Inspector General Releases Report, “Nursing Facilities’ Employment of Individuals with Criminal Convictions"

Findings offer important implications for criminal background checks at nursing facilities

At the request of a member of Congress, the Office of Inspector General (OIG) recently released the results of its evaluation of Medicare and Medicaid nursing facilities to measure and assess the existence of employees with criminal convictions at facilities nationwide. The findings are sure to alarm those of us with loved ones residing in any of the 15,728 Medicare-certified nursing facilities across the U.S.

The objective of the OIG evaluation was to determine whether and to what extent nursing facilities employed individuals with criminal convictions. 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) provides guidelines stemming from the Federal regulation that state, “[nursing] facilities must be thorough in their investigations of the past histories of individuals they are considering hiring.” However, Federal law does not require that nursing facilities conduct State or Federal Bureau of Investigation (FBI) criminal background checks. State background check requirements vary in terms of what must record sources be checked and who must be checked – in particular, direct-care workers only or all staff.

That said, in this study OIG used FBI-maintained criminal history records to determine only the existence of a criminal record; not to determine whether the individuals were in violation of Federal regulations. That’s because FBI records do not contain sufficiently-detailed information, such as whether the victim of a crime was a nursing facility resident, to determine whether the conviction would bar an individual from nursing facility employment under the Federal regulation.

What did the OIG Find?

To summarize the findings:

  • FBI-maintained criminal history records revealed that 92 percent of nursing facilities employed at least one individual with at least one criminal conviction. And nearly half of nursing facilities employed five or more individuals with at least one conviction. While we’re not clear as to the type or gravity of the offenses or whether the offenses would impact an individuals’ suitability for employment, the statistic is nonetheless alarming.
  • Overall, 5 percent of nursing facility employees had at least one conviction in FBI-maintained criminal history records. Five percent of staff identified by the nursing facilities as direct-care employees had criminal convictions, which mirrors the conviction rate for nursing facility staff in general.

In the study, a distinction is drawn between the job classification of the employee and the percentage of criminal convictions accounted for by each job type. Housekeeping, laundry, maintenance, and security category contained the highest percentage of employees with convictions, followed by certified nursing and medication aides.

  • Most criminal convictions occurred prior to employment. 84% of employees with criminal convictions had their most recent conviction prior to their beginning date of employment.

One of the keys to judging past criminal behavior according to EEOC guidelines is to consider the length of time that has passed since the conviction occurred. (This is only one measure.) Results of the study showed that 7.5% had their most recent conviction less than 1 year before the beginning of their employment and 28% were convicted 1 to 5 years prior to employment.

  • Most states required, and/or nursing facilities reported conducting, some type of background check despite the fact that there were no Federal requirements for nursing facilities to conduct criminal background checks at the time of this study.

Federal Patient Protection Act Requires Criminal Background Checks for Direct Patient Access Employees

Since the collection of the data for this study, the Patient Protection and Affordable Care Act (P.L. 111-148) became Federal law. It requires a nationwide program for states to conduct national and statewide criminal background checks for direct patient access employees of nursing facilities and other providers.

According to CMS, the definition of “direct patient access employee” should be anyone who routinely comes into contact or has the potential to come into contact with residents or clients. CMS clarifies this by saying the definition of direct patient access employees should include all staff.

Indeed, according to the OIG study, administrators for 94 percent of nursing facilities that conduct background checks reported conducting them on all classifications of employees. Another 4 percent reported conducting background checks only on direct-care staff, of which the job classifications that constitute direct-care staff are varied.

Where We Stand On All of This…

This study certainly brings attention to the important issue of who’s caring for our nation’s indigent population. That said, there are some important ideas left out of the study that should remain forefront in the discussion:

1. A Thorough Background Check is the RIGHT Thing to Do! More than just a legal or business liability decision, the obligation to know all that we can about the people who are trusted in a nursing home setting should not be understated. Relied upon to protect and care for their “customers”, nursing facilities have an extraordinary duty of care – both morally and legally — to conduct thorough background checks on all employees. Not only at the time of hire but throughout an individual’s tenure. This goes beyond a business need or legal requirement down to the heart of the matter; that it’s simply the right thing to do.

2. When something bad happens, no one wants to hear you say, “But we were in compliance!” Simply complying with minimal legal requirements as it relates to background screening employees in a nursing facility is not likely to shelter you from criticisms, or worse, the civil liability that arises when something bad happens. Remember, the general public has a certain expectation of safety in a nursing home environment. Reasonably so, when you consider that nursing homes and similar facilities are afforded the same level of trust as a hospital or medical facility.

Doing only what’s required is simply not going to protect your national brand one iota if you’re faced with headlines like these compiled by the website, AboutLawsuits.com:

  • Nursing Home Lawsuit Over Infected Bedsores Results in $600K Verdict (11/4/2010)
  • Florida Nursing Home Neglect Lawsuit Results in $114M Verdict (7/26/2010)
  • Philadelphia Nursing Home Bedsore Lawsuit Results in $6M Award (3/31/2010)
  • New York City Nursing Home Neglect Lawsuit Results in $19M Award (12/31/2009)
  • Elder Neglect Lawsuit Verdict of $1.3M Against California Nursing Home (7/10/2009)

While the OIG study focused on certified Medicare and Medicaid nursing facilities, the study offers an important reminder to all facilities, from retirement communities to Alzheimer care facilities. Screen your employees well. A solid employment screening program should include the following components:

  • A clearly-defined background screening policy and procedures
  • Comprehensive methodology that includes criminal checks, verifications, and personal record checks, as determined by the role-related risk of the individual
  • Consistently-applied criteria for evaluating and making decisions on the background check results
  • Compliance with all regulatory requirements
  • Measures to uphold fair hiring and anti-discriminatory practices

Need help with your nursing facility background screening program?

Proforma Screening offers specific expertise in employment screening for assisted living and nursing home environments. Let us help you build a program to enhance worker and patient safety, build trust in your community, and maintain your regulatory obligations. Call (866) 276-6161 or request a meeting. To get started right away, open an account.

About Michael Gaul

A security industry professional since 1988, Michael has extensive expertise in the fields of human capital risk management, physical security, and background screening process management. Michael leads Proforma’s sales, marketing, and strategic customer relations efforts.
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