Employee background checks may be best defense against criminal offense
Implement procedures now to minimize your agency's liability
It's a home care agency's worst nightmare. An employee with a criminal background murders a patient. Not only is the employee found guilty of murder, the agency is found negligent for not conducting a background check, even though it is not required in the state where the agency operates.
Unimaginable? Sadly, no. This scenario was actually played out recently in Massachusetts. Trusted Health Resources and the Boston Visiting Nurse Association were both found negligent in a case in which a jury awarded the murder victim's estate $26.5 million. It was the largest personal injury verdict in Massachusetts history and the largest negligent security verdict in the United States. Such a staggering sum may encourage private duty providers to implement background checks on all employees and new hires.
Four common sources of background information are:
· state police departments;
· private investigators;
· data reporting agencies;
· the Federal Bureau of Investigation (FBI).
Most state police background checks cost $10 per request and may take more than six weeks to complete, depending on the state. A licensed private investigator report, potentially more comprehensive than a state police background check, can take several days to a week, and may cost as much as $100. Data reporting firm summaries generally cost from $35 to $50 and may require a few days to a week to complete. FBI checks, while very comprehensive, may take up to three months, so most agencies choose other methods.
Each state police department has its own background check procedure. State police reports generally include convictions in that state only. Convictions from other states may appear if they happen to be in the investigated party's file. State police reports generally include only final convictions. They usually do not indicate plea bargain agreements. County records, however, normally show plea arrangements.
Private investigators usually search county records. This process, although more expensive than a state police search, tends to yield more comprehensive results. Providers conducting background checks on employees who have lived in several states may use a private investigator to speed up results. Data reporting firms compile information from state records.
"Many agencies see the cost of the background check as worth it considering the cost of defending an incident and coupled with the safety of the patient," says Donna Franks, RN, MS, CCM, a home care consultant with HomeCare Resource Associates based in Des Plaines, IL. "The state police criminal check is a nominal fee and not a significant cost to prohibit the inclusion of a background check in the cost of hiring someone," she adds.
Only 10 states mandate background checks for employees who enter people's homes. The revised Medicare conditions of participation, due out this summer, are expected to require background checks on all employees of Medicare-certified agencies.
Although most states do not now demand it, most private duty providers conduct some form of background checks, sources say.
Establish a policy now
Regardless of the law, "agencies need to show that they make reasonable efforts to avoid negligent hiring and retention of employees," says Elizabeth E. Hogue, an attorney specializing in home care, in Burtonsville, MD. To do so, providers should adopt a policy to perform background checks and inform all parties involved - applicant, employee, and patient - how the process will work, Hogue suggests. (See sample policy and procedure, p. 95.)
Staff inservices for existing employees plus a thorough explanation upon hiring and at orientation should help employees understand the purpose behind the new requirement. Consultants or private investigators can brief managers on the process or be invited to explain it to employees.
Agencies should be candid with employees, informing them about their rights under the law and approaching the topic in a matter-of-fact way to avoid negative or suspicious feelings about the procedure, Franks recommends.
Managers should use their judgment when a background check shows a criminal history, sources say. If the employee lied on the employment application, the agency may fire the individual because of document falsification.
Factors to consider in retaining employees with criminal records include:
· the nature of the offense (for example, petty theft vs. grand larceny);
· the applicant's age at the time of the offense;
· the length of time since the offense;
· the applicant's overall work history;
· any positive professional references.
If an agency implements a policy, all employees - current and new - should fall under it, says Franks. "In Illinois, there is a state law to conduct background checks on health care workers. If a positive report comes back on a current employee, the agency is covered under the law if it wishes to terminate that employee based on the findings and any potential false information on the employment application," she adds.
In some instances, an employee can request a waiver within 30 days of a positive criminal check, which asks the agency to review the circumstances surrounding the reported criminal activity. Illinois law also permits conditional employment while a background check is completed.
Importance of supervisory visits
A clean background check is no guarantee that an employee will not commit criminal acts, either against an agency or its patients. For this reason, regular supervision is especially important. Managers should have ongoing employee contact, through supervisory and in-office meetings and daily telephone calls after each home visit. "Feeling the presence of the employer helps the employee and patient," says Darien Zimmerman, RN, vice president of long-term care for the Visiting Nurse Association of Greater Philadelphia.
Sources offered the following tips to help manage staff and family safety issues:
· Follow your instincts.
"Experienced home care managers have some sense of who is right for the job and who is not," advises Hogue. "The manager needs to pay attention to instinct."
· Use a buddy system.
Because an interview, background and reference checks do not reveal all there is to know about an employee, managers should assign a "buddy," a trusted employee, who may see potential problems by working alongside and talking with the new employee.
· Create a paper trail.
All reasonable efforts should be made to document types and frequency of supervisory visits made.
· Require office time.
Continuous communication and regular office visits for inservices and meetings are extremely important to stay in touch with employees.
· Hold subcontractors to your standards.
Require all subcontractors to conduct background checks. Make sure this is clearly spelled out in your contract.
· Educate patients.
"We need to teach and prepare clients about how to receive a worker in the home, including coaching them about removing certain valuables, not leaving excessive cash in open, or giving the worker money to run errands," says Zimmerman.
Better safe than sorry
Franks recommends that agencies implement background check policies immediately. "There is no substitution for the client's sense of security," she says. "All agencies should make it a priority to have employees screened properly and promote this safety to client." It is a small expense in comparison to potentially very large benefits for both providers and patients, she adds.
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