Long-Term Care: Some States Apply Criminal Background Checks to Home Care Workers
Released: 1996-10-31T00:00:00

Letter

Background

Home Care

By “home care,” we mean not only health care services delivered in the home, but also assistance with basic and instrumental activities of daily living, such as eating, dressing, bathing, toileting, transferring from bed to chair, shopping, cooking, and laundry. These services are provided by a variety of organizations, including temporary employment firms, nurse registries, and home health agencies. The types of individual workers providing home care services are equally varied, including home health aides, homemakers, and choreworkers, as well as professional social workers, occupational therapists, and physical therapists. However, it is believed that 70 to 80 percent of all paid long-term home care is provided by workers variously known as home health aides, personal care aides, personal care attendants, or homemakers.

The Federal Role

The federal government finances home care services through several means, including Medicare, Medicaid, Veterans’ Administration programs, Older Americans Act funds, Social Services Block Grants, and various demonstration and waiver programs. However, the broadest federal programs for supporting these services are generally recognized to be Medicare and Medicaid. The federal government indirectly regulates some home care workers through the requirement that agencies or individual providers that participate in the Medicare and Medicaid programs meet various conditions of participation.

In addition to these conditions of participation, the Medicare and Medicaid Patient and Program Protection Act of 1987 requires that the Secretary of Health and Human Services (HHS) exclude from participation in title XVIII (Medicare), and direct states to exclude from participation in programs authorized by title XIX (Medicaid) and title XX (Social Services Block Grants), any individual or entity convicted of program-related crimes or who has been convicted under federal or state law of a criminal offense related to neglect or abuse of patients in connection with delivery of a health care item or service. Also, the Secretary may direct a state to disqualify those convicted of other crimes, such as fraud in the delivery of health care services, obstruction of justice, or crimes related to the manufacture, distribution, prescription, or dispensing of a controlled substance. HHS has issued related regulations (see 42 C.F.R sections 1001.101 to 1001.102 and 1002.203), but these regulations do not require home care worker background investigations and apply only to offenses occurring in connection with the delivery of health care services.

Other Sources of Home Care Requirements

State or local governments or professional boards also impose requirements on home care organizations and independent workers in connection with agency or individual licensure or registration processes. The coverage of these nonfederal requirements varies from large segments of the home care industry to particular types of workers. Some states also assist consumers in distinguishing licensed or registered workers from others by limiting the advertisement of particular services to those who are licensed or registered. (See appendixes I and II.)

Reasons for Interest in Worker Screening

Several factors contribute to recent interest in background screening requirements for home care workers. These include the increasing size and obvious vulnerability of the population in need of home care services, the challenges the home care setting poses for worker supervision, rapid expansion of the home care industry, unrelenting demand for home care services in the face of worker shortages, the low wages typically available to paraprofessional workers serving a largely low- or fixed-income population, diffuse responsibility for worker selection, and anecdotal reports of abuses by home care workers with criminal history.

Home care is provided to persons living at home who, because of a chronic condition or illness, often cannot care for themselves. Studies of home health care utilization have found that the typical recipient is a woman with functional limitations who is very elderly, has a low income, and lives alone.

The number of persons needing home care is expected to increase as the very elderly population grows from the 3 million persons over age 85 in 1990 to more than 15 million in 2050. Among those in need of home care, reliance on paid home care workers is also expected to rise, partly because adults in the baby boom generation have had smaller numbers of children and will therefore have fewer available to provide or supervise their care in old age. In addition, projections indicate that labor force participation will continue to increase among women, who have traditionally provided much of the informal care for the elderly. Although future cohorts of elderly persons may be better off financially, long-term care costs are expected to increase faster than personal income.

Although the home care work force is entrusted with significant responsibilities and sometimes demanding work with little supervision or assistance, home care work is often characterized by part-time employment, lower wages, and an absence of fringe benefits. Moreover, workers are in high demand, and managers of proprietary home care agencies indicate that the speed with which they can provide workers to fill newly identified needs is often critical to their firms’ success. In this context, the expanding demand for home care services and the rapid growth of the home care industry combined with an absence of appropriate safeguards could create pressures to hire potentially unqualified job applicants.

