Tuesday April 26, 2011
Our analysis of
criminal history records maintained by the Federal Bureau of
Investigation (FBI) revealed that 92 percent of nursing facilities
employed at least one individual with at least one criminal
conviction. Overall, 5 percent of nursing facility employees had at
least one criminal conviction.
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. Interpretive guidelines from CMS for this regulation
state that "[nursing] facilities must be thorough in their
investigations of the past histories of individuals they are
considering hiring." Despite this guidance, Federal law does not
require that nursing facilities conduct FBI or statewide criminal
background checks. Although FBI maintained criminal history records
provide a comprehensive source of criminal histories, the records
do not contain information on whether the victim of a crime was a
nursing facility resident and therefore cannot be used by
themselves to determine whether a conviction disqualifies an
individual from nursing facility employment.
Most often,
criminal convictions were for crimes against property (e.g.,
burglary, shoplifting, and writing bad checks) and occurred prior
to employment. We also found that despite the lack of a Federal
requirement for nursing facilities to conduct criminal background
checks, most States required, and/or nursing facilities reported
conducting, some type of background check.
In light of the
National Background Check Program that the Patient Protection and
Affordable Care Act created, we recommended that CMS develop
background check procedures. In developing those procedures, CMS
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.
In its written
comments on the report, CMS agreed with our recommendation. CMS
stated that in its solicitation to States for the National
Background Check Program, the definition of "direct patient access
employee" is broad and outcome based, which in nursing facilities
should include all staff. CMS stated that it will work with the
States through the National Background Check Program to assist them
in developing lists of convictions that disqualify individuals from
employment, as well as defining whether any of those conviction
types can be assumed to be mitigated because of the passage of time
and which convictions should never be considered mitigated or
rehabilitated.
Click here for the full report