Topic:
ELDERLY; LONG-TERM CARE; MEDICAL PERSONNEL; ADULT DAY CARE; CRIMINAL RECORDS; ELDERLY ABUSE; HANDICAPPED; NURSING HOMES;
Location:
MEDICAL PERSONNEL;
Scope:
Federal laws/regulations;

OLR Research Report


December 31, 2001

 

2001-R-0753

STATES' CRIMINAL BACKGROUND CHECK FOR LONG-TERM CARE WORKERS

 

By: Helga Niesz, Principal Analyst

You asked what states require criminal background checks for long-term care or other health care workers taking care of elderly or disabled people.

SUMMARY

At least 39 states require background checks for these workers in some settings. The laws vary considerably. Nearly all of them cover nursing home employees. Thirty states cover home health care workers and a number cover direct care employees in residential care homes, assisted living, and other settings. A few even cover volunteers.

The laws also vary in whether they require a check of only state criminal records or also national records collected by the Federal Bureau of Investigation, whether they require fingerprinting, what they consider disqualifying crimes, and the extent to which they allow exceptions for good cause or because the person can prove he has been rehabilitated or is not a danger to the clients.

STATES REQUIRING BACKGROUND CHECKS

Most of the states we found that require background checks for some long-term care or other health care workers taking care of elderly or disabled people cover nursing home direct care workers such as nurse's aides and other unlicensed workers in nursing homes.

At least 30 states cover home health care workers (Arizona, Arkansas, California, Delaware, Florida, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wisconsin. A number of states cover workers in residential care homes, adult foster care homes, boarding homes, assisted living facilities, adult day care centers, other health facilities, and various other settings.

Table 1 below shows the states we found that require background checks for at least some long-term care or other health workers. It is based on a1998 federal Department of Health and Human Services Office of Inspection General report, which we have updated through a computer search of state statutes and 2001 legislation.

CRITERIA FOR DISQUALIFICATION

State background check laws are not uniform and differ not only in required procedures, but also in the people they affect, according to the enclosed article by Gail Chirnoff Conway, “There Oughtta Be a Law: A Survey of Legislative Responses to Elder Abuse,” Clearinghouse Review: Journal of Poverty Law and Policy, May-June 2001. According to the article, which discusses a number of laws affecting caregivers for the elderly, several states, such as Missouri, Pennsylvania, and Texas, explicitly forbid nursing homes and other facilities from hiring applicants who have a record of criminal convictions. On the other hand, a Georgia law requires background checks for applicants but allows nursing homes to hire people with criminal records.

Most states have extensive lists of crimes that preclude employees from being hired at various long-term care facilities. For instance, Arizona prohibits a nursing home or residential care home from employing individuals who are awaiting trial for or have been convicted of any of 23 crimes, such as abuse of a vulnerable adult; sexual abuse or assault; incest; first or second degree murder; kidnapping; arson; sexual exploitation and contributing to the delinquency of a minor; felony offenses involving distribution of marijuana or dangerous or narcotic drugs, theft, or robbery; child abuse or molestation, manslaughter, aggravated assault, domestic violence, fraud and fraudulent schemes; or assault or drug-related crimes within the last five years. States differ in what crimes disqualify applicants and how recent the crime has to be to disqualify them.

Some states allow an executive agency to decide which crimes disqualify applicants from employment; others leave the decision up to the employer. In some cases, the applicant can ask for an exception to the disqualification or has an opportunity to prove that he has been rehabilitated and is not a danger to the patients or residents. In North Carolina, for instance, conviction of a relevant offense alone does not bar an applicant from employment. The employer must consider the level and seriousness of the crime, when it occurred, the person's age when he was convicted, circumstances surrounding the crime, the relationship between the crime and the person's job duties, and the person's criminal and corrections record since the crime. In Wisconsin, an applicant who has committed a disqualifying crime can still be hired if he proves he has been rehabilitated.

