[Senate Prints 110-47]
[From the U.S. Government Publishing Office]





                    [COMMITTEE PRINT] deg.
110th Congress 
 2nd Session                COMMITTEE PRINT                     S. Prt.
                                                                 110-47
_______________________________________________________________________

 
                          BUILDING ON SUCCESS:
                    LESSONS LEARNED FROM THE FEDERAL
       BACKGROUND CHECK PILOT PROGRAM FOR LONG-TERM CARE WORKERS



                               ----------                              

                            presented by the

                       SPECIAL COMMITTEE ON AGING
                          UNITED STATES SENATE

                     ONE HUNDRED AND TENTH CONGRESS

                             July 31, 2008

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                     Prepared by the Majority Staff

This document has been printed for informational purposes. It does not 
 represent either findings or recommendations formally adopted by the 
                               Committee.

    BUILDING ON SUCCESS: LESSONS LEARNED FROM THE FEDERAL BACKGROUND

             CHECK PILOT PROGRAM FOR LONG-TERM CARE WORKERS

_______________________________________________________________________

                                     

                    [COMMITTEE PRINT] deg.
110th Congress 
 2nd Session                COMMITTEE PRINT                     S. Prt.
                                                                 110-47
_______________________________________________________________________



                          BUILDING ON SUCCESS:

                    LESSONS LEARNED FROM THE FEDERAL

       BACKGROUND CHECK PILOT PROGRAM FOR LONG-TERM CARE WORKERS



                               __________

                            presented by the

                       SPECIAL COMMITTEE ON AGING

                          UNITED STATES SENATE

                     ONE HUNDRED AND TENTH CONGRESS

                             July 31, 2008

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                     Prepared by the Majority Staff
This document has been printed for informational purposes. It does not 
 represent either findings or recommendations formally adopted by the 
                               Committee.


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                       SPECIAL COMMITTEE ON AGING

                     HERB KOHL, Wisconsin, Chairman
RON WYDEN, Oregon                    GORDON H. SMITH, Oregon
BLANCHE L. LINCOLN, Arkansas         RICHARD SHELBY, Alabama
EVAN BAYH, Indiana                   SUSAN COLLINS, Maine
THOMAS R. CARPER, Delaware           MEL MARTINEZ, Florida
BILL NELSON, Florida                 LARRY E. CRAIG, Idaho
HILLARY RODHAM CLINTON, New York     ELIZABETH DOLE, North Carolina
KEN SALAZAR, Colorado                NORM COLEMAN, Minnesota
ROBERT P. CASEY, Jr., Pennsylvania   DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           BOB CORKER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     ARLEN SPECTER, Pennsylvania
                 Debra Whitman, Majority Staff Director
            Catherine Finley, Ranking Member Staff Director

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page
Preface..........................................................     1
Executive Summary................................................     2
I. Background....................................................     5
  A. Elder Abuse.................................................     5
    The Growing Problem of Elder Abuse...........................     5
    Elder Abuse Imposes a Large Burden on Society................     5
    Elder Abuse and Neglect in Long-Term Care Settings...........     7
  B. Background Checks...........................................    10
    Background Checks Have a Potential to Reduce Elder Abuse.....    10
    Screening of Long-Term Care Workforce Involves Multiple Types 
      of Checks..................................................    11
  C. Congressional Action........................................    12
II. The Background Check Pilot Program...........................    17
  A. Program Overview............................................    17
  B. Pilot Program Requirements..................................    17
  C. State Program Overview......................................    18
III. Pilot Program Results.......................................    20
  A. Comprehensive Background Checks are Effective...............    20
    Over 9,500 Prior Criminals Were Barred from Working in Long-
      Term Care Facilities.......................................    20
    FBI Fingerprint Checks Played an Important Role..............    25
    Employers Were Generally Satisfied with Background Check 
      Programs...................................................    25
  B. Integrated Background Check Programs are Efficient..........    27
    Processing Time Was Cut Significantly........................    27
    States Developed Innovative Models to Integrate Existing 
      Databases..................................................    29
    Appeals Processes Allowed for Adequate Protections...........    29
  C. Investments in Background Check Systems are Economical......    29
    ``Rap Back'' Technologies Can Reduce Cost in the Long Term...    29
    Comprehensive Programs Create Efficiencies...................    30
    States Continuing Background Check Programs..................    32
D. State Pilot Program Summaries.................................    32
  Alaska.........................................................    32
  Idaho..........................................................    34
  Illinois.......................................................    36
  Michigan.......................................................    38
  Nevada.........................................................    40
  New Mexico.....................................................    41
  Wisconsin......................................................    43

                                APPENDIX

Appendix A. Glossary of Background Check Databases...............    47
Appendix B. Disqualifying Crimes Matrix..........................    51
Appendix C. Section 307 of the MMA...............................    57
Appendix D. State-prepared reports submitted to CMS..............    62

                           Table of Figures:

Figure 1: Selected Major Findings................................     4
Figure 2: Estimated Costs of Elder Abuse.........................     6
Figure 3: Types of Elder Abuse and Neglect in Nursing Homes from 
  Medicaid Fraud Control Unit Cases, 1997-2002...................     9
Figure 4: Selected Hearings on Elder Abuse in the Senate Special 
  Committee on Aging.............................................    13
Figure 5: Legislation That Would Require Background Checks for 
  Long-Term Care Workers, 105th through 110th Congresses.........    15
Figure 6: Overview of Background Check Pilot Program by State....    19
Figure 7: Number of Applicants Disqualified by Background Checks.    22
Figure 8: Category of Disqualifying Crimes Identified Through 
  Background Checks, Alaska, 4/06-9/07...........................    24
Figure 9: Satisfaction Survey of Participating Idaho Long-term 
  Care Providers.................................................    26
Figure 10: Background Check Processing Time Before and After 
  Pilot Program..................................................    28
Figure 11: Excluded Applicants, Appeals Requested, and Appeals 
  Approved.......................................................    29
Figure 12: Number of FBI Background Checks submitted and 
  processing time 1982-2006......................................    31


                                PREFACE

                              ----------                              

    It is with pride and urgency that I release this Senate 
Special Committee on Aging print describing the success of a 
pilot program to conduct background checks on long-term care 
workers. Over three years and in seven states, this pilot 
program prevented more than 9,500 applicants with a history of 
substantiated abuse or a violent criminal record from working 
with and preying upon frail elders and individuals with 
disabilities.
    The states who participated in the pilot are all planning 
to continue with the background check programs they have put in 
place, and build upon the success of the technological 
infrastructure they have created.
    The federal government needs to do the same, as the current 
system of state-based background checks is haphazard, 
inconsistent, and full of gaping holes. We should not allow the 
safety of our loved ones to depend on the state in which they 
live. Just think about how many more vulnerable older Americans 
could be protected if we expanded these programs to create a 
nationwide system of background checks.
    I call on my colleagues to pass S. 1577, the Patient Safety 
and Abuse Prevention Act. Eleven years ago today, the first 
version of this bill was introduced in the U.S. Senate. Since 
then, multiple versions have been introduced in both the Senate 
and the House. The policy has been improved and tested, and 
with this report, the results are undeniable. The time to pass 
this legislation is past due. Thank you, on behalf of aging 
Americans, for considering the material in this report.

                                               Herb Kohl, Chairman.

