Nursing homes are meant to be a place where we can trust our elderly family and friends to be safe not only physically and mentally, but also financially. USA TODAY conducted an investigation that revealed alarming news, nursing home residents were having their life savings robbed by the very people caring for them. These thieves target trust funds specifically, because long-term care facilities may hold those funds in a single account that includes everything from pensions to Social Security payments. Many long-term care providers are required to maintain trust funds for residents who request that the facility handle their money. When a resident entrusts the facility to manage their money, the facility should treat those fund just as a bank would, with accrued interest, regular statements, and proper oversight. However, this maynot happen. According to USA TODAY, they found more than 1,500 recent cases where nursing homes were cited by state and federal regulators for mishandling the funds.[1] Lee Ray Martin was the business office coordinator for both Shady Lawn Nursing Home and the Vicksburg Convalescent Center. She allegedly obtained more than $101,000 from 83 patients, according to Attorney General Jim Hood. She was caught after Amy Brown, administrator at the Vicksburg Convalescent Center, discovered a receipt for a pair of $90 designer jeans. This was an obvious red flag to Amy Brown, because the resident had both his legs amputated. Lee Ray Martin was able to raid over 80 resident trust fund accounts for nearly a year. And the only reason she was caught is because she bought a pair of designer jeans under a resident who had both legs amputated. The question that comes to mind is how do these criminals, like Lee Ray Martin get away with this for such a long period of time? The answer to this is twofold: Most states don’t have a proper auditing system in place; additionally the people who do the inspections of the books are not trained in the specialty accounting needed to properly decipher that the trust funds are being properly allocated. The other issue, is that most states don’t have criminal background checks for nursing home administrators. Therefore, if someone is convicted of a crime, they could move to a different state and have the same amount of access to vulnerable adults. A report by the U.S. Department of Health and Human Services Office of the Inspector General (OIG) revealed a shocking statistic; more than 90% of long-term care organizations employ individuals with previous criminal convictions. According to Attorney General Jim Hood, “I think we oughta have mandatory background checks for anybody that works in a nursing facility.”[2]    Free White Paper: Health Care Background Screening Best Practices              [1] Eisler, Peter, Morgan Fecto, and Jerry Mosemak. “Thefts from Nursing Home Trust Funds Target the Elderly.” Thefts from Nursing Home Trust Funds Target the Elderly. USA TODAY, 21 Oct. 2013. Web. 21 Nov. 2013.   [2] Rossen, Jeff, and Josh Davis. “Rossen Reports: Thieves Target Seniors at Nursing Homes.” Rossen Reports: Thieves Target Seniors at Nursing Homes. TODAY News, 25 Oct. 2013. Web. 21 Nov....

