TECHNICAL CORRECTIONS RELATING TO NURSING HOME REFORM.

SEC. 4801. TECHNICAL CORRECTIONS RELATING TO NURSING HOME REFORM. (a) Nurse Aide Training and Competency Evaluation.— (1) No compliance actions before effective date of guidelines.—The Secretary of Health and Human Services shall not. take (and shall not continue) any action against a State under section 1904 of the Social Security Act on the basis of the State’s failure to meet the requirement of section 1919(e)(l)(A) of such Act before the effective date of guidelines, issued by the Secretary, establishing requirements under section 1919(f)(2)(A) of such Act, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirement before such effective date. (2) Part-time nurse aides not allowed delay in training.—Section 1919(b)(5)(A) (42 U.S.C. 1396r(b)(5)(A)) is amended— (i) by striking “A nursing facility” and inserting “(i) Except as provided in clause (ii), a nursing facility”; (ii) by striking “(on a full-time,temporary, per diem, or other basis)5454So in original. Probably should be “basis)”. and inserting “on a full-time basis”; (iii) by striking “(i)” and “(ii)” and inserting “(I)” and “(II)”; and (iv) by adding at the end the following: “(ii) A nursing facility must not use on a temporary, per diem, leased, or on any other basis other than as a permanent employee any individual as a nurse aide in the facility on or after January 1, 1991, unless the individual meets the requirements described in clause (i).”. (3) Requirement to obtain information from nurse aide registry.—Section 1919(b)(5)(C) (42 U.S.C. 1396rfb)(5)(O) is amended by striking “the State registry established under subsection (e)(2)(A) as to information in the registry” and inserting “any State registry established under subsection (e)(2)(A) that the facility believes will include information”. (4) Retraining of nurse aides.—Section 1919(b)(5)(D) (42 U.S.C. 1396r(b)(5)(D)) is amended by striking the period at the end and inserting “, or a new competency evaluation program.”. (5) Clarification of nurse aides not subject to charges.— Section 1919(f)(2)(A)(iv) (42 U.S.C. 1396rif)(2)(A)(iv)) is amended— (A) in subclause (I), by striking “and” at the end; (B) in subclause (II), by inserting after “nurse aide” the following: “who is employed by (or who has received an offer of employment from) a facility on the date on which the aide begins either such program”; (C) in subclause (II), by striking the period at the end and inserting and”; and (D) by adding at the end the following new subclause: “(III) in the case of a nurse aide not described in subclause (ID who is employed by (or who has received an offer of employment from) a facility not later than 12 months after completing either such program, the State shall provide for the reimbursement of costs incurred in completing such 104 STAT. 1388–212program on a prorata basis during the period in which the nurse aide is so employed.”. (6) Modification of nursing facility deficiency standards.— (A) In general.—Section 1919(f)(2)(B)(ui)(I) (42 U.S.C. 1396r(f)(2)(B)(iii)(I)) is amended to read as follows: “(I) offered by or in a nursing facility which, within the previous 2 years— “(a) has operated under a waiver under subsection (b)(4)(C)(H) that was granted on the basis of a demonstration that the facility is unable to provide the nursing care required under subsection (b)(4)(C)(i) for a period in excess of 48 hours during a week; “(b) has been subject to an extended (or partial extended) survey under section 1819(g)(2)(B)(i) or subsection (g)(2)(B)(i); or “(c) has been assessed a civil money penalty described in section 1819(h)(2)(B)(ii) or subsection (h)(2)(A)(n) of not less than $5,000, or has been subject to a remedy described in subsection (h)(1)(B)(i), clauses (i), (iii), or (iv) of subsection (h)(2)(A), clauses (i) or (i) of section 1819(h)(2)(B), or section 1819(h)(4), or”. (B) Effective date.—The amendments made by subparagraph (A) shall take effect as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, except that a State may not approve a training and competency evaluation program or a competency evaluation program offered by or in a nursing facility which, pursuant to any Federal or State law within the 2-year period beginning on October 1, 1988— (i) had its participation terminated under title XVIII of the Social Security Act or under the State plan under title XIX of such Act; (ii) was subject to a denial of payment under either such title; (iii) was assessed a civil money penalty not less than $5,000 for deficiencies in nursing facility standards; (iv) operated under a temporary management appointed to oversee the operation of the facility and to ensure the health and safety of the facility’s residents; or (v) pursuant to State action, was closed or had its residents transferred. (7) Clarification of state responsibility to determine competency.