                           Executive Summary

                              ----------                              

    As our population ages, elder abuse\1\ is becoming a 
growing priority for policymakers. Studies vary, but 
conservative estimates are that elder abuse currently affects 
hundreds of thousands of seniors each year.\2\ And although 
national surveys often exclude institutional settings such as 
nursing homes and adult day care centers, criminologists 
believe ample evidence exists to suggest that abuse in 
institutions is ``extensive and alarming.'' \3\
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    \1\ The term ``elder abuse'' includes any criminal, physical, or 
emotional harm or other unethical action that negatively affects the 
physical, financial, or general well-being of an elderly person
    \2\ Colello, Kirsten. ``Background on Elder Abuse Legislation and 
Issues.'' Congressional Research Service. 25 January 2007.
    \3\ Payne, Brian and Gainey, Randy. ``The Criminal Justice Response 
to Elder Abuse in Nursing Homes: A Routine Activities Perspective.'' 
Western Criminology Review. 7(3). 67-81 (2006).
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    Background checks\4\ for job applicants have long been used 
as an important tool to help reduce the rates of abuse among 
vulnerable populations. For example, the National Child 
Protection Act enacted during the 1990s allows states to 
conduct background checks and suitability reviews of employees 
or volunteers of entities providing services to children, the 
elderly and disabled persons. At the state level, many states 
routinely require individuals seeking to work with children to 
undergo background checks as part of the pre-employment 
process. In 2002, a Government Accountability Office (GAO) 
report requested by members of the Senate Special Committee on 
Aging (Committee) recommended that individuals applying to work 
in long-term care settings also undergo background checks 
because the elderly, like children, are a highly vulnerable 
population.\5\
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    \4\ In this report, the term ``background check'' refers to 
comprehensive pre-employment screening of long-term care workers using 
a combination of state-based registries, state-based criminal history 
checks (name-based, fingerprint-based, or both), and FBI criminal 
history checks (fingerprint-based).
    \5\ U.S. Government Accountability Office. ``Nursing Homes: More 
Can Be Done to Protect Residents from Abuse.'' GAO-02-312. March 2002.
---------------------------------------------------------------------------
    Nevertheless, there is still no federal law that requires 
long-term care providers to perform systematic, comprehensive 
background checks on employees who have direct patient access 
to vulnerable seniors. According to a 2006 study prepared for 
the Department of Health and Human Services, only a handful of 
states now require an FBI criminal history check for long-term 
care employees.\6\
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    \6\ The Lewin Group. ``Ensuring a Qualified Long-Term Care 
Workforce'' Prepared for the Office of Disability, Aging and Long-Term 
Care Policy, Contract #HHS-100-03-0027
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    In 2003, Congress authorized a pilot program under the 
Medicare Prescription Drug, Improvement and Modernization Act 
(MMA) to conduct background checks on workers in long-term care 
settings.\7\ This pilot program afforded states an opportunity 
to expand their existing background check programs in order to 
screen a wide range of long-term care workers working in a 
variety of settings, including the home, and to incorporate FBI 
criminal history checks. In addition, pilot programs were 
charged with identifying ``efficient, effective, and economical 
procedures'' for conducting comprehensive background checks in 
long-term care settings. The Centers for Medicare and Medicaid 
Services (CMS) administered this pilot program between 2005 and 
2007, allocating a total of $16.4 million over three years to 
fund background check pilot programs in seven states: Alaska, 
Idaho, Illinois, Michigan, Nevada, New Mexico, and 
Wisconsin.\8\
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    \7\ P.L. 108-173, the Medicare Prescription Drug, Improvement and 
Modernization Act, Section 307.
    \8\ The MMA also included money for three states--Alaska, Michigan 
and Wisconsin--to conduct pilot programs in abuse prevention training 
for frontline direct care workers.
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    This Committee print analyzes state assessment reports from 
the each of the seven state pilot programs and describes the 
principal lessons learned by state policymakers interested in 
furthering the gains made to implement more effective, 
efficient, and economical background check programs. In 
particular, this paper assesses (1) the success of 
comprehensive background check programs in identifying and 
barring people with criminal records from working in long-term 
care settings, (2) the improved efficiency of integrated 
background check programs, and (3) the cost-saving potential of 
investing in improved background check technology.
    The analysis finds that the MMA pilot program was 
successful in achieving its objectives. First and foremost, 
older Americans receiving long-term care services in these 
states are at lower risk of abuse: more than 9,500 applicants 
with a history of substantiated abuse or a serious criminal 
background have been barred from working in positions involving 
direct patient access. Second, better-integrated databases and 
electronic fingerprinting procedures have helped reduce 
background check processing time from several months to a few 
days. Third, investments in information technology (IT), such 
as a ``rap back'' \9\ system, helped some states reduce ongoing 
costs associated with conducting criminal history checks. 
Finally, all of the pilot states chose to continue their 
background check programs for long-term care workers at the end 
of the pilot period in September 2007.
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    \9\ A rap back system is one in which any new crimes that an 
individual commits after an initial background check are flagged in the 
state's database and reported back to the employer. Rap back systems 
can therefore avoid the cost of having to re-fingerprint individuals 
each time they change jobs.
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    Overall, the Committee concludes that the pilot program has 
been a success and recommends that similar background check 
programs be replicated in other states to reduce the risk of 
elder abuse in long-term care settings.
[GRAPHIC] [TIFF OMITTED] T3176.283

                             I. BACKGROUND

                             A. Elder Abuse

                   THE GROWING PROBLEM OF ELDER ABUSE

    Elder abuse in the United States has been identified as a 
serious issue, with the act of abuse itself taking many forms. 
Elder abuse can take the form of physical abuse (battery, 
assault and rape), neglect (withholding or failure to provide 
adequate food, shelter and health care), and financial 
exploitation (theft, predatory lending and other illegal misuse 
or taking of funds, property or assets).
    As discussed in the executive summary, the magnitude of 
elder abuse today is significant, and experts believe that 
without additional interventions to prevent and build awareness 
of elder abuse, mistreatment and exploitation of frail elders 
will increase due to the rapid growth of the elderly population 
in the U.S. According to a report by the National Research 
Council, ``the frequency of occurrence of elder mistreatment 
will undoubtedly increase over the next several decades as the 
population ages.'' \10\ Between 2000 and 2004, the number of 
elder abuse cases substantiated by state adult protective 
services increased by 15.6 percent.\11\
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    \10\ Bonnie, Richard J. and Robert B. Wallace, eds., National 
Research Council of the National Academies, Elder Mistreatment: Abuse, 
Neglect and Exploitation in an Aging America, National Academy Press, 
Washington, DC 2003. p. 1
    \11\ National Center on Elder Abuse: Abuse of Adults Aged 60+ 2004 
Survey of Adult Protective Services http://www.ncea.aoa.gov/NCEAroot/
Main--Site/pdf/2-14-06%20FINAL%2060+REPORT.pdf
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    It is also a troubling fact that today, most elder abuse 
goes unnoticed, because it is not reported. It is believed that 
for every case of elder abuse that is reported, four are 
not.\12\
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    \12\ National Center on Elder Abuse: Abuse of Adults Aged 60+ 2004 
Survey of Adult Protective Services http://www.ncea.aoa.gov/NCEAroot/
Main--Site/pdf/2-14-06%20FINAL%2060+REPORT.pdf
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             ELDER ABUSE IMPOSES A LARGE BURDEN ON SOCIETY

    Elder abuse imposes a large economic burden on society, but 
measuring the direct and indirect costs of abuse to victims and 
society is difficult.
    In 2005, the estimated direct costs to victims of crime 
over the age of 65, regardless of their mental or physical 
capacity for self-care, totaled $1.3 billion, according to the 
Department of Justice's Criminal and Victimization Survey.\13\ 
Direct costs in this survey include victims' self-report of the 
economic value of property loss from theft, immediate medical 
expenses, and other personal economic losses incurred by crime 
victims incurred up to six months after the crime was 
committed.
---------------------------------------------------------------------------
    \13\ Bureau of Justice Statistics. ``Total economic loss to victims 
of crime, 2005.'' Criminal Victimization in the United States, 2005. 
Available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cvus/current/
cv0582.pdf. (The Department of Justice's Criminal and Victimization 
Survey includes crimes of assault, rape, and theft, but neglect is not)
---------------------------------------------------------------------------
    Directs costs are only part of the true economic burden of 
elder abuse. Indirect costs to victims (sometimes known as non-
economic, or pain and suffering) are also significant, but are 
more difficult to quantify. The cost of elder abuse is also 
borne by federal and state governments, which pay for treating 
and assisting victims of abuse through Medicare, Medicaid and 
other health and social services programs. In addition, the 
costs of identifying and prosecuting the perpetrators of elder 
abuse in the criminal justice system are paid by federal, 
state, and local governments (see Figure 1).

