SURVEY AND CERTIFICATION PROCESS.

SEC. 4212. SURVEY AND CERTIFICATION PROCESS. (a) In general.— Section 1919 of the Social Security Act, as inserted by section 4211, is amended by adding at the end the following new subsection: “(g) Survey and Certification Process.— “(1) State and federal responsibility.— “(A) In general.— Under each State plan under this title, the State shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of nursing facilities (other than facilities of the State) with the requirements of subsections (b), (c), and (d). The Secretary shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of State nursing facilities with the requirements of such subsections. 101 STAT. 1330–208 “(B) Educational program.— Each State shall conduct periodic educational programs for the staff and residents (and their representatives) of nursing facilities in order to present current regulations, procedures, and policies under this section. “(C) Investigation of allegations of resident neglect and abuse and misappropriation of resident property.— The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt, review, and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility. If the State finds, after notice to the nurse aide involved and a reasonable opportunity for a hearing for the nurse aide to rebut allegations, that a nurse aide whose name is contained in a nurse aide registry has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding. “(D) Construction.— The failure of the Secretary to establish standards under subsection (f) shall not relieve a State of its responsibility under this subsection. “(2) Surveys.— “(A) Annual standard survey.— “(i) In general.— Each nursing facility shall be subject to a 6868Copy read “to an standard”. standard survey, to be conducted without any prior notice to the facility. Any individual who notifies (or causes to be notified) a nursing facility of the time or date on which such a survey is scheduled to be conducted is subject to a civil money penalty of not to exceed $2,000. The Secretary shall provide for imposition of civil money penalties under this clause in a manner similar to that for the imposition of civil money penalties under section 1128A. The Secretary shall review each State’s procedures for scheduling and conduct of standard surveys to assure that the State has taken all reasonable steps to avoid giving notice of such a survey through the scheduling procedures and the conduct of the surveys themselves. “(ii) Contents.— Each standard survey shall include, for a case-mix stratified sample of residents— “(I) a survey of the quality of care furnished, as measured by indicators of medical, nursing, and rehabilitative care, dietary and nutrition services, activities and social participation, and sanitation, infection control, and the physical environment, “(II) written plans of care provided under subsection (b)(2) and an audit of the residents’ assessments under subsection (b)(3) to determine the accuracy of such assessments and the adequacy of such plans of care, and “(III) a review of compliance with residents’ rights under subsection (c). “(iii) Frequency.— 101 STAT. 1330–209 “(I) In general.— Each nursing facility shall be subject to a standard survey not later than 15 months after the date of the previous standard survey conducted under this subparagraph. The statewide 6969Copy read “Statewide”. average interval between standard surveys of a nursing facility shall not exceed 12 months. “(II) Special surveys.— If not otherwise conducted under subclause (I), a standard survey (or an abbreviated standard survey) may be conducted within 2 months of any change of ownership, administration, management of a nursing facility, or director of nursing in order to determine whether the change has resulted in any decline in the quality of care furnished in the facility. “(B) Extended surveys.— “(i) In general.— Each nursing facility which is found, under a standard survey, to have provided substandard quality of care shall be subject to an extended survey. Any other facility may, at the Secretary’s or State’s discretion, be subject to such an extended survey (or a partial extended survey). “(ii) Timing.— The extended survey shall be conducted immediately after the standard survey (or, if not practical, not later than 2 weeks after the date of completion of the standard survey). “(iii) Contents.— In such an extended survey, the survey team shall review and identify the policies and procedures which produced such substandard quality of care and shall determine whether the facility has complied with all the requirements described in subsections (b), (c), and (d). Such review shall include an expansion of the size of the sample of residents’ assessments reviewed and a review of the staffing, of in-service training, and, if appropriate, of contracts with consultants. “(iv) Construction.— Nothing in this paragraph shall be construed as requiring an extended or partial extended survey as a prerequisite to imposing a sanction against a facility under subsection (h) on the basis of findings in a standard survey. “(C) Survey protocol.— Standard and extended surveys shall be conducted— “(i) based upon a protocol which the Secretary has developed, tested, and validated by not later than January 1, 1990, and “(ii) by individuals, of a survey team, who meet such minimum qualifications as the Secretary establishes by not later than such date. The failure of the Secretary to develop, test, or validate such protocols or to establish such minimum qualifications shall not relieve any State of its responsibility (or the Secretary of the Secretary’s responsibility) to conduct surveys under this subsection. 