—Section 1919(f)(2)(B) (42 U.S.C. 1396r(0(2)(B)) is amended in the second sentence by inserting “(through sub-contract or otherwise)” after “may not delegate”. (8) Extension of enhanced match rate until October 1, 1990.—Section 1903(a)(2)(B) (42 U.S.C. 1396b(a)(2)(B)) is amended by striking “July 1, 1990” and inserting “October 1, 1990”. (9) Effective date.—Except as provided in paragraph (6), the amendments made by this subsection shall take effect as if they were included in the enactment of the Omnibus Budget Reconciliation Act of 1987. 104 STAT. 1388–213 (b) Preadmission Screening and Annual Resident Review.— (1) No compliance actions before effective date of guide-lines.—The Secretary of Health and Human Services shall not take (and shall not continue) any action against a State under section 1904 or section 1919(e)(7)(L)) of the Social Security Act on the basis of the State’s failure to meet the requirement of section 1919(e)(7)(A) of such Act before the effective date of guidelines, issued by the Secretary, establishing minimum criteria under section 1919(f)(8)(A) of such Act, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirement before such effective date. (2) Clarification with respect to admissions and readmission from a hospital.— Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended— (A) in subsection (b)(3)(F), by striking “A nursing facility” and by inserting “Except as provided in clauses (ii) and (iii) of subsection (e)(T)(A), a nursing facility”; and (B) in subsection (e)(T)(A)— (i) by redesignating the first 2 sentences as clause (i) with the following heading (and appropriate indentation): “(i) In general.— ”, and (ii) by adding at the end the following: “(ii) Clarification with respect to certain readmissions.— The preadmission screening program under clause (i) need not provide for determinations in the case of the readmission to a nursing facility of an individual who, after being admitted to the nursing facility, was transferred for care in a hospital. “(iii) Exception for certain hospital discharges.—The preadmission screening program under clause (i) shall not apply to the admission to a nursing facility of an individual— “(I) who is admitted to the facility directly from a hospital after receiving acute inpatient care at the hospital, “(II) who requires nursing facility services for the condition for which the individual received care in the hospital, and “(III) whose attending physician has certified, before admission to the facility, that the individual is likely to require less than 30 days of nursing facility services.”. (3) Denial of payments for certain residents not requiring nursing facility services.— Section 1919(e)(7) (42 U.S.C. 1395r(e)(TO is amended— (A) in subparagraph (D)— (i) in the heading, by striking “where failure to conduct preadmission screening”, (ii) by designating the first sentence as clause (i) with the following heading (and appropriate indentation): “(i) For failure to conduct preadmission screening or annual review.—”, and (iii) by adding at the end the following new clause: “(ii) For certain residents not requiring nursing facility level of services.—No payment may be made104 STAT. 1388–214 under section 1903(a) with respect to nursing facility services furnished to an individual (other than an individual described in subparagraph (C)(i)) who does not require the level of services provided by a nursing facility.”; and (B) in subparagraph (E), by striking ”the requirement of this paragraph” and inserting ”the requirements of sub-paragraphs (A) through (C) of this paragraph”. (4) No delegation of authority to conduct screening and reviews.— Section 1919 is further amended— (A) in subsection (b)(3)(F), by adding at the end the following: “A State mental health authority and a State mental retardation or developmental disability authority may not delegate (by subcontract or otherwise) their responsibilities under this subparagraph to a nursing facility (or to an entity that has a direct or indirect affiliation or relation-ship with such a facility).”; and (B) in subsection (e)(7)(B), by adding at the end the following new clause: “(iv) Prohibition of delegation.—A State mental health authority, a State mental retardation or developmental disability authority, and a State may not delegate (by subcontract or otherwise) their responsibilities under this subparagraph to a nursing facility (or to an entity that has a direct or indirect affiliation or relationship with such a facility).”