In addition, in an effort to stretch home care funding and empower consumers, some states are adopting policies that encourage or require aged and disabled beneficiaries to take direct responsibility for hiring and supervising their home care workers who are paid with state or federal funds. Thus, vulnerable home care consumers increasingly need access either to the tools for evaluating potential workers or to a list of prequalified candidates. In the absence of the ability to offer attractive salaries, however, individual consumers may feel hard-pressed to impose extensive requirements on workers, for fear they will lose potentially good workers to less demanding employers.

Finally, anecdotal reports of abuses by a small number of home care workers with criminal history have raised the issue of whether and how such workers should be screened for criminal background. Limited experience in screening for criminal background among home care workers suggests that a segment of workers have criminal history, but that such history does not always portend criminal behavior. However, advocates of criminal background screening argue that the use of this process may deter any individuals with criminal intent from entering the field.

Types of Screening

While some localities have experimented with other methods for screening applicants for home care work, this report is concerned primarily with two potential forms of background screening: use of worker registries and use of mandatory criminal background checks. Under the Omnibus Budget Reconciliation Act of 1987, states must keep registries of individuals qualified to work as nurses’ aides in nursing homes that participate in Medicaid and Medicare, and these registers must note any instances in which states find that such aides have been involved in resident abuse, neglect, or misappropriation of property from a nursing home patient. Before employing someone as an aide, a nursing home that participates in Medicare or Medicaid must check the registry for prior incidents involving the prospective worker and verify that the worker meets appropriate training standards. This registry is important for two reasons: (1) there is some overlap between the nursing home and home care work force; and (2) it is a model for worker screening that has already been incorporated in the Medicare and Medicaid programs that some states have extended to cover other types of workers, including home care workers.

With respect to criminal background checks, several variations are possible. Federal, state, or local law enforcement data may be used by states for criminal background checks, and each has advantages and limitations. Although checks using state and local data are more readily implemented, they are not as comprehensive as those employing national records because they miss convictions that have occurred even in neighboring states or communities. Also, if they are based primarily on the name, birthdate, and social security number provided by the job applicant, they can result in false positives or false negatives.

The FBI may share interstate criminal history data with state officials if authorized by a state statute approved by the U.S. Attorney General for the purpose of determining the fitness of persons to work with children, the elderly, or individuals with disabilities. Under the law, an entity qualified under such a state law (for example, a licensed home care agency), may request that an FBI-authorized state agency conduct a national background check of an applicant provider. Such checks employ the national criminal history background check system, which contains state and federal criminal history records, and may be requested only when the person to be checked provides fingerprints and a signed statement regarding the presence and nature of any previous criminal convictions. The FBI routinely charges states at least $22 for processing each fingerprint check for a nonvolunteer care provider. The law requires that the FBI-authorized state agency make “reasonable efforts” to respond to such inquiries within 15 business days. We report results on the extent to which states have taken advantage of this law in connection with home care workers, who primarily serve the elderly.

Scope and Methodology

To describe federal and state requirements applying to home care organizations and workers, we reviewed federal conditions for participation in Medicare and Medicaid and surveyed state governments regarding their methods for regulating organizations and individuals who provide home care. The terminology used to refer to various types of home care workers is highly variable, and thus, our survey adopted the standard definitions we present in the glossary.

Although licensure or registration does not necessarily ensure a better standard of care, we asked about these practices because they indicate that a state has identified certain organizations or individuals and thus has the capacity to apply additional requirements, such as criminal background checks or special training. We also asked about states’ experience in operating the federally mandated registry for nursing home aides that records documented findings of abuse, neglect, or misappropriation of a resident’s property and the states’ use of this or similar registries for home care workers. Finally, we inquired about the presence of state requirements for criminal background checks of workers and the records covered by these checks.

We completed our survey between August 1994 and April 1996. We received responses from 49 states and the District of Columbia. We did not independently verify the accuracy of state officials’ responses to our survey questions regarding state laws and policies.

