Health Care Council of
Regulatory Update: News and Views
April 16,
2008
Number 2
Health Care Worker Background Check
As summarized last week, the Illinois Department of Public Health (IDPH) published sweeping
proposed amendments to the employee Health
Care Worker Background Check Rules in the April 4th Illinois Register. The new proposed regulations, once enacted,
will phase-in the fingerprinting of all
new unlicensed employees. A key
provision is that once a new employee or new CNA student has been fingerprinted
and entered on the Health Care Worker Registry, fingerprinting will not have to be done again, even if that employee
goes to another nursing home. It is
expected that the Department will begin phasing-in the fingerprint check
program for new unlicensed employees
sometime this summer, most likely starting with the ten northern counties
that had participated in last year’s federal fingerprint pilot project.
This week we will begin reviewing these proposed regulations
in detail and examine some of the operational implications for facilities,
including who does and does not need a
fingerprint check, using the Health Care Worker Registry, the fingerprinting
process, the documentation requirements, and disqualifying offenses and waivers.
Who Does Need A Fingerprint
Check: According to the new Section 955.110:
“This Part applies to all unlicensed individuals employed or
retained by a health care employer as home health care aides, nurse aides, personal
care assistants, private duty nurse aides, day training personnel, or an
individual working in any similar health-related occupation where he or she
provides direct care (e.g. resident attendants, child care/habilitation
aides/developmental disabilities aides, and psychiatric rehabilitation services
aides) or has access to long term care residents or the living quarters or
financial, medical, or personal records of long term care residents. This Part also applies to all unlicensed employees of licensed or
certified long term care facilities who have or may have contact with residents
or access to the living quarters or the financial, medical or personal records
of residents.”
Section 955.135 requires that unlicensed contract workers
from a staffing agency also need to be fingerprinted. Proof of this should accompany any contracts
with staffing agencies. The final
provision of this section allows that:
“If a staffing agency
is unable to have access to the fingerprint process established through the Act,
the health care employer may initiate the fingerprint-based criminal history
records check for the staffing agency.
The health care employer may require the staffing agency to reimburse
the health care employer for any fingerprint-based criminal history records
check expenses incurred.”
Who Does NOT Need a
Fingerprint Check:
Since volunteers are not employed, they are not required to have a
fingerprint check. In addition, according
to Section 955.130, “The Act and this
Part does not apply to:
“An individual who is licensed
by the Department of Financial and Professional Regulation or the Department of
Public Health under another law of this State.
A student in a health care field
licensed by the Department of Financial and Professional Regulation,
including, but not limited to, a student nurse, a physical therapy student, or
a respiratory care student, unless he or
she is employed by a health care employer in a position with duties
involving direct care for clients, patients, or residents or employed by a long
term care facility in a position that involves or may involve contact with
residents or access to the living quarters or the financial, medical or
personal records of residents, or
A person who is employed or under contract with a health care
employer to provide infrequent or
occasional services to a long term care facility, such as delivering items
to the facility; or equipment maintenance, grounds keeping, construction, or
other similar services that are not directly related to the care of a resident,
client or patient.”
While exempting volunteers, licensed personnel, and unpaid
healthcare students, Section 955.130 also does
not prohibit a facility from conducting a fingerprint background check on
these individuals, “as long as the individual is notified that the results of the
fingerprint-based criminal history records check will be entered on the Health
Care Worker Registry and the individual signs an authorization and disclosure
form.”
According to Section 955.140, “If a long term care employer
has unlicensed employees who do not have
access to long term care residents or the living quarters or the financial,
medical, or personal records of long term care residents, the long term
care employer shall establish a policy defining these employee positions. In making these determinations, the long term
care employer shall consider the following:
a)
The employee’s assigned job responsibilities as set forth in the employee’s
job description, and
b)
The employee’s ingress and egress of the building to get to his or her
normal work station.”
Please note that the facility only needs to write this
policy if it determines that it has some unlicensed employees who do not have access to the resident’s
living quarters or records. Given
the definitions, possibly about the only employees in a nursing home who do not
have access to resident living areas or records might be a laundry worker who
only works in the laundry and does not deliver clothes up to the unit, or a
kitchen worker (e.g., dishwasher) who does not deliver food up to the
unit. Those workers also cannot enter
and exit the facility through resident areas.
