

The term administrative services means food preparation, housekeeping, laundry services, maintenance services, and other noncaregiving-related services, as determined by the Secretary.

(bb)

Day shift

The term day shift means, with respect to a day and a nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 6 a.m. in the time zone in which such facility is located and not later than 8 a.m. in such time zone.

(cc)

Evening shift

The term evening shift means, with respect to a day and a nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 2 p.m. in the time zone in which such facility is located and not later than 4 p.m. in such time zone.

(dd)

Night shift

The term night shift means, with respect to a day and a nursing facility, an assigned work shift that is a period of 8 consecutive hours, beginning not sooner than 10 p.m. in the time zone in which such facility is located and not later than midnight in such time zone.

.

(2)

Enforcement

Section 1919(h) of the Social Security Act (42 U.S.C. 1396r(h)) is amended—

(A)

in paragraph (1), by striking If a State finds, on the basis of a standard and inserting Subject to paragraph (10), if a State finds, on the basis of a standard;

(B)

in paragraph (2)—

(i)

in subparagraph (C), by striking If a nursing facility and inserting Subject to paragraph (10), if a nursing facility; and

(ii)

in subparagraph (D), by striking In the case of and inserting Subject to paragraph (10), in the case of;

(C)

in paragraph (3)—

(i)

in subparagraph (A), by inserting before the period the following: and the remedies described in paragraph (10)(B); and

(ii)

in subparagraph (B), by striking With respect to and inserting Subject to paragraph (10), with respect to; and

(D)

by adding at the end the following new paragraph:

(10)

Special enforcement process with respect to minimum nurse staffing requirements

(A)

In general

If a State finds, on the basis of a standard, extended, or partial extended survey under subsection (g)(2) or otherwise, that a nursing facility does not meet the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to nursing facility services provided on or after January 1, 2023, the State shall—

(i)

deny any further payments under the State plan with respect to all individuals enrolled under such plan who are admitted to the facility after the effective date of the finding; and

(ii)

recommend to the Secretary that the Secretary impose the civil money penalty described in subparagraph (B).

(B)

Secretarial authority

(i)

In general

With respect to any nursing facility in a State other than a State nursing facility, if the Secretary finds that such a nursing facility does not meet the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to nursing facility services provided on or after January 1, 2023, the Secretary shall—

(I)

deny any further payments to the State for medical assistance furnished by the facility to all individuals enrolled under the State plan who are admitted to the facility after the effective date of the finding; and

(II)

impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance. The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).

(ii)

Reduction of civil money penalties in certain circumstances

Subject to clause (iii), in the case where a nursing facility self-reports and promptly corrects a deficiency for which a penalty was imposed under clause (i)(II) not later than 10 calendar days after the date of such imposition, the Secretary may reduce the amount of the penalty imposed by—

(I)

not more than 50 percent; or

(II)

in the case that the facility was penalized under this subsection within the three-year period preceding the date of such imposition, not more than 25 percent.

(iii)

Prohibitions on reduction for certain deficiencies

(I)

Repeat deficiencies

The Secretary may not reduce the amount of a penalty under clause (ii) if the Secretary had reduced a penalty imposed on the nursing facility in the preceding year under such clause with respect to a repeat deficiency.

(II)

Certain other deficiencies

The Secretary may not reduce the amount of a penalty under clause (ii) if the penalty is imposed on the nursing facility for a deficiency that is found to result in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident or residents of the facility, or results in the death of a resident of the facility.

(iv)

Repeated noncompliance

In the case of a nursing facility which, on three consecutive standard surveys conducted under subsection (g)(2), has been found as not meeting the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to nursing facility services provided on or after January 1, 2023, the Secretary may (regardless of the remedies provided for under clause (i))—

(I)

appoint temporary management to oversee the operation of the facility and to assure the health and safety of the facility’s residents in accordance with clause (iii) of paragraph (3)(C), except that the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) shall be substituted for all the requirements of subsections (b), (c), and (d) under such clause;

(II)

monitor the facility under subsection (g)(4)(B) with respect to such minimum staffing requirements until the facility has demonstrated to the satisfaction of the Secretary that the facility is in compliance, and will remain in compliance, with such minimum staffing requirements; or

(III)

subject to section 1128I(h), terminate the facility’s participation under this title.

If the facility’s participation under this title is terminated under this clause, the State shall provide for the safe and orderly transfer of the residents eligible under this title, consistent with the requirements of subsection (c)(2) and section 1128I(h).
(v)

Public notice of violations

(I)

Internet website

The Secretary shall publish on the internet website of the Department of Health and Human Services the names of nursing facilities that have violated the minimum staffing requirements of clause (ii) of subsection (b)(4)(C) with respect to skilled nursing facility services provided on or after January 1, 2023.

(II)

Change of ownership

With respect to a nursing facility whose name is published under subclause (I) and has a change of ownership, as determined by the Secretary, after the date of such publication, the Secretary shall remove the name of such facility from the website described under such subclause after the 1-year period beginning on the date of such change of ownership.

.

(3)

Conforming amendments

(A)

Clause (iii) of section 1919(b)(4)(C) of the Social Security Act (42 U.S.C. 1396r(b)(4)(C)), as redesignated by paragraph (1)(B), is amended by striking subject to clause (iii) and inserting subject to clause (iv).

(B)

Item (a) of section 1919(f)(2)(B)(iii)(I) of the Social Security Act (42 U.S.C. 1396r(f)(2)(B)(iii)(I)) is amended by striking subsection (b)(4)(C)(ii) and inserting subsection (b)(4)(C)(iii).

(C)

Paragraph (9) of section 1919(f) of the Social Security Act (42 U.S.C. 1396r(f)) is amended by striking subsection (b)(4)(C)(ii) and inserting subsection (b)(4)(C)(iii).

