INTRODUCTION
Mr. Chairman and members of the Committee, I am Thomas D. Roslewicz, Deputy
Inspector General for Audit Services of the Department of Health and Human
Services. I am pleased to be here today to discuss safeguards for
identifying people who pose a possible threat of abuse and neglect to
residents of nursing homes and other long-term-care facilities. We share
the Committee's longstanding interest in preserving the safety of these
residents.
We recently completed a review in this area which demonstrated that there
is no nationwide assurance that nursing home staff who could place elderly
residents at risk are systematically identified and excluded from
employment. We are recommending stronger Federal oversight, as well as
stepped-up collaboration with the States, to improve the safety of the
elderly. Our recommendations, as well as a detailed discussion of our
findings, are provided in a report which we are releasing at this hearing.
The report consolidates information gathered during audits of two States
and surveys of State and nursing home officials.
My testimony today will highlight our significant findings on the States'
requirements for and use of criminal background checks and registries, the
employment of nursing home staff with criminal convictions, and the impact
of the various safeguards on elder abuse prevention. First, however, I
would like to briefly describe current Federal requirements for identifying
and preventing potential abusers from working in nursing homes.
Current Requirements
Residents of nursing homes and other long-term-care facilities have the
right to reside in a safe and secure environment, free from abuse and
neglect, as reflected in the Medicare statute and regulations. To help
achieve this type of environment, each State is required to establish and
maintain a registry of nurse aides which includes information on any
finding by the State survey and certification agency of abuse, neglect, or
misappropriation of property involving the elderly. The Health Care
Financing Administration (HCFA), which administers the Medicare program,
does not require registries for other health care providers, such as
registered nurses (RN), licensed practical nurses (LPN), or medical
practitioners.
Nursing facilities must report to the State nurse aide registry or
appropriate licensing authorities any knowledge they have of court actions
against an employee that would indicate unfitness for service as a nurse
aide or other facility staff. Additionally, HCFA prohibits facilities from
employing individuals who have been found guilty by a court of law or who
have had a finding entered into the registry for abuse, neglect, or
mistreatment of residents or misappropriation of their property.
Although the Violent Crime Control and Law Enforcement Act of 1994 permits
States to conduct national criminal background checks, there is no Federal
requirement to conduct these checks of current or prospective employees of
federally assisted long-term-care facilities. States, however, are expected
to provide the Office of Inspector General (OIG) with information on
individuals convicted of elder abuse or neglect. Using this information,
the OIG excludes those individuals from participation in Federal health
care programs and publishes a monthly Cumulative Sanction Report, available
on the Internet, which identifies those individuals and entities excluded
from participation. No program payments may be made for items and services
furnished, ordered, or prescribed by excluded parties.
Objectives and Scope of Review
The objectives of our review were twofold. First, we determined whether
States required background checks of current and prospective employees of
long-term-care facilities and, if so, we solicited their assessment of the
results achieved. Second, we determined if States maintained registries on
various health care workers. At a selected number of States, we also
assessed whether registries properly identified individuals involved with
elder abuse or other crimes.
We reviewed applicable State laws for the 33 States that require criminal
background checks. We interviewed officials of 52 nursing homes in 6 States
(Illinois, Indiana, Maryland, Minnesota, Ohio, and Virginia) about their
procedures and experiences relating to background checks. In a few selected
States, we also tested the accuracy of the registries in recording
(flagging) individuals who abused residents of nursing homes.
In Maryland, we used the FBI criminal history record system to obtain
criminal background data on all employees at eight randomly selected
nursing homes receiving Medicare and/or Medicaid funds. We also compared
the individuals convicted of elder abuse by the Maryland Medicaid Fraud
Control Unit (MFCU) with those cited in the FBI system and in Maryland's
registry to determine if that information was properly recorded and if
individuals had prior convictions. In Illinois, we obtained criminal
background data on a selected number of individuals who had a substantiated
finding of abuse to determine if any had a prior criminal record.
