• Are You Doing Enough to Protect Your Patients and Residents?
  • December 2, 2015 | Author: Matthew M. Young
  • Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Brooklyn Heights Office
  • Under federal law, facilities that provide elder care services including nursing homes, adult daycares and home healthcare providers are prohibited from hiring employees that have been found guilty of neglect or abuse of a patient. Nonetheless, federal law does not require these facilities to conduct criminal background checks even though many states' laws do require such checks.

    Whether or not required to conduct criminal background checks, certainly consider doing so for the employees about to be hired. Typically, this focus is on employees who have "direct patient access" since the federal law prohibits hiring such employees. In an effort to protect patients and residents, consider expanding background checks to include criminal history checks for all employees and volunteers of each facility, to the extent that not already doing so.

    In an analysis conducted by the Department of Health and Human Services, it was found that 92% of nursing facilities employ at least one individual with a criminal conviction and half of those employed five or more individuals with such a conviction. Most of the convictions identified occurred prior to the employee's employment at the facility.1 Given that each facility is servicing among the most vulnerable population, even employees not defined as providing "direct patient access" may nonetheless have direct contact with patients/residents, giving them the opportunity to commit elder abuse. This includes volunteers within the organization, entertainment staff that frequents the premises, or other third parties. As it relates to the latter, be sure all third party contractors with patient/resident contracts conduct their own employee criminal background checks, and include that requirement in any contract entered into between the facility organization and that third party.

    In conducting a background check, the analysis should not be limited to incidents involving elderly patients specifically. Such a check should consider all histories of abuse, violence or theft, as any such conduct could extend to elder abuse within a facility. Nursing facilities can utilize federal law in order to seek a criminal background check on employees and applicants. This includes the ability to request and use fingerprints as part of this check.2 The National Child Protection Act amended by the Violent Crime Control Law Enforcement Act broadens the scope of employees for whom a criminal background check can be sought to include owners, operators, employees, volunteers, and job applicants of entities that provide healthcare services to the elderly or disabled.3

    By expanding background checks to include criminal history checks for all employees, potential employees and/or volunteers can be screened out, for those that have the potential to facilitate all types of abuse including financial, emotional and physical. Undoubtedly, a facility's foremost priority is the safety of its patients/residents and facilitating these checks supports the commitment to this issue.

    1 Department of Health and Human Services Nursing Facilities' Employment of Individuals with Criminal Convictions, March 2011, OEI-07-09-00110
    2 PL 105-277
    3 Pub. L. 105-251 ? 222