[GRAPHIC] [TIFF OMITTED] T3176.284

           ELDER ABUSE AND NEGLECT IN LONG-TERM CARE SETTINGS

    About 5.5 million, or about 16 percent, of adults aged 65 
and older in the U.S. receive long-term care services. Of those 
receiving long-term care, the majority (70 percent, or 3.8 
million) live in the community; the remaining 30 percent (1.7 
million) live in institutional long-term care settings.\14\ The 
number of older and disabled adults in need of long-term care 
services is expected to grow significantly in the next several 
decades. The term ``long-term care settings'' in this report 
refers to both institutional settings--such as nursing homes, 
assisted living facilities, long-term care hospitals and 
hospice care providers--as well as non-institutional providers, 
which include home health agencies and personal care providers.
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    \14\ Congressional Research Service, ``Long-Term Care: Consumers, 
Providers, Payers, and Programs'', by Carol O'Shaughnessy, Julie Stone, 
Laura B. Shrestha, and Thomas Gabe, March 15, 2007.
---------------------------------------------------------------------------
    Although elder abuse can take place in many settings, those 
receiving long-term care are particularly at risk of abuse. 
Many long-term care recipients suffer from cognitive decline or 
mental disorders and may not be able to communicate their needs 
to family members, friends, and caregivers. Those in need of 
long-term care often must rely on the availability and good 
will of others to assist them with basic personal care needs 
such as eating, toileting, bathing and dressing.
    In 2006, State Long-Term Care Ombudsman Programs reported 
over 14,000 complaints of abuse, gross neglect and exploitation 
in nursing homes, and over 5,000 similar complaints in other 
residential care facilities.\15\ Ombudsman programs, 
administered by the Administration on Aging, were initially 
designed as a strategy to control abuse and neglect in nursing 
homes. The programs use paid employees and unpaid volunteers to 
receive and handle suspected allegations of nursing home abuse. 
In other research findings, two studies from the late 1990s 
found that between 81 and 93 percent of nurses and nurse's 
aides had either seen or heard about cases of elder abuse in 
long-term care facilities.\16\,\17\
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    \15\ AOA ``National Ombudsman Reporting System Data Tables.'' 
Available at 
    \16\ Crumb, Deborah and Kenneth Jennings. ``Incidents of Patient 
Abuse in Health Care Facilities are Becoming More and More 
Commonplace.'' Dispute Resolution Journal. 1998:37-43 (1998).
    \17\ Mercer, Susan, Patricia Heacock, and Cornelia Beck. ``Nurse's 
Aides in Nursing Homes.'' Journal of Gerontological Social Work. 21:95-
113 (1996).
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    A 2001 Congressional report prepared by the House Committee 
on Government Reform concluded that 5,283 nursing homes, or one 
out of every three nursing homes, were cited for at least one 
abuse violation between 1999 and 2001, with over 9,000 abuse 
violations cited during that timeframe.\18\ To date, however, 
there has never been a national study of the prevalence of 
abuse in nursing homes.\19\
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    \18\ U.S. Congress, House Committee on Government Reform, Special 
Investigations Division, Minority Staff, Abuse of Residents Is a Major 
Problem in U.S. Nursing Homes, prepared for Rep. Henry A. Waxman, July 
30, 2001.
    \19\ Colello, Kirsten. ``Background on Elder Abuse Legislation and 
Issues.'' Congressional Research Service. 25 January 2007.
---------------------------------------------------------------------------
    A recent analysis of Medicaid Fraud Control Unit cases of 
elder abuse provides insight into the scope and severity of 
elder abuse in long-term care settings. Of the 801 cases of 
nursing home abuse analyzed, about two-thirds were due to 
physical abuse.\20\ Figure 3 provides the distribution of types 
of elder abuse offenses.
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    \20\ Payne, Brian and Randy Gainey. ``The Criminal Justice Response 
to Elder Abuse in Nursing Homes: A Routine Activities Perspective.'' 
Western Criminology Review. 7(3), 67-81 (2006).
[GRAPHIC] [TIFF OMITTED] T3176.285

    In non-institutional settings, elder abuse is also 
prevalent. A recent investigative report by the Wall Street 
Journal focused on growing reports of cases of abuse and 
neglect by home health aides.\22\ For example, the article 
notes that local prosecutors in one part of California have 
noted that ``in tiny Lake County, California [population 
<66,000 in 2006], 80% of the 74 prosecutions of elder abuse in 
the past year involved home health aides.'' \23\ Numerous other 
news accounts in states across the country show that workers 
are easily able to avoid detection under current background 
check procedures. One elder justice reform advocate in Florida, 
Wed Bledsoe, head of A Perfect Cause, a national group 
advocating for tougher laws to keep criminals from working in 
nursing homes, commented in 2006 that ``there are huge gaps in 
the system, and what you're talking about is a gap you drive a 
truck through.'' \24\ And in Missouri, a women convicted of 
pushing an elderly woman out of a vehicle in a carjacking was 
allowed to work in nursing homes--because her conviction record 
in Kansas was not caught by the limited check of Missouri-only 
criminal history records.\25\
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    \22\ Shishkin, Philip. ``Cases of Abuse by Home Aides Draw 
Scrutiny.'' The Wall Street Journal. 15 July 2008. D1
    \23\ Ibid.
    \24\ Gulliver, David. ``Nurse with a History Easily Hired: Gaps in 
the Law Allowed Him to Get Jobs Despite Probes,'' Sarasota Herald-
Tribune, 9 July, 2006. A1.
    \25\ Hollingsworth, Heather. ``Missouri Case Points to Background 
Check Weaknesses,'' Associated Press, 7 September, 2006.
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    Currently, 86% of people with long-term care needs live in 
community settings,\26\ but most efforts at preventing elder 
abuse have been focused on institutional settings, such as 
skilled nursing facilities. Home-based care is expected to grow 
more rapidly than nursing home care in the coming decade, so 
addressing elder abuse in home-based care settings is becoming 
a growing concern.\27\
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    \26\ 2005 National Health Interview Survey
    \27\ Goldberg, Lee. ``Everything You Wanted to Know About Long Term 
Care. . . But Were Afraid to Ask.'' Presentation to the National 
Academy of Social Insurance. July 22, 2008.
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                          B. Background Checks

        BACKGROUND CHECKS HAVE A POTENTIAL TO REDUCE ELDER ABUSE

    Criminal justice research shows that people who commit 
crime once are more likely to commit crime again. The most 
recent national-level recidivism study found that about two-
thirds of ex-offenders return to the criminal justice system 
within three years of their release.\28\ Because of high 
recidivism rates, individuals with histories of abuse pose a 
higher-than-normal risk to vulnerable populations, such as 
frail elders in need of long-term care services.
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    \28\ Nunez-Neto, Blas. ``Offender Reentry: Correctional Statistics, 
Reintegration into the Community, and Recidivism.'' Congressional 
Research Service. 17 December 2007.
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    Background checks are an established, effective tool for 
identifying individuals with histories of abuse as documented 
in a state registry, and criminal offenders as identified 
through state and federal criminal history checks. Recent 
research suggests that such checks may be particularly 
important in long-term care settings because many cases of 
elder abuse are due to serial abusers. One study found that 
75.4 percent of abusers were classified as serial or 
pathological, while only 24.6 percent of abusers were 
classified as ``stressed-out'' by their work environment.\29\ 
The study authors conclude by recommending background checks as 
an important policy to prevent elder abuse.
---------------------------------------------------------------------------
    \29\ Payne, Brian and Randy Gainey. ``The Criminal Justice Response 
to Elder Abuse in Nursing Homes: A Routine Activities Perspective.'' 
Western Criminology Review. 7(3), 67-81 (2006).
---------------------------------------------------------------------------
    Evaluations of background check programs are scarce, but a 
2006 study on the use of background checks for the long-term 
care workforce \30\ funded by the Department of Health and 
Human Services (HHS) determined that:
---------------------------------------------------------------------------
    \30\ U.S. Department of Health and Human Services (The Lewin 
Group), Ensuring a Qualified Long-Term Care Workforce: From Pre-
Employment Screens to On-the-Job Monitoring, May 2006; http://
aspe.hhs.gov/daltcp/reports/2006/LTCWquales.htm

           a correlation exists between criminal 
        history and incidents of abuse;
           the use of criminal background checks during 
        the hiring process does not limit the pool of potential 
        job applicants; and
           the long-term care industry supports the 
        practice of conducting background checks on potential 
        employees in order to reduce the likelihood of hiring 
        someone who has potential to harm residents.