Let’s face it, health care organizations are accustomed to changing federal and state regulations that affect employment screening. Human resource managers struggle to keep up with the latest hiring requirements for their medical professionals. Screening takes time, and with the amount of information that has to be verified, it’s not hard to miss something during a background check. Although health care organizations think they have employment screening under control, a gap may result in hiring an ineligible employee. Potential screening gaps may lead to risks such as hiring someone who is unqualified, unlicensed, or unsafe, as well as the risk of lawsuits, fines, and brand damage. Organizations should consider checking to see if any of these common eight screening gaps exist: 1.       Incomplete Drug Testing Program Health care organizations are not required to drug test employees. Yet, you would think that that all health care organizations screen their employees for illegal drug use, but they don’t. According to HireRight’s Health Care Spotlight, only 79% of respondents have a drug screening program in place, 17% do not, and have no plans to implement one. An impaired employee may expose the organization to malpractice and workers’ compensation claims and potentially be a safety risk to patients. Imagine yourself as a patient. Would you go to a hospital that lacked a comprehensive drug test program? 2.       One-Size-Fits-All Screening Some HR screening program managers use a one-size-fits-all approach to screening employees in order to save time and money. Or, their current vendor’s system isn’t flexible enough to screen by role or other criteria. Regardless of the reason, taking shortcuts may result in you employing someone who you wouldn’t have if your process was designed to effectively screen them. Using a one-size-fits-all approach and cutting corners of due diligence throughout the hiring process will undoubtedly result in time wasted and money lost, as well as an immeasurable amount of potential brand damage. 3.       Failure to Re-screen for Illegal Drug Use and Criminal Activity Without a reoccurring drug test and criminal history check, something may occur after a hire without you knowing, which may result in an ineligible employee treating a patient. Not rescreening current employees for illegal drug use and criminal activity may jeopardize patient safety and expose the organization to fines and malpractice risk. 4.       Incomplete Criminal History Searches Unfortunately there isn’t a magical criminal record database check that instantly reports everything an employer needs to know in one search. Because medical professionals often work in multiple states, criminal history searches should be done in all jurisdictions where the applicant or employee lived and worked. 5.       Inadequate Medical Sanction Monitoring Organizations are required to re-check government databases to confirm that an employee is free of sanctions. Sanctions may prohibit the individual from working in a care facility. According to HireRight’s Health Care Spotlight, 42% of respondents use only the Office of the Inspector General’s List of Excluded Individuals/Entities (OIG LEIE). Because the OIG LEIE and other federal exclusion lists are not the only sources of sanctions information, organizations that rely solely on these sources are at risk of employing an excluded person and may face serious consequences, including fines, OIG audits, and damaged reputation. 6.       Insufficient extended workforce screening The health care industry, especially hospitals use volunteers maybe more than any other industry. According to HireRight’s Health Care Spotlight, 98% of the respondents screened job candidates, but only 60% screened contractors, 47% screened volunteers, and 13% screened vendors. Not holding your extended workforce to the same standards as your regular workforce may expose heath care organizations to additional problematic risks. 7.       Checking Maiden Name and AKA A name is not permanent. Someone may change their name with innocent intentions, such as getting married or divorced. But in some cases a person may change their name to evade the system. That is why failing to conduct a search by a maiden name or AKA used by an individual may expose a health care organization to someone who has been convicted of a serious crime under a different name. 8.       Inconsistent Credentialing The credentialing process verifies the experience and qualifications of its physicians and health care staff by examining their licensure, training, experience, criminal history, and disciplinary actions. It is important that whoever does this timely process, use primary source records and consistent search methodologies. Under certain state laws, a hospital must prove it took every preventable measure to ensure a physician or nurse was capable before granting privileges. Health care organizations that don’t take necessary steps to mitigate these screening gaps could be putting not only their patients at risk, but also their organizations overall financial well being. To discover some of the screening best practices that organizations use to overcome these screening gaps, view HireRight’s whitepaper on Health Care Background Screening Best Practices...

