Brian T. Whitley, MPH, Regional Inspector General Office of Evaluation and Inspections

1. Measuring the Success of the National Background Check Program and Planning for Future Evaluation Brian T. Whitley, MPH, Regional Inspector General Office of Evaluation and Inspections Office of Inspector General US Department of Health and Human Services Region VII, Kansas City Presented to Association of Health Facility State Agencies, August 6, 2019

2. Learning Objectives

3. Understand: • OIG’s body of work related to background checks. • Congressional mandate.

4. Previous Work Nursing Facilities’ Employment of Individuals with Criminal Convictions, OEI-07-09-00110 Long-Term-Care Provider Administrator Survey, OEI-07-10-00421 Criminal Convictions for Nurse Aides with Substantiated Findings of Abuse, Neglect, and Misappropriation, OEI-07-10-00422 State Requirements for Conducting Background Checks on Home Health Agency Employees, OEI-07-14-00131 Home Health Agencies Conducted Background Checks of Varying Types, OEI-07-14-00130

5. Findings • 92% of nursing facilities employed at least one individual with at least one criminal conviction. • 5% of nursing facility employees had at least one criminal conviction. Recommendations • CMS should clearly define direct access employees. • CMS should develop a list of disqualifying convictions. Nursing Facilities’ Employment of Individuals with Criminal Convictions, OEI-07-09-00110

6. Findings • 94% of administrators conducted checks on prospective employees. • 23% of administrators stated that background check procedures reduced the pool of prospective employees. Long-Term-Care Provider Administrator Survey, OEI-07-10-00421 • 19% of nurse aides with substantiated findings had previous criminal convictions that could have been detected through background checks. Criminal Convictions for Nurse Aids with Substantiated Findings of Abuse, Neglect, and Misappropriation, OEI-07-10-00422

7. Findings • 4% of HHA employees had at least one criminal conviction. • 36% crimes against property. • 12% crimes against persons. • 58% of HHAs conducted periodic checks after hire. Recommendations • CMS should promote minimum standards in background check procedures. • Lack of Federal laws, State requirements varied. • Encourage States to participate in the Program. Home Health Agencies Conducted Background Checks of Varying Types, OEI-07-14-00130

8. Congressionally Mandated Evaluation • Mandate for National Background Check Program Evaluation and Report. • P.L. No. 111-148, § 6201(a)(7) • Submit a report to Congress covering 4 criteria on implementation, costs, unintended consequences, and impact within 180 days of Program completion. • Sometime between 2021–2025, depending on Program extensions.

9. Criteria 1: Implementation Review procedures States implemented for long-term-care facilities or providers, including staffing agencies, to conduct background checks of direct patient access employees under the Program and identify the most appropriate, efficient, and effective procedures. Criteria 2: Costs Assess costs of conducting background checks (including startup and administrative costs).

10. Criteria 3: Unintended Consequences Determine the extent to which conducting background checks leads to any unintended consequences. Criteria 4: Impact Assess the impact of the Program on reducing incidents of abuse, neglect, and misappropriation of resident property.

11. Discuss: • Recently conducted work. • Implications for continuing States.

12. Previous, Ongoing, and Future Work Early Implementation Review (2014) • National Background Check Program for Long-Term-Care Employees: Interim Report, OEI-07-10-00420 Preliminary Post-Grant Reviews (2019) • National Background Check Program for Long-Term-Care Providers: Assessment of State Programs Concluded Between 2013 and 2016, OEI-07-16-00160 • Second review to be published in the summer of 2019 Final Program Evaluation (2021–2025)

13. Early Implementation Review: Findings Of the 25 participating States in 2014: • 15 did not conduct rap back monitoring, • 13 did not obtain enabling legislation, and • 10 did not collect fingerprints. States in the early implementation review, 2014 National Background Check Program for Long-Term-Care Employees: Interim Report, OEI-07-10-00420

14. Early Implementation Review: Findings Of the 25 participating States in 2014: • 6 had sufficiently complete data for OIG to calculate disqualification rates, and; • 3 could differentiate continuous monitoring results from initial results. States in the early implementation review, 2014 National Background Check Program for Long-Term-Care Employees: Interim Report, OEI-07-10-00420

15. Early Implementation: Recommendations • Fully implement States’ background check programs (help with legislative proposals, develop capacity to collect fingerprints, rap-back). • Improve required reporting to ensure CMS can conduct effective oversight. States in the early implementation review, 2014 National Background Check Program for Long-Term-Care Employees: Interim Report, OEI-07-10-00420

16. Post-Grant Reporting 29 States are Program grantees.

17. Selected Requirements OIG Reviewed Determine direct access employees Require direct access employees to undergo background checks Include 9 provider types Identify disqualifying offenses Establish a Statewide program Collect fingerprints Conduct Statecriminal history checks Conduct Federalcriminal history checks Search records of proceedings that may contain disqualifying information Notify providers of convictions identified through continuous monitoring Report convictions to required databases. Check State abuse/neglect registry in current State Check State abuse/neglect registry in prior States

18. Post-Grant Review: Findings Of the 10States in 2019 review: • 5 implemented all background check requirements. • 3 did not have legislative authority to meet Program requirements. States in the post-grant review National Background Check Program for Long-Term-Care Providers: Assessment of State Programs Concluded Between 2013 and 2016, OEI-07-16-00160

19. Post-Grant Review: Findings Results from the 10States in 2019 review: • 80,000 determinations of ineligibility with 1.6 million checks. • State ineligibility rates ranged from 0.04% to 8.07%; ineligibility rates are not comparable across States. States in the post-grant review National Background Check Program for Long-Term-Care Providers: Assessment of State Programs Concluded Between 2013 and 2016, OEI-07-16-00160

20. Post-Grant Review: Recommendations CMS should take appropriate action to encourage participating States to obtain necessary authorities to fully implement Program requirements. States in the post-grant review National Background Check Program for Long-Term-Care Providers: Assessment of State Programs Concluded Between 2013 and 2016, OEI-07-16-00160

21. About Interim Reports Interim reports are designed to assist CMS—and States continuing in the Program—by promoting Program improvements and increasing protections for the vulnerable population of beneficiaries receiving long-term-care services.

22. Plan: • Filling data voids to answer the congressional mandate.

23. Final Program Evaluation and our Congressional Mandate • Data for mandate criteria 1–3—implementation, cost, and unintended consequences—will come from States. • Data for mandate criteria 4—impact—will come from CMS and the ASPEN Complaints and Incidents Tracking System (ACTS). • Continued congressional interest • We need your help! • Limitations?