February 2, 1998 98-R-0106
FROM: John Kasprak, Senior Attorney
RE: Background Checks on Certain Health Care Workers
You asked if any state requires criminal background checks on home health care workers and nurse's aides. You are interested in Connecticut's law, if any, on this issue.
No Connecticut state statutes or regulations specifically require criminal background checks on nurse's aides or home health care aides who work with elderly clients. State law does require the Connecticut Department of Public Health (DPH) to investigate and prosecute complaints against nurse's aides involving abuse, neglect, misappropriation of property, and fraud or deceit in obtaining a nurse's aide registration. Findings against a nurse's aide must be entered on the nurse's aide registry, which is maintained by DPH.
Homemaker-home health aides must successfully complete a training and competency evaluation program approved by DPH before providing services to individuals. Also, a 1997 law requires the Department of Mental Retardation (DMR) to maintain a registry of individuals terminated or separated from employment because of substantiated abuse or neglect of a DMR client. The law requires an employer to ask if a person's name is on the registry before hiring him. If so, the employer cannot hire him under the law.
A number of states require criminal background checks on home health care workers, nurse's aides, and others working with the elderly or vulnerable populations. In 1997, many states, such as California, New Jersey, Indiana, Iowa, Maine, Nevada, and Tennessee, either passed new requirements or amended existing law concerning background checks on such workers.
Under state regulation, a person may not work for more than 120 days as a nurse's aide in a licensed chronic and convalescent nursing home or rest home with supervision unless the individual has successfully completed a training and competency evaluation program approved by DPH. The nurse's aide must also be entered in the nurse's aide registry kept by DPH (Regs. § 19-13-D8t(l)). Information in the nurse's aide registry includes name, address, date of birth, social security number, training site, and date of satisfactory completion of training.
Under the law, DPH must receive, investigate, and prosecute complaints against individuals who provide or have provided nurse's aide services in the facilities noted above. Grounds for complaint include resident abuse or neglect, misappropriation of resident property, and fraud or deceit in obtaining a nurse's aide registration. DPH must give written notice by certified mail to the nurse's aide of any complaint against her. The aide can make a written request for a hearing to contest the complaint within 30 days of the notice. The DPH commissioner must issue a finding on the complaint after a hearing. The finding must be entered on the nurse's aide registry, without regard to whether the person is on the registry or has received a nurse's aide registration from the department. The individual can put a brief statement in the registry disputing the finding (CGS §§ 20-102bb-102cc; Regs. § 19-13-D8t(l)).
The DPHAS commissioner can deny registration to a person who has been the subject of a finding. The registry must have information about anyone who has been denied registration as well as a brief statement disputing the denial if one has been made by the individual (CGS § 20-102dd).
Homemaker—Home Health Aides
As of January 1, 1993, individuals providing home health aide services on behalf of a home health care agency must have successfully completed a training and competency evaluation program approved by DPH. The DPH commissioner must adopt a homemaker-home health aide training program of at least 75 hours and competency evaluation program for homemaker-home health aides (Regs. § 19-13-D69(d)(2)).
Any home health care agency using homemaker-home health aides from a placement agency or from a nursing pool must keep sufficient documentation to demonstrate that regulatory requirements are met concerning training and competence (§ 19-13-D69(d)(2)(K)).
A homemaker-home health aid in another state or territory of the United States may be deemed to have completed a required training program if the home health care agency has sufficient documentation demonstrating successful completion of a training program. The aide cannot provide homemaker-home health aide services until a competency evaluation is completed (§ 19-13-D69(d)(2)(Q)).
Home health care agencies must have personnel policies addressing physical examination of employees, including a tuberculin test and a physician's (or designee's) statement that the employee is free from communicable diseases, prior to assignment to patient care activities (§ 19-13-D71(a)(5)).