The only real reason to have a policy defining a non-access worker would
be for an employee who has a disqualifying offense and is applying for a
waiver. If the background check comes
back with a disqualifying crime, the worker cannot work in any position with
access to residents or their records until the results of an IDPH waiver
request. If there is not a non-access
position defined by the facility, then that worker would not be able to work
anywhere in the facility while waiting for the results of a waiver request.
Finally, it should be noted that Section 955.165 states: “A direct care employer may initiate a
fingerprint-based criminal history records check for any of its employees or
volunteers, but not use this process to
initiate background checks for residents.
The results of any fingerprint-based criminal history records check that
is initiated with the Department as the requestor shall be entered in the
Health Care Worker Registry.”
Using the Health
Care Worker Registry: There are three requirements
for using the Health Care Worker Registry:
v For new employees you intend to
hire, check to see if they are already on the Registry; verify whether or not
they already have a fingerprint check; and check the six offender Web-site
links on the Regisry.
v To report new employee data (within
two days of authorizing the fingerprint check)
v To update the employment situation
of your employees, with start and termination dates, at least annually for all
employees and then within 30 days of hire or termination.
Checking Before
Hiring: According to Section 955.165(c) “Health care employers are required to check
the Health Care Worker Registry before hiring an employee….to determine whether
a fingerprint-based check has previously been conducted, which is indicated by
the identifier of “FEE APP” or “CAAPP”.
As long as the employee has had such a background check and stays active
on the Health Care Worker Registry, no
further fingerprint-based criminal history records check shall be deemed
necessary. If the individual has not had such a background check or is not active
on the Health Care Worker Registry, then the health care employer must
initiative a fingerprint-based criminal history records check.” While checking the potential employee
status on the Registry, you are also required to check the links to the six
offender sites, and print a screen of the background check initiation
page. You do not have to print a screen
from each of the six web sites.
Reporting New Hires: If an applicant has not had the
fingerprint check and an employer offers a conditional offer of employment
(even though an individual may start working, they are not legally hired until
the results of the background check are received; until that point they are
only “conditionally” employed), they must provide the employee with a
disclosure form (to be explained later) and obtain an authorization from the
employee for a fingerprint check. Within
two days of obtaining the authorization, the facility needs to put the
employee’s name, social security number of other brief demographic information
on the Registry (so that when the results of the fingerprint check gets
transmitted to IDPH by the State Police, the results can be matched with a name
already on the Registry and not go into fingerprint results limbo).
Updating Employment
Information Monthly and Annually: Finally, according to Section 955.145, each facility shall
update the Registry employment and demographic information on each of its
employees no less than annually, and indicate employment and termination dates
within 30 days after hiring or terminating an employee. So at least once a month, someone in the
facility should report to the Registry new hires and terminations, and once a
year verify that the information on the Registry for its current employees is
accurate. The purpose of the annual
updating is to comply with federal requirements that CNAs must remain working
in healthcare to maintain their certification.
If no facility reports the CNA as having worked in healthcare for two
years, that individual will be listed as “inactive” on the Registry, and will
be required to retake the training and competency program over again (by
federal law). However, according
955.165(k) “If the individual can provide
proof of having retained his or her certification by not having a 24
consecutive month break in service for pay, he or she may be hired as a
certified nurse aide and that employment information shall be entered into the
Health Care Worker Registry.”
The annual updating also enables the Department to notify
the current employer of any disqualifying offenses that have occurred since the
original fingerprint check was done for any employee listed on the Registry.
This new program is not yet in effect.
You will be informed by IDPH and your associations of the timetable for
replacing your UCIA name-based background check with the livescan vendor
fingerprint program in your area. As
with the federal pilot project, it can be expected that IDPH will be conducting
training sessions in your area just prior to implementing the program. Until such time, facilities should continue
to do UCIA background checks as required under current law and regulations. Next week we will review the fingerprint
process and documentation requirements.
There is a public comment period until