    Yet other federal studies suggest that the use of 
comprehensive checks in the long-term care sector is too 
inconsistent and inadequate to protect residents of these 
facilities.\31\ Some state-based research supports this: in 
2005, the Michigan Attorney General published a report 
concluding that 10 percent of employees who were then providing 
services to frail elders had criminal backgrounds.\32\ Such 
gaps in the background check system for employees of long-term 
care settings prevent background checks from achieving their 
full potential of reducing the risk of elder abuse in these 
settings.
---------------------------------------------------------------------------
    \31\ GAO. ``Nursing Homes: More Can Be Done to Protect Residents 
from Abuse.'' GAO-02-312. March 2002.
    \32\ Office of the Attorney General (Michigan), Attorney General 
Investigation Uncovers Hundreds of Criminals Working in Adult 
Residential Care Facilities, June 2005; http://www.michigan.gov/ag/
0,1607,7-164-34739--34811-119213--,00.html
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SCREENING OF LONG-TERM CARE WORKFORCE INVOLVES MULTIPLE TYPES OF CHECKS

    Three different types of databases are typically used to 
conduct background checks. Registry checks cross-list an 
individual's name with public databases, such as the National 
Sex Offender Registry, or with a list of workers found to have 
a record of substantiated abuse in a particular field, such as 
those maintained in State Certified Nurse Aide registries. 
State name-based and fingerprint criminal checks are searches 
of state police records using a person's name and other 
identifying information, or their fingerprint. Federal criminal 
history checks are conducted by the FBI through its all-state 
biometric repository, the Integrated Automated Fingerprint 
Identification System (IAFIS), which uses fingerprints to 
identify whether an individual has been arrested or convicted.
    Because no one database is complete, a comprehensive 
background check using many different databases promises to be 
most effective. State-based registries only cover one state, 
while FBI records may not include a listing of all convictions 
if a state has not yet reported them to the federal government.
    Currently, long-term care providers are required to conduct 
registry checks on all Certified Nurse Aides (CNAs), but few 
conduct both state and federal criminal history checks on all 
employees who have direct access to patients.
    Various ideas have been proposed over the years to better 
integrate background check databases. One proposal would create 
a master database that integrates state CNA registries. 
However, a national CNA registry would not cover individuals 
applying to work in most long-term care settings, such as home 
health agencies, personal care providers and hospices. By 
comparison, building an infrastructure to connect the numerous 
databases and registries at the state and federal level may be 
more effective.
    In addition, recent technological improvements are helping 
to streamline background check processes. For example, livescan 
fingerprint technology, which records an electronic copy of a 
fingerprint, is less prone to error and is faster to process 
than paper-based inked fingerprints. Another technological 
innovation is the rap back system, which ensures that any new 
disqualifying crimes an individual commits after an initial 
background clearance are flagged in a state's database and can 
be reported back to the employer. The FBI is now working to 
create a federal rap back capability as part of the agency's 
``Next Generation Identification'' (NGI) System initiative.\33\
---------------------------------------------------------------------------
    \33\ U.S. Department of Justice. ``The Attorney General's Report on 
Criminal History Background Checks.'' June 2006.
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    Sill, absent without federal requirements or funding, few 
states have moved to incorporate these efficiency-improving 
system changes. Instead, many states continue to use slower, 
less accurate paper-based systems that can result in long 
processing times for providers. In turn, slow processing times 
increase the risk of abuse by allowing employees with 
disqualifying crimes to work for several months before 
background check results are completed. In turn, this 
contributes to a practice of ``job-hopping,'' in which workers 
switch jobs frequently, before their criminal history checks 
can be processed. In one instance, a Certified Nurse Aide with 
a disqualifying criminal record in Nevada worked for 15 
different providers from 1993 through 1996, changing jobs every 
90 days to stay ahead of his background check report.\34\
---------------------------------------------------------------------------
    \34\ Nevada State Report. Appendix D.
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                        C. Congressional Action

    The Senate Special Committee on Aging has a long history of 
examining issues of elder abuse and exploring the specific 
potential of background checks for long-term care employees to 
address the issue of abuse in long-term care settings. Figure 4 
outlines selected hearings that the Committee has held on these 
issues. In 1965, the Committee held a seven-part field hearing 
on abuse and neglect in the nation's nursing homes, and since 
then the committee has held nearly thirty hearings on elder 
abuse and related topics. Most recently, in July 2007, the 
Committee scheduled a hearing entitled, ``Abuse of Our Elders 
and How We Can Stop It,'' which convened leading experts to 
discuss the challenges of preventing elder abuse and report on 
the state's experiences with the background check pilot 
program. At this listening session, comprehensive background 
checks were cited by all witnesses as a critical measure to 
protect seniors in long-term care settings.\35\
---------------------------------------------------------------------------
    \35\ Senate Special Committee on Aging. ``Abuse of Our Elders: How 
We Can Stop It.'' Government Printing Office. S. Hrg. 110-308. Serial 
No. 110-12. 18 July 2007.

Figure 4: Selected Hearings on Elder Abuse in the Senate 
---------------------------------------------------------------------------
Special Committee on Aging

           Conditions and Problems in the Nation's 
        Nursing Homes (7 part field hearing, February and 
        August 1965)
           Older Americans Fighting the Fear of Crime, 
        September 22, 1981
           Crime Against the Elderly, Los Angeles, CA, 
        July 6, 1983
           Crimes Against the Elderly: Let's Fight 
        Back, Las Vegas, NV, August 21-22, 1990
           Crimes Committed Against the Elderly, 
        Lafayette, LA, August 6, 1991
           Elder Abuse and Violence Against Midlife and 
        Older Women, May 4, 1994
           Crooks Caring for Seniors: The Case for 
        Criminal Background Checks, September 14, 1998
           Saving Our Seniors: Preventing Elder Abuse, 
        Neglect and Exploitation, June 14, 2001
           Safeguarding Our Seniors: Protecting The 
        Elderly From Physical & Sexual Abuse in Nursing Homes, 
        March 4, 2002
           Shattering the Silence: Confronting the 
        Perils of Family Elder Abuse, October 20, 2003
           Abuse of Our Elders: How We Can Stop It, 
        July 18, 2007

