Hospital rape leads to staff background checks>

Reflects trend of more stringent due diligence

The rape of a paralyzed girl by an employee has led an Atlanta hospital to enact a new policy requiring criminal background checks for all employees and many others with access to vulnerable patients. In doing so, the hospital is joining a recent trend in which health care facilities are investigating staff more thoroughly for possible criminal histories.

The Shepherd Center in Atlanta, a hospital specializing in the treatment of patients with spinal cord injuries and other major disabilities, enacted the new policy soon after the Nov. 17, 1995, rape of one of its patients. William Knight, 38, was sentenced to life in prison with no possibility of parole on March 4, 1998. The hospital didn't find out until after the rape that Knight had a criminal background including felony convictions for robbery and forgery. In the three years since then, Shepherd Center has greatly strengthened its procedures for screening job applicants.

Sources tell Healthcare Risk Management that the hospital's experience, along with similar stories from around the country, are spurring the trend toward requiring criminal background checks. In 1995, when the Atlanta rape occurred, it was not considered routine for an acute care facility to conduct criminal background checks on new employees. The practice was more common for long-term care facilities and home health agencies because their work circumstances seemed to provide more opportunity to abuse patients.

But in 1998, the tide has turned. It is now common for acute care facilities of almost any type to conduct criminal background checks, and the Shepherd Center's new policy is typical of the way risk managers and human resources directors are addressing the problem. If your facility has not yet adopted a policy of criminal background checks, you may be behind the curve. And that means you are needlessly putting patients at risk of assault and putting your facility at risk of liability.

Knight worked at the Shepherd Center as a certified nursing assistant. The 15-year-old girl had been severely injured in a car accident and was quadriplegic but fully conscious and aware. She was scheduled to go home on the morning of the rape, and prosecutors say Knight made sure he got to her before the discharge. She was asleep in bed when Knight attacked her, and because of her condition, she was helpless.

DNA evidence identifies attacker

The victim reported the rape soon after it occurred and was able to identify Knight as her attacker. He had used washcloths to clean himself and the girl, but evidence remained afterward that allowed authorities to use DNA evidence to identify Knight definitively as the rapist. After a two-day trial in which the now 17-year-old girl testified about how the rape has left her wary of all men, a jury deliberated only 30 minutes before finding Knight guilty of rape. Fulton County Superior Court Judge Stephanie Manis, JD, immediately sentenced Knight to life in prison with no possibility of parole.

Shepherd Center officials were glad to see him receive such stiff punishment, and spokeswoman Judy Stanton tells HRM they were frustrated by the fact that Knight's criminal background was not known until it was too late. The hospital suspended Knight when the girl first reported the attack, and he was fired when police reported that he had a criminal background including three felonies. Knight had lied on his job application, in which he was asked if he had a criminal background, which provided grounds for dismissal even before his conviction, Stanton says.

She refuses to say whether the hospital was sued as a result of the rape, explaining that legal counsel has advised her not to discuss that aspect of the case. But sources involved in the investigation and prosecution of Knight tell HRM there was a confidential settlement between the hospital and the victim's family soon after the rape.

At the time Knight was hired in 1995, Shep herd Center administrators felt they were consistent with other health care facilities in not investigating criminal background, says Shep herd's human resources director, Betsy Fox.

"Some were doing the checks at that time and some were not, and we did not feel we were out of line at the time with our policy," Fox says. "Obviously, we wish we had been checking the background then, but it's only been in the last few years that it's become more expected that you do that as a standard part of your policies and procedures."

Rapist had good references

The hospital did check Knight's references and received good reports, and he passed a mandatory drug screen. He also had proper certification as a nursing assistant.

"There is no indication that his previous employers knew of his criminal background either," Fox says. "I honestly think they gave us an honest reference, and his performance there was good. It doesn't look like they knew what kind of person he was and just wouldn't tell us."

In 1995, job applicants were asked about their criminal background, but no further investigation was done unless the applicant admitted criminal activity. Knight showed that such an honor system doesn't work, so Shepherd Center immediately enacted a policy requiring criminal background checks for a wide range of hospital employees and others.

The new policy is strict. All new employees, volunteers with access to patient care areas, employee and non-employee physicians, and any contract workers in patient care areas must undergo a criminal background check. Job applicants still are asked whether they have a criminal background, and lying about it is considered justification for automatic revocation of a job offer. But Stanton points out that the criminal background check is not performed on job app licants, only on people who have received a job offer. It would be too expensive and too much trouble to conduct background checks on individuals who may never receive a job offer anyway.

