• New Updates in Health Care Law: Background Checks, Federal Contractors, and the Effectiveness of Nurse-to-Patient Ratios
  • April 6, 2009 | Authors: David M. Buday; Joshua D. Meeuwse
  • Law Firms: Miller Johnson - Kalamazoo Office; Miller Johnson - Grand Rapids Office
  • EMPLOYEE BACKGROUND CHECKS

    Under A New Amendment, Most Facilities Must Pay For Background Checks.
    Under the original state law requiring background checks, health facilities did not have to pay for the cost of the background checks because a federal pilot program reimbursed the state police for the costs. However, in early Jan. 2009 the Michigan legislature amended the statute because the federal government stopped reimbursing the state police. The amendments divide health facilities into two groups: those that have to pay for the cost of the background checks and those that do not. Nursing homes, county medical care facilities, hospices, hospitals providing swing bed services, and home health agencies have to pay. Adult foster care facilities and homes for the aged do not.

    Do Facilities Have To Conduct Background Checks On Volunteers?
    Under the Michigan statute, health facilities have to conduct background checks on volunteers who have clinical privileges and direct access to patients or provide direct services to patients.

    Also, hospices have to conduct criminal background checks on their volunteers under the federal regulations issued by the U.S. Department of Health and Human Services last summer. The regulations make it a condition for participating in Medicaid and Medicare. The regulations state that hospice facilities must “obtain a criminal background check on all hospice employees who have direct patient contact or access to patient records” and defines hospice employees to include “volunteers under the jurisdiction of the hospice.”

    NURSE-TO-PATIENT RATIOS

    Does a higher nurse-to-patient ratio result in better health care? The California legislature thought so. In 1999, it passed a law creating a minimum nurse-to-patient ratio for California hospitals. The law went into effect in 2004 and then increased the minimum ratios again in 2005. Hospitals began increasing the nurse-to-patient ratio soon after the law was passed in 1999 to prepare for the 2004 deadline.

    The California HealthCare Foundation (CHCF) published a study concluding that increasing the nurse-to-patient ratio did not significantly affect the quality of patient care. The authors of the study compared the increase in nurse-to-patient ratios in 410 California hospitals with quality of care data. The leading authors of the study work for the Center for California Health Workforce Studies, a nonprofit research center at the University of California in San Francisco.

    According to the study, registered nurses spent an average of 6.9 hours per day with each patient after 2004. This was a 16.2 percent increase from the 5.9 hours per day before 2004. The study compared this increase with data selected to reflect the patients’ quality of care. The authors selected “nursing-sensitive” factors, such as the average length of patient stay, the development of pressure ulcers, deep vein thrombosis, pulmonary embolism, the rate of pneumonia mortality and postoperative sepsis, and the percentage of patients the hospital failed to rescue after a post-surgical complication.

    The data showed that the percentage of cases of postoperative sepsis, deep vein thrombosis, and pressure ulcers actually increased after 2004. The percentage of pneumonia mortality and the failure to rescue decreased, but that simply continued a decreasing trend starting in 2000, and the trajectory did not appear to be influenced by the increase in staffing hours.

    The study concluded that the increase in nursing staff ratios did not positively affect the quality of care factors examined. In the authors’ opinion, there was little or no correlation between the increase and the positive or negative changes in those factors. In reaction to the report, the California Nurses Association’s senior research analyst Dan Johnston questioned whether the selected factors accurately determined the quality of the nurses’ work: “Why did [the author] pick those four or five [metrics]? … I don’t think you can develop metrics that are purely measures for the quality of RNs.”

    RESTRICTION ON ORGANIZING ACTIONS FOR FEDERAL CONTRACTORS

    President Obama signed an executive order on Jan. 30 that may affect health care agencies. The order directs that federal contractors may not use federal funds for any activities that attempt to persuade their employees to exercise or not exercise their rights to organize or bargain collectively or to influence the manner in which they exercise those rights. The order gives four specific examples of activities that are prohibited when an employer uses them to persuade its employees about their rights:

    • preparing and distributing materials
    • hiring or consulting legal counsel or consultants
    • holding meetings, including paying the salaries of those attending the meetings
    • planning or activities by a manager, supervisor, or union representative during work hours

    The order leaves many questions unanswered and provides little direction for employers. It does not explain how the government will monitor or enforce the order, whether a contractor may commingle federal and private funds, or the proper accounting practices.

    The order does state that it applies to all contractors who sell, lease, or otherwise provide supplies or services to the federal government. And its restrictions don’t just apply to a contractor’s activities towards its employees. It states specifically that the contractor cannot act to “persuade employees—whether employees of the recipient of the Federal disbursements or of any other entity.”

    The order does not explain the extent to which it applies to health care facilities or what actions health care facilities may have to take. Since health care facilities often receive financial compensation from the federal government, it is possible that the executive order will affect them. By June 29, 2009, the Federal Acquisition Regulatory Council must issue regulations implementing the order. When that happens, we’ll review them to see how they affect health care facilities.