In addition to surveying state officials, we interviewed home care providers and state and local officials in California, New York, and Oregon regarding their approaches to screening home care workers. We also spoke with home care consumers in Oregon and with officials from the FBI and the Health Care Financing Administration (HCFA) and reviewed relevant literature on the utilization, regulation, and characteristics of home care. Our work was conducted in accordance with generally accepted government auditing standards.

We did not assess the extent of the problems linked to home care providers, nor did we determine to what extent the use of a criminal background check is linked to a lower incidence of abuse, theft, or misappropriation of property. Although in our interviews with consumers we received some anecdotal reports of rough handling, verbal abuse, and theft, we were unable to assess the extent of such problems. Doing so is generally complicated because investigating and documenting such incidents is difficult; they tend to be underreported, and the reports that do exist are scattered among various administrative and law enforcement record systems. We also did not assess the extent to which the operators of home care organizations voluntarily purchase fidelity bonds, which protect covered employers against losses due to employee dishonesty and may be conditioned on certain employee screening practices.

Principal Findings

Of those persons who received paid home care in 1989, half paid for their care without any assistance from public sources or insurance. Some of this privately financed home care is provided by agencies that participate in Medicare and Medicaid and are therefore subject to limited federal requirements; however, the existence of such a large private market suggests that a substantial portion of assistance may be provided by organizations and individuals that function outside these programs. Care provided outside federal programs is governed by state and local requirements, which may also apply to federally financed care in the state in which it is delivered.

How Do States Regulate Home Care Providers?

States take a wide variety of approaches to categorizing and licensing home care organizations. Among the 50 jurisdictions responding to our survey, 41 required that at least certain organizations obtain a specific license before providing home care services, with 35 licensing at least some of the home care organizations that do not participate in the Medicare program. In fact, 11 states indicated that all home care organizations were publicly regulated through state licensure. (See table 1.)

However, even states that regulate some home care services may not prohibit advertisement of similar-sounding services by organizations that are not licensed, registered, or certified. In 45 states, companion, housekeeping and homemaker, or shopping services may be legally advertised by organizations that are not licensed, registered, or certified. (See appendix I.) More states regulated the advertisement of personal care, home health, and home nursing. However, 30 states told us that unlicensed and uncertified organizations might legally advertise personal care; 14 did not specifically prohibit such organizations from advertising home health care, and 22 did not prohibit their advertisement of home nursing or related home care services.

Although most states require that at least certain professionals who provide paid home care obtain a state license, they are not likely to require licensure or registration of some common types of home care workers. While individual licensure is a common practice for the regulation of practical nurses, physical therapists, occupational therapists, social workers, and registered nurses, it is not common for home health aides, homemakers, or choreworkers. As shown in appendix II, we found that individuals who were neither licensed nor state-registered could advertise personal care, companion, housekeeping and homemaker, or shopping services in most states. Even home health and home nursing services could legally be advertised by unlicensed and unregistered individuals in about a third of the states. Some state officials also identified related categories of service, such as adult day care and case management, that unlicensed and unregistered providers could legally advertise.

Consumers seeking to file complaints against home care workers are faced with a somewhat complex regulatory structure in some states, while in other cases, no administrative complaint is possible, and they must file a criminal complaint with the local police or a civil suit. In most states, the responsibility for licensure of nursing home and home care workers was spread across multiple agencies, units, or professional boards. Similarly, although 20 states issued only one type of license to home care organizations, nearly as many recognized two or more types of home care organizations in their licensing processes.

Do States Compile a Registry of Home Care Workers?

A minority of states (14) reported routinely including at least some types of home care workers in their state’s mandatory registry for nurses’ aides. When we interviewed officials of home care organizations, some expressed concerns about entering qualified employees on any public register that their competitors might use for recruitment. In addition, while administrative expenses for the initiation of the nurse’s aide registry have already been incurred, adding home care workers to the established registry process would require additional resources, such as increased time for data entry. More importantly, there may be greater difficulty in substantiating complaints about home care workers since they are generally subject to less oversight than nursing home workers.

