O∙K∙L∙A∙H∙O∙M∙A National Background Check Program Advisory Board Meeting October 7, 2011 James Joslin Opening Remarks

Contents Program Fundamentals Program Goals Program Implementation Support Long Term Care Facility/Provider Definition State Awards to Date Program Drivers – History and Findings Program Drivers – Current Grant Requirements Oklahoma Current Status Next Steps

Program Fundamentals Intended to help States protect vulnerable populations from abuse Managed by the Centers for Medicare and Medicaid Services (CMS) within the U.S. Department of Health and Human Services (DHHS) Grant program in effect from 2010 through 2015

See last page for definition of “direct patient access employees”. Program Goals Purpose of grant to identify efficient, effective, and economical procedures for States to conduct State and Federal background checks Establish framework for standardized nationwide program for States to conduct fingerprint-based background checks on all prospective direct patient access employees of long term care facilities and providers See last page for definition of “direct patient access employees”.

Program Implementation Support CNA Non-profit, public interest research and analysis institution Awarded separate contract from CMS to help States Working with all grantee states Provided support to states in NBCP pilot study

Long Term Care Facility/Provider Definition Term ‘‘long-term care facility or provider’’ means facilities or providers that receive payment for services under title XVIII or XIX of the Social Security Act. In Oklahoma this would include: Skilled nursing facilities Advantage waiver assisted living facilities Nursing facilities Intermediate care facility for the developmentally disabled Home health agencies Hospice agencies Other facilities or providers of long-term care services under such titles as the participating State determines appropriate Long-term care hospitals Providers of personal care services under Medicare & Medicaid

State Awards to Date Awarded October 2010 Alaska Florida Connecticut Missouri Delaware Rhode Island Awarded January 2011 California District of Columbia Illinois New Mexico Awarded May 2011 Oklahoma Kentucky Awarded July 2011 North Carolina Utah

Program Drivers – History Medicare Modernization Act of 2003 authorized creation of the Background Check Pilot Program A major goal of the program was to improve screening done on direct patient access workers Required fingerprint-based searches of State and national criminal records and registry information DHHS Office of Inspector General (OIG) releases Nurse Aide Registries: State Compliance and Practices, in Feb 2005 Investigated state compliance with federal regulation for posting findings of abuse Examine prevalence of nurse aides certifying in multiple states Obtained data from all States comprising all nurse aide registries

Program Drivers – History Congress asked the DHHS Office of Inspector General (OIG) to investigate compliance with federal regulation prohibiting Medicare and Medicaid nursing facilities from employing individuals with certain criminal records OIG selected stratified random sample of 260 facilities Developed information transfer agreement with FBI to get access to criminal history records Released in March 2011: Nursing Facilities’ Employment of Individuals with Criminal Convictions, DHHS/OIG, OEI-07-09- 00110 DHHS/OIG just launched study of criminal history of aides with substantiated findings

Program Drivers – Findings OIG report on Nurse Aide Registries found over 99,000 aides certified in more than one state (Feb 2005) Over 1,500 had substantiated findings in one state and current certification in another NBCP pilot program reported that, of the seven States reporting data in 2007, 20% of applicants in NBCP pilot (2004-2007) withdrew or were disqualified in NBCP Pilot OIG report on Nursing Facilities’ Employment of Individuals with Criminal Convictions (Mar 2011) Evidence of insufficiency of existing background checks 92% of surveyed facilities employed at least one individual with at least one conviction

DHHS OIG 2005 Nurse Aide Registries: State Compliance and Practices Number of Nurse Aides with Certifications in Multiple States Number of Nurse Aides Certified Number of States in which Certified 93,697 2 4,919 3 342 4 35 5 10 6 1 7 9 99,006 Total Source: Nurse Aide Registries: State Compliance and Practices, DHHS/OIG, February 2005; OEI-07-03-00380