(c)

Studies and reports regarding impact of minimum nurse staffing requirements

(1)

Initial study and report

(A)

In general

Not later than June 1, 2023, the Secretary of Health and Human Services shall study and submit to the Committee on Energy and Commerce and the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a publicly available report—

(i)

on the impact of the minimum nurse staffing requirements added by subsection (a) on the reimbursement levels of skilled nursing facilities under the Medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) and the adequacy of personnel numbers in such skilled nursing facilities to meet such minimum nurse staffing requirements;

(ii)

on the impact of the minimum nurse staffing requirements added by subsection (b) on the reimbursement levels of nursing facilities under the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) and the adequacy of personnel numbers in such nursing facilities to meet such minimum nurse staffing requirements; and

(iii)

including recommendations on the steps that such skilled nursing facilities and nursing facilities can take to ensure that adequate personnel are available in such skilled nursing facilities and nursing facilities to meet the minimum nurse staffing requirements added by subsections (a) and (b) for such skilled nursing facilities and nursing facilities, respectively, including methods for attracting and retaining such personnel.

(B)

Considerations

In conducting the study required under subparagraph (A), the Secretary of Health and Human Services shall take into consideration—

(i)

the benefits of any increase in nurse staffing levels, including with respect to workforce training and retention;

(ii)

any decrease in the rate of workplace injuries;

(iii)

any changes in medical care costs for residents of skilled nursing facilities and nursing facilities;

(iv)

any decrease in hospitalization rates for such residents;

(v)

any changes in personnel and administrative costs for skilled nursing facilities and nursing facilities; and

(vi)

any changes in recruiting and training costs.

(2)

Subsequent study and report

Not later than January 1, 2025, the Secretary of Health and Human Services shall conduct a follow-up study to the study conducted under paragraph (1)(A) and submit to the Committee on Energy and Commerce and the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a publicly available report on such follow-up study.

202.

Disclosure of nurse staffing levels at skilled nursing facilities under Medicare program and nursing facilities under Medicaid program

(a)

Medicare

Paragraph (8) of section 1819(b) of the Social Security Act (42 U.S.C. 1395i–3(b)) is amended to read as follows:

(8)

Information on nurse staffing

(A)

In general

Each day, a skilled nursing facility shall post for each shift notices with—

(i)

a description of the nurse staffing requirements applicable with respect to the facility and day under paragraph (4)(C);

(ii)

information on the number of registered professional nurses, licensed practical nurses, and nurse aides (as defined in paragraph (5)(F)) assigned to provide direct care services to residents in the facility during the shift, disaggregated by units in the facility; and

(iii)

a statement that the facility is required, upon request, to provide any nurse staffing information (as described in this subparagraph) of the facility from the preceding 12-month period.

The information in such notices shall be written in a uniform manner, printed in an easily readable 14-point type font, and made available in appropriate languages, as determined by the Secretary. The skilled nursing facility shall make such notices available at each nurses’ station in the facility and other areas in each unit of the facility, as determined appropriate by the facility, and shall keep and maintain each such notice for at least three years after the date on which each such notice is posted in the facility.
(B)

Public availability of information

A skilled nursing facility shall, upon request, make available to the public any nurse staffing information (as described in subparagraph (A)) of the facility from the preceding 12-month period. In the case that the facility makes such information available as a paper copy, such facility may not charge for such copy an amount greater than the cost of making such copy.

.

(b)

Medicaid

Paragraph (8) of section 1919(b) of the Social Security Act (42 U.S.C. 1396r(b)) is amended to read as follows:

(8)

Information on nurse staffing

(A)

In general

Each day, a skilled nursing facility shall post for each shift notices with—

(i)

a description of the nurse staffing requirements applicable with respect to the facility and day under paragraph (4)(C);

(ii)

information on the number of registered professional nurses, licensed practical nurses, and nurse aides (as defined in paragraph (5)(F)) assigned to provide direct care services to residents in the facility during the shift, disaggregated by units in the facility; and

(iii)

a statement that the facility is required, upon request, to provide any nurse staffing information (as described in this subparagraph) of the facility from the preceding 12-month period.

The information in such notices shall be written in a uniform manner, printed in an easily readable 14-point type font, and made available in appropriate languages, as determined by the Secretary. The skilled nursing facility shall make such notices available at each nurses’ station in the facility and other areas in each unit of the facility, as determined appropriate by the facility, and shall keep and maintain each such notice for at least three years after the date on which each such notice is posted in the facility.
(B)

Public availability of information

A skilled nursing facility shall, upon request, make available to the public any nurse staffing information (as described in subparagraph (A)) of the facility from the preceding 12-month period.

.

(c)

Effective date

The amendments made by this section take effect on the date of enactment of this Act and apply with respect to nurse staffing information posted or requested on or after the date that is one year after such date of enactment.

203.

Administrative staffing requirements for skilled nursing facilities under Medicare program and nursing facilities under Medicaid program

(a)

Medicare

Paragraph (1) of section 1819(d) of the Social Security Act (42 U.S.C. 1395i–3(d)) is amended—

(1)

by redesignating the second subparagraph (C) as subparagraph (E); and

(2)

by inserting after the first subparagraph (C) the following new subparagraph:

(D)

Nursing management personnel

(i)

In general

A skilled nursing facility must employ nursing management personnel in accordance with this subparagraph.

(ii)

Director of nursing services

A skilled nursing facility must employ a registered professional nurse to serve full-time as the director of nursing services of the facility. Such director of nursing services shall be responsible for determining the number and types of nursing personnel needed to sufficiently meet the nursing needs of the residents of the facility (as required under subsection (b)(4)(C)).