101 STAT. 1330–210 “(D) Consistency of surveys.— Each State shall implement programs to measure and reduce inconsistency in the application of survey results among surveyors. “(E) Survey teams.— “(i) In general.— Surveys under this subsection shall be conducted by a multidisciplinary team of professionals (including a registered professional nurse). “(ii) Prohibition of conflicts of interest.— A State may not use as a member of a survey team under this subsection an individual who is serving (or has served within the previous 2 years) as a member of the staff of, or as a consultant to, the facility surveyed respecting compliance with the requirements of subsections (b), (c), and (d), or who has a personal or familial financial interest in the facility being surveyed. “(iii) Training.— The Secretary shall provide for the comprehensive training of State and Federal surveyors in the conduct of standard and extended surveys under this subsection, including the auditing of resident assessments and plans of care. No individual shall serve as a member of a survey team unless the individual has successfully completed a training and testing program in survey and certification techniques that has been approved by the Secretary. “(3) Validation surveys.— “(A) In general.— The Secretary shall conduct onsite surveys of a representative sample of nursing facilities in each State, within 2 months of the date of surveys conducted under paragraph (2) by the State, in a sufficient number to allow inferences about the adequacies of each State’s surveys conducted under paragraph (2). In conducting such surveys, the Secretary shall use the same survey protocols as the State is required to use under paragraph (2). If the State has determined that an individual nursing facility meets the requirements of subsections (b), (c), and (d), but the Secretary determines that the facility does not meet such requirements, the Secretary’s determination as to the facility s noncompliance with such requirements is binding and supersedes that of the State survey. “(B) Scope.— With respect to each State, the Secretary shall conduct surveys under subparagraph (A) each year with respect to at least 5 percent of the number of nursing facilities surveyed by the State in the year, but in no case less than 5 nursing facilities in the State. “(C) Reduction in administrative costs for substandard performance.— If the Secretary finds, on the basis of such surveys, that a State has failed to perform surveys as required under paragraph (2) or that a State’s survey and certification performance otherwise is not adequate, the Secretary may provide for the training of survey teams in the State and shall provide for a reduction of the payment otherwise made to the State under section 1903(a)(2)(D) with respect to a quarter equal to 33 percent multiplied by a fraction, the denominator of which is equal to the total number of residents in nursing facilities surveyed by the Secretary that quarter and the numerator of which is equal to the total number of residents in nursing101 STAT. 1330–211facilities which were found pursuant to such surveys to be not in compliance with any of the requirements of subsections (b), (c), and (d). A State that is dissatisfied with the Secretary’s findings under this subparagraph may obtain reconsideration and review of the findings under section 1116 in the same manner as a State may seek reconsideration and review under that section of the Secretary’s determination under section 1116(a)(1). “(C) Special surveys of compliance.— Where the Secretary has reason to question the compliance of a nursing facility with any of the requirements of subsections (b), (c), and (d), the Secretary may conduct a survey of the facility and, on that basis, make independent and binding determinations concerning the extent to which the nursing facility meets such requirements. “(4) Investigation of complaints and monitoring nursing facility compliance.— Each State shall maintain procedures and adequate staff to— “(A) investigate complaints of violations of requirements by nursing facilities, and “(B) monitor, on-site, on a regular, as needed basis, a nursing facility’s compliance with the requirements of subsections (b), (c), and (d), if— “(i) the facility has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance; “(ii) the facility was previously found not to be in compliance with such requirements, has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or “(iii) the State has reason to question the compliance of the facility with such requirements. A State may maintain and utilize a specialized team (including an attorney, an auditor, and appropriate health care professionals) for the purpose of identifying, surveying, gathering and preserving evidence, and carrying out appropriate enforcement actions against chronically substandard nursing facilities. “(5) Disclosure of results of inspections and activities.— “(A) Public information.— Each State, and the Secretary, shall make available to the public— “(i) information respecting all surveys and certifications made respecting nursing facilities, including statements of deficiencies and plans of correction, “(ii) copies of cost reports of such facilities filed under this title or under title XVIII, “(iii) copies of statements of ownership under section 1124, and “(iv) information disclosed under section 1126. “(B) Notice to ombudsman.