(July 23, 2014): Rightly or wrongly, critics of our nation's long-term care system have long cited incidents of patient abuse, neglect, and the alleged misappropriation of funds among the identified widespread problems many seniors face when receiving long-term care and treatment services. In an effort to address these problems, legislators were sure to include provisions in the Affordable Care Act (ACA) aimed at reducing the likelihood that an individual with a prior criminal conviction will be hired to care for seniors. Section 6201 of the ACA established the framework for a nationwide program to conduct background checks at the state level of all individuals seeking employment in direct patient access positions within long-term care facilities or with long-term care providers. Notably, the term "long-term care" includes skilled nursing facilities, nursing homes, home health agencies, long-term care hospitals and residential care facilities. The term also includes intermediate care facilities for individuals with intellectual disabilities. The purpose of this article is to examine the actions of home health agencies and whether or not they are meeting their obligations to properly conduct background checks on prospective employees who would have direct patient access is hired. In response to a recent Congressional request, the Department of Health and Human Services, Office of Inspector General (OIG) initiated two evaluations regarding the employment of individuals with criminal convictions in one specific type of long-term care environment: home health agencies (HHAs). Following the first evaluation, OIG published a report setting out its findings, many of which will be invaluable to CMS its administration of the "Nationwide Background Check Program."
I. Purpose of the Nationwide Background Check Program Study:
As OIG report reflects, the agency surveyed state officials from all 50 states (and the District of Columbia) to determine:
1. State requirements for conducting background checks for prospective HHA employees,
2. Job positions for which states require HHAs to conduct background checks, and
3. Types of convictions that states consider to be disqualifying from HHA employment.
II. Results of the Nationwide Background Check Program Study:
OIG also found that the practices below are being followed:
1. Forty-one states
- require HHAs to conduct background checks on potential employees, and
- verify this compliance.
2. Ten states have no background check requirement, but four of these reported that they have plans to implement background check requirements in the future.
3. Thirty-five states specify convictions that disqualify individuals from employment.
4. Sixteen states allow an individual who has been disqualified from employment to submit an application to have his/her conviction(s) waived.
The thirty-five states that specify convictions that disqualify individuals from HHA all have different disqualifying convictions. For example, Wisconsin prohibits an individual from HHA employment if he was convicted of homicide, battery, and sexual assault. Minnesota, on the other hand, groups disqualifying convictions into categories which are split up by the time that must have elapsed between the discharge of the sentence imposed and eligibility for HHA employment. Minnesota’s categories are:
1. 7 years (misdemeanor domestic assault)
2. 10 years (misdemeanor receiving stolen property)
3. 15 years (felony robbery)
4. Forever (kidnapping)
III. Final Remarks:
While federal laws and regulations requiring that HHA’s conduct background checks on potential employees or prohibit HHAs from hiring individuals who have been convicted of crimes, HHAs must comply with State background check laws to participate in Medicare. The OIG study revealed that states have very different requirements in regard to whether background checks have to be conducted, what sources of information need to be checked, which job postings must have background checks, and what types of convictions disqualify an individual from HHA employment.
In 2012, HHAs provided services to approximately 3.5 million Medicare beneficiaries and Medicare paid nearly $18.5 billion for these services. Given these huge numbers, it is easy to see why HHA background checks are important to protect patients and avoid Medicare fraud.
In addition to suggesting that the information in the report will be useful to CMS in administering the Nationwide Background Check Program, OIG also states the study may be useful to states that are considering establishing or enhancing background-check requirements.
Liles Parker attorneys represent health care suppliers and providers around the country in connection with regulatory compliance reviews, Medicare audits, HIPAA Omnibus Rule risk assessments, privacy breach matters, and State Medical Board inquiries. Robert W. Liles, Esq., is a Managing Partner at Liles Parker, Attorneys & Counselors at Law. Call Robert for a free consultation at: 1 (800) 475-1906.