D EPARTMENT OF H EALTH AND HUMAJ.~ S ER VICES 
OFFICE OF INSPECTOR GENERAL 
1\.r\SH INGTOl\, DC:  2020 1 
MAY  2 9 2014 
TO: 	 Marilyn Tavenner 
Administrator 
Centers for Medicare & Medicaid Services 
FROM:  Brian P. Ritchie 
Acting Deputy Inspector General 
for Evaluation and Inspections 
SUBJECT: 	 Memorandum Report:  State Requirements for Conducting Background Checks 
on Hom e Health Agency Employees, OEI-07-14-00131 
In response to a congressional request, the Office oflnspector General (OIG) initiated two 
related evaluations regarding home health agencies ' (HHAs) employment of individuals with 
criminal convictions.  This memorandum report presents the results of the first evaluation, 
conducted to (1) identify State background-check requirements for HHAs and (2) identify the 
types of criminal convictions that, under State law or regulation, disqualify individuals for 
HHA employment.  The second evaluation, entitled Home Health Agencies ' Employment of 
Individuals With Criminal Convictions (OEI-07-14-00130) , will (1) determine the extent to 
which HHAs employed individuals with criminal convictions as of January 1, 2014, and identify 
criminal convictions of selected employees that potentially disqualify them for HHA 
employment, and (2) identify the procedures that HHAs use to perform background checks on 
prospective and/or current employees. 
SUMMARY 
We surveyed State officials to identify State requirements for conducting background checks for 
prospective HHA employees, including the job positions for which States require HHAs to 
conduct background checks , and the types of convictions that States consider to be 
disqualification for HHA employment.  The survey found that, of the 50 States and the 
District of Columbia (hereinafter referred to as States), 41 States require HHAs to conduct 
background checks on prospective employees . Of the 10 States that have no background-check 
requirement, 4 States reported that they have plans to implement background-check requirements 
in the future.  Of the 41 States that require background checks, 15 States require HHAs to 
receive the results of background checks before individuals can begin employment and 26 States 
allow individuals to work while the results of their background checks are pending.  Fifteen 
States require additional background checks of employed individuals subsequent to the initial 
checks.  Thirty-five States specify convictions that disqualify individuals from employment, and  Page 2  Marilyn Tavenner 
 
16 States allow an individual who has been disqualified from employment to submit an 
application to have his/her conviction(s) waived.  The Centers for Medicare & Medicaid Services 
(CMS) may wish to use the information from  this report as it administers the Nationwide 
Background Check Program.  The report may also be useful to States that are considering 
establishing or enhancing background-check requirements for HHA employees.  
 
BACKGROUND 
 
Medicare Home Health Services  
Beneficiaries receiving care from HHAs are especially at risk of mistreatment because 
employees are providing services, usually unsupervised, in beneficiaries homes.  However, 
there are no Federal laws or regulations that require HHAs to conduct background checks prior 
to hiring individuals or to periodically conduct background checks after an individual has been 
hired. In 2012, HHAs provided services to approximately 3.5 million Medicare beneficiaries, 
averaging 34 visits per beneficiary.  Medicare paid nearly $18.5 billion for HHA services that 
year.1  
 
Requirements for Conducting Background Checks  
There are no Federal laws or regulations that require HHAs to conduct background checks prior 
to hiring individuals, or to periodically conduct background checks after individuals have been 
hired.2  There are also no Federal laws or regulations that prohibit HHAs from hiring individuals 
who have been convicted of crimes (e.g., assault, rape, and theft) or who have had a finding 
concerning abuse, neglect, mistreatment of beneficiaries, or misappropriation of beneficiary 
property entered into State-based abuse and neglect registries or databases (such as State nurse 
aide registries). However, as a condition of participation in Medicare, HHAs must comply with 
State laws.3  State requirements for background checks vary in terms of what sources of 
information must be checked, which job positions require background checks, and what types of 
convictions prohibit employment. 
 
Types of Background Checks 
In general, there are two kinds of background checks that States require HHAs to use:  Statewide 
and Federal Bureau of Investigation (FBI).  Statewide background checks are typically 
conducted by a State law enforcement agency (e.g., State Highway Patrol, State Police) and 
include information for crimes committed within that State.  FBI background checks are also 
typically conducted by a State law enforcement agency, which provides identifying information 
and a set of fingerprints to the FBI to match against criminal background information maintained 
in its database. The FBI database includes information on both Federal crimes and crimes 
reported by States.    
 