Criminal Background Checks
Overall, Mr. Chairman, the States we reviewed used a patchwork of measures
to identify persons posing a possible threat of elder abuse in nursing
homes and to minimize and prevent such abuse. While 33 States require
criminal background checks, coverage varies widely. For example:
- Not all facilities serving the elderly are included.
- A majority of States require checks of nurse aides seeking employment
but not already-employed nurse aides or other personnel, such as
owners, nurses, dietitians, housekeeping staff, contractor staff, or
volunteers.
- The sources used to make criminal background checks vary. State
records are used by 24 States. Nine States have laws permitting the
use of both State and FBI records, although two of these States do
not, in practice, use FBI records.
- Many States have specified crimes which, when individuals are
convicted of such crimes, would automatically disqualify a person from
employment, but these crimes vary by State. Also, only a few States
have identified factors to consider in determining suitability for
employment when a person has a disqualifying conviction, such as the
level, seriousness, and date of the crime. Thus, nursing home
officials, particularly in States without disqualifying crimes, use
their own judgment in deciding whether to employ applicants with
criminal records.
Many facilities conducted more comprehensive checks than required by their
State law. Some said they requested Statewide criminal background checks on
all of their applicants, not merely those covered by State requirements.
Others indicated they automatically excluded from employment everyone with
a criminal conviction, including convictions for crimes not specifically
cited as disqualifying. Regardless of how they applied the various
requirements, nursing home officials generally believed that background
checks provided the most reliable source of information during the
employment process. I will elaborate on this later in my statement.
State Registries
In addition to background checks, registries can be an effective tool for
identifying known abusers, provided they are promptly updated with court
and independent investigative findings. All 37 States we contacted
maintained registries for nurse aides, LPNs, RNs, and medical
practitioners, although only the nurse aide registry is required by HCFA
regulations.
In our opinion, Mr. Chairman, the usefulness of the registries could be
improved. For instance, all registry officials indicated that convictions
for crimes committed outside nursing facilities were not systematically
reported to the nurse aide registry. Such information could be obtained
during background checks and recorded in the registry. Also, of the 37
registries surveyed:
- 94 percent did not initiate criminal background checks on applicants when
they applied for certification or licensing,
- 29 percent did not require prior arrest or conviction information on
renewal applications, and
- 13 percent did not provide a penalty for making false statements on the
certification or license application.
According to registry officials in all 37 States, facilities are required
to report alleged abuse and neglect so that an investigation can determine
if the allegations are substantiated. If so, the findings must be recorded
in the nurse aide registry. In Maryland, the registry did not always record
findings of abuse or convictions. For 45 alleged abuse cases we reviewed,
the nursing homes believed they had sufficient evidence to take action on 7
cases and either terminated or suspended all 7 employees. However, these
cases were neither substantiated nor prosecuted and consequently not
flagged in the registry.
In addition, as described in our November 1997 report to Maryland, many
aides convicted of abuse by the State Medicaid Fraud Control Unit (MFCU)
were not flagged on the registry. Of the 24 aides who were found guilty or
who pled guilty in a court of law for elder abuse, 12 were not flagged.
Our May 1998 report, which focused on Illinois, also noted some
shortcomings. We sampled 88 closed cases of alleged abuse by nurse aides
and found that in 13 cases, Illinois did not substantiate, through
independent investigations, whether these allegations had occurred.
Although all 13 aides were terminated from employment or had disciplinary
actions imposed, they were not annotated on the registry and were free to
seek employment at other long-term-care facilities or allowed to continue
their employment, which could place residents at further risk. We also
noted that Illinois is the only State that records background check results
(both positive and negative) in the registry. However, convictions for
crimes other than those designated as disqualifying by State law are not
provided to the registry or the employing facility. The disqualifying
crimes in Illinois are abuse/neglect of an adult or child, arson, assault,
kidnaping and abduction, murder, and theft.