Once the results are in from the background check, the standards are strict. Any felony conviction automatically disqualifies the employee from working at the hospital. For misdemeanors, Fox takes a close look at the nature of the crime and the type of job. Any misdemeanor involving violence or sex is likely to disqualify the person. Most traffic convictions are ignored, but some can blackball employees if they will be driving as part of the job.

The policy probably would have kept Knight off the job if his convictions had shown up in the check. He had two felony convictions for robbery and one for forgery, which Fox says would have disqualified him the moment she read about them. But Stanton points out that Knight's convictions might not have shown up even if a background check had been done at the time of his hiring.

"We find that a criminal background check is not necessarily foolproof," she says. "He had used another name and was convicted under that alias, so we don't know for sure that his convictions would have come back to us."

All job applicants and others covered by the policy, such as volunteers, are informed upfront that they must consent to a criminal background check and that any employment offer is contingent on the results. Background checks are conducted after jobs are offered, when new employees are sent for their pre-employment physicals.

As part of the application process, applicants provide all of their addresses for the past seven years and, once the job is offered, the hospital faxes that information to a company that does the background checks. If a new employee has lived in the Atlanta area for the past seven years, the hospital usually receives a report within 48 hours. If a person has lived outside the state, it can take up to seven days.

"It does cause a delay in getting people on the job," Fox says. "Department heads are always champing at the bit, and we always get a lot of requests to have them go through orientation and get started without any contact with patients while we wait on the report. We have to say no. The policy is strict in saying that they can't be on the premises doing anything until the background check is cleared, and I have the scares to prove it."

The report on new employees is supposed to include all arrests and convictions for the past seven years, along with a description of the nature of the crimes. Fox and Stanton say the system is not foolproof because it only goes back seven years and an employee's convictions could be listed under a different name. And even though the report may include records of an arrest without conviction, those arrests cannot be used to deny employment, Fox says. That's illegal, even if the initial arrest was for rape or murder.

Most applicants have no record

The vast majority of job applicants have no criminal background, Fox says. About 5% of the background checks uncover a conviction that disqualifies the person, she says. Most of those people lied on their applications, saying there would be no such convictions on their records.

"If they had told us about those convictions, we would not have even offered the job," she says. "There's no need to even run the background check if they tell us about a conviction that would disqualify them."

The Shepherd Center ran the background checks on 259 new hires in 1997, at a cost of about $15 each. That means the hospital has to spend less than $4,000 a year to help ensure that possible predators aren't issued identification badges.

There have been a few instances in which the new hire disputed a background report showing convictions, but in each case, Fox instructed the person to research how the error occurred and come back with proof that it was just a misunderstanding. None of them ever returned.

A similar story appeared last summer in HRM. (See the June 1997 issue, p. 68.) Sam Bishop, ARM, director of risk management for Promina Northwest Health System in Atlanta, described his health system's long history of conducting criminal background checks on all applicants. That policy discourages many bad apples from even applying. Unlike many facilities doing background checks, Promina actually takes fingerprints and submits them to legal authorities. That occasionally turns up people who have lied about their identities.

If you determine an applicant's criminal history provides grounds for disqualification, Bishop says you might not want to state that as the reason. An applicant may challenge your policy if you disqualify him or her based only on the conviction, and even if you're within your rights, you don't need the hassle of a lawsuit. You might be better off just choosing an applicant who generally is better qualified.

Criminal history creates reference dilemma

Fox and Stanton say Shepherd Center's new policy makes them much more confident that they won't have another experience like the rape, but they acknowledge that a policy on criminal background checks is not a panacea. Fox says she is troubled by the way most employers no longer will give honest, complete references on previous employees out of fear of litigation.

"People are generally afraid to give references now, and that can be a real problem if they know something about that person that would disqualify them for employment at your facility," she says. "We think we got honest references on Knight, but that's not usually the case."

Conversely, Fox wonders what she would do if asked to provide a reference for an employee she knows to have a criminal history. With Knight in jail forever, she won't ever face the dilemma of how to tell another employer about the rape at her facility, but she says a problem still could occur with other workers. She would be reluctant to state all the facts about Knight, she says, or any other problem employee.

"With Knight, we would say that he was terminated for falsifying his application," Fox says. "If I were an employer and someone said that to me, I would take that as a big red flag. But if someone were still desperate enough to hire that person, we would check with legal counsel about how much we could say. If we just gave out the employee's position and the dates held, we could be held liable for not revealing that he raped someone here. But we also could be sued for giving out that information."

The question is a bit easier when it concerns serious criminal convictions. Although she still would consult legal counsel before proceeding, Fox says she suspects there is no risk in relating a verifiable fact like a rape conviction. But for anything else that isn't as solid, she would be extremely careful about what she told another health care administrator.

"Obviously, we would want to let them know," she says, "but it's a question of how much you can say without getting yourself in trouble."