While the legal standard for negligent hiring and retention cases varies from state to state, a common key factor in such cases is foreseeability, specifically the foreseeability of the specific harm to a particular victim given the nature of the employer’s business and the employee’s job duties. For health care employers, this generally means examining whether it was foreseeable to the employer that the employee would engage in conduct potentially harmful to a patient’s safety or well-being. The following case study helps to demonstrate the foreseeability element of liability in the health care environment. A Case Study A mental health counselor sexually assaulted an adolescent patient who resided in the extended care unit (ECU) of a mental health hospital. The patient was in the custody of the Department for Children and Family Services (DCFS), which used the ECU for adolescents who were not appropriate for foster care but needed inpatient psychiatric care. The patient alleged the hospital failed to conduct an appropriate background check as required by the state regulation requirements that the DCFS included in its contract with the mental health hospital. The pertinent state regulation mandated that the background check include checking the Illinois Sex Offender Registry and the Child Abuse and Negligent Tracking Systems and submitting the employee’s fingerprints to the Illinois State Police. The background check was a condition of employment. The hospital contended it had complied with the regulation and that the checks of the Illinois Sex Offender Registry and Child Abuse and Negligent Tracking Systems were negative, indicating there was no record the employee had been convicted of a sex crime. While the Illinois State Police also reported no evidence of criminal convictions in Illinois, the police report indicated there was a fingerprint search conducted but it was dated two and a half years after the employee was hired (not before hiring, as required), and after the alleged sexual assault occurred. Also there was no record in the employee’s file that his fingerprints had been submitted to the police (either before or after hiring) and the hospital could not identify anyone who had submitted them to the police. Moreover, the evidence showed that the employee had changed his name prior to applying for the mental health counselor position and then provided an incorrect Social Security Number at the time of hire. Indeed, six months after the hospital hired the employee – and well before the alleged sexual assault occurred – the Social Security Administration informed the hospital that the employee’s name did not match the Social Security number provided, but the hospital failed to take action on this information. The patient alleged that had the hospital submitted the employee’s fingerprints to the police prior to employment or followed up on the incorrect Social Security number, it would have discovered a drug conviction under the employee’s original name. The patient sued the hospital for negligent hiring, general negligence, negligent retention, and negligent supervision. The hospital initially won a motion for summary judgment on the negligent hiring claim, but the ruling was reversed on appeal. The appellate court concluded the conviction for selling drugs was a crime of moral turpitude that was serious enough to render the employee unfit for a position in which he was entrusted with the care of a minor. Furthermore, the employee’s drug conviction made it foreseeable that his hiring posed a patient risk that a reasonable person would have avoided. What Could The Employer Have Done Differently? The hospital could have submitted the fingerprints prior to employment and/or maintained better records to show when the fingerprints had been submitted, including a dated copy of the submitted fingerprints in the employee’s personnel file. The hospital should have also followed up to determine why the employee’s Social Security number did not match his name. What Lesson Can Be Learned From This Experience? In this case, the employee had changed his name and checked the box indicating that he had not been convicted of a felony or pled guilty to a crime on his job application. A fingerprint check would have revealed this information to be false. Health care providers should be vigilant in checking the background of an employee who will be working in the vicinity of minors and/or mental health patients, including if fingerprints are required or collected, and promptly submitting the prints to an appropriate law enforcement agency for investigation.[1] For more examples of negligent hiring cases and other lessons learned, download HireRight’s whitepaper on How Can Health Care Employers Reduce Their Potential Liability for Negligent Hiring and Negligent Retention? Here [1] Navarette v. Naperville Psychiatric Ventures, Trial Court: Circuit Court of Du Page County. No. 05-L-520, Appellate Court: 2011 IL App (2d) 100614-U (Dec. 16,...

The Equal Employment Opportunity Commission (EEOC) recently responded to a letter sent by a number of state attorneys general urging the agency to reconsider its guidance on the use of criminal background checks in employment.  The guidance at issue – Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 – has been criticized since its release last year. The letter from the attorneys general took issue with, among other things, the EEOC’s application of disparate impact analysis to an employer’s use of criminal history screens, which was the subject of two recently-filed lawsuits. According to the EEOC, the criticism is based on a “misunderstanding” of what the guidance suggests, and emphasized it is not illegal for employers to conduct or use the results of criminal background checks.  The agency explains that the guidance does not urge or require employers to use individualized assessments instead of bright-line screens.  Instead, the letter states that the guidance encourages a two-step process for job applicants, with individualized assessment as the second step.  Under this process, an employer would first use a “targeted” screen of criminal records, which the EEOC says “considers at least the nature of the crime, the time elapsed, and the nature of the job.”  Following the use of a targeted screen, employers have the opportunity to individually assess the applicants that were screened out by the first step.  According to the EEOC: using individualized assessment in this manner provides a way for employers to ensure that they are not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information, and for individuals to correct errors in their records. The Guidance’s support for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses. The EEOC further contends that the individualized assessment “is a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.” The EEOC also responds to another assertion in the attorneys general letter that the Guidance “purports to supersede state and local hiring laws that impose bright-line criminal background restrictions that are not narrowly tailored.” The agency responds that the EEOC’s Guidance is simply reciting and applying the text of Title VII, which sets forth the principle that federal law preempts contradictory state or local law. That the EEOC saw the need to address these issues indicates that there remains much confusion over the legality of when and how to conduct such background checks.  A federal district court in Maryland recently dismissed an EEOC Title VII lawsuit against an employer over alleged discriminatory background checks.  The court noted that employers have legitimate and at times “essential” business reasons for conducting such inquiries....

