Background checks on direct patient access employees in long-term care facilities

18Dec09

CMS has for a number of years operated a pilot program whereby 7 States (AK, ID, IL, MI, NV, MN, WI) conducted comprehensive background checks on potential direct-patient-access employees of long-term care facilities.  Both the House and Senate bills would extend this program “nationwide” – with the proviso that for it to be applicable to a particular State, the State must submit an application to participate. Thus, these require­ments may not apply in all States.

Under the program, participating States must establish procedures requiring long-term care facilities to conduct background checks on prospective direct patient access employees (including contractors).  A prospective employee who is found to have “disqualifying information” may not be employed by a long-term care facility, subject to some limited employee appeal rights as described below.  States may impose penalties on facilities that do not comply with the background-check requirements or that hire disqualified employees.

“Disqualifying information” includes a conviction for any of the offenses described in  42 U.S.C. § 1320a-7(a) or other types of offenses as specified by the State, or a substantiated finding (by the state Medicaid agency or by a federal agency)  of –

  • An act of patient or resident abuse or neglect;
  • A misappropriation of patient or resident property; or
  • Such other types of acts as the participating State may specify.

Long-term care facilities to which the program applies include –

  • Nursing homes (i.e., skilled nursing facilities and nursing facilities);
  • Home health agencies;
  • Hospices;
  • Long-term care hospitals;
  • Providers of personal care services;
  • Adult day care providers;
  • Residential care providers (such as many continuing care retirement communities and some assisted living facilities) that arrange for, or directly provide, long-term care services, “including an assisted living facility that provides a nursing home level of care conveyed by State licensure or State definition;”
  • Intermediate care facilities for the mentally retarded; and
  • Any other long-term care facility that the State wishes to specify.

To participate, a State must sign an agreement that it will have procedures in place to –

  • Require that long-term care facilities (or a facility’s designated agent, such as an employment agency) obtain State and national criminal or other background checks on prospective direct-patient-care employees through such means HHS determines appropriate. These include a search of (i) state-based abuse and neglect registries and databases (including the abuse and neglect registries of any other State where a prospective employee previously resided), (ii) state criminal history records, and (iii) the records of any proceedings in the State that may contain disqualifying information about prospective employees (such as proceedings conducted by State professional licensing and disciplinary boards and State Medicaid Fraud Control Units).  They also must include searches of federal criminal history records, including a fingerprint check using the FBI’s Integrated Automated Fingerprint Identification System.
  • Monitor compliance by long-term care facilities with the procedures and requirements of the new background-check program.
  • As appropriate, provide for a provisional period of employment by a long-term care facility of direct patient access employees, pending completion of the required criminal history background check and, if requested, an appeal by the employee.
  • Designate a single state agency (I’ll call it the “background check agency”) as responsible for (i) overseeing the coordination of any state and national criminal history background checks requested by a long-term care facility, utilizing a search of state and federal criminal history records, including a fingerprint check; (ii) overseeing the design of appropriate privacy and security safeguards for use in the review of the results the criminal history background checks conducted; (iii) immediately reporting to the requesting long-term care facility the results of that check; and (iv) reporting appropriate convictions to the appropriate federal data bank.
  • Determine which individuals are “direct patient access employees for purposes of the background-check program (i.e., which employees or contractors may have access to a patient or resident of a long-term care provider).
  • As appropriate, specify offenses, including convictions for violent crimes, for purposes of the background-check program.
  • Describe and test methods that reduce duplicative fingerprinting, including providing  for the development of  “rap back” capability.

The procedures established by a participating State should be designed to –

  • Give a prospective direct-access employee notice that the long-term care facility is required to perform background checks with respect to new employees;
  • Require, as a condition of employment, that the employee: (i) provide a written statement disclosing any disqualifying information and a signed statement authorizing the facility to request national and State criminal history background checks; (2) provide the facility with a rolled set of the his or her fingerprints; and (3) provide any other identification information the participating State may require;
  • Require the facility to check any available registries that would be likely to contain disqualifying information about a prospective employee; and
  • Permit the facility to obtain State and national criminal history background checks on the prospective employee through a 10-fingerprint check that utilizes State criminal records and the FBI’s Integrated Automated Fingerprint Identification System.

The procedures established by a participating State must permit a long-term care facility to terminate the background check at any stage at which the facility obtains disqualifying information regarding a prospective direct patient access employee.

Background checks and screenings under the program will be valid for no more than two years.

A participating State may provide for reimbursement of facilities’ costs in conducting the background checks, but this is not required and might or might not be supplemented by a limited pool of federal funds. Such funding would apply only to background checks that the long-term care facility was not required to provide prior to enactment of the new law.



6 Responses to “Background checks on direct patient access employees in long-term care facilities”

  1. 1 Kelly Meyers

    Good information to have. Iowa already has state law substantially similar to this.

  2. Most of the “former criminals” are people with minor drug-related arrests (like marijuana possession), who receive no jail time. I have to admit that it seems silly (and wrong) to deny them employment for decades to come. I am slightly less enthusiastic about fighting to restore employment rights to those convicted of more serious crimes. It depends on the type of job and the type of crime, I suppose.

    • The Pennsylvania Supreme Court agreed with your basic argument in 2003, when it ruled that the Pennsylvania Older Adults Protective Services Act’s provision barring employment in various elder-care settings of individuals convicted of a long list of felonies and misdemeanors, was unconstitutional (under the state constitution) as applied to five individuals. Their convictions, at the time the statute was enacted, were for marijuana possession (25+ years previously), stealing $30 (25+ years previously), armed robbery (20+ years previously), “several drug felonies” (10+ years previously), and “possession of drugs” (20+ years previously). Each had served either probation or a prison sentence without incident, and each had subsequently been employed in the care of dependent individuals for at least 7 years.

      Despite this ruling, the statute and regulations implementing it remain in effect.

      [comment moved for formatting purposes; originally posted 2010/01/09]

  3. Perhaps it’s not in the company’s best interests to take the risk of hiring a criminal, as you indicate, regardless of how society might benefit. By not hiring a ‘risky’ individual they avoid any higher-than-normal costs off their payroll and into society at large where there’s a larger pool of money to deal with costs incurred because the individual they didn’t hire is breaking the law again. I make no judgment call, but note that it’s rational for a company to make a decision like that.

  4. 5 Kerry

    Has the State of Arizona submitted an application to be a part of this?? I’ve heard they use companies like Crimshield that determine which individuals may have access to a patient of a long-term care provider. Any insight would be helpful.

    • Healthcare reform has not been enacted, so the specific provisions I have described on this blog are not yet law. However, many states already have similar state laws requiring background checks of long-term care employees. I don’t know if Arizona is one of these states.

      In my experience, when a long-term care provider contracts out a function (for example, housekeeping) that may involve direct patient contact, they include specific provisions in the contract that require the other party to comply with the applicable background-check law. It is also common to include special provisions that apply if the contractor fails to live up to these obligations and an adverse event occurs. These can include an indemnification clause, a provision for immediate termination of the contract by the long-term care provider, a liquidated damages clause, etc.



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