Analysis

Topic: Nursing Home Staff Criminal Background Checks
Sponsor: Representative Birkholz
Date Introduced: February 16, 2001
Date Enrolled: May 1, 2002
Date of Analysis: May 6, 2002

Position: The Department of Consumer and Industry Services supports the bill.

Background: Federal law currently requires that a nursing home must not employ individuals found guilty by a court of law of abusing, neglecting or mistreating residents or who have had a finding of abuse, neglect or mistreatment entered into the State Nurse Aide Registry (CFR 483.13(c)(1)(ii) and (iii)). The facility must also report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State Nurse Aide Registry or licensing authorities. A criminal background check is not required. Interpretative guidelines for enforcement of the federal requirement recommend that facilities be "thorough in their investigations of the past histories of (prospective) employees". The guidelines continue that the investigation should include a background check from previous and/or current employers and a reasonable effort to uncover information about past criminal prosecutions.

Bill Content: The bill amends Section 20173 of the Public Health Code to require that nursing homes, county medical care facilities, or homes for the aged conduct criminal background checks on prospective employees. These health care facilities would be prohibited from employing, independently contracting with, or granting clinical privileges to an individual who regularly provides direct services to patients and residents if the individual has been convicted of certain offenses. These offenses include a felony committed within the 15 years immediately preceding the date of application and a misdemeanor involving abuse, neglect, assault, battery, or criminal sexual conduct or involving fraud or theft against a vulnerable adult within the 10 years immediately preceding the date of application.

Background checks would not required on those who are already employed by, under contract, or granted clinical privileges in the health facility. The results of a criminal history check conducted within the 24 months immediately preceding the date of application may be used if the applicant provides written consent for release of the information. If an applicant has resided in Michigan for 3 or more years a state criminal history check is required. The health facility is required to pay any cost and may not seek reimbursement from the individual who is the subject of the criminal history check. The Department of State Police is required to provide the health facility with a written report including any criminal history record information on the applicant.

Individuals who have not resided in the state for 3 years or more require both a state criminal history check and an FBI criminal records check. The health facility is notified directly of the results of the state criminal history check. If a crime is disclosed in the FBI check the Department of Consumer and Industry Services is required to notify the health facility or agency in writing of the type of crime disclosed on the determination without disclosing the details. Charges for fingerprinting and the determination are to be paid by the health facility.

The health facility may grant conditional employment or clinical privileges to an individual under certain circumstances. The individual is required to sign a written statement that he or she has not been convicted of certain crimes and agree that if this is not confirmed his or her employment or clinical privileges will be terminated. The Department of Consumer and Industry Services is required to develop and distribute a model form for use by these individuals. The form must be developed and distributed on the effective date of the act and must be provided without charge to health facilities. The health facility is required to provide the applicant with a copy of the criminal history check upon request.

A health facility is required to terminate the employment of an individual granted conditional status if one or more reports do not confirm the employee's declaration. An individual who knowingly provides false information regarding criminal convictions in a declaration is guilty of a misdemeanor. Violation is punishable for imprisonment for not more than 90 days or a fine of not more than $500, or both.

Criminal history record information may only be used for the purpose of evaluating an applicant's qualifications for employment, an independent contract, or clinical privileges. The information may not be disclosed to a person who is not directly involved in evaluating the individual's qualifications. However, a health facility is required to share criminal history information with another health facility upon request. The information must also be shared with an adult foster care facility. Except for a knowing or intentional release of false information, a health facility has no liability in connection with a criminal background check or release of information.

As a condition of continued employment, an employee, independent contractor, or individual granted clinical privileges is required to agree in writing to report convictions listed in the bill to the health facility.

The Senate amended the bill to provide for a quality assurance assessment fee. Collection of the fee begins on the effective date of the amendatory act and sunsets on October 1, 2007. Also on the effective date the Department of Community Health is required to increase the per diem nursing home Medicaid reimbursement rates for each year the assessment fee is collected. The assessment must be implemented in a manner that complies with federal requirements necessary to assure that the assessment fee qualifies for federal matching funds. A nursing home or long-term care unit that fails to pay the assessment may be assessed a penalty of 5% of the assessment for each month that the assessment and penalty are not paid up to a maximum of 50% of the assessment.

Medicaid reimbursement may not be reduced below the rates in effect on April 1, 2002 as a direct result of the quality assurance assessment fee.

The bill appropriates $1,469,003,900 for long-term care services for the 2002-3 fiscal year.

Arguments For: It has been said that it is possible for a person to walk out of a prison today and begin working in a nursing home tomorrow and unfortunately there is much truth in this statement. Current federal requirements and the Michigan Nurse Aide Registry fall short of providing sufficient protection for vulnerable adults in long-term care facilities. The bill will protect vulnerable adults by requiring a health facility or agency licensed under the Public Health Code to conduct criminal history and, in some cases, federal criminal records checks.

Previous issues with the bill, including the definition of "independent contract", have been addressed. Employment agencies that provide facilities with temporary workers are required to comply with the bill's background check requirements.

Language inserted by the Senate will increase federal matching payments and will allow increased Medicaid reimbursements to long-term care facilities.

Arguments Against: The bills do not require a thorough criminal history check unless the applicant has not resided in Michigan for 3 years or more. Most individuals may be employed on the basis of a simple name check. If a person uses a false name or birth date, the information provided by such a name check would be inaccurate. The only way to accurately verify a person's identity for purpose of checking criminal background is by using his or her fingerprints.

The bill falls short of providing adequate protection to residents by exempting current employees of a health facility from any criminal history check. These individuals would be exempt until they tried to move to another health facility.

Supporters/Opponents: The bill supporters include the following organizations:

· Michigan Association of Homes and Services for the Aging
· Michigan Protection and Advocacy Service
· Michigan Health and Hospital Association
· Health Care Association of Michigan
· Michigan Advocacy Project

No opposition to the bills was expressed in committee.

Fiscal Impact: The bill will increase by an estimated 15,000 the number of name checks processed by the Department of State Police. Presumably, this will probably be reflected in increased usage of the department's web browser that allows registered employers to conduct name checks on line. A $5 fee is charged for name searches for a civil purpose such as employment, but this fee has reportedly been waived in the past for nonprofit agencies. The cost of the combined State Police and FBI check is currently $39, but these costs are expected to increase shortly. This cost will be borne by the health facility.

Under the quality assurance assessment language added in the Senate, long-term care facilities will make a contribution equal to $2.77 per bed per day in order to qualify for federal matching funds and a Medicaid payment increase. The $44.7 million in expected revenue from the assessment will earn $55.6 million in new federal revenue. An increase in payments to providers of 7 percent, or $100.4 million, will occur as a result of the assessment.

Administrative Rules Impact: No changes in administrative rules are anticipated as a result of this bill.