A U.S. Department of Health and Human Services Office of Inspector General (OIG) report from October, 2012 offers some interesting insights into the usefulness of criminal background checks for nurse aides. To get to these insights, some setup is needed.
Nurse aides work in long-term-care facilities. To work as a nurse aide, individuals must complete necessary training and meet other requirements to be included on a state’s certified nurse aide registry. The certified nurse aide registry in each state lists the individuals who are certified to work as nurse aides in the state as well as individuals who have substantiated findings of abuse or neglect of long-term-care residents, or misappropriation of resident property.
The Code of Federal Regulations at 42 CFR § 483.13(c)(1)(ii) prohibits long-term-care facilities from hiring individuals who have substantiated findings listed on the state certified nurse aide registry. Long-term-care facilities should check the nurse aide registry to make sure nurse aides are registered and do not have substantiated findings.
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Looking at Certified Nurse Aide Registry Data
Nurse aides are unique. As a profession, nurse aides have an official listing of past substantiated misdeeds. By having such a listing, it is possible to determine if conducting criminal background checks will “weed out” future bad actors.
So what did the OIG find? Nineteen percent (300 of 1,611) of nurse aides with substantiated findings had at least one conviction prior to their substantiated findings. One could argue this result is good. Had long-term-care facilities conducted criminal background checks and chosen not to hire individuals with prior criminal convictions, the number of substantiated findings would drop.
But let us dig a little deeper. It turns out, of those 1,611 only 170 nurse aides (11 percent) had criminal convictions before being registered as a nurse aide. The remaining 130 nurse aides (7 percent) were potentially working as nurse aides before their criminal convictions occurred. Unless the long-term-care facilities have a system in place to notify them of criminal convictions occurring after the date of hire, the facilities will not know of the criminal convictions.
Further digging into the data reveals that 81 percent of nurse aides with substantiated findings had no criminal convictions prior to their substantiated findings. Said another way, conducting criminal background checks would not have weeded out 81 percent of these bad actors.
The Affordable Care Act on Criminal Background Checks
The Affordable Care Act is offering states up to $160 million to enhance the background checks of applicants for long-term-care employment. At best, these OIG results suggest only 1 in 5 future bad actors could be identified through criminal background checks. This number drops to 1 in 9 if the checks occur when nurse aides are first registered. The remaining 4 of 5 (or 8 of 9) bad actors will be found out only after they abuse or neglect residents or misappropriate their property.
Background Checks Not Enough
The OIG results are based on Federal Bureau of Investigation criminal histories, which are considered the “gold standard” for background checks. But these results suggest criminal background checks alone are not enough. To actually make a difference, screeners should consider additional data sources to supplement the background checks.
For example, at least for nurse aides, checking the registries of other states is another potential data source. An OIG report found 1,500 individuals with substantiated findings in one state were actively listed on the registry of at least one other state. Maybe these 1,500 should be excluded from working in these others states as well? Or better yet, why not establish a nationwide nurse aide registry, thus preventing nurse aides with substantiated findings from moving across a state line and returning to work?
What About Others?
For other professions without registries, we can only hypothesize that background checks produce similar results — a few bad actors are weeded out, but most who will go on to act inappropriately while on the job do not have criminal convictions on file prior to those bad acts.
We are not suggesting discontinuing background checks. We are counseling against relying solely on those background checks.