Employed Nursing Home Staff with Criminal Convictions
Since Maryland's background check requirements do not cover on-board staff,
we obtained criminal data on all 1,068 current employees at 8 randomly
selected nursing homes. Of this total, 51, or 5 percent, had been convicted
of a variety of crimes--many involving serious offenses. We believe this
number is actually understated because both the FBI and the State criminal
information systems lacked conviction data on more than half of the crimes
committed. If that information were available, the numbers of people with
criminal convictions working in nursing homes could be as high as 10
percent.
Many of the individuals with convictions worked in occupations providing
direct care to residents. They included nurse aides, as well as staff
holding jobs not subject to criminal background checks, such as nurses,
dietitians, and housekeeping staff.
Based on data from the FBI and State systems, the 51 employees had 97
convictions for such crimes as assault; child abuse; possession,
manufacturing, and distribution of illicit drugs; robbery with a deadly
weapon; theft; and handgun violations. On their job applications, 43 of
these employees did not truthfully state that they had been convicted and 4
did not respond to the question.
Although contractor staff are not required under Maryland law to undergo
background checks, the dietary service contractor at one nursing home
allowed us to obtain criminal background data on all 26 current contract
employees. The data showed that 5 of the 26 had been arrested for 55
crimes. According to the FBI system, 4 of these employees had 18
convictions for such crimes as fourth degree sex offense, various assault
charges, battery, larceny, and armed robbery. Records did not show
conviction information on the fifth employee.
In Illinois, the only State in our survey that requires checks on current
and prospective employees, a similar number of convictions was found for
currently employed nursing home staff. Of 21,000 checks conducted, 5
percent had disqualifying crimes; 759 nurse aides were fired and 216 were
granted waivers.
However, before Illinois implemented the law which now requires background
checks, we noted that many individuals with a disqualifying criminal
conviction were employed in nursing homes. We found that 15 nurse aides and
2 other employees with prior disqualifying criminal backgrounds would have
been identified and excluded had the Illinois law been in place prior to
their employment. All 17 of these employees were later involved in
instances of alleged elder abuse. Fourteen of the 15 nurse aides are no
longer employed by nursing facilities; 7 were terminated as a result of
substantiated findings of abuse and 7 were dismissed or resigned subsequent
to the abuse allegation. The remaining aide was transferred to a non-direct
resident care position. The two non-nurse aide employees were terminated by
the facility due to elder abuse. We also noted in Maryland that 6 of the 24
nurse aides who were convicted of abuse or neglect by the MFCU had prior
convictions.
Impact and Shortcomings of Current Safeguards
So what is the impact of the States' screening systems? Although we
attempted to answer that question, data was not available to conclude with
certainty on an increase or decrease in elder abuse or in the employment of
abusive employees. However, we did gather evidence--some of it
anecdotal--suggesting the benefits of current safeguards, and we want to
share this evidence with you today, along with our thoughts on how these
safeguards could be improved.
In general, nursing home officials viewed background checks as a strong,
but not absolute, deterrent to elder abuse because applicants with a
history of criminal offenses are either identified through the checks or do
not apply because they know the checks will disclose their crimes. A number
of officials also believed that background checks had reduced the instances
of abuse. However, of the 33 States that required checks, only Maryland
maintained data to measure their effectiveness. Maryland's legislatively
mandated review of the impact of criminal background checks credited the
checks for reducing the number of applicants with criminal records from 22
percent in the third quarter of 1996 to 19 percent in the fourth quarter.
Our attempt to obtain nationwide data on the trends in elder abuse from AoA
Headquarters was also unsuccessful. The AoA was able to furnish elder abuse
data only for 1995, which 29 States had voluntarily provided, but did not
have data on all States or for any States over a multiyear period.