                                                 
1 CMS, 2013 Medicare  & Medicaid Statistical Supplement:  Table 7.1.   Accessed at http://www.cms.gov/Research-
Statistics-Data-and-Systems/Statistics-Trends-and-Reports/MedicareMedicaidStatSupp/Downloads/  

2013_Section7.pdf#Table7.1 on  April 14, 2014. 

2 In April 2014, CMS released  guidance that it would phase in the implementation  of fingerprint-based  background  

checks for individuals with  a 5 percent or greater ownership interest of a HHA newly enrolling in the Medicare 

program.  This action is part  of the enhanced enrollment screening provisions contained in P.L. No. 111-148  6401.
  
3 42 CFR 484.12(a).  

State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 3  Marilyn Tavenner 
 
Nationwide Background Check Program 
The Patient Protection and Affordable Care Act established the Nationwide Program for National 
and State Background Checks on Direct Patient Access Employees of Long-Term Care Facilities 
and Providers (Nationwide Background Check Program).4  The program awards grant funds to 
States that volunteer to conduct background checks on prospective long-term-care employees.  
Under the program, potential direct patient access employees in any of 10 provider types 
(e.g., HHAs) must undergo fingerprint-based Statewide and FBI background checks, as well as 
checks of State-based abuse and neglect registries.5 To date, CMS has awarded 25 such grants, 
totaling more than $50 million. 
 
METHODOLOGY 
 
We surveyed officials from every State and the District of Columbia.  We gathered information 
on State requirements for HHAs to conduct background checks on prospective employees and 
job positions for which HHAs are required to conduct background checks.  We asked whether 
HHA employees must undergo periodic background checks after they are hired.  We also asked 
about the types of convictions that disqualify individuals from employment and whether any of 
these convictions can be waived to allow employment.  We received survey responses from all 
51 States. We did not perform a legal analysis to determine whether the State requirements 
reported to us represented all pertinent legal requirements or whether State officials had correctly 
described the characteristics of the requirements. 
 
This study was  conducted in accordance with the Quality Standards for Inspection and 
Evaluation issued by the Council of the Inspectors General on Integrity and Efficiency. 
 
RESULTS  
 
In the Absence of Federal Laws, 41 States Require HHAs To Conduct Background Checks 
on Prospective Employees   
Forty-one States require HHAs to conduct background checks on prospective employees.6   
However, even in the absence of State requirements, HHAs in the remaining 10 States may 
choose to conduct background checks on their own initiative.  Table 1 shows the type of 
background check(s) required and whether the requirement applies to all individuals or only to 
certain individuals.  
   
                                                 
4  P.L.  No. 111-148  6201. 
 
5  P.L.  No. 111-148  6201(a)(3)(A). 
 
6 State-reported laws requiring background checks for HHA employees can be found in  Appendix A. 
 
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 4  Marilyn Tavenner 
 
Table 1: HHA Background Check Requirements by State  
Type of Check Required   State(s)   Number of States 
FBI and Statewide for All Individuals  DE, DC, FL, ID, IL, MI, MS, NV, NY, OK, UT   11 
FBI and Statewide for Certain Individuals  AK, NE, NM, NC, OH, SC   6 
Statewide for All Individuals  AZ, ME, MD, MA, MO, NH, OR, VA, WI  9 
Statewide for All Individuals and FBI  
AR, CO, IN, KY, MN, PA, WA  7 
for Certain Individuals 
Statewide for Certain Individuals  CA, IA, KS, LA, RI, TX, VT   7 
Other   TN*   1 
None   AL, CT, GA, HI**, MT, NJ, ND, SD, WV, WY   10 
Total     51 
Source:  OIG analysis of State surveys, 2014. 
*Note:  Tennessee reported that it requires HHAs to perform checks of registries of sex offenses, adult abuse, and elder abuse. 
**Note:  The Hawaii legislation requires that the State agency adopt rules to mandate  background checks on HHA employees; however, 
no implementing rules have been published.  
 
Some States reported differing requirements determined by the individuals job duties and/or 
length of residency in a State.  For example, Ohio requires background checks for those 
individuals providing direct care.  North Carolina requires checks for individuals who enter 
beneficiaries homes.  If an individual has been a North Carolina resident for more than 5 years, 
only a Statewide background check is required. For individuals who have not lived in 
North Carolina for at least 5 years, an FBI check is required in addition to the Statewide check.   
 