(iii)

Assistant director of nursing services

A skilled nursing facility must employ a registered professional nurse to serve full-time as the assistant director of nursing services of the facility, except that in the case of a skilled nursing facility that has fewer than 100 beds, such facility may employ a registered professional nurse to serve part-time as the assistant director of nursing services of the facility. A registered professional nurse who serves as the assistant director of nursing services of a skilled nursing facility may also serve as a supervisor for direct clinical nursing care for such facility.

(iv)

Director of in-Service education

A skilled nursing facility must employ a registered professional nurse to serve full-time as the director of in-service education of the facility, except that in the case of a skilled nursing facility that has fewer than 100 beds, such facility may employ a registered professional nurse to serve part-time as the director of in-service education of the facility. In carrying out the previous sentence, a skilled nursing facility must, to the extent practicable and appropriate, employ a registered professional nurse who has received training in adult education and gerontology.

.

(b)

Medicaid

(1)

In general

Paragraph (1) of section 1919(d) of the Social Security Act (42 U.S.C. 1396r(d)) is amended by inserting after subparagraph (C) the following new subparagraph:

(D)

Nursing management personnel

(i)

In general

A nursing facility must employ nursing management personnel in accordance with this subparagraph.

(ii)

Director of nursing services

A nursing facility must employ a registered professional nurse to serve full-time as the director of nursing services of the facility. Such director of nursing services shall be responsible for determining the number and types of nursing personnel needed to sufficiently meet the nursing needs of the residents of the facility (as required under subsection (b)(4)(C)).

(iii)

Assistant director of nursing services

A nursing facility must employ a registered professional nurse to serve full-time as the assistant director of nursing services of the facility, except that in the case of a nursing facility that has fewer than 100 beds, such facility may employ a registered professional nurse to serve part-time as the assistant director of nursing services of the facility. A registered professional nurse who serves as the assistant director of nursing services of a nursing facility may also serve as a supervisor for direct clinical nursing care for such facility.

(iv)

Director of in-Service education

A nursing facility must employ a registered professional nurse to serve full-time as the director of in-service education of the facility, except that in the case of a nursing facility that has fewer than 100 beds, such facility may employ a registered professional nurse to serve part-time as the director of in-service education of the facility. In carrying out the previous sentence, a nursing facility must, to the extent practicable and appropriate, employ a registered professional nurse who has received training in adult education and gerontology.

.

(2)

Technical amendment

Paragraph (1) of section 1919(d) of the Social Security Act (42 U.S.C. 1396r(d)) is amended by redesignating subparagraph (V) as subparagraph (E).

(c)

Effective date

The amendments made by this section take effect on the date of enactment of this Act and apply with respect to the administration of skilled nursing facilities and nursing facilities on or after the date that is one year after such date of enactment.

204.

Nurse training requirements with respect to skilled nursing facilities under Medicare program and nursing facilities under Medicaid program

(a)

Medicare

(1)

Orientation for registered professional nurses, licensed practical nurses, and nurse aides

Section 1819(d) of the Social Security Act (42 U.S.C. 1395i–3(d)) is amended by adding at the end the following new paragraph:

(5)

Orientations

A skilled nursing facility must provide to registered professional nurses, licensed practical nurses, and nurse aides, before such registered professional nurses, licensed practical nurses, and nurse aides are assigned to provide direct care services to residents in the facility, orientations providing education on the policies and emergency procedures of the facility and on residents’ rights under this section.

.

(2)

Requirements for nurse aide training and competency evaluation programs and for nurse aide competency evaluation programs

Subparagraph (A) of section 1819(f)(2) of the Social Security Act (42 U.S.C. 1395i–3(f)(2)) is amended—

(A)

in the matter preceding clause (i), by inserting after 1988 the following: , and update, as determined necessary by the Secretary;

(B)

in clause (i)—

(i)

by inserting after care of cognitively impaired residents, the following: care of older adults,;

(ii)

by striking patient abuse prevention training, and inserting patient abuse prevention training),; and

(iii)

by striking 75 hours and inserting 120 hours; and

(C)

in clause (ii)—

(i)

by striking requirement relating to and inserting requirements relating to (I);

(ii)

by inserting after care of cognitively impaired residents, the following: care of older adults,; and

(iii)

by striking and procedures and inserting (II) minimum hours of initial and ongoing training and retraining (including not less than 120 hours in the case of initial training), and (III) procedures.

(b)

Medicaid

(1)

Orientation for registered professional nurses, licensed practical nurses, and nurse aides

Section 1919(d) of the Social Security Act (42 U.S.C. 1396r(d)) is amended by adding at the end the following new paragraph:

(5)

Orientations

A nursing facility must provide to registered professional nurses, licensed practical nurses, and nurse aides, before such registered professional nurses, licensed practical nurses, and nurse aides are assigned to provide direct care services to residents in the facility, orientations providing education on the policies and emergency procedures of the facility and on residents’ rights under this section.

.

(2)

Requirements for nurse aide training and competency evaluation programs and for nurse aide competency evaluation programs

Subparagraph (A) of section 1919(f)(2) of the Social Security Act (42 U.S.C. 1396r(f)(2)) is amended—

(A)

in the matter preceding clause (i), by inserting after 1988 the following: , and update, as determined necessary by the Secretary;

(B)

in clause (i)—

(i)

by inserting after care of cognitively impaired residents, the following: care of older adults,;

(ii)

by striking patient abuse prevention training, and inserting patient abuse prevention training),; and

(iii)

by striking 75 hours and inserting 120 hours; and

(C)

in clause (ii)—

(i)

by striking requirement relating to and inserting requirements relating to (I);

(ii)

by inserting after care of cognitively impaired residents, the following: care of older adults,; and

(iii)

by striking and procedures and inserting (II) minimum hours of initial and ongoing training and retraining (including not less than 120 hours in the case of initial training), and (III) procedures.

