• Don't Drop This Ball: Conducting Required Reviews Can Save Your Facility From Embarrassment - And Worse!
  • August 14, 2017 | Author: Emily Black Grey
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
  • Even though we know the old saying "an ounce of prevention is worth a pound of cure," background checks on personnel can sometimes fall through the cracks. Here are a few examples of times that make us wish we would have doubled-checked to be sure they were getting done:

    • A state surveyor is on-site investigating and advises that the allegation of neglect or abuse is against a tech who was convicted for beating up his father a year before he was hired.
    • You want to impress your new venture partner, and cringe when they discover in due diligence that your team hasn't checked the excluded provider or debarred contractor lists in a few years.
    • In employing a favorite PRN nurse who's been around for a couple of years, you learn that she never obtained a license when she moved here from Texas. You realize there may now be returnable overpayments, because she's not appropriately licensed to perform the services in our state.

    To help avoid these issues, ambulatory surgery centers (ASCs) should be conducting the following types of reviews on a routine basis:

    1. Criminal Background Checks on Non-Licensed Persons: This is a newer state law requirement that might catch you by surprise. Last year, ASCs were added to the list of employers required to conduct criminal history and security checks. See Act 311 of the 2016 Regular Session, which amended LA RS 40:1203.1 et seq effective on June 2, 2016. The Louisiana Department of Health (LDH) has jurisdiction to review employment files to ensure compliance with this requirement.

    ASCs must request a criminal history and security check from the Louisiana State Police before offering to employ or contract with a "non licensed person" or with any licensed ambulance personnel if the person will provide nursing, health-related, medical or supportive assistance services. Non-licensed persons include individuals "who are paid for providing nursing care or other health related services directly related to patient care" to patients in hospitals and most other LDH-licensed providers.

    The request and the $26 fee should go to the Office of State Police. Additionally, ASCs can only contract with staffing companies who comply with these requirements and should get certification letters to confirm that the staff meets licensure and certification standards and that they have completed past criminal background checks. ASCs are prohibited from hiring individuals who have certain criminal convictions. If the individual has been hired temporarily, he or she must be terminated immediately and will be ineligible for unemployment compensation.

    2. Excluded Providers/Debarred Contractors: While an OIG Special Advisory Bulletin issued May 8, 2013 acknowledged that there's no specific statutory or regulatory requirement to check the List of Excluded Individuals and Entities, it recommends that providers check the list prior to employing or contracting with persons and "periodically." The OIG updates the list on a monthly basis and suggests that checks should occur monthly to best mitigate risks.

    While the checks are not required, it's important to remember that under the Social Security Act § 1128(a)(6), civil monetary penalties can be imposed on any provider that contracts for items or services payable under federal healthcare programs with an individual or entity that the provider knows or should know is excluded from participation in a federal health care program. Under the OIG's regulations, providers can be penalized up to $10,000 for each item plus an assessment of up to three times the amount of the claim, and program exclusion.

    3. Other Licensure Checks: Healthcare facilities check potential employee's licensure information upon hiring, but occasionally checking the status of an employee's licensure can slip. For example with PRN employees, or with long-term nurses. Routine licensure checks at the start of work for your centers is crucial, even for PRN employees as can be seen from the example above. Also, checking the status of state licensure routinely remains important. For example, the Louisiana State Board of Nursing has taken the position that even a long-term nurse with a spotless disciplinary record was be "unlicensed" during a period of a few weeks because he failed to to renew his APRN licensure (even though he had renewed the RN licensure) due to failing to check a box in an online form. This type of unlicensed status as determined by the LSBM could have a significant impact for a surgery center which billed for services provided by the nurse during the "unlicensed" period. As is clear from the examples above, taking a little time to ensure background and licensure checks are being conducted routinely is critical, and dropping the ball on these reviews can lead to unfortunate consequences - not just embarrassment but also penalties, fines and overpayments.