FEDERAL ACTIVITY

The Department of Health and Human Services Office of Inspector General called for creation of a national background check system in l998 to prevent nursing homes and other long-term care facilities from hiring convicted criminals to care for frail seniors. In a report to Congress, it also noted that states' requirements vary widely. The report is available at:

http://oig.hhs.gov/oas/reports/aoa/d9700003.pdf

PL 105-277, Section 124, which Congress passed in 1998, at least partially in response to the report, allows but does not require nursing homes and home health care agencies to ask the attorney general to search and exchange specified FBI criminal history records on an applicant for direct patient care employment. Nursing homes can now make this request even without authorization by their state law, which was previously required for the FBI to perform these background checks. The information can be used only for purposes of determining an applicant's suitability for employment, and there are criminal penalties for its unauthorized use. The attorney general can charge a fee of up to

$50 per request. And the law absolves a nursing facility or home health care agency that denies employment based on this information from liability in any legal action the applicant initiates if the information is incomplete or inaccurate. A description of this and other federal laws affecting background checks for long-term care workers is available at:

http://www.hcfa.gov/medicaid/nursingfac/backchks.pdf

Table 1: States that Require Criminal Background Checks

State

Facilities Covered

Personnel Covered

Records used

Alaska

Nursing home

Assisted Living

All paid employees and independent contractors

Fed & state

Arizona

Nursing care institution, residential care institution, home health agency (Ariz. Rev. Stat. Ann. 36-411)

Employees and contractors who provide direct care, home health services, home health services, or supportive services and who are not licensed or certified by a health profession regulatory board, as well as volunteers. Applicants and existing employees must have a valid class 1 or class 2 fingerprint clearance card from the state's board of fingerprinting. They must resubmit their fingerprints every three years. The class of card a person can obtain depends on whether he has been convicted of certain kinds of offenses. The board can also determine good cause exceptions (Ariz. Rev. Stat. Ann. 36-411, 41-619.53, modified by SB 1281 in 2001)

Fed & state

Arkansas

Long-term care facility

Home health care service

Hospice (Ark. Code 21-15-101 et seq.)

Applicants and employees providing care to elderly and people with disabilities. Family members, volunteers, and administrative staff are excluded

Fed & state

California

Any facility that employs nurse's aides and home health aides, including but not limited to nursing homes, home health agencies, and hospitals. The law covers anyone who operates or provides direct care services in a community care facility, foster family home, or a certified family home (Cal. Health and Safety Code 1522 (a), 1736.6)

Nurse's aides and home health aides

State

Colorado

Nursing care facilities, state employees and employees contracting with the state who have direct contact with vulnerable persons (CRS 27-1-110, 24-72-305.3, 305.4, as modified by SB 88 in 2001)

All applicants with direct contact with vulnerable elderly, or disabled.

State & fed.

Delaware

“Nursing homes” (meaning nursing homes, assisted living facilities, intermediate care facilities for the mentally retarded, neighborhood group homes, family care homes, rest residential facilities, and business entities that contract to operate such a nursing home; also home health agencies, private healthcare givers in the patient's own home, and temporary employment agencies) (Del. Code Ann. Title 16, 122, 1141, 1145 (added in 2001 by SB 5)

Applicants, existing employees seeking a promotion, and personnel referred from a temporary agency. Background checks are only required once every five years and the state pays the costs

Fed & state

Florida

Assisted living, adult family care homes, adult day care centers, home health agencies, “qualified entity” (a public or private business or organization that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services (Fla. Stat. Ann. 400.5572, .619, .071,4174, 471, 506; 943.0542)

Nurse's aides, applicants, and all employees hired after October 1, 1998 who perform personal services or who provide basic, supportive, or optional services to participants, and volunteers.

Qualified entity determines whether person is disqualified

Fed & state

Georgia

Nursing homes, personal care homes, group homes, and alternative living units (Ga. Code Ann. 31-7-351)

All employees

State

Idaho

All long-term care facilities (by regulation)

All employees

State

Illinois

Health care employers (community living, long-term care, life care, home health agency, community residential alternative, nurse agencies, respite care, hospice, mental health, community integrated living, and hospitals)(9225 ILCS 46/1 et seq.)

Direct care employees, nurse's aides, home health care aides, personal care assistants, private duty nurse's aides, and day training personnel

State

Indiana

Health facility, home health agency, hospice, hospital, and hospital based facility that employs nurse's aides or an entity that contracts to provide nurse's aides or other non-licensed employees to such facilities (Ind. Code Ann. 16-28-13)

Nurse's aides and nonlicensed employees, personal care attendants, operators, administrators

State

Iowa

Nursing facilities, skilled nursing facilities, intermediate care facilities for mentally retarded people and persons with mental illness, residential care facilities, and residential care facilities for mentally retarded and mentally ill people (IAC 58.11)

All employees and anyone providing services to residents, including independent contractors

State

Kansas

Any elderly or disabled residential facility for 8 or more people, licensed by the state, adult care homes, and home health agencies (KSA 39-970, KSA 2000 Supp. 65-5117, as modified by HB 2067 in 2000)

Adult care home and home health agency applicants and employees who have been employed with the same facility for less than five years.