(c)

Effective date

The amendments made by this section take effect on the date of enactment of this Act and shall apply with respect to nurse aide training and competency evaluation programs, nurse aide competency evaluation programs, and nurse orientations conducted on or after the date that is one year after such date of enactment.

205.

Whistleblower and resident protections

(a)

Medicare

Section 1819 of the Social Security Act (42 U.S.C. 1395i–3) is amended by adding at the end the following new subsection:

(l)

Whistleblower and resident protections

(1)

Statement regarding professional obligation and rights

All nurses employed by a skilled nursing facility have a duty and right to act based on their professional judgment in accordance with the nursing laws and regulations of the State in which such facility is located, to provide nursing care in the exclusive interests of the residents of the facility, and to act as the residents’ advocate.

(2)

Objection to or refusal of work assignment

A nurse may object to, or refuse to participate in, any activity, policy, practice, assignment, or task (referred to in this subsection as a work assignment) if—

(A)

the nurse reasonably believes such work assignment to be in violation of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C); or

(B)

the nurse reasonably believes that the nurse is not prepared by education, training, or experience to perform or comply with such work assignment without compromising the safety of a resident or jeopardizing the license of the nurse.

(3)

Retaliation for objection to or refusal of work assignment barred

(A)

No discharge, discrimination, or retaliation

No skilled nursing facility may discharge, retaliate, discriminate, or otherwise take adverse action in any manner with respect to any aspect of a nurse’s employment with the facility, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, based on the nurse’s objection to, or refusal of, a work assignment under paragraph (2).

(B)

No filing of complaint

No skilled nursing facility may file a complaint or a report against a nurse with a State professional disciplinary agency because of the nurse’s objection to, or refusal of, a work assignment under paragraph (2).

(4)

Cause of action

Any nurse (or a collective bargaining representative or legal representative of such nurse) against whom a skilled nursing facility has taken an adverse action in violation of paragraph (3)(A), or against whom such facility has filed a complaint or report in violation of paragraph (3)(B), may (without regard to whether a complaint has been filed under paragraph (5) or (10)(B)) bring a cause of action in an appropriate district court of the United States. The legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall be controlling for the purposes of any cause of action brought under this paragraph. A nurse who prevails on the cause of action may be entitled to one or more of the following:

(A)

Reinstatement.

(B)

Reimbursement of lost wages, compensation, and benefits.

(C)

Attorneys’ fees.

(D)

Court costs.

(E)

Other damages.

(5)

Complaint to Secretary

Any individual may file a complaint with the Secretary against a skilled nursing facility that violates a requirement described in paragraph (3). For any complaint filed, the Secretary shall—

(A)

receive and investigate the complaint;

(B)

determine whether a violation of such paragraph, as alleged in the complaint, has occurred; and

(C)

in the case that the Secretary determines that such a violation has occurred, issue an order that the complaining individual may not suffer any adverse action prohibited by paragraph (3) or (7).

(6)

Toll-Free telephone number

(A)

In general

The Secretary shall provide for the establishment of a toll-free telephone hotline to provide information regarding the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C) and to receive reports of violations of such requirements.

(B)

Notice to residents

A skilled nursing facility shall provide each resident admitted to the facility with the telephone number of the hotline described in subparagraph (A) and give notice to each such resident that such hotline may be used to report inadequate staffing.

(7)

Protection for reporting

(A)

Prohibition on retaliation or discrimination

A skilled nursing facility may not retaliate or discriminate in any manner against any resident, employee, or contract employee of the facility, or any other individual, on the basis that such resident, employee, contract employee, or individual (individually or in conjunction with another individual) has, in good faith—

(i)

presented a grievance or complaint;

(ii)

initiated or cooperated in any investigation or proceeding of any governmental entity, regulatory agency, or private accreditation body;

(iii)

made a civil claim or demand; or

(iv)

filed an action relating to the care, services, or conditions of the facility.

(B)

Good faith defined

For purposes of this paragraph, an individual shall be deemed to be acting in good faith if the individual reasonably believes—

(i)

the information reported or disclosed is true; and

(ii)

a violation of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C) has occurred or may occur.

(8)

Prohibition on interference with rights

(A)

Exercise of rights

A skilled nursing facility may not—

(i)

interfere with, restrain, or deny the exercise, or attempt to exercise, by any individual of any right, procedure, or remedy provided or protected under this subsection; or

(ii)

coerce or intimidate any individual regarding the exercise, or attempt to exercise, such right.

(B)

Opposition to unlawful policies or practices

A skilled nursing facility may not retaliate or discriminate against any individual for opposing any policy, practice, or action of the facility which is alleged to violate, breach, or fail to comply with any provision of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C).

(C)

Prohibition on interference with protected communications

A skilled nursing facility may not make, adopt, or enforce any rule, regulation, policy, or practice which in any manner directly or indirectly prohibits, impedes, or discourages a nurse from, or intimidates, coerces, or induces a nurse regarding, engaging in free speech activities or disclosing information as provided under this subsection.

(D)

Prohibition on interference with collective action

A skilled nursing facility may not in any way interfere with the rights of nurses to organize, bargain collectively, and engage in concerted activity under section 7 of the National Labor Relations Act (29 U.S.C. 157).

(9)

Notice

A skilled nursing facility shall post in an appropriate location in each unit a conspicuous notice, in a form specified by the Secretary, that—

(A)

explains the rights of nurses, residents, and other individuals under this subsection;

(B)

includes a statement that a nurse, resident, or other individual may file a complaint with the Secretary against the facility for a violation of a requirement or a prohibition of this subsection; and

(C)

provides instructions on how to file such a complaint.

(10)

Enforcement

(A)

In general

The Secretary shall enforce the requirements and prohibitions of this subsection in accordance with this paragraph.