    One of the first major congressional actions taken to 
combat elder abuse was the creation of the Long-Term Care 
Ombudsman Program (LTCOP) in order to investigate and resolve 
complaints in nursing homes and other residential care 
settings. This program was initially created in 1972 as a 
Public Health Service demonstration project in five states. As 
a result of the pilot program's success, the LTCOP was expanded 
to all states and included as an amendment to the Older 
Americans Act (OAA) in 1978.\36\ In 1992, the program become 
incorporated into a new Title VII of the OAA that authorized 
elder rights protection activities and required the 
Administration on Aging (AoA) to create a permanent National 
Ombudsman Resource Center. The majority of federal funding for 
ombudsman activities comes from Title VII and Title III of the 
OAA. Ombudsman programs also receive some state and local 
support. In FY 2006, the most recent year for which data are 
available, the LTCOP received $46.6 million in federal funding 
and $31.2 million from state and local sources, for a total of 
$77.8 million.\37\
---------------------------------------------------------------------------
    \36\ P.L. 95-478
    \37\ Colello, Kirsten J. ``Older Americans Act: Long-Term Care 
Ombudsman Program.'' Congressional Research Service. April 17, 2008.
---------------------------------------------------------------------------
    Other federal funding for services aimed at preventing 
elder abuse include the Social Services Block Grant (SSBG) 
program authorized by Title XX of the Social Security Act, and 
some programs of the Violence Against Women Act. In FY 2005, 
the most recent year for which data are available, states spent 
$169 million on Adult Protective Services (APS) programs, 
supported by funding through SSBG. In FY2008, Congress 
appropriated $4.2 million for the Violence Against Women Act. 
This funding supports programs and services that address 
violence against older women, such as training for law 
enforcement, prosecutors, victims' assistants and others. 
Within the Department of Justice, the ``Elder Justice and 
Nursing Home Initiative'' currently receives about $1 million 
annually.\38\
---------------------------------------------------------------------------
    \38\ Marie-Therese Connolly, (accepted for publication) Where Elder 
Abuse and the Justice System Collide: Police Power, Parens Patrie and 
Twelve Recommendations, Journal of Elder Abuse & Neglect, 22 (1/2).
---------------------------------------------------------------------------
    Although Congress has implemented several laws aimed at 
addressing child abuse \39\, \40\ and domestic violence,\41\ 
somewhat less attention has been paid to combating elder abuse 
at the federal level.\42\ The Patient Safety and Abuse 
Prevention Act, which would require background checks for long-
term care workers, was first proposed by Senator Kohl in 1997 
and is still pending approval. Similarly, the Elder Justice 
Act, which would do much to improve the detection, 
investigation and treatment of elders who fall victim to abuse, 
has followed a parallel course of being considered by several 
Congresses. Figure 5 lists legislation that has been introduced 
in the 105th through the 110th Congresses that includes 
provisions to prevent elder abuse by requiring background 
checks for long-term care workers.
---------------------------------------------------------------------------
    \39\ See, for example, The Child Abuse Prevention and Treatment Act 
of 1974 (CAPTA P.L. 93-247) or the Adam Walsh Child Protection Safety 
Act
    \40\ Stoltzfus, Emily. ``Child Welfare: Federal Policy Changes 
Enacted in the 109th Congress.'' Congressional Research Service. 
November 2007.
    \41\ See the Violence Against Women's Act (VAWA) of 1994
    \42\ Colello, Kirsten J. ``Background on Elder Abuse Legislation 
and Issues.'' Congressional Research Service. January 25, 2007.

[GRAPHIC] [TIFF OMITTED] T3176.286

[GRAPHIC] [TIFF OMITTED] T3176.287

                 II. THE BACKGROUND CHECK PILOT PROGRAM

                          A. Program Overview

    The Medicare Prescription Drug, Improvement and 
Modernization Act of 2003, which created Medicare Part D, 
included Section 307, ``Pilot Program for National and State 
Background Checks on Direct Patient Access Employees of Long-
term Care Settings or Providers'' (hereinafter referred to as 
the pilot program). This program was charged with identifying 
``efficient, effective, and economical procedures'' for 
conducting background checks in order to establish the 
framework for a national program of background checks for 
employees of long-term care settings. CMS administered the 
pilot program in consultation with the Department of Justice 
between January 2005 and September 2007.
    In 2004, the Centers for Medicare and Medicaid Services 
(CMS) issued a request for proposals for up to ten states to 
participate in pilot program to enhance background checks for 
workers in long-term care settings. CMS awarded grants to seven 
states: Alaska, Idaho, Illinois, Michigan, Nevada, New Mexico, 
and Wisconsin. Michigan has established a state-wide program 
using pilot funds; the other states limited their program to 
certain counties.
    At the end of the pilot program all states submitted final 
assessment reports. Information in this report comes from these 
final assessment reports as well as from discussions with state 
program officers conducted by committee staff from March 2007 
to July 2008.

                     B. Pilot Program Requirements

    Under the terms of the pilot program, states had 
flexibility to create background check programs that worked 
best for them while meeting certain basic requirements.
    The primary requirement was for long-term care settings and 
providers to conduct background checks for job applicants who 
would have direct contact with patients. These providers 
include ``any individual (other than a volunteer) that has 
access to a patient or resident of a long-term care facility or 
provider through employment or through a contract with such a 
facility or provider.'' \43\ If an employee with direct access 
to patients was found to have disqualifying information, long-
term care settings were prohibited from knowingly employing 
that person.
---------------------------------------------------------------------------
    \43\ PL 108-173  703 (g)(4)
---------------------------------------------------------------------------
    As part of the background check process, applicants were 
required to be screened through state and federal fingerprint 
databases in addition to name-based registries. A written 
statement by the applicant disclosing any disqualifying 
information and authorizing the facility to conduct a national 
and state criminal record check as well as a set of 
fingerprints were also required of all applicants.
    Finally, states were directed to have procedures to permit 
applicants to appeal or dispute the accuracy of the background 
check results and to prevent individuals from using the results 
of the background check for purposes other than employment. 
Provisions were also put in place to give long-term care 
settings and providers immunity from any action brought by an 
applicant who was denied employment based on the results of 
background check information.
    States were given flexibility to modify the parameters of 
the program to suit their needs. For example, disqualifying 
crimes were defined somewhat differently from state to state. 
(See Appendix B for a matrix of disqualifying crimes by state). 
Some states, such as Michigan, include time-limited bans for 
certain disqualifying felonies based on the point when parole 
or probation has been completed, while other states, such as 
Wisconsin, have lifetime bans only.\44\
---------------------------------------------------------------------------
    \44\ See Appendix B for a matrix of disqualifying crimes by state
---------------------------------------------------------------------------

                       C. State Program Overview

    Total federal spending provided to the seven states for the 
background check pilot program was $16.4 million over three 
fiscal years, from 2005-2007.\45\ Federal funding for the seven 
states for establishing background check programs over this 
three-year period ranged from $1.5 million in Wisconsin to $3.5 
million in Michigan \46\, as described in Figure 5. Funding 
depended on the specific proposals of the states and also the 
scope of their project.
---------------------------------------------------------------------------
    \45\ This does not include funding for three states' abuse 
prevention pilot programs.
    \46\ Three states received additional funding to set up abuse 
prevention training programs under the pilot.
---------------------------------------------------------------------------
    Each state used the pilot program funding differently 
depending on varying needs and program designs. Some states, 
such as New Mexico and Idaho, used the funding primarily to 
improve and expand preexisting background check programs. 
Others, such as Illinois and Wisconsin, used the funding to 
completely redesign their background check programs in select 
counties (ten in Illinois and four in Wisconsin). Michigan, the 
state receiving the largest amount of funding, established a 
comprehensive state-wide program.
    The pilot program funding was primarily intended to build 
capacity for comprehensive background checks in states. 
Additional state funding and fees from background check 
applications largely supported the ongoing cost of processing 
background checks. However, the pilot program's initial 
investment in improved infrastructure is expected to 
substantially reduce the costs of sustaining the program.
    Figure 6 provides an overview of funding and program design 
for all participating states.
[GRAPHIC] [TIFF OMITTED] T3176.288

                       III. PILOT PROGRAM RESULTS

    ``It's working. We're catching them.'' \47\
---------------------------------------------------------------------------
    \47\ Alaska's presentation at the CMS Background Check Pilot State 
Annual Conference, June 12-13, 2007, Marriot Baltimore/Washington Int'l 
Airport, Baltimore, Maryland
---------------------------------------------------------------------------
    -Mel Richardson, program manager of Alaska's Background 
Check Unit
    ``The applicants that have been excluded from employment 
are not the types of people Michigan could ever allow to work 
with our most vulnerable citizens. We have prevented hardened 
criminals that otherwise would have access to our vulnerable 
population from employment.'' \48\
---------------------------------------------------------------------------
    \48\ Written Testimony submitted at the U.S. Senate Special 
Committee on Aging hearing: The Nursing Home Reform Act Turns Twenty: 
What Has Been Accomplished, and What Challenges Remain?, May 2007
---------------------------------------------------------------------------
    -Orlene Christie, Director of the Legislative and Statutory 
Compliance Office at the Michigan Department of Community 
Health
    ``This pilot may have been just a project for some but we 
in Illinois have tried to absorb it into our social 
consciousness and truly realize the importance that the results 
of this pilot may play on individual lives. Most of the health 
care employers selected to participate in the pilot rallied 
around this effort with an exceptional enthusiasm. . . . The 
value of the pilot program is indisputable.''
    -Jonna Veach, Project Director of the Illinois Background 
Check Program