Do States Conduct Criminal Background Checks?

Fifteen states reported requiring criminal background checks of at least some of the individuals who may be employed as home care workers. In these states, checks were usually a condition of agency licensure or certification, although in a few states, they were also a condition of individual licensure or registration. States reporting criminal background check requirements for home care workers included Alaska, California, Florida, Idaho, Indiana, Louisiana, Nevada, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Utah, Virginia, and Washington. Twelve of these states indicated that state statutes or regulations specified the jurisdictions that these checks must cover, but the breadth of the check was generally limited to a state’s own criminal records, which may be problematic where many workers come from neighboring states.

At least three states—Idaho, Nevada, and Ohio—reported using national FBI data, but officials of other states we interviewed cited the expense of FBI data as a reason for not using it. Almost all states that reported requiring such checks indicated that a criminal background could be grounds for denying employment or refusing licensure or for some other type of adverse action, such as probationary certification.

Conclusions

While it is difficult to assess the extent of problems with abuse, neglect, or misappropriation of property in the home care industry, we found that federal regulations do not require criminal background checks of home care workers. While some states and localities have instituted criminal background checks or other safeguards, states’ approaches to regulating home care are quite varied, and in some instances, there may be few formal safeguards to protect potentially vulnerable elderly persons from unscrupulous operators.

Every state must maintain a registry of nursing home workers noting those who have been involved in incidents of abuse, neglect, or misappropriation from patients. Although some states incorporate home care workers in a registry, and such registries may be valuable for identifying individuals who have met particular training standards, the effectiveness of such registries in identifying workers with histories of poor performance may depend heavily on the capacity to document incidents occurring in a largely unsupervised environment. While some states have instituted criminal background checks for some home care providers, few have used the FBI’s national data, citing cost concerns.

Agency Comments

“While we agree with and support efforts designed to eliminate fraud and abuse and increase quality of care, we are unconvinced that there is enough consensus on the mechanisms which should be employed to address these concerns. Consequently, we believe States should be given the flexibility to determine how best to address these issues.” “The FBI’s user-fee program is the sole basis by which it funds processing of noncriminal justice applicant fingerprints card submissions for licensing and employment purposes. The FBI’s budget does not contain any Congressional authorization or appropriation for funding of this part of its fingerprints operation.”

As we arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send copies of the report to interested congressional committees, the Secretary of HHS, the Administrator of HCFA, the Assistant Secretary for Aging, the Director of the FBI, and other federal and state officials. We will also make copies available to others upon request.

If you have any questions or would like additional information, please contact me at (202) 512-3092 or Sushil K. Sharma, Assistant Director, at (202) 512-3460. Other major contributors to this report are listed in appendix III.

Services That Organizations That Are Neither Medicare-Certified Nor State-Licensed May Legally Advertise

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No response provided for this item.

Services That Individuals Who Are Neither State-Licensed Nor State-Registered May Legally Advertise

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No response provided for this item.

Major Contributors to This Report

Program Evaluation and Methodology Division

Office of General Counsel

Glossary

Chore Services

Performance of tasks such as shopping, yard work, and housecleaning that generally do not require hands-on contact with the consumer.

Chore Worker

A title sometimes given to home care workers who perform chore services.

Companion

A title sometimes given to home care workers who perform companion services.

Companion Services

“Friendly visitor” services that may include assisting home care clients as they perform basic or instrumental activities of daily living. This term may connote services to clients who are less dependent than those receiving services labeled “home health” or “personal care.”

Criminal Background Check

A review of police or other law enforcement records designed to determine whether a particular person has been convicted of unlawful acts.

Home Care Organization

A for-profit or nonprofit entity that provides any of or all the home care services described below under “home care services.” This term excludes home care providers who are self-employed or personal employees of home care consumers.

Home Care Services

Services provided to ill or disabled persons in private residences to assist them either in recovering from illness or in continuing to live in their own homes. Such services may be of any duration (short term, long term). They include assistance with basic activities of daily living (for example, bathing, eating, toileting), instrumental activities (for example, shopping, meal preparation, laundry), or chronic medical conditions (for example, catheter care, parenteral nutrition, wound care). Home care services are provided under the rubric of home health care, personal care, companionship, homemaker services, chore services, occupational therapy, and physical therapy. The services are provided by a range of personnel, from nurses and therapists to workers with little formal training or education.