(B)

Procedures for receiving and investigating complaints

The Secretary shall establish procedures under which—

(i)

any individual may file a complaint alleging that a skilled nursing facility has violated a requirement or a prohibition of this subsection; and

(ii)

any such complaint shall be investigated by the Secretary.

(C)

Remedies

If the Secretary determines that a skilled nursing facility has violated a requirement or prohibition of this subsection, the Secretary—

(i)

shall require the facility to establish a corrective action plan to prevent the recurrence of such violation; and

(ii)

may impose civil money penalties as described in subparagraph (D).

(D)

Civil penalties

(i)

In general

In addition to any other penalties prescribed by law, the Secretary may impose civil penalties as follows:

(I)

Skilled nursing facility liability

The Secretary may impose on a skilled nursing facility found to be in violation of this subsection a civil money penalty of—

(aa)

not more than $25,000 for the first knowing violation of this subsection by such facility; and

(bb)

not more than $50,000 for any subsequent knowing violation of this subsection by such facility.

(II)

Individual liability

The Secretary may impose on an individual who—

(aa)

is employed by a skilled nursing facility; and

(bb)

is found by the Secretary to have knowingly violated this subsection on behalf of the facility,

a civil money penalty of not more than $20,000 for each such violation by the individual.
(ii)

Procedures

The provisions of section 1128A of the Social Security Act (other than subsections (a) and (b)) shall apply with respect to a civil money penalty or proceeding under this subparagraph in the same manner as such provisions apply with respect to a civil money penalty or proceeding under such section 1128A.

(E)

Public notice of violations

(i)

Internet website

The Secretary shall publish on the internet website of the Department of Health and Human Services the names of skilled nursing facilities on which a civil money penalty has been imposed under this subsection, the violation for which such penalty was imposed, and such additional information as the Secretary determines appropriate.

(ii)

Change of ownership

With respect to a skilled nursing facility that had a change of ownership, as determined by the Secretary, penalties imposed on the facility while under previous ownership shall no longer be published by the Secretary pursuant to clause (i) after the 1-year period beginning on the date of such change of ownership.

(F)

Use of funds

Funds collected by the Secretary pursuant to this subsection are authorized to be appropriated to implement the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C).

(11)

Nurse defined

In this subsection, the term nurse means a registered professional nurse, a licensed practical nurse, and a nurse aide.

.

(b)

Medicaid

Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended by adding at the end the following new subsection:

(l)

Whistleblower and resident protections

(1)

Statement regarding professional obligation and rights

All nurses employed by a nursing facility have a duty and right to act based on their professional judgment in accordance with the nursing laws and regulations of the State in which such facility is located, to provide nursing care in the exclusive interests of the residents of the facility, and to act as the residents’ advocate.

(2)

Objection to or refusal of work assignment

A nurse may object to, or refuse to participate in, any activity, policy, practice, assignment, or task (referred to in this subsection as a work assignment) if—

(A)

the nurse reasonably believes such work assignment to be in violation of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C); or

(B)

the nurse reasonably believes that the nurse is not prepared by education, training, or experience to perform or comply with such work assignment without compromising the safety of a resident or jeopardizing the license of the nurse.

(3)

Retaliation for objection to or refusal of work assignment barred

(A)

No discharge, discrimination, or retaliation

No nursing facility may discharge, retaliate, discriminate, or otherwise take adverse action in any manner with respect to any aspect of a nurse’s employment with the facility, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, based on the nurse’s objection to, or refusal of, a work assignment under paragraph (2).

(B)

No filing of complaint

No nursing facility may file a complaint or a report against a nurse with a State professional disciplinary agency because of the nurse’s objection to, or refusal of, a work assignment under paragraph (2).

(4)

Cause of action

Any nurse (or a collective bargaining representative or legal representative of such nurse) against whom a nursing facility has taken an adverse action in violation of paragraph (3)(A), or against whom such facility has filed a complaint or report in violation of paragraph (3)(B), may (without regard to whether a complaint has been filed under paragraph (5) or (10)(B)) bring a cause of action in an appropriate district court of the United States. The legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall be controlling for the purposes of any cause of action brought under this paragraph. A nurse who prevails on the cause of action may be entitled to one or more of the following:

(A)

Reinstatement.

(B)

Reimbursement of lost wages, compensation, and benefits.

(C)

Attorneys’ fees.

(D)

Court costs.

(E)

Other damages.

(5)

Complaint to Secretary

Any individual may file a complaint with the Secretary against a nursing facility that violates a requirement described in paragraph (3). For any complaint filed, the Secretary shall—

(A)

receive and investigate the complaint;

(B)

determine whether a violation of such paragraph, as alleged in the complaint, has occurred; and

(C)

in the case that the Secretary determines that such a violation has occurred, issue an order that the complaining individual may not suffer any adverse action prohibited by paragraph (3) or (7).

(6)

Toll-Free telephone number

(A)

In general

The Secretary shall provide for the establishment of a toll-free telephone hotline to provide information regarding the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C) and to receive reports of violations of such requirements.

(B)

Notice to residents

A nursing facility shall provide each resident admitted to the facility with the telephone number of the hotline described in subparagraph (A) and give notice to each such resident that such hotline may be used to report inadequate staffing or care.

(7)

Protection for reporting

(A)

Prohibition on retaliation or discrimination

A nursing facility may not retaliate or discriminate in any manner against any resident, employee, or contract employee of the facility, or any other individual, on the basis that such resident, employee, contract employee, or individual (individually or in conjunction with another individual) has, in good faith—

(i)

presented a grievance or complaint;

(ii)

initiated or cooperated in any investigation or proceeding of any governmental entity, regulatory agency, or private accreditation body;

(iii)

made a civil claim or demand; or

(iv)

filed an action relating to the care, services, or conditions of the facility.