. (5) Annual reports.— (A) State reports.—Section 1919(e)(7)(C) (42 U.S.C. 1396r(e)(7)(O) is amended by adding at the end the following new clause: “(iv) Annual report.—Each State shall report to the Secretary annually concerning the number and disposition of residents described in each of clauses (ii) and (iii).”. (B) Secretarial report.—Section 4215 of the Omnibus Budget Reconciliation Act of 1987 is amended by adding at the end the following new sentence: “Each such report shall also include a summary of the information reported by States under section 1919(e)(7)(C)(iv) of such Act.”. (6) Revision of alternative disposition plans.—Section 1919(e)(7)(E) (42 U.S.C. 1396r(e)(7)(E)) is amended by adding at the end the following: “The State may revise such an agreement, subject to the approval of the Secretary, before October 1, 1991, but only if, under the revised agreement, all residents subject to the agreement who do not require the level of services of such a facility are discharged from the facility by not later than April 1, 1994.”. (7) Definition of mentally ill.— Section 1919(e)(7)(G)(D (42 U.S.C. 1396r(e)(7)(G)(i)) is amended— (A) by striking “primary or secondary” and all that fol-lows through “3rd edition)” and inserting “serious mental illness (as defined by the Secretary in consultation with the National Institute of Mental Health)”, (B) by inserting before the period “or a diagnosis (other than a primary diagnosis) of dementia and a primary diagnosis that is not a serious mental illness”. 104 STAT. 1388–215 (8) Substitution of “specialized services” for “active treatment”,—Sections 1919(b)(3)(F) and 1919(e)(7) (42 U.S.C, 1396r(b)(3)(D, 1396r(e)(7)) are each amended by striking “active treatment” and “active treatment” each place either appears and inserting “specialized services” and “specialized services”, respectively. (9) Effective dates.— (A) In general.—Except as provided in subparagraph (B), the amendments made by this subsection shall take effect as if they were included in the enactment of the Omnibus Budget Reconciliation Act of 1987. (B) Exception.—The amendments made by paragraphs (4), (6), and (8) shall take effect on the date of the enactment of this Act, without regard to whether or not regulations to implement such amendments have been promulgated. (c) Enforcement Process.—The Secretary of Health and Human Services shall not take (and shall not continue) any action against a State under section 1904 of the Social Security Act on the basis of the State’s failure to meet the requirements of section 1919(h)(2) of such Act before the effective date of guidelines, issued by the Secretary, regarding the establishment of remedies by the State under such section, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirements before such effective date. (d) Supervision of Health Care of Residents of Nursing Facilities by Nurse Practitioners, Clinical Nurse Specialists, and Physician Assistants Acting in Collaboration With Physicians.— (1) In general.—Section 1919(b)(6)(A) (42 U.S.C. 1396r(b)(6)(A)) is amended by inserting “(or, at the option of a State, under the supervision of a nurse practitioner, clinical nurse specialist, or physician assistant who is not an employee of the facility but who is working in collaboration with a physician)” after “physician”. (2) Effective date.—The amendment made by paragraph (1) applies with respect to nursing facility services furnished on or after October 1, 1990, without regard to whether or not final regulations to carry out such amendment have been promulgated by such date. (e) Other Amendments.— (1) Assurance of appropriate payment amounts.— (A) In general.—Section 1902(a)(13)(A) (42 U.S.C. 1396a(a)(13)(A)) is amended by inserting “(including the costs of services required to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident eligible for benefits under this title)” after “take into account the costs”. (B) Details in plan amendment.—Section 4211(b)(2) of the Omnibus Budget Reconciliation Act of 1987 is amended by inserting after the first sentence the following; “Each such amendment shall include a detailed description of the specific methodology to be used in determining the appropriate adjustment in payment amounts for nursing facility services.”. (2) Disclosure of information of quality assessment and assurance committees.—Section 1919(b)(l)(B) (42 U.S.C. 1396r(b)(l)(B)) is amended by adding at the end the following 104 STAT. 1388–216new sentence: “A State or the Secretary may not require disclosure of the records of such committee except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.”