We asked States whether they verify that HHAs are complying with requirements for 
background checks. All 41 States that require background checks responded that they did verify 
compliance, most commonly through onsite visits, audits, or certification surveys.  For example, 
New Hampshire verifies compliance with its background-check requirement by reviewing 
personnel records during certification surveys. 
 
Of the 10 States that have no requirement for background checks, 4 States (Connecticut, 
Georgia, Hawaii, and West Virginia) reported that they have plans to implement such 
requirements in the future.  These States have received Nationwide Background Check Program  
grants from CMS to establish or improve State programs for background checks of 
long-term-care employees.   
 
   
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 5  Marilyn Tavenner 
 
Of the 41 States That Require Background Checks, 15 States Require HHAs To Receive 
the Results Before Individuals Begin Employment 
In 15 States, HHAs must receive the results of background checks prior to allowing an individual 
to work. Individuals with convictions that disqualify employment cannot be hired.  In the 
remaining 26 States, background checks are initiated and individuals are allowed to work while 
the results of their background checks are pending.  Twenty States allow individuals to work 
only for a specified timeframe while a background check is completed.  Timeframes ranged from  
5 days to 3 months. For example, Indiana requires that the background check be initiated within 
3 days of providing care for a client and completed within 21 days of hire.  Six States (Kentucky, 
Maryland, Michigan, Nevada, New Mexico, and Washington) have no maximum timeframe 
during which an individual may work without a completed background check.  Specific 
characteristics of the background-check requirements for the 41 States can be found in 
Appendix B. 
 
Fifteen States Require Additional Background Checks Subsequent to Initial Checks 
Twelve States require HHAs to conduct periodic background checks on employed individuals.  
The frequency of these checks ranged from annually to every 6 years.  An additional three States 
(California, Delaware, and New York) reported that State agencies receive automatic 
notifications of subsequent arrests, a process commonly referred to as rap back.  Under rap 
back, an individuals fingerprints are retained by a criminal history repository after the initial 
background check. Any criminal convictions occurring subsequent to the initial background 
check are proactively reported to the designated agency or employer, eliminating the need to 
resubmit an individuals fingerprints for periodic background checks after he or she has begun 
employment.   
 
Thirty-Five States Specify Convictions That Disqualify Individuals From Employment 
Thirty-five States have identified specific types of convictions that disqualify individuals from  
obtaining employment in HHAs.  States differ in regard to what types of convictions disqualify 
individuals and how recently they must have occurred to disqualify them.  For example, 
Wisconsin State statute contains a list of offensesincluding homicide, battery, and sexual 
assaultthat prohibit HHA employment.  Minnesota groups its disqualifying convictions into 
four categories, by the time that must have elapsed since the discharge of the sentence imposed 
before the individual is eligible for HHA employment.  These categories are 7 years 
(e.g., misdemeanor domestic assault), 10 years (e.g., misdemeanor receiving stolen property), 
15 years (e.g., felony robbery), and forever (e.g., kidnapping).  Six States (Colorado, Iowa, 
Maryland, North Carolina, Tennessee, and Vermont) do not specify convictions that disqualify 
individuals from employment.   
 
Sixteen States allow individuals who have been disqualified from employment because of a 
conviction the opportunity to submit applications to have the conviction waived.  When a waiver 
is granted, the hiring restriction is removed and the individual is allowed to be employed.  For 
example, Missouris Good Cause Waiver process requires an applicant to provide an 
explanation for each arrest that led up to the conviction, a sponsorship letter from a current or  
potential employer, employment history, and information related to any pending charges, if 
applicable. Waiver applications are reviewed by a panel of health care professionals.  
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 6  Marilyn Tavenner 
 
Seven States allow for any conviction to have the potential to be waived, and nine States allow 
only certain kinds of convictions to be waived. 
 
CONCLUSION 
 
The information in this report will be useful to CMS in administering the Nationwide 
Background Check Program.  The report may also be useful to States that are considering 
establishing or enhancing background-check requirements.  This report is being issued directly 
in final form because it contains no recommendations.  If you have comments or questions about 
this report, please provide them within 60 days.  Please refer to report number OEI-07-14-00131 
in all correspondence. 
   