(B)

Good faith defined

For purposes of this paragraph, an individual shall be deemed to be acting in good faith if the individual reasonably believes—

(i)

the information reported or disclosed is true; and

(ii)

a violation of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C) has occurred or may occur.

(8)

Prohibition on interference with rights

(A)

Exercise of rights

A nursing facility may not—

(i)

interfere with, restrain, or deny the exercise, or attempt to exercise, by any individual of any right, procedure, or remedy provided or protected under this subsection; or

(ii)

coerce or intimidate any individual regarding the exercise, or attempt to exercise, such right.

(B)

Opposition to unlawful policies or practices

A nursing facility may not retaliate or discriminate against any individual for opposing any policy, practice, or action of the facility which is alleged to violate, breach, or fail to comply with any provision of the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C).

(C)

Prohibition on interference with protected communications

A nursing facility may not make, adopt, or enforce any rule, regulation, policy, or practice which in any manner directly or indirectly prohibits, impedes, or discourages a nurse from, or intimidates, coerces, or induces a nurse regarding, engaging in free speech activities or disclosing information as provided under this subsection.

(D)

Prohibition on interference with collective action

A nursing facility may not in any way interfere with the rights of nurses to organize, bargain collectively, and engage in concerted activity under section 7 of the National Labor Relations Act (29 U.S.C. 157).

(9)

Notice

A nursing facility shall post in an appropriate location in each unit a conspicuous notice, in a form specified by the Secretary, that—

(A)

explains the rights of nurses, residents, and other individuals under this subsection;

(B)

includes a statement that a nurse, resident, or other individual may file a complaint with the Secretary against the facility for a violation of a requirement or a prohibition of this subsection; and

(C)

provides instructions on how to file such a complaint.

(10)

Enforcement

(A)

In general

The Secretary shall enforce the requirements and prohibitions of this subsection in accordance with this paragraph.

(B)

Procedures for receiving and investigating complaints

The Secretary shall establish procedures under which—

(i)

any individual may file a complaint alleging that a nursing facility has violated a requirement or a prohibition of this subsection; and

(ii)

any such complaint shall be investigated by the Secretary.

(C)

Remedies

If the Secretary determines that a nursing facility has violated a requirement or prohibition of this subsection, the Secretary—

(i)

shall require the facility to establish a corrective action plan to prevent the recurrence of such violation; and

(ii)

may impose civil money penalties as described in subparagraph (D).

(D)

Civil penalties

(i)

In general

In addition to any other penalties prescribed by law, the Secretary may impose civil penalties as follows:

(I)

Nursing facility liability

The Secretary may impose on a nursing facility found to be in violation of this subsection a civil money penalty of—

(aa)

not more than $25,000 for the first knowing violation of this subsection by such facility; and

(bb)

not more than $50,000 for any subsequent knowing violation of this subsection by such facility.

(II)

Individual liability

The Secretary may impose on an individual who—

(aa)

is employed by a nursing facility; and

(bb)

is found by the Secretary to have knowingly violated this subsection on behalf of the facility,

a civil money penalty of not more than $20,000 for each such violation by the individual.
(ii)

Procedures

The provisions of section 1128A of the Social Security Act (other than subsections (a) and (b)) shall apply with respect to a civil money penalty or proceeding under this subparagraph in the same manner as such provisions apply with respect to a civil money penalty or proceeding under such section 1128A.

(E)

Public notice of violations

(i)

Internet website

The Secretary shall publish on the internet website of the Department of Health and Human Services the names of nursing facilities on which a civil money penalty has been imposed under this subsection, the violation for which such penalty was imposed, and such additional information as the Secretary determines appropriate.

(ii)

Change of ownership

With respect to a nursing facility that had a change of ownership, as determined by the Secretary, penalties imposed on the facility while under previous ownership shall no longer be published by the Secretary pursuant to clause (i) after the 1-year period beginning on the date of such change of ownership.

(F)

Use of funds

Funds collected by the Secretary pursuant to this subsection are authorized to be appropriated to implement the minimum nurse staffing requirements of clause (ii) of subsection (b)(4)(C).

(11)

Nurse defined

In this subsection, the term nurse means a registered professional nurse, a licensed practical nurse, and a nurse aide.

.

(c)

Effective date

The amendments made by this section take effect on the date of enactment of this Act and shall apply with respect to objections to or refusals of work assignments, complaints, retaliations and other adverse actions, and interferences with rights that occur on or after the date that is one year after such date of enactment and with respect to notices provided on or after the date that is one year after such date of enactment.

206.

Prohibiting pre-dispute arbitration agreements

(a)

Medicare

Section 1819(c) of the Social Security Act (42 U.S.C. 1395i–3(c)) is amended by adding at the end the following new paragraph:

(7)

Prohibition on use of pre-dispute arbitration agreements

(A)

In general

A skilled nursing facility may not require, solicit, accept, or move to enforce a pre-dispute arbitration agreement from or on behalf of any resident, whether the agreement is made before, during, or after the resident’s admission to the facility, or from or on behalf of any employee, or contract employee of the facility, or any other individual if such individual is alleged to be engaged in conduct protected under subsection (l).

(B)

Application

This paragraph shall apply to the skilled nursing facility and to any other business or person providing or responsible for providing skilled nursing services to the resident.

(C)

No validity or enforcement

A pre-dispute arbitration agreement shall not be valid or specifically enforceable against a resident or former resident of a skilled nursing facility, without regard to whether the agreement was made prior to or after the effective date of this paragraph.

(D)

Definition of pre-dispute arbitration agreement

In this paragraph, the term pre-dispute arbitration agreement means any agreement to arbitrate a dispute when the dispute has arisen after such agreement has been made.