Effective January 1, 2014, a recent amendment to Rhode Island law will restrict the timing of pre-employment inquiries by Rhode Island employers about a job applicant’s criminal past. Employers who are covered by the law may not inquire about an applicant’s prior criminal history until during or after the first interview with the applicant.   The amendment to Rhode Island’s Fair Employment Practices law reflects the trend toward so-called “Ban the Box” laws that have been enacted in other jurisdictions. The Equal Employment Opportunity Commission (EEOC) has likewise endorsed this limitation in its updated guidance regarding consideration of arrest and conviction records under Title VII of the Civil Rights Act of 1964. Continue reading about this development in Littler’s ASAP, Rhode Island Enacts “Ban the Box” Law Prohibiting Employment Application Criminal History Inquiries Until the First Job Interview by Rod Fliegel and Jennifer...

The public policy interests supporting employment-related protections for ex-offenders, including encouraging ex-offenders to reenter the workforce, are detailed in the updated EEOC Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,”1 released in April 2012.  And, while states like California, Massachusetts, New York and Wisconsin already extend such protections to ex-offenders, employers need to be mindful of additional new state and local laws that seek to promote these same public policy interests by restricting inquiries into and the use of criminal records for employment purposes.  For example, late last year the City of Newark, New Jersey, enacted a so-called “Ban the Box” ordinance that, with very limited exceptions, prohibits employers from inquiring about an applicant’s criminal history on an employment application, and Minnesota followed suit just last month by enacting the state’s own version of a “Ban the Box” law.  The trend continues across the country, and thus now, perhaps more than ever before, employers must stay abreast of these ex-offender protection laws and should closely monitor pending legislation at both the federal, state and local level.  On the reverse side of this issue, recognizing that employers have potential tort exposure for hiring ex-offenders, some state legislatures have taken steps to protect employers from tort claims like negligent hiring and/or retention.  One example is a new law pending in Texas.  This legislation is intended to further the same public policy interests, but takes a different and more sensible approach: curbing lawsuits against employers rather than denying employers access to potentially salient information about a candidate’s criminal past.   To learn more about this, please see Littler’s ASAP, The Flurry of New Employment Laws Regulating the Use of Criminal Records Continues with Expanded Restrictions in Indiana, North Carolina, Texas, and Buffalo, New York, by Jennifer Mora, Rod Fliegel, and Sherry...

Health care networks attend to some of America’s most vulnerable citizens, from seniors to newborns, and the seriously ill to the grievously injured. Protecting patients’ safety and welfare is key to any health care organization’s mission, and the prospect of hiring someone who may jeopardize this is simply unacceptable. And with lower cost margins and tight budgets, the last thing a hospital needs is increased liability caused by an employee’s unprofessional or criminal behavior. improving the background screening porcess mitigates an organization’s liability exposure and, most importantly, protects the patient. This white paper discusses health care industry business drivers, employee screening trends, top screening gaps, and best practices organizations use to bridge those gaps....

 A male health care aide returns to a female patient’s residence after completing his patient care visit and physically assaults her. Will the home health care agency that employs the aide be held liable in tort for the aide’s actions? The answer depends on how thorough of a background check the employer conducted before hiring the employee. It is estimated that employers tend to lose approximately 75% of all negligent hiring cases, resulting in large financial payments averaging over $1,000,000. This white paper will outline how health care employers can reduce their exposure for negligent hiring and/or retention claims by conducting thorough background checks that are more extensive than state and federal laws require.      ...

For hospital and other health care organization executives concerned with sanctions and legal risks, changing background screening providers is often a common—albeit anxiety-filled—business necessity. With myriad changes necessitated by new federal and state regulations, the Patient Protection and Affordable Care Act (PPACA), competition, and consolidation in the industry, there may be a reluctance to change employment and hiring procedures and background screening providers. However, health care employers needn’t fear undertaking a change. This white paper will review the challenges that health care employers face when replacing their background screening providers, describe a best-in-class implementation plan, and suggest qualities to look for in a new background screening...