DHHS OIG 2005 Nurse Aide Registries: State Compliance and Practices Number of Nurse Aides with Substantiated Findings Actively Certified in Multiple States Nurse aides with substantiated findings in 1 state and active certification in: Number of Nurse Aides 1 State 1,412 2 States 122 3 States 14 4 States 3 5 States 1 Total 1,552 Source: Nurse Aide Registries: State Compliance and Practices, DHHS/OIG, February 2005; OEI-07-03-00380

DHHS OIG 2005 Nurse Aide Registries: State Compliance and Practices Number of Nurse Aides with Pending Findings Actively Certified in Multiple States Nurse aides with pending findings in 1 state and active certification in: Number of Nurse Aides 1 State 418 2 States 29 3 States 3 Total 450 Source: Nurse Aide Registries: State Compliance and Practices, DHHS/OIG, February 2005; OEI-07-03-00380

DHHS OIG 2005 Nurse Aide Registries: State Compliance and Practices Oklahoma: 101 aides with substantiated findings 52 aides with current certification in OK had substantiated adverse findings in 16 other States 17 aides with current certification in OK had pending adverse findings in 4 other States DHHS OIG 2005 Nurse Aide Registries: State Compliance and Practices Source: Nurse Aide Registries: State Compliance and Practices, DHHS/OIG, February 2005; OEI-07-03-00380

DHHS OIG 2011 Report Findings Oklahoma Count For 168 Nursing facilities, 5% or more of their staff have at least one conviction For 10 Nursing facilities, 20% or more of their staff have at least one conviction For 40.5% of facilities, 5% or more of staff had criminal convictions

DHHS OIG 2011 Report Findings – Crimes 56.7% of crimes were against persons or property

DHHS OIG 2011 Report Findings – Jobs For 36% of employees, < 5 years elapsed since most recent conviction

Program Drivers – Current Statute authorized grant program March 23, 2010 Expands requirements of background check Requires fingerprint-based search of State and Federal criminal history Abuse/neglect registries Records of any disqualifying information, such as professional licensing board Rap back capability for on-going monitoring of criminal convictions

State Requirements Under the Grant Conduct applicant screening and criminal background checks in accordance with nationwide program Monitor compliance by long term care facilities Provide for a provisional period of performance Provide independent appeal or dispute process Designate single State agency oversight of program Define direct patient care access employees Specify disqualifying offenses Describe and test methods that reduce duplicative fingerprinting, including development of rap back capability for on-going criminal history notification

Gaps in Current Oklahoma Legislation No requirement for fingerprint-based criminal background checks No appeals process for disqualified applicants Current law does not apply to all staff with direct patient access Rap back provisions: arrest vs. conviction Other Issues Relevant requirements in more than one law Some laws have ability to remove hiring prohibition based on rehabilitation/time Disqualification from abuse and neglect findings in another state Disqualification barriers & relevance to position

Oklahoma Background Check Requirements Nurse aides and Non-Tech Service Workers in Assisted Living; Residential Care, Adult Day Care, Nursing Facility, Intermediate Care Facilities For Developmentally Disabled, and Home Health Agencies Any felony or misdemeanor crime, against person, property, public decency or morality, of domestic abuse; or felony possession or distribution of a Schedule I through V drug.

Oklahoma Background Check Requirements Home Care Administrator (Felony or drug conviction ) Nursing Home Administrator (Moral Turpitude) Nurse (Felony – 5 years) Community services worker and Medicaid personal care assistant [Title 56 O.S. § 1025.2] Felony aggravated assault and battery, homicide, murder, attempted murder, rape, incest, sodomy, or abuse, neglect, or financial exploitation of any person entrusted to the worker's care, or misdemeanor assault and battery

Oklahoma Current Status Initial meetings held with OSBI, CMS, CNA and OSDH IT staff Presentations to Long Term Care, Home Health, and Hospice Advisory Boards Advisory Board creation and stakeholder discussions to: Refine proposed system, process, and scope of work Identify and select funding options Draft legislation

Oklahoma Current Status Identifying partner agencies with current/pending background check requirements Department of Education Employees and Teachers OSDH – Alarm and Locksmith, Fire Extinguisher, Licensed Professional Counselors Licensed Social Workers Board of Nursing DHS Foster Care DHS Guardianship DHS Childcare Facilities and Volunteers DHS Community Service Providers and Medicaid Personal Care Services