(E)

Judicial review

A determination as to whether and how this paragraph applies to an arbitration agreement shall be determined under Federal law by a court of competent jurisdiction, rather than an arbitrator, without regard to whether the party opposing arbitration challenges such agreement specifically or in conjunction with any other term of the contract containing such agreement.

.

(b)

Medicaid

(1)

Home and community-based services and home health care services

Section 1915 of the Social Security Act (42 U.S.C. 1396n) is amended by adding at the end the following new subsection:

(m)

Prohibiting pre-Dispute arbitration agreements

(1)

In general

For home and community-based services or home health care services provided under a waiver under this section, section 1902(a)(10)(D), or any other provision authorizing the provision of home and community-based services or home health care services under this title, the provider of such services (and any employee, agent, related entity, or affiliate of such provider) shall not require, solicit, or accept a pre-dispute arbitration agreement from or on behalf of any individual receiving such services, whether the agreement is made before, during, or after the first date on which services are received, or from or on behalf of any employee, or contract employee of the provider, or any other individual if such individual is alleged to be engaged in conduct protected under section 1919(l). A pre-dispute arbitration agreement between such a provider (or entity or person) and an individual receiving services (or who formerly received services) shall not be valid or enforceable, without regard to whether such agreement was made prior to the effective date of this subsection.

(2)

Definition of pre-dispute arbitration agreement

The term pre-dispute arbitration agreement means any agreement to arbitrate a dispute when the dispute has arisen after such agreement has been made.

(3)

Judicial review

A determination as to whether and how this subsection applies to an arbitration agreement shall be determined under Federal law by a court of competent jurisdiction, rather than an arbitrator, without regard to whether the party opposing arbitration challenges such agreement specifically or in conjunction with any other term of the contract containing such agreement.

.

(2)

Nursing facilities

Section 1919(c) of the Social Security Act (42 U.S.C. 1396r(c)) is amended by adding at the end the following new paragraph:

(9)

Prohibition on use of pre-dispute arbitration agreements

(A)

In general

A nursing facility may not require, solicit, accept, or move to enforce a pre-dispute arbitration agreement from or on behalf of any resident, whether the agreement is made before, during, or after the resident’s admission to the facility, or from or on behalf of any employee, or contract employee of the facility, or any other individual if such individual is alleged to be engaged in conduct protected under subsection (l).

(B)

Application

This paragraph shall apply to the nursing facility and to any other business or person providing or responsible for providing nursing services to the resident.

(C)

No validity or enforcement

A pre-dispute arbitration agreement shall not be valid or specifically enforceable against a resident or former resident of a nursing facility, without regard to whether the agreement was made prior to or after the effective date of this paragraph.

(D)

Definition of pre-dispute arbitration agreement

In this paragraph, the term pre-dispute arbitration agreement means any agreement to arbitrate a dispute when the dispute has arisen after such agreement has been made.

(E)

Judicial review

A determination as to whether and how this paragraph applies to an arbitration agreement shall be determined under Federal law by a court of competent jurisdiction, rather than an arbitrator, without regard to whether the party opposing arbitration challenges such agreement specifically or in conjunction with any other term of the contract containing such agreement.

.

207.

Standardized protocol for obtaining informed consent from residents prior to prescribing psychotropic drugs

(a)

Standardized protocol

(1)

Skilled nursing facilities

Section 1819(b) of the Social Security Act (42 U.S.C. 1395i–3(b)) is amended by adding at the end the following new paragraph:

(9)

Standardized protocol for obtaining informed consent from a resident prior to prescribing psychotropic drugs for a use not approved by the Food and Drug Administration

(A)

Protocol

Not later than the date that is one year after the date of the enactment of this paragraph, the Secretary, taking into account the results of the study conducted by the Comptroller General of the United States under section 8(a)(3) of the Quality Care for Nursing Home Residents and Workers During COVID–19 and Beyond Act and in consultation with stakeholder groups (including residents of skilled nursing facilities, family members of such residents, advocates for such residents, long-term care ombudsmen, and providers), shall develop a standardized protocol for skilled nursing facilities to obtain written informed consent, in accordance with this paragraph, from a resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) prior to prescribing a psychotropic drug to the resident for a use not approved by the Food and Drug Administration.

(B)

Requirements

The standardized protocol developed under subparagraph (A) shall include the following:

(i)

A requirement, with respect to a resident, that—

(I)

the facility, with the involvement of the prescriber, inform the resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) of—

(aa)

possible side effects and risks associated with the psychotropic drug, including the mention of any black box warning;

(bb)

treatment modalities that were attempted prior to the use of the psychotropic drug; and

(cc)

any other information the Secretary determines appropriate;

(II)

the resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) provide written informed consent to the administration of the psychotropic drug; and

(III)

the administration of the psychotropic drug is in accordance with any plan of care that the resident has in place, including non-pharmacological interventions as appropriate that can effectively address underlying medical and environmental causes of behavioral disorders.

(ii)

An alternative protocol for obtaining such written informed consent—

(I)

in the case of emergencies; and

(II)

in the absence of a clearly identified designated health care agent or other surrogate under State law or regulation.

(iii)

Other items determined appropriate by the Secretary.

(C)

Timing of informed consent

Under the standardized protocol, a skilled nursing facility shall obtain the written informed consent described in subparagraph (A), with respect to a psychotropic drug and a resident of the facility—

(i)

prior to the initial prescribing of such psychotropic drug to such resident if such resident does not have a current prescription for such psychotropic drug at the time such resident is admitted to the facility; and

(ii)

at least once a month to the extent that the administration of such psychotropic drug to such resident is in accordance with the plan of care that the resident has in place.

