Statutory/mandatory background investigation requirements vary from state to state. Questions to be asked in your facility, in relation to the statutory requirements include:
- “Do we have an established protocol for pre-employment background checks?”
- “Are we in compliance with the statutory requirements, as well as our internal established protocol?”
- “Does our internal policy include checking the OIG exclusion list?”
Non-compliance with statutory requirements for pre-employment background investigations may result in state or federal action against the facility and may lead to investigation of negligence, become an issue in litigation, and/or enable to plaintiff's attorney to say, “They broke the law when they hired a convicted felon.”
Federal regulation F225 states: “The facility must not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property.”
Guidelines 483.13(c)(1) for the F225 regulation: “Facilities must be thorough in their investigations of the past histories of individuals they are considering hiring. In addition to inquiry of the State nurse aide registry or licensing authorities, the facility should check information from previous and/or current employers and make reasonable efforts to uncover information about any past criminal prosecutions.”
- “Found guilty…by a court of law” applies to situations where the defendant pleads guilty, is found guilty, or pleads nolo contendere
- “Finding” is defined as a determination made by the State that validates allegations of abuse, neglect, mistreatment of residents, or misappropriation of their property.
The facility should have in place a thorough and well documented hiring process that may be referred to as the Human Resource Continuum, as the process for screening, hiring, orienting, training, evaluating, retaining, or terminating employees should be ongoing.
Included in this process should be an OIG exclusion list screening. Although this is not a federal requirement/mandate, it is highly recommended. If an employee is identified on the OIG exclusion list and is actively working in your home, Medicare and Medicaid may deny payment for any care provided by the excluded individual. For more information on the OIG exclusion list, please refer to www.OIG.gov.
Pre-employment Screening and Hiring: If the applicant succeeds in the preliminary pre-employment interview, pre-employment background screening is the first step in this process. This step is probably one of the most important since a proper background investigation should enable the employer to verify information contained in the employment application and function as a large part of the foundation for the decision to hire or not to hire. This is when an OIG screening should also be performed.
Employee Orientation: This provides information concerning company policies and practices, management's philosophies and standards concerning the care of the residents and their rights, and management's expectations concerning documentation, where applicable. It also serves as a platform to establish guidelines and educate on corporate compliance, the Elder Justice Act, and work rules for new employees.
Training: This is a formal process that advises new and current employees as to procedures and protocols that are to be followed. Supervisors should begin to evaluate skills, knowledge, and performance potential of the new employee during this process.
Performance Evaluation: Periodic and scheduled evaluations enable the supervisor to communicate on a one-to-one basis with the employee and allows the employee the opportunity to express feelings or observations in the work environment. Note: Indications of poor performance evaluations in a personnel file that are not followed by interventions counseling, formally documented warnings, recommendations for closer supervision, or additional training will reflect negatively on the facility if the qualifications or performance of that employee becomes an issue in litigation.
Retention/Termination: The decision to retain or terminate an employee after deficiencies in performance have been identified and documented will depend upon the nature and extent of deficiency or deficiencies identified. Close supervision and more frequent appraisals of that employee's performance or behavior must follow the identification of deficiencies with thorough documentation. Failure to monitor or provide closer supervision will, more likely than not, create additional issues in litigation.
Exit Interviews: Documented exit interviews are essential considering the high turnover rate in long term care. Documentation of the reasons for separation and the feelings and attitudes of these individuals at the time of their departure provide a very useful tool for the defense attorney in nursing home litigation.
There has recently been an increased scrutiny of these policies and procedures during complaint and annual surveys. Recently, two facilities were denied payment (or required to reimburse monies to Medicare/Medicaid) as employees providing care in their homes were identified on the OIG exclusion list. Take a few minutes to review your protocols with your QAPI committee to determine if they meet the current standards. If you identify that you are not meeting the standard, consider initiating a PIP to address the issue and remember, the process is ongoing. As always, should you have any questions or need assistance, please contact your HealthCap Risk Manager.