            A. Comprehensive Background Checks are Effective

 OVER 9,500 PRIOR CRIMINALS WERE BARRED FROM WORKING IN LONG-TERM CARE 
                               FACILITIES

    In all states, the pilot program proved successful in 
preventing thousands of persons with a record of substantiated 
abuse or a serious criminal record from working in long-term 
care settings. During the program pilot period, over 220,000 
individuals who applied for jobs in long-term care settings 
were screened. Of these, 9,509 applicants (4.3 percent) were 
barred for disqualifying crimes. The number of applicants 
barred from employment due to background checks as part of the 
pilot program are shown in Figure 7.
    The total number of applicants screened and the number of 
applicants barred varied greatly among states, primarily 
because of the difference in the geographical scope of the 
programs. Michigan, a large state that conducted comprehensive 
state-wide screening was able to screen significantly more 
applicants than smaller states who conducted their programs in 
a few counties.
    In many states, registry checks were the first method used 
for screening job applicants. As a result, the majority of 
applications disqualified due to background check findings were 
excluded because of registry checks (67 percent). Some states, 
however, did not report the number of applicants disqualified 
by registry checks, and Idaho and Alaska reported fewer 
applicants excluded by registry checks compared to the number 
of applicants excluded by state and federal criminal background 
checks.
    Overall, state criminal background checks and federal FBI 
checks were responsible for identifying a total of 3,128 
applicants with a disqualifying criminal background who had not 
been identified through the registry checks. While some 
applicants were excluded by both state and federal background 
checks, most applicants excluded by state and federal 
background checks were only excluded by one type of check (60 
percent).
    Of all the states, the Michigan pilot program not only had 
the most number of people screened, but it also had the highest 
percentage of individuals identified for disqualifying crimes. 
Of the 115,000 applicants screened, nearly 7,000 (6 percent) 
were barred from employment. This success was due in large part 
to the state's use of an integrated system which included a 
large number of other databases and allowed it to easily 
identify individuals with disqualifying criminal records.
[GRAPHIC] [TIFF OMITTED] T3176.289

    Although the specific disqualifying crimes differed from 
state to state, data from Alaska suggests that the majority of 
background check exclusions were for violent crimes, such as 
assault, rape and murder (Figure 8).\49\ About 6 percent of 
applicants screened in Alaska had a previous conviction for a 
crime against a family member or a vulnerable adult, such as an 
elderly person.
---------------------------------------------------------------------------
    \49\ These crimes that direct harm individuals are classified 
legally as ``offenses against the person.''
[GRAPHIC] [TIFF OMITTED] T3176.290

            FBI FINGERPRINT CHECKS PLAYED AN IMPORTANT ROLE

    Under the pilot program, states were required to conduct 
FBI criminal history checks in addition to state police and 
state registry-based background checks. By adding FBI checks, 
states were able to identify a large number of applicants with 
disqualifying crimes who were missed by state checks. Among 
those states that reported the number of applicants barred by 
FBI checks exclusively, federal criminal history records were 
responsible for 6.5 percent of all exclusions and 19.7 percent 
of the criminal history exclusions (see Figure 7).
    Data from Alaska demonstrate that FBI checks are important 
for eliminating violent felons. Seventy-five percent of FBI 
exclusions in the Alaska pilot were due to murder, assault, 
rape and other violent crimes, compared to about 50 percent of 
background check bans in all seven pilot programs that were 
excluded for those crimes.\50\
---------------------------------------------------------------------------
    \50\ Alaska State Report. Violent crimes are classified as 
``offenses against the person''
---------------------------------------------------------------------------
    The importance of federal checks in other states varied. In 
Wisconsin, for example, the state identified most of the 
excluded applicants through state registry and name-based 
criminal history checks, while Nevada identified most through 
an FBI criminal history check.

   EMPLOYERS WERE GENERALLY SATISFIED WITH BACKGROUND CHECK PROGRAMS

    Participating long-term care providers in many states 
reported high rates of satisfaction with the more effective and 
efficient background check procedures established as a result 
of the pilot. In Idaho, a survey of providers found that 86 
percent felt that the background check requirement was 
successful and 73 percent of providers would choose to continue 
to use the background check system, even if the checks were 
optional with a fee (see Figure 9).
[GRAPHIC] [TIFF OMITTED] T3176.291

         B. Integrated Background Check Programs are Efficient

                 PROCESSING TIME WAS CUT SIGNIFICANTLY

    Many states were able to substantially reduce the time 
required to complete the background check process. For example, 
Illinois reported the time to complete background checks was 
reduced from as much as two months to as few as two days (see 
Figure 10).
    Idaho and Illinois reduced their background check 
processing times to a few days by using an internet-based 
background check system accessible to authorized providers. In 
addition, digital livescan fingerprint technology allowed for 
faster processing of fingerprint checks.
    By reducing processing times for background checks, states 
virtually eliminated the risk that applicants with serious 
criminal histories could go undetected by moving from one 
employer to another. The Nevada state report notes, ``In 2006, 
we identified six individuals operating in a similar pattern 
[of job hopping], but as processing times improved, we saw 
fewer incidents of this practice. In 2007, we observed no such 
cases.'' \51\
---------------------------------------------------------------------------
    \51\ Nevada State Report, p. 10. Appendix D.
---------------------------------------------------------------------------
    Several states also noted that a significant number of 
applicants withdrew their applications prior to a fingerprint 
check. In Michigan, for example, 17.9 percent of applicants 
withdrew their applications prior to fingerprinting. While data 
do not exist on the reasons for these withdrawals, some state 
officials believe that the faster and more accurate fingerprint 
checks may act as a deterrent for individuals with a criminal 
history.\52\ However, no adverse impact on the number of 
individuals applying for jobs in the long-term care sector was 
reported in the final state reports for the pilot program.
---------------------------------------------------------------------------
    \52\ See for example Nevada State Report, Appendix D
---------------------------------------------------------------------------
    Reducing the time for completing background checks did 
allow states to screen more workers in long-term care settings. 
In Idaho, for example, the number of applications screened 
nearly doubled from 15,000 to 28,000 applications after a web-
based system was implemented.
[GRAPHIC] [TIFF OMITTED] T3176.292

   STATES DEVELOPED INNOVATIVE MODELS TO INTEGRATE EXISTING DATABASES

    Pilot states succeeded in establishing comprehensive 
background check programs that were able incorporate and 
coordinate various registry checks (e.g., state Certified Nurse 
Aide registries and registries established for sex offenders 
and child care workers), as well as federally-required checks 
against the HHS Office of Inspector General's provider 
exclusion list, and criminal history checks at the state and 
federal level. All states used their grant funds to establish 
more coordinated linkages and working relationships between 
different agencies charged with administering various 
registries and databases.
    Some states also created an online access point for 
providers and officials. In Michigan, for example, state 
officials contracted with researchers at Michigan State 
University to create a single database that was efficient for 
providers and allowed researchers and state officials to 
clearly understand at what point an individual was excluded, 
whether it be at the registry check level, or at the level of a 
state or FBI criminal history check. The information collected 
allows the state to examine the effectiveness of a registry 
check or fingerprint check.

           APPEALS PROCESSES ALLOWED FOR ADEQUATE PROTECTIONS

    All states instituted processes to allow workers to appeal 
results of a background check. These processes varied in scope 
by state. Some states only allowed individuals to appeal if 
they could demonstrate there was an error in the background 
check finding, while other states allowed individuals to appeal 
the definition of a disqualifying crime on a case-by-case 
basis. Although a small percentage of people who were barred 
from employment based on a disqualifying crime appealed the 
decision, a large percentage of those who did appeal were 
granted an exemption. Data from the three states submitting 
appeals data are summarized in Figure 11.