We believe that criminal background checks offer long-term care facilities
an important safeguard against hiring persons who abused or neglected
vulnerable elderly residents or who have been convicted of other serious
crimes. The effectiveness of these checks is, of course, only as good as
the criminal data in the State and FBI systems--which we have found
incomplete. For instance, between 1989 and 1996, Maryland's MFCU identified
35 nursing home staff (including the 24 nurse aides mentioned earlier) who
were found guilty or pled guilty in a court of law to elder abuse. All of
these individuals were sanctioned/excluded from participation in Federal
health care programs by the OIG, but arrest and conviction data on 10 of
the 35 individuals was not recorded in either the State system or the FBI
system. Clearly, more comprehensive and accurate reporting to these
criminal information systems would improve the effectiveness of background
checks. Also, as mentioned earlier, most States do not subject prospective
employees--other than nurse aides--or any current employees to background
checks. We believe both of these requirements would add a large degree of
protection to the elderly.
Similarly, State registries can be an effective preventive measure,
provided that abusers are promptly flagged for all substantiated findings.
As we have already stated, however, the Maryland and Illinois registries
omitted some abusers, and most State registries did not include information
on substantiated crimes committed outside nursing facilities. So this, too,
is an area where improvements are needed. Additional opportunities for
identifying potential risk to the elderly are available from the OIG
Cumulative Sanction Report. But none of the nursing homes surveyed in six
States was aware of this list or its availability on the Internet.
To conclude, Mr. Chairman, there is certainly no question of the value in
the States' use of current safeguards. But the situation remains that the
safety of the elderly cannot be assured because potentially abusive nursing
home staff are not fully and systematically identified and excluded from
employment.
Recommendations for Improving Safeguards
While we support the States' efforts, we believe that HCFA and AoA should
consider additional measures, at the Federal level, to provide a safe and
secure environment for residents in nursing homes and other long-term-care
facilities reimbursed by the Department. As a result, in our report to HCFA
and AoA, we recommended that they:
- Consider (1) establishing Federal requirements and criteria for
performing criminal background checks of all workers in nursing homes and
other long-term care facilities and (2) assisting in the development of a
national abuse registry and expansion of the current State registries to
include all workers who have abused or neglected residents or
misappropriated their property in facilities that receive Federal
reimbursement.
- Work collaboratively with the States to improve the safety of
long-term-care residents and to strengthen safeguards against the
employment of abusive workers by elder care facilities.
- Require improved State reporting of abuse statistics to better monitor
national trends in the rise or decline of abuse.
As we indicate in our report, HCFA and AoA agreed with our recommendations
and have taken action to implement them. Specifically, on July 29, 1998,
the Administration forwarded proposed legislation to the Congress, based on
HCFA's recommendations, which addresses the need for criminal background
checks, the expansion of State registries, and the development of a
national abuse registry. We note, Mr. Chairman, that you and others are
co-sponsors of an earlier bill introduced by Senator Kohl, that would
establish a national registry of abusive workers in the health field. The
HCFA is also considering, in consultation with AoA, further studies to
identify additional preventive measures. This would include examining the
relationship between abuse of residents and such factors as employee
working conditions and pay. In addition, AoA plans to determine the extent
and types of data appropriate for focusing on the incidence of abuse and
neglect and to delineate related State and Federal roles.
If a national abuse registry is approved, we suggest that it be included in
an expanded version of the current Healthcare Integrity Protection Data
Bank (HIPDB), which the OIG is developing as required by the Health
Insurance Portability and Accountability Act of 1996. The expanded data
bank would be a Healthcare Integrity and Patient Protection Data Bank.
Our work in the area of nursing homes is continuing. We are, for example,
examining trends in data maintained by State Adult Protective Services,
Survey and Certification programs, and Ombudsman regarding conditions of
nursing home residents.
This concludes my statement, Mr. Chairman. Thank you for the opportunity to
testify today. At this time, I will be happy to answer any questions you
may have.
