Criminal Background Checks - Nursing Home Compliance

The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) established a Background Check Pilot Program.¹ The purpose of the pilot program was to “identify efficient, effective, and economical procedures” for conducting State and national criminal background checks on prospective “direct patient access employees,” as defined in the statute. Several years later, in 2010, the Patient Protection and Affordable Care Act (P.L. 111-148) became Federal law.

Section 6201 of the Patient Protection and Affordable Care Act requires the Secretary of Health & Human Services to carry out a nationwide program for states to conduct national and statewide criminal background checks for direct patient access employees of nursing facilities and other providers.  This mirrors the pilot program the MMA established.

The overall purpose of the criminal background checks is the protection of the safety and well-being of residents of nursing homes and other facilities.  Nursing facilities participating in Medicare and Medicaid are required to provide services that maintain the dignity and well-being of all residents,² which includes the protections afforded by Section 6201.  Federal regulation prohibits Medicare and Medicaid nursing facilities from employing individuals found guilty of abusing, neglecting, or mistreating residents by a court of law, or who have had a finding entered into the State nurse aide registry concerning abuse, neglect, or mistreatment of residents or misappropriation of their property.

The Centers for Medicare & Medicaid Services (CMS) have established interpretive guidelines for Section 6201, which provide that “[nursing] facilities must be thorough in their investigations of the past histories of individuals they are considering hiring.”³  Despite this, federal law does not require that nursing facilities conduct FBI or statewide criminal background checks.  Instead, state background check requirements vary in terms of what must be checked (e.g., statewide criminal history databases, publically available sex offender registries) and who must be checked (e.g., direct-care workers only, all staff). 

Forty-three states require nursing facilities to conduct either an FBI or a statewide criminal background check for prospective employees.  In Michigan, for example, nursing homes, county medical care facilities, hospitals with swing bed services, Medicare-certified home health agencies, intermediate care facilities for mentally retarded, and psychiatric facilities and inpatient programs are required to conduct criminal background checks, including fingerprint checks, for staff hired after April 1, 2006.⁴ Individuals who have regular direct access to patients and/or their medical records or provide direct services to patients, including independent contractors and those with clinical privileges, are to be included.

In Ohio, only state checks are required.⁶  A request must be made of the superintendent of the bureau of criminal identification and investigation to conduct a criminal records check with respect to each applicant. If the position may involve both responsibility for the care, custody, or control of a child and provision of direct care to an older adult, only a single criminal records check is required.  An FBI criminal records check is only required if the applicant cannot establish residency in Ohio for the prior five years. 

Note that the term “applicant” means a person who is either under final consideration for appointment to or employment with a home health agency in a position as a person responsible for the care, custody, or control of a child, or who is under final consideration for employment with a home health agency in a full-time, part-time, or temporary position that involves providing direct care to an older adult. With regard to persons providing direct care to older adults, “applicant” does not include a person who provides direct care as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses.

Earlier this year, the Health and Human Services Office of the Inspector General (OIG) conducted an investigation, which was ordered by the Senate Special Committee on Aging.  Upon analyzing the criminal history records maintained by the Federal Bureau of Investigation, their report⁷  found that 92 percent of nursing facilities in the United States employed at least one person who had at least one criminal conviction.  Overall, 5 percent of nursing facility employees had at least one criminal conviction.  

In most of the cases, the OIG found that the criminal convictions were for crimes against property (e.g., burglary, shoplifting, and writing bad checks) and occurred prior to employment. In light of the National Background Check Program that the Patient Protection and Affordable Care Act created, the OIG has recommended in their report that CMS develop background check procedures. The OIG recommends those procedures should (1) clearly define the employee classifications that are direct patient access employees and (2) work with participating States to develop a list of convictions that disqualify an individual from nursing facility employment under the Federal regulation and timeframes in which each conviction bars the individual from employment. 

While the CMS is developing these additional procedures, nothing is stopping health care providers from implementing their own internal ones, in conjunction with adhering to state and federal laws.  The focus of these regulations may be on protecting the at risk patients, but understand that conducting proper background checks can produce an improved job experience for all employees. In addition, the proper use of background checks can decrease turnover, and offer additional stability to the labor force. The quality of staff is improved and creates a more positive atmosphere, for residents, their families and the overall staff.