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

2. 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

3. 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

4. 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”.

5. 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

6. 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

7. 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

8. 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

9. 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
DHHS/OIG just launched study of criminal history of aides with substantiated findings

10. 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 ( ) 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

11. 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

12. 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

13. 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

14. 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

15. 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

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

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

18. 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

19. 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

20. 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

21. 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.

22. 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. § ]
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

23. 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

24. 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

25. 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.

26. 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 $ $
FP Background Check Fee - FBI $ $
Livescan Vendor Fee $ $
OK Sex Offender $ $
OK Violent Offender $ $
Admin $ $
Total $ $
Source: Evaluation of the Background Check Pilot Program, Final Report, Abt Associates Inc. August 2008.

27. 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

28. 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

29. Discussion and Questions
DEMONSTRATION
Discussion and Questions

30. 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.

31. 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