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 7  Marilyn Tavenner 
 
APPENDIX A 
 
State-Reported Laws and Regulations Requiring Background Checks for Home 
Health Agency Employees 
State   Citation*  
Alaska   7 AAC 10.900  
Arizona  ARS  36-411  
Arkansas  Arkansas Code  20-38-103  
California  Health & Safety  Code  1796.101796.63  
Colorado   6 C.C.R. 1011-1, Chapter 26  
Delaware   16 Del. C.  1145  
District of Columbia  22 DCMR  47004799  
Florida    400.512, Fla. Stat. (2013)  
Idaho   IDAPA 16.03.07  9 
Illinois   225 ILCS 46  
Indiana  IC 16-27-2  
Iowa   Iowa Code 2014, Section 135C.33  
Kansas  K.S.A. 65-5117  
Kentucky  902 KAR 20:081  
Louisiana  La. R.S. 40  1300.51  
Maine  22 M.R.S.A.  21412150  
Maryland   Annotated Code of Maryland  19-190119-1912  
Massachusetts   105 CMR 155.010 G(3)  
Michigan  MCL  333.20173a 
Minnesota  Minn. Stat.  245C (2013)  
*For a given State,  the listed citations  may not include all citations related to  background  checks for HHA employees.  
 
continued on next page 
 
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 8  Marilyn Tavenner 
 
State-Reported Laws and Regulations Requiring Background Checks for Home 
Health Agency Employees (continued) 
State   Citation*  
Mississippi   Miss. Code Ann.  43-11-13  
Missouri  Section 660.317, RSMo 
Nebraska   175 NAC 14  
Nevada   NRS 449.123  
New Hampshire   RSA 151: 2-d  
New Mexico  7.1.9 NMAC  
New York   NY  CLS Pub Health  2899-a  (2010)  
North Carolina   N.C. Gen. Stat.  131E-265  
Ohio   OAC - 3701-60-04  
Oklahoma   63 O.S.  1-1947  
Oregon   OAR 333-027-0064 
Pennsylvania  35 P.S.  10225.502 
Rhode Island   R.I. Gen. Laws  23-17-34  
South Carolina   S.C. Code Ann.  44-7-2910  
Tennessee   Tenn. Code Ann.  63-1-116 (2013)  
Texas   THSC  250  
Utah   Utah Admin. Code r. 432-35 (2014) 
Vermont   33 V.S.A. Chapter 63, Subchapter 1A  
Virginia  Va. Code Ann.  32.1-162.9:1  
Washington  WAC 246-335-065 
Wisconsin  Wis. Stat.  50.065 
*For a given State,  the listed citations  may not include all citations related to  background  checks for HHA employees.  
Source:  State survey responses, 2014.  
 
   
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 9  Marilyn Tavenner 
 
APPENDIX B  
 
State-Reported Characteristics of Background-Check Requirements in the 
41 States That Require Such Checks 
Individuals May Work  Additional Background  
Background Check 
Provisionally Pending  Checks of Employed 
State   Results Must Be  
Background-Check  Individuals Subsequent to 
Received Prior to Hire  
Results   Initial Check  
Alaska X    X 
Arizona    X  X 
Arkansas  X    X 
California  X    X 
Colorado X     
Delaware     X  X 
District of Columbia  X    X 
Florida   X    X 
Idaho     X   
Illinois     X   
Indiana  X   
Iowa   X     
Kansas  X   
Kentucky    X   
Louisiana  X   
Maine  X    X 
Maryland     X   
Massachusetts   X     
Michigan  X  X 
Minnesota    X   
continued on next page 
   
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)   Page 10  Marilyn Tavenner 
 
State-Reported Characteristics of Background-Check Requirements in the 
41 States That Require Such Checks (continued) 
Individuals May Work  Additional Background  
Background Check 
Provisionally Pending  Checks of Employed 
State   Results Must Be Received 
Background-Check  Individuals Subsequent to 
Prior to Hire  
Results   Initial Check  
Mississippi     X   
Missouri    X   
Nebraska     X   
Nevada     X  X 
New Hampshire   X     
New Mexico    X   
New York     X  X 
North Carolina     X   
Ohio     X  X 
Oklahoma     X   
Oregon X    X 
Pennsylvania  X     
Rhode Island     X   
South Carolina   X     
Tennessee X     
Texas     X  X 
Utah     X   
Vermont   X     
Virginia    X   
Washington    X   
Wisconsin    X  X 
Source:  OIG analysis of State surveys, 2014. 
 
State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)