State

Kentucky

Any nursing facility (nursing homes, adult day care, domiciliary care, psychiatric hospital, sheltered housing, hospice, assisted living, and acute care hospital) and agencies such as home health agencies providing services to senior citizens (Ky. Rev. Stat. Ann. 216.787, 789, 793)

Nursing facility employees providing direct service to senior citizens

State

Louisiana

Nursing homes, intermediate care, adult residential care, adult day care, home health and residential services agencies, hospice, and ambulance services (La. Rev. Stat. Ann. 40: 1300.52)

Nonlicensed direct care employees and licensed ambulance personnel. Employer cannot generally hire people convicted of a statutory list of crimes, but can make exceptions for mitigating circumstances, such as the person's age at the time of the crime, circumstances surrounding the crime, length of time and criminal history since their conviction, work history, employment references, character references, nurse's aide registry records, and other evidence (La. Rev. Stat. 1300.53)

State

Maryland

Adult dependent care programs, adult day care, domiciliary care, group homes, home health agencies, sheltered housing, residential service agencies, alternative living units, and hospice facilities

Compensated employees with routine direct access to dependent adults and not licensed or certified under the health occupations law (RNs, LPNs. And CNPs)

State

Massachusetts

Long-term care facilities; home health and other agencies that provide homemaker, home health aide, companion, or other community-based services to elderly or disabled persons, home care corporations, municipalities, and other entities receiving federal, state, or local funds (Mass. Gen. Laws Ann. Ch. 6 172C, 172E)

Positions that involve direct personal care or treatment and employees or volunteers who provide care, treatment, education, training, transportation, delivery of meals, instruction, counseling, supervision, recreation, or other services in a home or community based setting for elderly or disabled people, who will have direct or indirect contact with them, or access to their files.

State

Minnesota

Hospitals, boarding care homes, outpatient surgical centers, nursing homes, home care agencies, residential care homes, board and lodging establishments (Minn. Stat. Ann. 245A.04)

Persons providing services who have direct contact with patients and residents (Applicants, current employees, contractors, and volunteers)

State & fed (at health commissioner's discretion)

Mississippi

Each person, business, organization or other public or private entity providing care, supervision, or treatment to vulnerable adults (Miss. Code 43-47-7, as added by SB 2501, 2, in 2001)

Also a licensed institution for the aged or infirm or care facility (Miss. Code

43-11-13 as added by SB 2501, 11, in 2001)

Each new employee who provides direct care to vulnerable adults and vulnerable persons (elderly, persons over age 18, and minors with impaired ability to perform activities of daily living or to provide for their own care and protection

Fed. & state

Missouri

Continuing care retirement community, health care facilities, long-term care, in-home service providers, employment agencies for nurses and nurse's assistants, elder care workers (Mo. Ann. Stat. 210.909, 210.903, 660.317,43.450). Also personal care providers (added by SB 0048 in 2001)

Applicants for a full-time, part-time, or temporary position who have contact with any patient or resident, and personal care workers

State & fed

Nebraska

Assisted Living

Direct care staff

State

Nevada

Intermediate care, skilled nursing, and residential facilities for groups providing food shelter and assistance to some of the most vulnerable residents of the state, including aged, infirm, mentally retarded and handicapped. Agencies providing nursing in the home and assistance to these vulnerable residents (Nev. Rev. Stat. 449.176 et seq.)

Employees of these facilities and agencies (once every five years) and applicants for a license to operate them.

Fed & state

New Jersey

Licensed health care facilities (NJ Code 26:2H-84)

Nurse's aides, personal care assistants, and others with direct contact with patients

Fed & state

New Mexico

Skilled nursing; intermediate care; care facility for mentally retarded; psychiatric; rehabilitation; home health agency; homemaker agency; home for the aged or disabled; group home; adult foster care home; private residence that provides personal care, sheltered care, or nursing care for one or more people not related to the operator or owner; adult day care center; boarding home; and adult residential shelter care home. Also any entity that provides respite, companion, or personal care services and any other health or resident care facility, other than one located at or performing services for a correctional facility (NM Stat. Ann. 29-17-2 et seq.)