— Each State shall notify the State long-term care ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965) of the State’s findings of noncompliance with any of the requirements of subsections (b), (c), and (d), with respect to a nursing facility in the State. “(C) Notice to physicians and nursing facility administrator licensing board.— If a State finds that a101 STAT. 1330–212 nursing facility has provided substandard quality of care, the State shall notify— “(i) the attending physician of each resident with respect to which such finding is made, and “(ii) any State board responsible for the licensing of the nursing facility administrator of the facility. “(D) Access to fraud control units.— Each State shall provide its State medicaid fraud and abuse control unit (established under section 1903(q)) with access to all information of the State agency responsible for surveys and certifications under this subsection.”. (b) Posting Survey Results.— Section 1864(a) of such Act (42 U.S.C. 1395aa(a)) is amended by inserting, after “readily available form and place” in the fifth sentence, the following: “, and require (in the case of skilled nursing facilities) the posting in a place readily accessible to patients (and patients’ representatives),”. (c) Increasing Matching Percentage for Nursing Home Survey and Certification Activities.— (1) Section 1903(a)(2) of such Act (42 U.S.C. 1396b(a)(2)), as amended by this title, is further amended by adding at the end the following new subparagraph: “(D) for each calendar quarter during— “(i) fiscal year 1991, an amount equal to 90 percent, “(ii) fiscal year 1992, an amount equal to 85 percent, “(iii) fiscal year 1993, an amount equal to 80 percent, and “(iv) fiscal year 1994 and thereafter, an amount equal to 75 percent, of so much of the sums expended during such quarter (as found necessary by the Secretary for the proper and efficient administration of the State plan) as are attributable to State activities under section 1919(g); plus”. (2) Section 1903(r) of such Act (42 U.S.C. 1396b(r)) is amended by striking “paragraphs (2)” each place it appears and inserting “paragraphs (2)(A)”. (3) For purposes of section 1903(a) of the Social Security Act, proper expenses incurred by a State for medical review by independent professionals of the care provided to residents of nursing facilities who are entitled to medical assistance under title XIX of such Act shall be reimbursable as expenses necessary for the proper and efficient administration of the State plan under that title. (d) Revision of Penalty Provisions.— (1) Section 1903(g) of such Act (42 U.S.C. 1396b(g)) is amended— (A) in paragraph (1)— (i) by striking “or intermediate care facility services” the first place it appears and inserting “or services in an intermediate care facility for the mentally retarded”, (ii) by striking “, skilled nursing facility services for 30 days,”, (iii) by striking “, skilled nursing facility services, or intermediate care facility services” and inserting “or services in an intermediate care facility for the mentally retarded”, (iv) by striking “, skilled nursing facilities, and intermediate care facilities” and inserting “and intermediate care facilities for the mentally retarded”; (B) in paragraph (4)(B), by striking “, skilled nursing facilities, and intermediate care facilities” and inserting “and intermediate care facilities for the mentally retarded”; 101 STAT. 1330–213 (C) in paragraph (6)— (i) by striking subparagraph (B), (ii) in subparagraph (C), by striking “intermediate care facility services” and inserting “services in an intermediate care facility for the mentally retarded”, and (iii) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively; and (D) by striking paragraph (7). (2) Section 1902(a)(31) of such Act (42 U.S.C. 1396a(a)(31)) is amended— (A) in the matter before subparagraph (A), by striking “skilled nursing facility services” and all that follows through “where” and inserting “services in an intermediate care facility for the mentally retarded (where”, and (B) in subparagraph (B), by striking “skilled nursing or intermediate care facility” and inserting “intermediate care facility for the mentally retarded”. (3) Section 1902(a)(33)(B) of such Act (42 U.S.C. 1396a(a)(33)(B)) is amended by inserting “, except as provided in section 1919(d),” after “(B) that”. (4) The amendments made by this subsection shall not apply to a State until such date (not earlier than October 1, 1990) as of which the Secretary determines that— (A) the State has specified the resident assessment instrument under section 1919(e)(5) of the Social Security Act, and (B) the State has begun conducting surveys under section 1919(g)(2) of such Act. (e) Miscellaneous Conforming Amendments.— (1) Section 1902(a)(44) of such Act (42 U.S.C. 1396a(a)(44)) is amended— (A) in the matter before subparagraph (A), by striking “skilled nursing facility services, intermediate care facility services” and inserting “services in an intermediate care facility for the mentally retarded”, and (B) in subparagraph (A), by striking “that are intermediate care facility services in an institution for the mentally retarded” and inserting “that are services in an intermediate care facility for the mentally retarded”. (2) Section 1903(a)(7) of such Act (42 U.S.C. 1396b(a)(7)) is amended by inserting “subject to section 1919(g)(3)(B),” after “(7)”. (3) Section 1910 of such Act (42 U.S.C. 13961) is amended— (A) by striking “skilled nursing facilities and” in the heading, (B) by striking subsection (a), and (C) by redesignating subsections (b) and (c) as subsections (a) and (b) respectively. (4) Section 1866(c) of such Act (42 U.S.C. 1395cc(c)) is amended by striking paragraph (2) and by redesignating paragraph (3) as paragraph (2).