                     Figure 11: Excluded Applicants, Appeals Requested, and Appeals Approved
----------------------------------------------------------------------------------------------------------------
                                                              Excluded
                         State*                              Applicants     Appeals Requested   Appeals Approved
----------------------------------------------------------------------------------------------------------------
Alaska.................................................                477                 42                 31
Illinois...............................................                197                159                142
New Mexico.............................................                269                 87                 57
----------------------------------------------------------------------------------------------------------------
Note: Only states that reported appeals data are included in the above table.
Source: State Reports (Appendix D)

       C. Investments in Background Check Systems are Economical

       ``RAP BACK'' TECHNOLOGIES CAN REDUCE COST IN THE LONG-TERM

    Many pilot states used information technology to reduce the 
costs of fingerprint checks. Illinois, Alaska, and Michigan 
instituted rap back programs, in which any new crimes that an 
individual commits after an initial background check are 
flagged in the state's database and reported back to the 
database and the employer. As a result, these states can avoid 
the cost of re-fingerprinting for the individuals each time 
they change jobs. All three states that used a rap back program 
noted the cost-saving potential and other benefits of a rap 
back system at a state level, but the full cost savings were 
limited because these states were not able to implement a rap 
back system to help reduce costs for the FBI criminal history 
check.
    States were also able to reduce costs by obtaining 
fingerprints using digital technology. Often referred to as 
``livescan,'' digital fingerprinting reduces costs over time 
because these scans are significantly more accurate than inked 
fingerprints on cards, which are prone to error and 
misinterpretation. In addition, fingerprint scans can be 
transmitted electronically and read using automated technology, 
eliminating human error and reducing the need for additional 
staff. In order to efficiently distribute livescan equipment, 
some states established mobile units and online reservation 
systems for an applicant to schedule a fingerprint check.

               COMPREHENSIVE PROGRAMS CREATE EFFICIENCIES

    As the programs expanded, they were able to achieve 
additional cost savings. In particular, states found that as 
they expanded their programs, they were able to negotiate 
better deals with vendors. Wisconsin, for example, reported 
that their actual cost for background check processing 
($297,533) was less than half of the projected cost ($634,132). 
Such savings signal that similar economies of scale may be 
achievable in some other states.
    Some states were able to apply the improvements in their 
screening programs for long-term care workers to other existing 
background check programs. Alaska, for example, uses its newly 
improved state criminal history database (APSIN) to screen many 
employees who work with children.
    A welcome cost saving that occurred during the pilot 
program was a reduction in the fees charged for federal FBI 
criminal history checks and a reduction in processing time. In 
June 2008, the FBI formally announced in a regulation that it 
was reducing the fees for civil fingerprint checks due in part 
to increased demand.\53\ Figure 12, shows historical trends in 
fingerprint submissions and processing times, suggesting that 
improvements in technology and economies of scale may continue 
to drive further fee reductions and shorten processing time if 
additional states expand and improve their background check 
systems for workers.
---------------------------------------------------------------------------
    \53\ ``FBI Criminal Justice Information Services Division User 
Fees.'' Federal Register. 73(119) June 19, 2008
[GRAPHIC] [TIFF OMITTED] T3176.293

              STATES CONTINUING BACKGROUND CHECK PROGRAMS

    All states have continued their comprehensive background 
check programs after the completion of the pilot in September 
2007. Many states have expanded their programs by (1) requiring 
additional categories of workers to have mandatory background 
checks (e.g., workers who have ``direct access'' to a resident/
beneficiary's property, financial records and/or treatment 
information), (2) requiring workers that have direct access to 
other vulnerable populations (e.g., children) to undergo the 
same type of background check as those who have access to older 
people, and/or (3) increasing the types of settings that are 
required to have background checks done on their employees 
before they are hired (e.g., general acute-care hospitals).
    All of the states concluded that including fingerprint-
based background checks was a vital part of the overall 
criminal background check process. Prior to participating in 
the pilot, Illinois and Wisconsin did not have widely used 
fingerprint-based background checks in place. They used the 
pilot funds to compare their existing name-based background 
checks with fingerprint-based background checks. The remaining 
states (Alaska, Idaho, Michigan, Nevada and New Mexico) already 
had fingerprint-based background checks in place. New Mexico 
used the pilot funds to improve the quality of their ink-based 
fingerprint cards by providing training and technical 
assistance. Alaska, Idaho and Nevada used pilot funds to test 
the feasibility of converting from ink-based fingerprint cards 
to livescan (electronic) fingerprinting. Michigan already had 
livescan fingerprinting in place. They used the pilot funds to 
enhance their integrated online background check system.
    Several of the states (Alaska, Illinois and Michigan) 
planned to expand their fingerprint-based background check by 
implementing a ``rap back'' process. The rap back process will 
enable state law enforcement to notify the state agency 
requesting the information as to whether or not the applicant 
has been convicted of any subsequent criminal activity after 
the initial background check was conducted. Rap back processes 
save time and money because the fingerprints are kept on file 
and do not have to be retaken and resubmitted each time a 
person applies for a new job.
    Overall, the program was successful in helping states build 
the infrastructure they need to conduct comprehensive, 
coordinated and cost-effective background checks for long-term 
care employees. As a result, these programs are helping to 
create a safer workforce for frail elders and individuals with 
disabilities.

                    D. State Pilot Program Summaries

                                 ALASKA

Alaska CMS Background Check Pilot Program for Long-Term Care 
Workers
Grant award: $3,400,000
Abuse prevention training program award: $1,500,000
Administering State Agency: Department of Health and Social 
Services

    Alaska's background check program was already in the 
process of being restructured when they received a grant from 
CMS. As the largest state in the country, Alaska's extreme 
geography and expansive rural regions led to large, 
decentralized jurisdictions that often overlapped. Faced with 
these unique challenges, Alaska looked to the pilot program to 
help streamline their existing background check program for 
long-term care workers.
    In addition to the scope of workers and facilities required 
by the Pilot to be included as part of the background check 
program, Alaska's statute required background checks for any 
individual or entity that was required by statute or regulation 
to be licensed or certified by the department or that is 
eligible to receive payments, in whole or in part, from the 
department to provide for the health, safety and welfare of 
persons who are served by the programs administered by the 
departments. This included individual service providers, such 
as public home care providers, providers of home and community-
based waiver services and case managers coordinating community 
mental health services.\54\
---------------------------------------------------------------------------
    \54\ Background checks are performed on 1) all administrators or 
operators; 2) individual service providers; 3) employees, independent 
contractors, unsupervised volunteers, officers, directors, partners, 
members, or principals of the business organization that owns an entity 
or a board member if that individual has: regular contact with 
recipients of services; access to personal or financial records 
maintained by the entity or provider regarding recipients of services; 
or control over or impact on the financial well-being of recipients of 
services, unless the only recipient whose financial well-being is 
affected is a relatives of the individual who has authorized that 
individual to make financial decisions for that relative; recipient who 
has executed a power of attorney for that individual to make financial 
decisions for that recipient; or recipient for whom a court has 
authorized that individual to make financial decisions; 4) individuals 
who reside in a part of an entity, including a residence if services 
are provided in the residence, if the individual remains, or intends to 
remain, in the entity for 45 days or more, in total, in a 12-month 
period; or 5) any other individual who is present in the entity and 
would have regular contact with recipients of services.
---------------------------------------------------------------------------
    Two key goals of Alaska's pilot program were to 1) create a 
single administrative Background Check Unit within the 
Department of Health and Social Services (DHSS) to oversee all 
aspects of the background check program and 2) adopt uniform 
definitions and descriptions of disqualifying crimes or 
findings of substantiated abuse applicable to all licensed and 
certified health and long-term care programs under the 
authority of the DHSS. The first element, reorganizing the 
DHSS, was necessary because the system had 19 different 
licensing and certification programs that were being 
administered under 12 different statutes and 15 different sets 
of regulations. The second element, adopting uniform 
definitions, was meant to provide consistency in the way 
individuals were evaluated during the background check process.
    The first step of Alaska's background check process 
consisted of checking registries and court records from Alaska 
as well as from those states the individual has lived in during 
the past 10 years. The registries searched include: Alaska 
Public Safety Information Network (APSIN); Alaska Court System/
Court View and Name Index; Juvenile Offender Management 
Information System; Centralized Registry (i.e Employee 
Misconduct Registry); Certified Nurses Aide Registry; National 
Sex Offender Registry; Office of the Inspector General List of 
Excluded Individuals and Entities; FBI fingerprint check; and 
any other records/registries DHSS deems are applicable. After 
this information was reviewed, a fitness determination was 
made. If no disqualifying information was found, a provisional 
authorization that the applicant can work was posted on the 
Background Check Unit website. The information was protected so 
that only the entity hiring the individual has access to this 
information.
    The second step involved the submission of fingerprints for 
state and FBI criminal history review. If no disqualifying 
results were found, the provisional authorization was replaced 
with final authorization, and a final determination letter is 
sent to the individual, the employer, and the department or 
agency having oversight of the entity.
    Finally, the individual's name was then flagged in the 
Alaska Public Safety Information Network. This is commonly 
known as a ``rap back'' process which means that DHSS would be 
notified on a real-time basis if there were any new or 
subsequent criminal activity that was considered a 
disqualifying crime and required that the individual be removed 
from working with vulnerable persons in health and long-term 
care settings.

