Are Criminal Background Checks Necessary?

When there is a negative outcome, people often wonder: "Was there was a background check of the health care worker(s) involved in the incident?" 

And it's a reasonable question since there are both Federal and State mandated requirements for a background check of new hires in health care. Naturally, the requirements vary from state to state. Some states require a background check while others simply "encourage" the facility to check for criminal and sexual offenses.  

Sadly, at this time, there is no national registrar database for healthcare workers. The level of background checking that occurs all depends on state requirements and the facility policy to follow the mandates.  

In some states, I want to point out that due to the shortage of health care workers, there can be "waivers' or extensions to complete this search, and the employee can be working during this period.  

Here is one situation that can happen when a new health care worker is hired, and the individual has a significant criminal history. One has to wonder how that can be overlooked? 

There is a "conditional employment clause for employment" in some states, which is scary. This Executive Order is as follows:

Conditional Employment for CNAs: The conditional employment period in which Certified Nursing Assistants can work pending the results of a fingerprint-based criminal history record check has been extended from 3 months to 6 months. Health care employers can conditionally employ CNAs for up to six months, pending the results of a fingerprint-based criminal history record check.

The Health Care Worker Background Check Act (225ILCS-46) reflects training information and displays administrative findings of abuse, neglect, or property misappropriations.[1]   

 The concerning issue is a worker may be cleared in one state but has a violation in another state that would be a disqualification for employment. Again, at this time, there is no national health care worker registry to track inappropriate workers. 

There are numerous disqualifying convictions that result in disqualification for employment; they may occur in facilities and private homes.  

Medications can be stolen[2], so pill counts in the records must be considered and often completed. This pill count should include balancing with the pharmacy records.  

An example from one of my cases was a nurse who was selling the patients Viagra pills, worth at the time approximately $10 on the open market.  

And here is another example. A recent review of a resident's medical records reflected a controlled substance diversion of almost 300 opioids prescribed for the resident. However, the medical records reflected none of these opioids for pain management were administered to the resident.  

When reviewing the medical records, an essential aspect of your review should include an audit of the staff involved in an incident where the case revolves around possible abuse, neglect, or misappropriation of the resident's property. 

• Was the worker actually licensed or certified, and current for this license or certification during the incident period?
• Was the worker working double shifts due to insufficient staffing levels, causing stress, fatigue, and exhaustion?
• Did this worker have the necessary orientation and training when hired for the job? 

Several other situations come to mind when I look back on issues of abuse, neglect, and misappropriation of property.  

While sad, the misappropriation of a resident's property is a problem at times. The residents in long-term care do not have much of their personal items with them. What they have maybe treasured and needed for quality of life.  

As one family member said, I buy my brother nice clothes, mark the items so the laundry will not lose them, and yet his clothes disappear all the time.  He ends up wearing the old worn items, or he is dressed in someone else's clothes.  

Personal items that come to mind are hearing aids, dentures, and glasses. These necessary quality of life items are expensive and difficult to replace when lost, stolen, or broken.  In fact, they may be impossible to replace due to high replacement cost, or the resident is unable to leave the facility to see an outside provider. Most insurance policies do not cover these items, and it is up to the individual or family member to replace them.  

Examples of "abuse and neglect" can be the misplacement, damage, or theft of personal items included but not limited to the following things: 

• Hearing aids: used ones can be sold on the Internet so that the theft can make a little extra money. 

• Dental bridges: stolen or broken ones that contain gold can be valuable. A known family member was recently selling the deceased's dental bridge, and the jeweler paid $900 for the bridge based on the weight of the gold and the value of gold at the time.  

• Glasses are necessary for self-esteem, balance for walking, and staying oriented throughout the day. Yet, I have seen glasses disappear, later "show up" and used for another resident. Glasses can get broken due to not being correctly removed, become bent and broken. This is another example of abuse and neglect of the resident. 

Generally, before allowing an individual to serve as a nurse assistant/aide, a health care employer must receive verification that the individual has no disqualifying convictions that have not been granted a waiver and have no administrative findings of abuse, neglect, or misappropriation of property. The registry's information is the only means a health care employer may use to obtain this verification.[3]  

Even though the registry is clear and void, it can happen that a conviction has not been added to the registry. Required fingerprinting with the state police must be completed in some states, which is an important part and request in your review.  Working under another individual's name has happened, and I can think of particular cases; hence, fingerprinting is essential. 

Obtaining your state requirements, administrative codes for state and local must be completed and be part of the possible deviations in the nursing standard of care. ,

On a positive note, there are many outstanding, caring health care workers, and it is important when reviewing the medical records of a case that you keep this in mind while you validate the Federal and State requirements have been met. 

[1] https://www.dph.illinois.gov/topics-services/health-care-regulation/health-care-worker-registry

[2] https://kdvr.com/news/problem-solvers/local-nurses-aide-accused-of-stealing-dying-patients-meds-loses-license-gets-convicted/

[3] https://www.dph.illinois.gov/topics-services/health-care-regulation/health-care-worker-registry/cna-facts