RD5 - Employment Exceptions for Nursing Facility Employees (HB 2748)

Executive Summary:

House Bill 2748, as passed as a floor substitute by the House of Delegates would have allowed individuals who have been convicted of not more than one felony relating to assaults and bodily wounding related to a domestic dispute to be screened for potential employment by a nursing home. The bill would have required the Department of Health to establish a screening process for these individuals. While the bill was passed by the House of Delegates, the Senate Committee on Education and Health referred the bill to the Joint Commission on Health Care for further study.

Based on our research and analysis during this review, we concluded the following:

• Federal law does not mandate criminal background checks for nursing home staff, but most states require some type of background check.

• In Virginia, nursing homes are required within 30 days of employing an individual to obtain an "original criminal record clearance...or an original criminal history record from the Central Criminal Records Exchange (Code of Virginia § 32.1-126.01). The Exchange includes the names and fingerprints of all individuals arrested for a class 1 or 2 misdemeanor (the two most serious classes of misdemeanors) or any felony committed in Virginia.

• Nursing homes in Virginia are not required to obtain national criminal records checks on employees. Employment applicants are required to provide "a sworn statement or affirmation disclosing any criminal charges, whether within or without the Commonwealth.... " Nursing homes, like other care-giving organizations, have been authorized in statutory provisions (Code of Virginia § 19.2-392.02) to request national criminal background checks through the Virginia Department of State Police.

• Barrier crime statutes contained in the Code of Virginia include 29 barrier crimes that apply to nursing homes; however, far fewer (13) barrier crimes apply to individuals working in assisted living facilities. (It is expected that the Code Commission will introduce legislation during the 2002 General Assembly session to recodify Title 63.1 as Title 63.2 of the Code. The recodification bill draft includes provisions that will make the barrier crimes for assisted living facilities consistent with those for nursing homes.) Barrier crimes for nursing homes are generally consistent with the barrier crimes established for facilities licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) and for child welfare agencies. However, three types of crimes - burglary, felony distribution and felony possession of drugs - are barrier crimes for DMHMRSAS and child welfare agencies but not for nursing homes.

• HB 2748 was introduced to address a situation involving an individual who was convicted of unlawful wounding which occurred during a domestic dispute. Two former employers described the individual as a very good caregiver and employee. However, because of the barrier crime statutes, the individual is prohibited from being employed as a caregiver in a nursing home or assisted living facility.

• HB 2748 provided for a screening mechanism that would allow the Virginia Department of Health (VDH) to assess whether applicants for nursing home employment are rehabilitated and "are not a risk to residents of the nursing home based on their criminal history backgrounds." VDH representatives indicated concerns about the Health Department being responsible for making such assessments.

• Representatives of a number of long-term care organizations indicated their opposition to the provisions of HB 2748. Concerns included that a felony assault conviction is a serious offense, that no mechanism for ensuring the caregiver had been rehabilitated is spelled out, and that increasing the professionalism of nursing home caregivers is not enhanced by reducing job qualifications.

A number of policy options were offered for consideration by the Joint Commission on Health Care regarding the issues discussed in this report. These policy options are listed on page 19. Public comments were solicited on the draft report. A summary of the public comments is attached at Appendix C.

On behalf of the Joint Commission on Health Care and its staff, I would like to thank the Virginia Department of Health, the Virginia Department of State Police, the Office of the State Long-Term Care Ombudsman, the Virginia Association of Nonprofit Homes for the Aging, the Virginia Health Care Association, the Virginia Hospital and Healthcare Association, Margaret Edds of the Virginian Pilot and the other agencies and associations who provided input and information during this study.

Patrick W. Finnerty
Executive Director
January 2002