PA 97-297 requires the public health commissioner, in adopting regulations concerning minimum service quality standards for homemaker-home health aide agencies and home health care agencies, to allow for training of homemaker-home health aides by adult continuing education. By law, the commissioner is authorized to require such agencies to meet the minimum service quality standards as a condition of licensure and to adopt corresponding regulations. This took effect October 1, 1997.
Mental Retardation Workers: DMR Registry
PA 97-2, June 18 Special Session, requires the Department of Mental Retardation (DMR) to create and maintain a registry of individuals terminated or separated from employment because of substantiated abuse or neglect of a DMR client. This applies to individuals whether employed by (1) DMR or (2) an agency, organization, or individual licensed or funded by DMR and funding or hiring others to provide services, directly or indirectly, to DMR clients. A DMR client is a person with mental retardation or one receiving DMR services or funding. “Abuse” means the willful infliction of physical pain or injury or the willful deprivation of services necessary to maintain his physical and mental health and safety. “Substantiated abuse or neglect” means a final decision that abuse or neglect of a DMR client has occurred or that there has been a criminal conviction of a felony or misdemeanor involving abuse or neglect.
DMR must be able to respond to inquiries concerning whether an individual has been terminated or separated from employment because of substantiated abuse or neglect. This includes telephone voice mail or other automated response for initial inquiries.
The act requires an employer to ask DMR whether a person's name is on the registry before hiring or retaining him. If it is, the employer cannot hire or retain him.
The act requires DMR to adopt regulations on registry implementation. It also specifies that the registry terminates on July 1, 2000, unless reestablished by the legislature. This act took effect July 1, 1997.
Legislation adopted in 1997 (SB 945) requires a nurse assistant or home health aide candidate for training to submit fingerprint cards with the training and examination application upon enrollment and prior to direct contact with residents. Existing California law already requires that a criminal records clearance be made for all nurse assistants and home health aides and requires the Department of Health Services to deny training and examination and deny, suspend, or revoke a certificate if the applicant or certificate holder has been convicted of certain offenses (see California Health and Safety Code, § 1736.6).
A 1997 law (H 1051) amended existing Indiana law to provide that a home health agency cannot employ a person to provide service in a client's temporary or permanent residence for more than three business days without checking that person's criminal history.
1997 legislation (S 523) amended existing law so that beginning July 1, 1997, prior to employment of a person in a health care facility, the facility must request that the Department of Public Safety perform criminal and dependent adult abuse record checks of the person in the state. In addition, the facility may request that the Department of Human Services perform a child abuse record check in the state.
Also, the departments of public health and inspections and appeals must review federal and state requirements applicable to providers of homemaker, home-health aide, home-care aide, hospice and other in-home services to persons with health problems. The review must include, but is not limited to, current and proposed federal requirements for quality assurance, fiscal information concerning the source of regulatory funding feasibility, analysis of requiring criminal and dependent adult abuse record checks of employees of the providers, feasibility analysis of implementing state regulation of the providers, and other information deemed appropriate by the departments. The departments had to submit a report of findings and recommendations by December 15, 1997.
HB 769 of the 1997 session established a task force on criminal background checks for home care providers. It was to study implementation of a statewide criminal record check of home care providers to ensure the safety of those receiving care in community-based settings. The task force is scheduled to report this month, but can seek an extension under the law.
1997 legislation (A 155) requires the health division of the Nevada Department of Human Resources to check the criminal history of each applicant for a license to operate a skilled nursing facility, intermediate care facility, as well as each employee of such facility.
Recently enacted legislation (A 995 (1997)) requires criminal history record checks of certain persons applying for jobs to provide care for the elderly. Specifically, a facility for the institutionalized elderly may not hire any professional or nonprofessional person who has regular contact with a resident or client until the health commissioner first determines that no criminal history record information exists in the Federal Bureau of Investigation, Identification Division, or in the State Police's Bureau of Identification, which would disqualify the person from being employed in such a position.
Tennessee law (H 1106 (1997)) authorizes home care organizations to require those applying for employment or as volunteers to provide criminal history records or fingerprint samples, to be checked by the Tennessee Bureau of Investigation.