Overview of the Patient Safety and Abuse Prevention Act: Establishes a nationwide system of criminal background checks for long-term care facilities Creates minimum requirements to be followed by the States Requires that the applicant be fingerprinted for use through the FBI's Automated Fingerprint Identification System

in a negligent hiring case Lawsuits The average verdict in a negligent hiring case The average cost to settle a negligent hiring lawsuit $2 Million $1 Million

Administrative Costs: Fines & Recoupment In Georgia: $500 a day

Barriers to National Criminal Background Check Legislation

Barriers to National Criminal Background Check Legislation Different states have different cultures. Political challenges within the State of Wisconsin. Political challenges across the United States. Logistical challenges prior to implementation.

Patient Safety and Abuse Prevention Act (H.R. 2223 and S. 631) The Act would prohibit the hiring of an individual who has a “conviction for a relevant crime” or a “finding of patient or resident abuse”.

A “conviction for a relevant crime” includes a conviction: 1. of Medicare or Medicaid program-related crimes, 2. relating to patient abuse, 3. of felonies for health care fraud, and 4. of felonies relating to controlled substances

Medicare / Medicaid program-related crimes These offenses include any criminal conviction or admission relating to The provision of services under Medicare Medicaid/PeachCare for Kids or other health insurance programs; Neglect or abuse of a patient; Unlawful manufacture, sale, possession, distribution, prescription or dispensing of a controlled substance or the conspiracy or attempt thereof; Any sexual offense perpetrated against a child or a patient or the attempt or conspiracy thereof; Fraud, theft, embezzlement, breach of fiduciary responsibility, other financial misconduct or the attempt or conspiracy thereof.

A "finding of patient or resident abuse" means any substantiated finding by a State or Federal agency that the employee has committed an act of resident abuse or neglect or misappropriation of resident property.

WHERE WILL THIS INFORMATION BE FOUND? CURRENTLY: States search their own state law enforcement agencies, abuse and neglect registries, and the Office of Inspector General FUTURE: States will also be required to fingerprint the applicant for use with the FBI’s Integrated Automated Fingerprint Identification System.

Appeals Rights for Employee An employee can be employed for 30 days on a provisional basis If denied employment, the employee can dispute the results of the background check

Penalties No penalties under this Bill Congress has deferred to the States

Who will pay? Previous version of Bill - direct reimbursement to providers Current version of Bill - $3 Million to each participating State 

States That Did Not Support California Florida Louisiana Minnesota New Mexico New York North Dakota Ohio South Carolina Wyoming

Organizations Supportive of Bill

Georgia Crimes Corresponding to Crimes under the Medicaid Manual Theft, Embezzlement (i.e., Larceny), Financial Misconduct O.C.G.A. § 16-8-1, et. seq. (Chapter 8 of Title 16) Fraud, Financial Misconduct O.C.G.A. § 16-9-1, et. seq. (Chapter 9 of Title 16) Breach of Fiduciary Responsibility O.C.G.A. § 16-8-12(a)(3), Breach of Fiduciary Obligations by Officers/Employees or Government or Financial Institutions O.C.G.A . § 16-9-6, Punishment for a Fiduciary Unlawful manufacture, sale, possession, distribution, prescription or dispensing of a controlled substance or the conspiracy or attempt thereof. O.C.G.A. § 16-13-1, et. seq. (Chapter 13 of Title 16) Sexual Offense Perpetrated against a Child or a Patient or the Attempt or Conspiracy Thereof O.C.G.A. § 16-6-2, Sodomy and Aggravated Sodomy O.C.G.A. § 16-6-3, Statutory Rape O.C.G.A. § 16-6-4, Child Molestation O.C.G.A. § 16-6-5, Enticing a Child for Indecent Purposes O.C.G.A. § 16-6-5.1, Sexual Assault Against Person in Hospital or Other Institution O.C.G.A. § 16-6-22.1, Sexual Battery O.C.G.A. § 16-6-22.2, Aggravated Sexual Battery Neglect or Abuse of a Patient. Any of these crimes could be prohibited IF they involve acts of neglect or abuse of a patient. O.C.G.A. § 16-5-20, Simple Assault O.C.G.A. § 16-5-21, Aggravated Assault O.C.G.A. § 16-5-23, Simple Battery O.C.G.A. § 16-5-23.1, Battery O.C.G.A. § 16-5-24, Aggravated Battery O.C.G.A. § 16-5-100, Cruelty to a Person 65 Years of Age or Older

Implementing Crimes Encompassed by the Medicaid Manual and Under Georgia Statutes

Implementing Crimes Only Prohibited According to Georgia Statutes

The Patient Safety and Abuse Prevention Act will be effective one year from the date it is passed.  The Act will become permanent in 2013.

The Act will be administered by state health agencies. In some states, the provider will make the determination.  In other states, the state health agency will make the determination.

Five things you can do to prepare: 1. Ensure your facilities are in compliance with existing State law.  2. Ensure your facilities are in compliance with Medicaid and Medicare rules.  3. Check any insurance policies to ensure adequate coverage for negligent hiring.  4. Ensure your employees understand how to implement company policies regarding hiring.  5. Contact your State health agency

For questions, please contact: Dana S. Durrett, Esq. DDurrett@hbss.net 678-539-1627 For questions regarding regulatory healthcare issues, please contact: Long-Term Care Group Hall, Booth, Smith & Slover, P.C. 1180 W. Peachtree St. NW Suite 900 Atlanta, GA 30309 www.hbss.net For additional resources, please visit: hbssltc.resourcesforrisk.com