. (3) Period for resident assessment.—Section 1919{b)(3)(C)(i)(D (42 U.S.C. 1396r(b)(3)(C)(i)(I)) is amended by striking “4 days” and inserting “not later than 14 days”. (4) Clarification of responsibility for services for men-tally ill and mentally retarded residents.— Section 1919(b)(4)(A) (42 U.S.C. 1396r(b)(4)(A)) is amended— (A) by striking “and” at the end of clause (v), (B) by striking the period at the end of clause (vi) and inserting “; and”, and (C) by inserting after clause (vi) the following new clause: “(vii) treatment and services required by mentally ill and mentally retarded residents not otherwise provided or arranged for (or required to be provided or arranged for) by the State.”;. (5) Clarification of extent of state waiver authority; notification of waivers.— Section 1919(b)(4)(C)(ii) (42 U.S.C. 1396r(b)(4)(C)(ii)) is amended— (A) by striking “A State” and all that follows through “a facility if” and inserting “To the extent that a facility is unable to meet the requirements of clause (i), a State may waive such requirements with respect to the facility if”; (B) by striking “and” at the end of subclause (ID; (C) by striking the period at the end of subclause (III) and inserting a comma; and (D) by adding at the end the following new subclauses: “(IV) the State agency granting a waiver of such requirements provides notice of the waiver to the State long-term care ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965) and the protection and advocacy system in the State for the mentally ill and the mentally retarded, and “(V) the nursing facility that is granted such a waiver by a State notifies residents of the facility (or, where appropriate, the guardians or legal representatives of such residents) and members of their immediate families of the waiver.”. (6) Clarification of definition of nurse aide.—Section 1919(b)(5)(F)(i) (42 U.S.C. 1396r(b)(5)(F)(i)) is amended by striking “(G)), ” and inserting “(G)) or a registered dietician,”. (7) Charges applicable in cases of certain medicaid-eligible individuals.— (A) In General.— Section 1919(c) (42 U.S.C. 1396r(c)) is amended— (i) by redesignating paragraph (7) as paragraph (8); and (ii) by inserting after paragraph (6) the following new paragraph: “(7) Limitation on charges in case of medic aid-eligible individuals.— “(A) In general.—A nursing facility may not impose charges, for certain medicaid-eligible individuals for nursing facility services covered by the State under its plan 104 STAT. 1388–217under this title, that exceed the payment amounts established by the State for such services under this title. “(B) Certain medicaid individuals defined.—In subparagraph (A), the term ‘certain medicaid-eligible individual’ means an individual who is entitled to medical assistance for nursing facility services in the facility under this title but with respect to whom such benefits are not being paid because, in determining the amount of the individual’s income to be applied monthly to payment for the costs of such services, the amount of such income exceeds the payment amounts established by the State for such services under this title.”. (B) Effective date.—The amendments made by subparagraph (A) shall take effect on the date of the enactment of this Act, without regard to whether or not regulations to implement such amendments have been promulgated. (8) Residents’ rights to refuse intrafacility transfers to move the resident to a medicare-qualified portion.— Section 1919(c)(1)(A) (42 U.S.C. 1396r(c)(l)(A)) is amended— (A) by redesignating clause (x) as clause (xi) and by inserting after clause (ix) the following new clause: “(x) Refusal of certain transfers.—The right to refuse a transfer to another room within the facility, if a purpose of the transfer is to relocate the resident from a portion of the facility that is not a skilled nursing facility (for purposes of title XVIII) to a portion of the facility that is such a skilled nursing facility.”; and (B) by adding at the end the following: “A resident’s exercise of a right to refuse transfer under clause (x) shall not affect the resident’s eligibility or entitlement to medical assistance under this title or a State’s entitlement to Federal medical assistance under this title with respect to services furnished to such a resident.”. (9) Resident access to clinical records.—Section section 5555So in original Probably should be “Section 1919(c)(1)(A)(iv)”.1919(c)(l)(A)(iv) (42 U.S.C. 1396r(c)(l)(A)(iv)) is amended by inserting before the period at the end the following: “and to access to current clinical records of the resident upon request by the resident or the resident’s legal representative, within 24 hours (excluding hours occurring during a weekend or holiday) after making such a request”. (10) Inclusion of state notice of rights in facility notice of rights.