All employees, contractors, and volunteers

Fed & state

North Carolina

Nursing homes, adult care homes, home care agencies; domiciliary care facilities; group homes; residential service agencies; psychiatric hospitals; area mental health, developmental disabilities, substance abuse, and hospice entities, contract agencies for these entities, and any other organization or corporation that provides direct care or services to the sick, disabled, or elderly (N.C. Gen. Stat. Sec 114-19-3, 131E-265)

Nonlicensed job applicants and consenting volunteers who provide treatment for or services to the disabled and elderly.

State (also fed. for people who have been state residents for less than five years)

Ohio

Nursing homes, home health care, adult day care, hospice, adult care facility, residential care facilities, county and district homes, homes for the aged,

All applicants under final consideration for providing direct care to an older adult, except volunteers

State

Oklahoma

Nursing and specialized facilities, residential care homes, adult day care, and home health or home care agencies (Okla. Stat. Ann. 63-1-1950.1 et seq.)

Applicants for employment or contract offers to nonlicensed nurse's aides or others providing nursing care, health related services, or supportive assistance

State

Oregon

Nursing homes, assisted living facilities, adult foster care homes, residential care facilities, and in-home agencies (Or. Admin. Rules 411-009-0000 et seq.)

Direct and nondirect care staff; personal care assistants, volunteer

State (and federal if person has lived in state less than three years or certain other conditions exist)

Pennsylvania

Domiciliary care home, home health care agencies, long-term nursing care facilities, older adult daily living centers, and personal care homes (35 Pa. Cons. Stat. Ann. 10225.502 et seq.)

All applicants being considered for employment

State, but also fed. if person has resided in state less than two years

Rhode Island

Nursing homes, home health agencies, in-patient hospice, nursing service agencies, and assisted living facilities R.I. Gen. Laws 23-17-34)

Persons seeking employment at facilities covered by the law. Upon discovery of disqualifying information, the State Police Bureau of Criminal Identification informs employee and employer. Employee can request that copy be sent to employer and employer makes judgment about employment

State

Tennessee

Adult day care centers, home care organizations (Tenn. Code Ann. 71-2-403)

New employees who are counted in the staff/participant ratio and volunteers with unsupervised access to participants who volunteer for more than 36 hours a year.

State

Texas

Nursing homes, adult day care, adult day health care, home health agencies, intermediate care, adult foster care, custodial care home, personal care, non-licensed attendant care, and mental health and mental retardation facilities (Tex. Health and Safety Code Ann. 250.004)

Direct contact employees

State

Utah

Health care facilities (home health care agencies, hospices, nursing care facilities, assisted living facilities, small health care facilities, and end-stage renal disease facilities (Utah Code Ann. 16-21-9.5)

Direct care providers to disabled and elderly

State (fed. if person has not resided in the state for the past five years)

Vermont

Nursing homes, home health agencies, adult day care, and residential service agencies

Employees, contractors, and grantees involved in caregiving

State

Virginia

Nursing homes, adult day care, hospice, and other state-licensed facilities (Va. Code Ann. 32.1-126.01)

Compensated employees

Fed & state

Washington

Nursing homes, home health agencies, adult day care, group homes, and sheltered housing for the elderly (Wash. Rev. Code Ann. 74.39A.050(7))

All prospective employees and volunteers with unsupervised access to vulnerable adults

Fed & state

West Virginia

Residential care facilities, home care, and licensed day care facilities

Compensated employees and contractors

State

Wisconsin

Nursing homes, community-based residential facilities, hospitals, personal care worker agencies, supportive home care services agencies, and temporary employment agencies that provide employees to these entities (Wis. Stat. Ann. 50.065)

All employees who have regular, direct contact with clients and facility operators (every four years). Employer cannot generally employ person convicted of a serious crime unless he demonstrates that he has been rehabilitated.

State (fed. if person has been a state resident for less than three years)

Wyoming

State institutions, Department of Family Services or Department of Public Health employees with access to minors, persons with mental illness or developmental disabilities, and the elderly (Wyo. Stat. Ann. 7-19-201)

Employees with access to the elderly, minors, and persons with mental illness or developmental disabilities

Fed. & state

Source: Safeguarding Long-term Care Residents, Appendix A, 9/1998, Department of Health and Human Services, Office of Inspector General, updated by additional information from the National Conference of State Legislatures.

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