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Public Statements

Statements on Introduced Bills and Joint Resolutions

Floor Speech

Location: Washington, DC



By Mr. KOHL (for himself, Mr. DOMENICI, Mrs. MCCASKILL, Ms. STABENOW, Mrs. LINCOLN, Mr. LEVIN, and Mrs. CLINTON):

S. 1577. A bill to amend titles XVIII and XIX of the Social Security Act to require screening, including national criminal history background checks, of direct patient access employees of skilled nursing facilities, nursing facilities, and other long-term facilities and providers, and to provide for nationwide expansion of the pilot program for national and State background checks on direct patient access employees of long-term care facilities or providers; to the Committee on Finance.

Mr. KOHL. Mr. President, I rise today to introduce the Patient Safety and Abuse Prevention Act with Senators DOMENICI, MCCASKILL, STABENOW, LINCOLN, LEVIN and CLINTON.

This bill is supported by the Elder Justice Coalition, the National Citizens' Coalition for Nursing Home Reform, the American Association of Homes and Services for the Aging, AARP and many other organizations dedicated to protecting our Nation's vulnerable citizens. If enacted, this legislation could help to prevent many of the tragic tales of physical and financial elder abuse that we hear about from our constituents and read about in our local newspapers. I strongly urge this Congress to do what the States cannot: create a nationwide system of background checks for workers who care for our Nation's frail elders and those who are living with disabilities.

The vast majority of long-term care workers are selfless and dedicated. Yet there are a few with violent criminal histories who pose a clear threat to the defenseless individuals needing long-term care services. Under the disorganized, patchwork system of background checks that exists today, employers trying to hire caregivers do not always know which applicants have records of abuse or a history of committing violent crimes. As a result, predators are sometimes hired to take care of our most vulnerable citizens, allowing them to work in situations where they can cause enormous harm. For example, in just the last 6 weeks, three stories of such elder abuse created headlines across the country:

Last year, Pat Torano, at the age of 89, was partially paralyzed by a stroke. He realized he no longer could care for his 95-year-old wife, who by then was blind and suffering from dementia. Intent on staying at home, the Toranos contracted with Visiting Angels, a network of private home-care agencies that matches clients with caretakers. They expected to find an honest professional to help them with household chores and other non-medical needs. Instead they got convicted felon Gina Treveno, who stole their house just five months later by tricking the couple into placing the deed in her name.

Attorney General Andrew M. Cuomo today announced the sentencing of William Morrison, a former aide at the Rome Memorial Hospital Residential Health Care Facility, who was convicted last month of raping and sexually assaulting a 90-year-old resident of the nursing home....... The background check would have revealed that Morrison was previously convicted for one felony drug offense in 1992 and several misdemeanors in the 1990s.

An 84-year-old man allegedly assaulted at a nursing home last month is suing the facility, claiming it failed to protect him from the employee accused of punching him in his bed. Earl Gates of Bozeman claims Evergreen Bozeman Health and Rehabilitation center didn't do a background check on his accused attacker, Joshua Fowler, 23, who has a prior assault conviction.

The bill that I am introducing today with Senators DOMENICI, STABENOW, MCCASKILL, LINCOLN, LEVIN, and CLINTON proposes to take action to stop predators from working in all long-term care settings. It would close gaping loopholes in our current system of background checks through a nationwide expansion of a pilot program that Congress enacted as part of the Medicare Modernization Act of 2003.

Under the MMA, the Centers for Medicare and Medicaid Services has been conducting a pilot program in seven states to implement efficient, equitable systems that cost-effectively screen out certain applicants for employment in long-term care facilities. Applicants excluded are those whose backgrounds include findings of substantiated abuse and/or a serious criminal history.

The seven pilot States are Alaska, Idaho, Illinois, Michigan, Nevada, New Mexico and Wisconsin. These States have significant flexibility in several key areas under the grant. For example, each State establishes parameters for the definition of a ``direct patient access employee'' for workers who must be checked, and defines specific criteria for ``disqualifying'' crimes that prohibit a long-term care employer from hiring workers with such histories.

In other areas, the pilot States must meet Federal standards. They must cover a broad range of long-term care providers, including nursing homes, home health agencies and intermediate care facilities for the mentally retarded. States must require each applicant to submit a written statement disclosing any disqualifying information, and to authorize a State and national criminal record check.