(D)

Compliance

Effective beginning on the date that is one year and 180 days after the date of the enactment of this paragraph, a skilled nursing facility shall comply with the standardized protocol developed under subparagraph (A).

(E)

No preemption

Nothing in this paragraph shall preempt any provision of State or Federal law that provides broader rights with respect to written informed consent for residents of facilities.

.

(2)

Nursing facilities

Section 1919(b) of the Social Security Act (42 U.S.C. 1396r(b)) is amended by adding at the end the following new paragraph:

(9)

Standardized protocol for obtaining informed consent from a resident prior to prescribing psychotropic drugs for a use not approved by the Food and Drug Administration

(A)

Protocol

Not later than the date that is one year after the date of the enactment of this paragraph, the Secretary, taking into account the results of the study conducted by the Comptroller General of the United States under section 8(a)(3) of the Quality Care for Nursing Home Residents and Workers During COVID–19 and Beyond Act and in consultation with stakeholder groups (including residents of skilled nursing facilities, family members of such residents, advocates for such residents, long-term care ombudsmen, and providers), shall develop a standardized protocol for nursing facilities to obtain written informed consent, in accordance with this paragraph, from a resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) prior to prescribing a psychotropic drug to the resident for a use not approved by the Food and Drug Administration.

(B)

Requirements

The standardized protocol developed under subparagraph (A) shall include the following:

(i)

A requirement, with respect to a resident, that—

(I)

the facility, with the involvement of the prescriber, inform the resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) of—

(aa)

possible side effects and risks associated with the psychotropic drug, including the mention of any black box warning;

(bb)

treatment modalities that were attempted prior to the use of the psychotropic drug; and

(cc)

any other information the Secretary determines appropriate;

(II)

the resident (or, if applicable, the resident’s designated health care agent or other surrogate under State law or regulation) provide written informed consent to the administration of the psychotropic drug; and

(III)

the administration of the psychotropic drug is in accordance with any plan of care that the resident has in place, including non-pharmacological interventions as appropriate that can effectively address underlying medical and environmental causes of behavioral disorders.

(ii)

An alternative protocol for obtaining such written informed consent—

(I)

in the case of emergencies; and

(II)

in the absence of a clearly identified designated health care agent or other surrogate under State law or regulation.

(iii)

Other items determined appropriate by the Secretary.

(C)

Timing of informed consent

Under the standardized protocol, a nursing facility shall obtain the written informed consent described in subparagraph (A), with respect to a psychotropic drug and a resident of the facility—

(i)

prior to the initial prescribing of such psychotropic drug to such resident if such resident does not have a current prescription for such psychotropic drug at the time such resident is admitted to the facility; and

(ii)

at least once a month to the extent that the administration of such psychotropic drug to such resident is in accordance with the plan of care that the resident has in place.

(D)

Compliance

Effective beginning on the date that is one year and 180 days after the date of the enactment of this paragraph, a nursing facility shall comply with the standardized protocol developed under subparagraph (A).

(E)

No preemption

Nothing in this paragraph shall preempt any provision of State or Federal law that provides broader rights with respect to written informed consent for residents of facilities.

.

(3)

GAO study and report on informed consent laws with respect to prescribing of psychotropic drugs

(A)

Study

The Comptroller General of the United States (in this paragraph referred to as the Comptroller General) shall conduct a study of State laws and regulations concerning informed consent with respect to the administration of a psychotropic drug with regard to the effectiveness of such laws and practices in changing the frequency of prescribing of psychotropic drugs to older adults. The study shall include an analysis as to whether in the case of States that have not enacted such informed consent laws, such States have developed other mechanisms to guide appropriate prescribing of psychotropic drugs in older adults with dementia.

(B)

Report

Not later than 180 days after the date of enactment of this Act, the Comptroller General shall submit to the Secretary of Health and Human Services, the Committees on Energy and Commerce and Ways and Means of the House of Representatives, and the Committee on Finance of the Senate a report containing the results of the study conducted under subparagraph (A), together with such recommendations as the Comptroller General determines appropriate.

(b)

Development of measure of utilization of psychotropic drugs for inclusion on Nursing Home Compare website

(1)

Medicare

Section 1819(i) of the Social Security Act (42 U.S.C. 1395i–3(i)) is amended—

(A)

by redesignating paragraph (3) as paragraph (4); and

(B)

by inserting after paragraph (2) the following new paragraph:

(3)

Development of measure of utilization of psychotropic drugs

(A)

In general

Not later than the date that is one year after the date of the enactment of this paragraph, the Secretary shall include a measure of the utilization of psychotropic drugs for each skilled nursing facility for inclusion on such website (or a successor website) as part of the quality measures or health inspections measures, or both such measures, under the Five-Star Quality Rating System established by the Administrator of the Centers for Medicare & Medicaid Services.

(B)

Considerations

In developing the measure under subparagraph (A), the Secretary shall take into account special patient populations, special care units, appropriate diagnoses, and other factors, as determined appropriate by the Secretary.

.

(2)

Medicaid

Section 1919(i) of the Social Security Act (42 U.S.C. 1396r(i)) is amended—

(A)

by redesignating paragraph (3) as paragraph (4); and

(B)

by inserting after paragraph (2) the following new paragraph:

(3)

Development of measure of utilization of psychotropic drugs

(A)

In general

Not later than the date that is one year after the date of the enactment of this paragraph, the Secretary shall include a measure of the utilization of psychotropic drugs for each nursing facility for inclusion on such website (or a successor website) as part of the quality measures or health inspections measures, or both such measures, under the Five-Star Quality Rating System established by the Administrator of the Centers for Medicare & Medicaid Services.

(B)

Considerations

In developing the measure under subparagraph (A), the Secretary shall take into account special patient populations, special care units, appropriate diagnoses, and other factors, as determined appropriate by the Secretary.

.