Wednesday, March 26, 2008

Proposed Federal Background Checks on LTC Workers

On March 17, 2008, McNight's Long-Term Care News posted a news article entitled "Senate budget to include $160 million for elder abuse prevention".

It reported: "The [U.S.] Senate has set aside funding in its fiscal year 2009 budget resolution for a national system of background checks to keep those with abusive and criminal histories out of nursing homes and long-term care facilities."

The Senate approved an amendment for the funding last week, but the money, which would total $160 million, will only be available upon the Senate's passage of the Patient Safety and Abuse Prevention Act of 2007 (S. 1577). The act would set up a comprehensive nationwide system of background checks for long-term care workers.

Both the Senate and House passed nonbinding budget resolutions late last week. The two bodies plan to reconcile their plans this spring.

"The current system of state-based background checks is haphazard, inconsistent, and full of gaping holes," said Senator Herb Kohl (D-WI), Chairman of the Senate Special Committee on Aging and primary sponsor of the background check legislation. * * *
The United States Select Committee on Aging issued a Hearing Statement on June 7, 2007, entitled "Senators Introduce Bipartisan Bill to Create Nationwide System of Background Checks for Long-Term Care Workers", which addressed Senate Bill 1577, after its introduction.
The bill would prevent those with criminal histories from working within long-term care settings by establishing a nationwide system of background checks.

This new system would coordinate abuse and neglect registries with state law enforcement registries, and also add a federal component to the background check by cross-referencing potential employees with the FBI’s national database of criminal history records.

Under the disorganized, patchwork system of background checks that exists today, employers trying to hire caregivers cannot always determine which applicants have records of abuse or a history of committing violent crimes. As a result, predators are sometimes hired to take care of our most vulnerable citizens, working in situations where they can cause enormous harm. * * *
That Statement noted that "This bill is supported by the Elder Justice Coalition, the National Citizen’s Coalition for Nursing Home Reform, the American Association of Homes and Services for the Aging, AARP and many other organizations dedicated to protecting our nation’s vulnerable citizens." For example, EJC provided a supportive statement (PDF, 6 pages) at a committee hearing.

On July 18, 2007, another press release, entitled "Kohl Background Check Bill Gains Momentum at Forum on Elder Abuse", was issued by the U.S. Senate's Special Committee on Aging.

But, does the bill really have "momentum"? It has a ten-year history, with repeated re-introduction, but consistent non-action -- other than some pilot programs in seven states (not including Pennsylvania), as described in the summary of the currently pending bill for a federal "Patient Safety and Abuse Prevention Act":
The Senate Aging Committee first held a hearing on this legislation in 1998.

A subsequent hearing in 2002 focused on the problem of nursing home abuse, highlighting Senator Kohl's bill as part of a possible solution.

The measure was included in the Medicare prescription drug legislation that passed the Senate in June 2003. The final Medicare Modernization Act that became law included a pilot program in seven states, all of which are up and running and showing impressive results. In addition to Wisconsin, the other pilot states are Michigan, Illinois, Nevada, New Mexico, Alaska and Idaho.

Senator Kohl is taking an active interest in monitoring the pilot program, and is working to expand this initial framework to all 50 States. * * *
That Press Release, issued in July, 2007, was the last one, to date, about U.S. Senate Bill 1577 found in the online Press Room of the Senate's Special Committee on Aging.

In the meanwhile, Pennsylvania requires criminal background checks for most workers who would care for the elderly in a congregate setting, according to this statement provided by the PA Department of Aging, online:
Who needs background checks?

The Act 169-1996 Amendment to OAPSA [the Older Adults Protective Services Act] requires a criminal background check for all employees and administrators of nursing homes, personal care homes, domiciliary care homes, adult day care, and home health care providers.

In addition, Pennsylvania Department of Health has defined home health care organization or agency to include: hospices and birth centers, and the Pennsylvania Department of Public Welfare (DPW) has concluded that the Act is applicable to all DPW-licensed and DPW-operated entities:
  • Personal Care Homes, 55 Pa. Code Ch. 2620;
  • Community Residential Rehabilitation Services, 55 Pa. Code Ch. 5310;
  • Long Term Structured Residences, 55 Pa. Code Ch. 5320;
  • Community Homes for Individuals with Mental Retardation, 55 Pa. Code Ch. 6400;
  • Family Living Homes, 55 Pa. Code Ch. 6500; ICF's/MR (private and state), 55 Pa. Code Ch. 6600;
  • State Mental Hospitals; and
  • Nursing Facilities.
A Home Health Care Agency is further defined to include those agencies licensed by the Department of Health and any public or private organization which provides care to a care-dependent individual in their place of residence.

Individuals with convictions for prohibitive offenses (see Figure 5) are prohibited from employment in these facilities.

An employee is defined as any applicant or new employee hired after July 1, 1998. Individuals employed by the facility on or after July 1, 1998, the facility has one year from the effective date of the act to conduct the background check.

The definition of employee includes contract employees who have direct contact with residents or unsupervised access to their personal living quarters. It also includes persons employed or contracted by a public or private organization to provide care to a care dependent person in his/her own residence. * * * [Formatting added.]
Click here for more information regarding such "Criminal History Background Checks" in Pennsylvania.