As is currently required under Federal law, providers must search any available registry that is likely to contain disqualifying information about an applicant. Forty-one States already require a criminal background check of some variety, mostly at the State level. The pilot States have integrated their systems to coordinate these checks in a single streamlined process and added a Federal background check through the FBI's Integrated Automated Fingerprint Identification System. Applicants who are subsequently found to have a record of substantiated abuse or a serious criminal history cannot be hired. But individuals who are denied employment can appeal the background check results. Finally, facilities can use the results of the background checks only for the purpose of determining suitability of employment.

That is the basic structure of the pilot program that Congress enacted 4 years ago. Since then, we have learned important lessons from the pilot States' experiences. For example, federal funds have been used for a variety of purposes. States have used pilot funds to hire new staff to administer background checks; to purchase mobile digital scanners; to pay for the cost of fingerprint checks; to provide technical assistance to facilities; and to build online systems that applicants and providers can readily access, and which serve to integrate information from various registries and entities, and as storage and retrieval systems.

States have passed legislation under the pilot program that treat disqualifying crimes somewhat differently. For example, Michigan has created a tiered system, under which certain disqualifying crimes carry time-limited prohibitions on working in long-term care facilities. By comparison, Wisconsin has chosen to enact legislation defining disqualifying crimes as those that carry a lifetime ban only. Alaska has established a ``variance'' process to permit certain individuals to work who have committed crimes but who have subsequently shown evidence of recovery. Similarly, in Idaho, some disqualifying crimes result in an ``unconditional'' denial that carries a lifetime ban on working in long-term care settings, while others result in ``conditional'' denials that apply to less serious crimes that may be waived under certain circumstances, following an ``exemption review'' by the Department of Health and Welfare.

The data on results from the pilot programs are impressive. Among the seven States, Michigan's information is the most complete. In the first year of operation, Michigan excluded more than 3,000 people with records of abuse or a disqualifying criminal history. As of April 30, 2007, 625 of these were excluded through a fingerprint check. Twenty-five percent of these exclusions were identified through an FBI check only, a fact that State officials believe indicates that these individuals committed crimes in other States, or have been avoiding prosecution within the State. Information for Nevada, while less complete, suggests similar results. As of last December, Nevada was identifying an even higher percentage of individuals with criminal histories on the basis of an FBI check only.

The director of Michigan's workforce background check program, Orlene Christie, recently testified before the Special Committee on Aging about the State's program. ``The applicants that have been excluded from employment are not the types of people Michigan could ever allow to work with our most vulnerable citizens,'' she said. ``We have prevented hardened criminals that otherwise would have access to our vulnerable population from employment.''

Ms. Christie also noted that ``of the criminal history reports examined, fraudulent activity and controlled substance violations account for 25 percent of all disqualifying crimes. Fraudulent activity includes such things as embezzlement, identity theft, and credit card fraud. This is particularly alarming giving the projected increase in financial abuse of the elderly.''

Importantly, Michigan has implemented a ``rap back'' system where the Michigan State Police notifies the health agency of any subsequent arrest, which in turn notifies the employer. This is a key component of the bill we are introducing today. It will allow the States, as well as the FBI, to ensure that an employer will be automatically notified as soon as a worker's criminal history record is updated.

To find out what providers think of the pilot program, Idaho conducted a survey of participating facilities, which found 87 percent believed the background checks were successfully screening out workers who shouldn't be hired. Additionally, 63 percent said that the quality of employees hired has improved since the pilot began.

The pilot program demonstrates that participating States are successfully excluding individuals who have a history of abuse or a disqualifying criminal background. If this model is expanded, the resulting nationwide system would greatly enhance the probability of identifying individuals with criminal backgrounds who can now easily escape detection. If all States had parallel, multi-level, comprehensive systems in place, very few potentially abusive workers would be hired into positions of caring for the extremely vulnerable residents of our Nation's long-term care facilities.

The MMA pilot program is scheduled to end this September. I urge the Senate not to let this initiative simply expire. Rather, I hope that we will take the logical step of expanding on the success of this program, and provide limited federal funding for all other States to create similar programs. The Patient Safety and Abuse Prevention Act also lays out sensible standards for creating a nationwide system that will prevent predators, who now go undetected, from being hired into positions where they can harm society's most vulnerable people. I sincerely hope that all of my colleagues will join me in this effort.

I ask unanimous consent that the bill and supporting material be printed in the Record.

There being no objection, material was ordered to be printed in the Record, as follows:

S. 1577


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