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Report (OEI-07-09-00110)

03-01-2011
Nursing Facilities' Employment of Individuals With Criminal Convictions

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Summary

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.

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