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Again, we commend Congress for its consideration of this legislation. Approval of the kinds of amendments that we have suggested will enable health care facilities to continue to provide, as we have done for decades past, the highest quality health care service, on a non-discriminatory basis, without endangering either the quality of that care or the financial integrity of the facilities that are providing it.

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Amendments

1. Limiting the Requirements That A Facility Be Modified To Accommodate A Handicapped Employee

Insert on page 9, after line 17 a new subsection 101 (8) (C), as follows:

(C) Notwithstanding the foregoing requirement, a covered entity shall not be required to physically modify any non-public work area unless an otherwise qualified and disabled applicant has been hired for that position.

Justification

The modification of a facility is expensive and the cost of so doing may not always be recoverable. Therefore, a facility should not be required to undertake such modifications unless it is essential that it do so.

2.

Additional Criteria for Establishing An Undue Hardship
Defense (Title I)

Insert in Section 101 (9) (B), on Page 10, Line 10 a new subsection (v) as follows:

(v) In the case of health care providers, the court shall give substantial weight to the ability of the facility to obtain full reimbursement for the expenses incurred from that states Medicaid program, and in the case of an entity that operates more than one facility in a state, each facility shall be treated as a separate entity for purposes of determining the financial or other burden it shall be required to incur in complying with this title.

Justification

In many states facilities will be unable to recover the cost of compliance with this act, or will only be able to capitalize these expenses over the depreciable life of the property. This may require a facility to incur significant up-front costs, with reimbursement spread out over 15 or 20 years.

3.

Additional Criteria to be Used In Establishing the Undue
Hardship Defense (Title III)

Insert in Section 301 (5) (B), on Page 33, line 2, a new
Subsection (B) (iv) as follows:

Use the same language that was used for Amendment #2.

Insert in Sections 302(b) (1) (A) (1), and 302(b) (1) (A) (ii) the following:

a. On page 33, line 22, after the word "entity", the following:

"A covered entity shall be entitled to raise the defense that the denial of the opportunity to participate in or benefit from these goods, services, privileges or accommodations offered was due to the undue burden created, or the lack of any readily achievable means of providing the goods, services or accommodations in a reasonable manner".

b. On page 34, line 8, after the word "individuals" insert the following:

"A covered entity shall be entitled to raise the defense that the denial of the opportunity to participate in or benefit from these goods, services, privileges or accommodations offered was due to the undue burden created, or the lack of any readily achievable means of providing the goods, services or accommodations in a reasonable manner."

5. Amendment Relating to the Case of Resident's With Communicable Diseases

Insert in Section 302(b) (1) (B), on page 35, line 2, the following:

(ii) Notwithstanding the foregoing a provider of health care services shall be entitled to assign individuals with communicable or contagious diseases to specified portions of a facility, or to specified facilities.

6. Right to Relocate A Resident or Patient to Another Room

Insert at the end of Section 302(b) (2) (A) a new Subsection 302(b) (2) (B), and renumber the succeeding subsections accordingly. Insert on page 39, line 10 the following:

(B) Notwithstanding the foregoing, a provider of health care services shall have the right to relocate a resident or patient to another room in a facility, in lieu of making any structural or other modifications in the facility.

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7.

Prohibition Against Lawsuits Until Implementing Regulations
Are Final

Insert on Page 60, after line 17, a new section 506, as follows:
Section 506

Enforcement Litigation

No action to enforce any provision of this Act shall be commenced, either by the United States, by any agency thereof, or by any private party, until one year after the applicable regulations have taken effect.

Justification

Covered entities should have a reasonable period of time to modify their programs, criteria, and physical plant to meet the statutory and regulatory requirements of this Act. This amendment will specifically prevent the filing of enforcement litigation prematurely.

8. No Double Jeopardy

Insert, on page 49 after line 20 a new Section 308(b) (2) (D), as follows:

(D) A fine for a repeat violation shall only be imposed if the violation is the deliberate failure of the defendant to correct a previously cited violation.

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9. Cost Justification As A Defense

Insert on Page 10, after line 10 a new subsection 101(9) (B) (iv), as follows:

(iv) In determining the ability of any health care provider to bear the cost of making any structural modification each facility shall be considered a separate entity and the opportunity for the facility to obtain reimbursement for those costs under the applicable state's Medicaid plan shall be significant factor in determining if a proposed accommodation creates an undue burden.

Justification

Each facility is subject to vastly different state reimbursement policies and regulations. These policies and regulations will determine if, and to what extent, a facility will receive reimbursement for the cost of complying with the act.

Secondly, unlike other covered entities, nursing facilities cannot pass on the cost of compliance by raising their prices. Medicaid law prohibits facilities from charging Medicaid patients fees in excess of that state's Medicaid reimbursement rate, and the rates differ markedly from one state to another. Third, in some states, because of the specific reimbursement methodology used, a facility may not legally be able to seek an adjustment in its rate that will allow it to recover all of its costs. Moreover, again depending upon the state, those costs may only be recoverable over a period of many years.

10. Amendment Relating To Handicapped Persons Employed In Health Care Facilities

Insert on Page 10, after line 10 a new subsection IV.

(IV) In the case of health care facilities, there shall be a presumption that a facility's determination that a disabled employee or applicant's disability may endanger the health or safety of a resident shall be controlling, unless there is clear and convincing evidence on the record to rebut that presumption, and the burden of proof shall be on the employee or applicant to rebut that presumption.

Justification

Facility employees care for residents who are frail, infirm and suffering from numerous illnesses. Their safety should not be jeopardized, to any degree, by a facility being required to hire, or retain, an employee with a disability that might endanger a resident's health. Therefore, the facility management's views should receive special consideration.