Background checks will strain agency budgets

By Elizabeth Hogue, JD

Health Care Attorney

Elizabeth Hogue Chartered

Burtonsville, MD

If the Health Care Financing Administration is serious about holding down Medicare costs, then why require criminal background checks of home health aides?

It seems fundamentally inconsistent to mandate a requirement that will undoubtedly increase the costs of running a home health care agency.

But the requirement for criminal background checks of home health aides as a condition of employment is a key part of the proposed Medicare Conditions of Participation that were published in the Federal Register March 10. (See proposed COPs, inserted in this issue of Hospital Home Health.) Even limited criminal background checks may be expensive. Although costs vary widely, such checks may add thousands of dollars annually to the budgets of agencies of substantial size.

But the cost associated with criminal background checks will not be the only problem for providers if the final rule published after the 90-day comment period ends June 9 remains unchanged.

First, a number of state legislatures have already passed statutes that require home health agencies to obtain criminal background checks. Some of these state laws may impose requirements that are different from those of the new Conditions of Participation. The new rule may ultimately grow burdensome for agencies that will find they have to meet multiple sets of requirements because they operate in more than one state.

Another inherent limitation to obtaining sufficient background information that will guarantee the safety of patients is time. Even limited criminal background investigations can take weeks, sometimes months to complete. In the meantime, agencies that are in dire need of skilled aides must wait.

What if the aide leaves out one state?

Further, the value of many kinds of investigations into someone’s past is questionable at best. Most criminal background checks provide only limited information that is usually confined to a single state, the one in which the agency is based. If an agency in North Carolina asked for information about an applicant, authorities could only provide information on North Carolina, not even neighboring states.

Of course, an agency’s human resources department could ask every state an aide has worked in for information, but what if the aide leaves out the one state that has a record of criminal activity? Besides, the process of multiple checks would mean many months of waiting. Considering the urgent need for qualified aides in today’s market, the prosect of delays does not bode well for either agencies or patients.

The FBI maintains a nationwide criminal database for background checks, the only national source this author is aware of. But, again, time is the victim here. Going through the FBI can take months.

On the other hand, background checks have worked as a deterrent. A number of agencies already have successfully used the background check requirement to weed out unacceptable applicants. Knowing an agency will investigate, an aide with a questionable background will be reluctant to apply. Or, an applicant will refuse to sign a consent form giving the agency permission to probe the past.

It is unclear what standards the government will require to disqualify applicants. For example, the commentary accompanying the COPs indicates that HCFA may adopt the same standard that applies to intermediate care and mental retardation facilities. That is, agencies may be prohibited from hiring workers with criminal records of child or client abuse, neglect, or mistreatment.

Is this a sufficient standard to use in the case of home health workers? What about theft? Should workers with convictions for theft be allowed to provide unsupervised services in the homes of patients?

Conversely, a standard that disqualifies applicants with any criminal convictions is probably too restrictive. In many states, parking violations are misdemeanor offenses for which the violator technically has a criminal record after paying a fine, which would be an admission of guilt.

It is clear that most agency directors are committed to the protection of vulnerable home care patients. Better ways to provide maximum protection, however, remain open to review and discussion.