Home Care Worker

Anyone who performs home care services. This designation includes professional nurses and therapists as well as paraprofessional workers with little formal training.

Home Health Aide

A title sometimes applied to a paraprofessional home care worker who generally provides basic home health care and incidental personal care services. Agencies that are Medicare-certified must ensure that home health aides in their employ meet specific Medicare training requirements.

Home Health Care

Assistance with health care provided in private residences to persons with disabilities. This designation may include services of professional nurses and therapists as well as those of paraprofessionals, such as home health aides and personal care aides. Specific services may include administration of medication, catheter care, wound care, and occupational or physical therapy.

Homemaker Services

Housekeeping assistance that may include cooking, cleaning, and laundry and generally does not involve hands-on contact with the consumer.

License

Permission to practice or operate in a certain capacity (for example, as a home health aide) that is extended only to license holders. Licenses may be extended to either businesses or individual workers. They are generally subject to renewal at designated intervals and may presume satisfaction of certain standards or submission to certain oversight processes.

Medicare-Certified

A designation given to an entity that is approved for participation in the Medicare program and is therefore eligible for Medicare reimbursement (for example, a “certified” home health agency). Nurse’s aides who are qualified to work in nursing homes that participate in Medicare or Medicaid are also sometimes called “certified” nurse’s aides.

Occupational Therapist

A title used by professionals who help persons with disabilities to develop, recover, or maintain daily living and work skills or to compensate for loss of function. An occupational therapist may also design or make special equipment needed at home or at work. Persons who use this title generally hold a bachelor’s degree in occupational therapy.

Personal Care Aide

A title sometimes given to paraprofessional home care workers who perform personal care services. People who perform these functions are also sometimes known as personal attendants or personal care workers.

Personal Care Services

Functional assistance, including help with basic activities of daily living (such as eating, bathing, toileting, and transferring from bed to chair), that generally involves hands-on contact with the consumer.

Physical Therapist

A title used by professionals who perform tasks designed to improve mobility, relieve muscle pain, and prevent or limit the permanent physical disabilities of patients suffering from injuries or disease. Unlike an occupational therapist, a physical therapist focuses exclusively on physical disabilities. Physical therapists are usually licensed and graduates of an accredited physical therapy program.

Practical Nurse

A home care worker who cares for the sick, injured, convalescing, and handicapped under the direction of a physician or registered nurse. Such workers perform tasks such as taking vital signs, treating bedsores, administering injections and enemas, providing assistance with personal care, giving alcohol rubs and massages, and inserting catheters. In some states, practical nurses are referred to as vocational nurses. Many of the functions performed by workers in this category are also performed by persons called home health aides, but practical nurses are more likely to have passed through a state licensing process and are consequently referred to as licensed practical nurses or licensed vocational nurses.

Registered Nurse

A graduate of any accredited nursing school who has passed the national licensing examination. A registered nurse may include a person with an associate’s degree in nursing (A.D.N.), a bachelor’s degree in nursing (B.S.N.), or a hospital nursing diplomate.

Registry

A list of individuals who work in a designated capacity or meet specific qualifications. Depending on state rules, participation in a registry may either be voluntary or mandatory. The content of registry entries may range from worker name and address to detailed information about worker qualifications, background, and past performance. Registration, unlike licensure, may not imply possession of a document, evidence of fulfillment of particular requirements, or periodic submission to oversight.

Social Worker

A person who helps individuals and families cope with problems such as inadequate housing, serious illness, financial mismanagement, handicaps, or substance abuse, generally through direct counseling or referral. Social workers generally hold a bachelor’s degree in social work or a related field.

Temporary Staffing Agency

A type of temporary employment service that provides health care workers on a contract basis. Such workers are generally considered employees of the temporary staffing agency rather than of the organizations or individuals for whom they perform services.

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