Ex-cons in nursing homes present liability risk; feds raise alert status

Government finds large number of cons in long-term care facilities

Five percent of workers in long-term care facilities have a criminal record, according to one government study that suggests risk managers should take steps to protect patients by aggressively screening applicants and closely monitoring any employees with criminal backgrounds.

The report from the U.S. Department of Health and Human Services (HHS) in Washington, DC, shocked some health care professionals by revealing that more than just a few bad apples in the long-term care business have a criminal background. To up the ante for risk managers, testimony before Congress makes it clear that government officials see those staff as a threat and expect long-term care facilities to protect patients. That, in turn, means those workers pose a liability risk to the health care organizations employing them.

The problem is serious, says Sandy Mahon, vice president for risk management and quality assessment with Program Beta, the risk pool for hospital districts in California, based in Alamo. She coordinates risk management activities for 77 hospitals. Mahon first encountered the problem when she worked as an employment manager before becoming a risk manager.

"From a risk management point of view, personnel is one of the main risk exposures already," she says. "If you have people in your facility convicted of crimes, why are we to believe they are going to behave appropriately now that they are at the workplace instead of in their neigh borhood? If they’re selling dope in their neighborhood, why wouldn’t they sell dope in your facility?"

The potential damage is tremendous. A patient can be molested, raped, or physically abused, and that can lead to civil lawsuits and regulatory penalties against your facility.

"The patients are so vulnerable in long-term care. They are most at risk because they often don’t know what’s going on," Mahon says. "It’s very difficult for the risk manager because the district attorney looks at the employee’s criminal record and says, Why didn’t you know?’"

The alarm bells were sounded when Thomas Roslewicz, deputy inspector general of the HHS, presented the study results in a recent hearing of the Senate Special Committee on Aging. Govern ment auditors conducted criminal background checks on 1,000 employees at eight randomly selected Maryland nursing homes and found that 5% had been convicted of crimes the report says "should raise concern over their employability."

The staff with criminal backgrounds held nearly every position in long-term care, including nurses, nurses’ aides, food service, housekeeping, and maintenance. Their past crimes included assault, child abuse, robbery, and drug sales. HHS studied only the randomly selected facilities in Maryland, but the report obtained by Health care Risk Management notes similar findings in Illinois. The state of Illinois recently checked the backgrounds of 21,000 long-term care employees and also found that 5% had criminal records. (See above box for more on the results of the government audit.)

Thirty-three states currently require long- term care facilities to do background checks on job applicants, but the HHS report notes that most states only require checks of their own state databases, not federal sources like the Federal Bureau of Investigation database. That means it is easy for criminals to just move to another state and get a nursing home job.

Another problem cited by Roslewicz was the incomplete nature of state registries. Providers are required to report to the state nurse aide registry or other appropriate licensing authorities any court actions against an employee that would indicate unfitness for service as a nursing aide or other staff member. The HHS review of the Illinois registry, however, found that 13 known cases of abuse were not listed with the registry.

In addition, the Health Care Financing Administration prohibits facilities from employing anyone found guilty of abuse, neglect, or mistreatment of residents, or misappropriation of residents’ property. No program payments can be made for items and services furnished, ordered, or prescribed by those workers. That raises the specter of federal investigators finding that your facility owes a huge refund for services involving an employee with a criminal history, plus possible fraud charges.

Checks reveal 5% of criminal applicants

The 5% rate of criminals in long-term care is consistent with a figure reported earlier this year by HRM. The Shepherd Center in Atlanta, a hospital specializing in the treatment of spinal cord injuries and other major disabilities, has a strict policy of checking the criminal backgrounds of all new hires, and its experience has shown that 5% of them have criminal records they did not disclose in the application process. (See HRM, May 1998, pp. 55-57. The May issue also includes information about screening applicants, pp. 58-60.)

The Shepherd Center’s policy was enacted soon after the Nov. 17, 1995, rape of one of the center’s patients by a staff member who had felony convictions for forgery and robbery. The hospital had good reports from the man’s references, he had passed a mandatory drug screen, and he had proper certification as a nursing assistant. Under the current policy, 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 also are asked if they have a criminal background, and lying about that is considered justification for automatic revocation of a job offer.

Mahon says the 5% rate of employees with criminal backgrounds is surprisingly low. She would expect it to be much higher, especially in the long-term care industry. (For more on the reliability of the 5% rate, see story, p. 134.) People with criminal backgrounds are drawn more to long-term care and child care, the areas where they could do the most damage, because those fields tend to employ people with the lowest skill and experience levels, Mahon says.

"With the current low unemployment rate, it’s tough to increase the job requirements because we just don’t have a big pool of applicants," she says. "Health care providers are challenged to find good employees for these jobs, and increasing the requirements might mean you just don’t have enough people to fill the spaces."

That is no excuse for hiring staff who can endanger your patients, of course, but Mahon says it’s understandable why providers don’t just establish much higher standards for applicants in long-term care. The solution must involve a way to check applicants’ backgrounds, but that’s more difficult than it sounds. No national database exists for background checks of long-term care applicants, whereas the National Practitioner Data Bank provides information when facilities credential or hire physicians.

You can ask applicants if they have ever been convicted of a crime, but that question is of limited value. The honest applicant probably has no criminal record, and an applicant with a criminal record probably isn’t going to be honest enough to say so when it’s clear the job may be lost. Actually checking the criminal records of applicants is an option, but as the Shepherd Center found out, the cost can be too high to do so for all applicants.

Be careful not to rely too much on state certification when hiring staff, Mahon cautions. State certification offers no assurance about a person’s criminal history. Also, be sure you’re not just relying on the person’s employment history, because previous employers may been unaware of a criminal record.

"To a certain extent, I think we’ve been unknow ingly passing around bad apples," Mahon says. "Nationwide, we have this warm body syndrome where we’re just happy to have someone to do the work. It’s not until something happens that we find out about the record, and then that leaves you liable to charges that you should have known."