Oklahoma BC Screening Projections Percentage of Screenings in Pilot 4 Total Nursing Staff in Okla. Nursing Facilities (NF) 1 12,364  0% Other NF Staff 2 6,658 Total NF Staff 19,022 Estimated NF Staff Turnover based on 64.4% rate3 12,250 42.7% Other Provider Staff Screened 16,439 57.3% Total Annual Screenings 28,689    0 Monthly Screenings 1,370 Weekly Screenings 552 Daily Screenings (5 day Week) 110 1NH Compare Staffing Data 2Based on a sample of NF Staffing ratios as reported in CMS-Form 670. The ratio of nursing to non-nursing staff averaged 65% to 35% 3AARP State Long-Term Services and Supports Scorecard Results, Nursing home staffing turnover: ratio of employee terminations to the average no. of active employees (2008) 4Evaluation of the Background Check Pilot Program, Final Report, Abt Associates Inc. August 2008.

Impact of NBCP on Applicant Pool Applicant Status Pilot Number Pilot Percentage (of total applied) Oklahoma Projection Applied for Position at Long Term Care Facility 204,343 100% 28,689 Withdrew Application Voluntarily Prior to Background Check 38,400 18.80% 5,394 Background Check Completed:   Approved 158,211 77.42% 22,211 Denied 7,732 3.80% 1090 Appealed for Rehabilitation 483 .24% 69 Appealed for Correction of Record 115 .06% 17 Scan Cost Cost Model 1 Model 2 FP Background Check Fee - State $ 21.75 $ 21.75 FP Background Check Fee - FBI $ 19.25 $ 19.25 Livescan Vendor Fee $ 12.00 $ 9.00 OK Sex Offender $ .00 $ - OK Violent Offender $ .00 $ - Admin $ 10.00 $ 10.00 Total $ 60.00 $ 60.00 Source: Evaluation of the Background Check Pilot Program, Final Report, Abt Associates Inc. August 2008.

Next Steps Action plan for Oklahoma Create advisory board coordinated across responsible state agencies which includes providers, consumers, advocates, and other stakeholders Draft and adopt legislation enabling the state to perform and monitor background checks on staff with direct patient access Evaluate current background check system Build and implement system of background checks Evaluate and refine system

Next Steps Timeline for implementation Jul – Dec 2011 Create Advisory Board/Working Group Develop funding models Draft legislation System Evaluation/Scope of Work Drafted Jan – June 2012 Legislative passage System Scope of Work finalized/Construction Begins July – Dec 2012 Construction LiveScan Vendor RFP & Contract Jan – July 2013 background check System rollout/Testing Note that work is underway to develop a dashboard for registry checks using NAR NSOR SOR VORA Exclusion list

Discussion and Questions DEMONSTRATION Discussion and Questions

Table 5.5 Michigan: Background Check Completion Times Days from starting date to: Average Mid-Point Registry checks completed 2 Fingerprinting 18 9 State background check request date 19 10 State background check response date 15 13 State fitness determination Federal background check request date Federal background check response date 25 Federal fitness determination Fitness determination (both State and Federal) 28 Fitness determination notification Voluntary withdrawal 75 42 Appeal 57 48 Appeal decision 69 59 Source: State Quarterly Data Reports Source: Evaluation of the Background Check Pilot Program, Final Report, Abt Associates Inc. August 2008.

Direct Patient Access Employee The term ‘‘direct patient access employee’’ means any individual who has access to a patient or resident of a long-term care facility or provider through employment or through a contract with such facility or provider and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider, as determined by the State for purposes of the nationwide program. Such term does not include a volunteer unless the volunteer has duties that are equivalent to the duties of a direct patient access employee and those duties involve (or may involve) one-on-one contact with a patient or resident of the long-term care facility or provider. Any individual who has access to a patient or resident of a long-term care facility or provider through employment or through a contract with such facility or provider and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider