D EPARTMENT OF H EALTH AND UMAJ.~ 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/ResearchStatistics-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) 
 

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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 

for Certain Individuals AR, CO, IN, KY, MN, PA, WA 7 

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 individual’s 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 individual’s 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 offenses—including homicide, battery, and sexual 

assault—that 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, Missouri’s “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 §§ 1796.10–1796.63 

Colorado 6 C.C.R. 1011-1, Chapter 26 

Delaware 16 Del. C. § 1145 

District of Columbia 22 DCMR §§ 4700–4799 

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. §§ 2141–2150 

Maryland Annotated Code of Maryland §§ 19-1901–19-1912 

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 

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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. 

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APPENDIX B 

State-Reported Characteristics of Background-Check Requirements in the 

41 States That Require Such Checks 

State 

Background Check 

Results Must Be 

Received Prior to Hire 

Individuals May Work 

Provisionally Pending 

Background-Check 

Results 

Additional Background 

Checks of Employed 

Individuals Subsequent to 

Initial Check 

Alaska

Arizona 

Arkansas 

California 

Colorado

Delaware 

District of Columbia 

Florida 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

continued on next page 

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State-Reported Characteristics of Background-Check Requirements in the 

41 States That Require Such Checks (continued) 

State 

Background Check 

Results Must Be Received 

Prior to Hire 

Individuals May Work 

Provisionally Pending 

Background-Check 

Results 

Additional Background 

Checks of Employed 

Individuals Subsequent to 

Initial Check 

Mississippi 

Missouri 

Nebraska 

Nevada 

New Hampshire 

New Mexico 

New York 

North Carolina 

Ohio 

Oklahoma 

Oregon

Pennsylvania 

Rhode Island 

South Carolina 

Tennessee

Texas 

Utah 

Vermont 

Virginia 

Washington 

Wisconsin 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

Source: OIG analysis of State surveys, 2014. 

State Requirements for Conducting Background Checks on HHA Employees (OEI-07-14-00131)