Employee Criminal History Checks

In an unprecedented examination of the nursing home industry, the federal Department of Health and Human Services (DHHS) surveyed hundreds of nursing homes around the country to find that a whopping 92 percent of them employed at least one worker with a criminal conviction. Perhaps even more disturbing is the fact that almost half of all nursing home facilities in the country employ five or more people with at least one conviction each.

An extreme example of the problem is seen in one particular nursing home. Of the 164 employees at the facility, 34 of them - over 20 percent - had a total of 102 convictions between them, for crimes ranging from property theft to DUI. Unfortunately, the report - which is based on criminal history records provided by state law enforcement facilities and the Federal Bureau of Investigation (FBI) - does not sufficiently analyze the data to show exactly what types of convictions should have raised red flags in mandatory criminal history checks run upon potential nursing home employees.

Why Was This Survey Performed?

DHHS undertook the study at the behest of Senator Herb Kohl (D - Wisconsin)’s petition to the Officer of Inspector General. Senator Kohl’s complaint arose after realizing that the background check system currently in place is, in his words "haphazard, inconsistent and full of gaping holes" that allow people with convictions in one state to simply find work at a facility in another state. The current guidelines set forth by the Centers for Medicare & Medicaid Services (CMS) are confusing and vague in their instructions concerning background checks by only saying that nursing homes "be thorough in their investigations of the past histories of individuals they are considering hiring."

Unfortunately, no federal law requires state or FBI background checks for nursing home employees, and state laws are inconsistent about the depth of criminal history checks, not making it mandatory to check sex offender registries and not making every employee undergo a background check, sometimes limiting the checks to those workers who have direct contact with patients, exempting administrative or maintenance/janitorial workers.

What Were the Results?

As mentioned above, the DHHS study revealed that over 90 percent of nursing homes surveyed had at least one employee with a criminal conviction, with five percent of all nursing home workers in the nation having at least one conviction noted in FBI criminal history information. The vast majority - almost 84 percent - of convictions occurred prior to the employee being hired.

The study revealed convictions for a wide range of crimes, including many that logically should bar a worker from nursing home work:

  • Crimes against the person like assault/battery, murder, rape/sexual assault, armed robbery
  • Property crimes like burglary, shoplifting, theft/larceny, vandalism/destruction of property, writing fraudulent checks and possession of stolen property
  • Drug crimes like possession or sale of drugs and/or drug paraphernalia
  • Traffic-related crimes like open container violations
  • Unclassified crimes like prostitution/solicitation of prostitution, improper weapon possession, disorderly conduct or resisting arrest

Something that neither the study nor the criminal records themselves revealed the identity of the victim of the crimes. This leads to the potential for vulnerable nursing home and residential care facility residents being victimized by convicted sexual offenders, batterers or thieves, putting them at risk of financial, physical and sexual abuse.

What Can Be Done?

Following this study, DHHS recommended that a uniform procedure be established for running criminal history checks on all nursing home facility employees. Both DHHS and CMS propose that the National Background Check Program be used not only to establish a nationwide process for examining the criminal record of prospective nursing home workers but also to come up with a list of crimes that would automatically disqualify a potential hire.

Since the results of the study have just been released, no action has been taken to further ensure the safety of nursing home residents by preventing them from being in contact with convicted criminals. Until action is taken based on the DHHS’ recommendations, residents may still be at risk. If an elderly loved one has been injured, abused or taken advantage of while in a nursing home, contact an experienced elder abuse attorney in your area to learn more about your legal rights and options.

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