—Section 1919(c)(D(B)(ii) (42 U.S.C. 1396r(c)(l)(B)(ii)) is amended by inserting “including the notice (if any) of the State developed under subsection (e)(6)” after “in such rights)”. (11) Removal of duplicative requirement for qualifications of nursing home administrators.— Effective on the date on which the Secretary promulgates standards regarding the qualifications of nursing facility administrators under section 1919(f)(4) of the Social Security Act— (A) paragraph (29) of section 1902(a) of such Act (42 U.S.C. 1396a(a)) is repealed; and (B) section 1908 of such Act (42 U.S.C. 1396g) is repealed. (12) Clarification of nurse aide registry requirements.— Section 1919(e)(2) (42 U.S.C. 1396r(e)(2)) is amended— (A) in subparagraph (A), by striking the period and inserting the following: “, or any individual described in subsec-104 STAT. 1388–218tion (f)(2)(B)(ii) or in subparagraph (B), (C), or (D) of section 6901(b)(4) of the Omnibus Budget Reconciliation Act of 1989.”; and (B) by adding at the end the following new subparagraph: “(C) Prohibition against charges.—A State may not impose any charges on a nurse aide relating to the registry established and maintained under subparagraph (A).”. (13) Clarification on findings of neglect.—Section 1919(g)(D(C) (42 U.S.C. 1396r(g)(l)(C)) is amended by adding at the end the following: “A State shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.”. (14) Timing of public disclosure of survey results.—Section 1919(g)(5)(A)(i) (42 U.S.C. 1396r(g)(5)(A)(i)) is amended by striking “deficiencies and plans” and inserting “deficiencies, within 14 calendar days after such information is made available to those facilities, and approved plans”. (15) Ombudsman program coordination with state survey and certification agencies.—Section 1919(g)(5)(B) (42 U.S.C. 1396r(g)(5)(B)) is amended by striking “with respect” and inserting “or of any adverse action taken against a nursing facility under paragraphs (1), (2), or (3) of subsection (h), with respect”. (16) Denial of payment of legal fees for frivolous litigation.— (A) In general.—Section 1903(i) (42 U.S.C. 1396b(i)), [[as amended by section X???(a)(1)(B) of this Act]], is amended— (i) by striking “or” at the end of paragraph (9); (ii) by striking the period at the end of paragraph (10) and inserting “; or”; and (iii) by inserting after paragraph (10) the following new paragraph: “(11) with respect to any amount expended to reimburse (or otherwise compensate) a nursing facility for payment of legal expenses associated with any action initiated by the facility that is dismissed on the basis that no reasonable legal ground existed for the institution of such action.” (B) Effective date.—The amendments made by subparagraph (A) shall apply with respect to actions initiated on or after the date of the enactment of this Act. (17) Provisions relating to staffing requirements.— (A) Maintaining regulatory standards for certain services.—Any regulations promulgated and applied by the Secretary of Health and Human Services after the date of the enactment of the Omnibus Budget Reconciliation Act of 1987 with respect to services described in clauses (ii), (iv), and (v) of section 1919(b)(4)(A) of the Social Security Act shall include requirements for providers of such services that are at least as strict as the requirements applicable to providers of such services prior to the enactment of the Omnibus Budget Reconciliation Act of 1987. (B) Study on staffing requirements in nursing facilities.—The Secretary shall conduct a study and report to Congress no later than January 1, 1992, on the appropriateness of establishing minimum caregiver to resident ratios and minimum supervisor to caregiver ratios for skilled nursing facilities serving as providers of services under title 104 STAT. 1388–219XVIII of the Social Security Act and nursing facilities receiving payments under a State plan under title XIX of the Social Security Act, and shall include in such study recommendations regarding appropriate minimum ratios. (18) State requirements relating to programs.—Amend 1919(e)(l)(A) to strike “under clause (i) or (ii) of subsection (f)(2)(A) and insert “under subsection (f)(2)”. (19) Effective dates.—Except as provided in paragraphs (7), (11), and (16), the amendments made by this subsection shall take effect as if they were included in the enactment of the Omnibus Budget Reconciliation Act of 1987.