                                RESULTS

    During the pilot phase, Alaska followed their original 
program development plan. The state processed 24,304 
applications for background checks and identified 477 
individuals with barring conditions including 283 for violent 
crimes, 136 for offenses against property, and 31 for offenses 
against family and vulnerable adults.

                               POST-PILOT

    After the pilot ended in September 2007, Alaska's 
Background Check Unit continued to improve the accessibility 
and availability of fingerprinting services for rural residents 
by installing 24 livescan (electronic) fingerprinting machines 
in 23 rural Office of Children's Services locations. This is in 
line with Alaska's goal to expand the background check to 
include individuals working directly with children served by 
state-licensed foster care and childcare. The state has also 
begun to expand background checks to all staff serving 
vulnerable populations in programs that are required by statute 
or regulation to be licensed or certified by DHSS or who are 
eligible to receive payments, in whole or in part, from the 
department. After the Pilot ended, Alaska picked up the cost of 
continuing to operate the Background Check Unit through a 
combination of state funds and fees collected by the program.

                                 IDAHO

Idaho CMS Background Check Pilot Program for Long-Term Care 
Workers
Grant award: $2,072,026
Administering State Agency: Idaho Department of Health and 
Welfare

    Prior to participating in the CMS Background Check Pilot 
Program, Idaho conducted background checks for people who 
worked with children and vulnerable adults in facilities such 
as foster care and adoption, child care, developmental 
disabilities, psychosocial rehabilitation, and mental health 
clinics. They had a paper-based background check process in 
place that involved mailing applications and fingerprint cards 
to the Idaho State Police for processing. Applicants had to 
wait approximately six to eight weeks to receive background 
check clearance. To address inefficiencies with this process, 
Idaho used the pilot funds to implement a web-based application 
system that allowed fingerprints to be collected and 
transmitted electronically. A more efficient way of processing 
applications was necessary since the pilot required Idaho to 
expand its list of facilities requiring employee background 
checks to include nursing facilities, assisted living or 
residential care facilities, intermediate care facilities for 
persons with mental retardation, home health, hospice, and 
hospitals with swing beds.\55\ Providers, employees, and 
contractors with access to vulnerable individuals in these 
types of long-term care settings were required under the pilot 
to have background checks.\56\
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    \55\ Volunteers in these settings were excluded from background 
check requirements.
    \56\ Although the pilot included personal care attendants as part 
of the required entities, Idaho already had existing regulations 
requiring personal care attendants to have a background check therefore 
they were not included in the pilot project.
---------------------------------------------------------------------------
    Idaho's new web-based background check system allowed for: 
1) online application submission; 2) online fingerprint 
scheduling; 3) real-time status check of application, and; 4) 
email notifications informing applicants and employers of the 
status of each application as it goes through the process. 
Applicants began the process by completing an online 
application that required them to disclose any crimes or other 
relevant information in their background. Next they had to 
schedule a fingerprint appointment in one of several livescan 
(electronic) fingerprint offices throughout the State.\57\ Then 
the applicant either printed out the application, signed it and 
had it notarized, and brought it to their fingerprint 
appointment; or submitted the application electronically and 
had their signature notarized when they were fingerprinted. By 
submitting the application, the individuals authorized the 
Criminal History Unit to complete the background check, obtain 
necessary information, and release it in accordance with the 
applicable laws. If no disqualifying offenses were disclosed in 
the notarized application, the individuals were granted a 
provisional work period if he or she is fingerprinted within 21 
days, and then another provisional work period until the 
background check was completed.
---------------------------------------------------------------------------
    \57\ A small percentage of applicants, who live in remote towns or 
cities, had a law enforcement officer roll and submit a fingerprint 
card.
---------------------------------------------------------------------------
    During the fingerprint appointment, the Criminal History 
Unit completed the required registry checks against the 
following registries: Idaho Child Protection Registry, Idaho 
Adult Protection Registry, National Sex Offender Registry, 
Office of Inspector General List of Excluded Individuals and 
Entities, Nurse Aide Registry, and Idaho Department of Motor 
Vehicles Driving Records. Next, the applicant's fingerprints 
were transmitted to the Idaho State Police who conducted a 
comparison against State crime records. The Idaho State Police 
then forwarded the fingerprints electronically to the FBI for 
comparison against national criminal records. If no criminal 
record or registry information was found, the Criminal History 
Unit was notified and they changed the individual's status in 
the database to ``clear.'' If a criminal history was found, the 
Idaho Criminal History Unit reviewed the information and made a 
determination based on State's list of disqualifying 
crimes.\58\ Applicants and employers could check on the status 
of the application at any point during this process by logging 
on to a secure website. Applicants and employers were notified 
via email when the background check was complete and/or if any 
disqualifying offenses were found. Idaho does not have a ``rap 
back'' process in place where new or subsequent criminal 
activity is automatically sent to the Criminal History Unit.
---------------------------------------------------------------------------
    \58\ Idaho's list of disqualifying crimes is included in Appendix B
---------------------------------------------------------------------------

                                RESULTS

    Between October 2005 and March 2007, Idaho screened 20,117 
applications of which 648 (3 percent) were denied access or not 
allowed to work with vulnerable persons in long-term care 
settings. 408 individuals were denied access due to information 
found during a criminal record or other record search and an 
additional 240 withdrew their applications after they disclosed 
a disqualifying offense or other incident would have likely 
resulted in a denial.

                               POST-PILOT

    At the end of the pilot, Idaho's Division of Medicaid 
surveyed the directors of the participating long-term care 
settings to find out whether they thought the background checks 
should continue after the Pilot ended. The response was 
overwhelmingly positive. Based on the combination of successful 
screening results, and positive feedback from the provider 
community, Idaho's Division of Medicaid modified their 
regulations to continue requiring background checks for: home 
health agencies, skilled nursing homes, residential assisted 
living facilities, and intermediate care facilities for the 
mentally retarded. Hospice agencies and hospitals with swing 
beds were not included in the modified regulations and did not 
continue requiring background checks for job applicants. During 
the Pilot, grant funds were used to cover the cost of the 
background checks. Post-pilot, the fee for the background 
checks will be paid for by either the applicant or the 
provider.

                                ILLINOIS

Illinois CMS Background Check Pilot Program for Long-Term Care 
Workers
Grant award: $3,000,000
Administering State Agency: Illinois Department of Public 
Health (IDPH)

    Prior to participating in the Background Check Pilot 
Program, Illinois relied primarily on name-based background 
checks for direct health care workers. Fingerprint background 
checks were performed only if name-based checks revealed 
multiple common names, a waiver request was made for 
disqualifying convictions, or the applicant challenged the 
results. Recognizing name-based background checks were not as 
effective or efficient as fingerprint-based checks. Illinois 
used the pilot funds primarily to test the feasibility of 
implementing a fingerprint based background check process in 
their state.\59\ To institute a fingerprint-based system, and 
automate all the background check processes, Illinois amended 
the state's Health Care Workers Background Check Act.
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    \59\ The scope of the Pilot in Illinois originally included the 
entire state and all the requested provider types but due to the high 
cost of background checks, the scope of the Pilot was negotiated down 
to include only 10 counties (i.e., Boone, Carroll, Jo Daviess, Lake, 
Lee, McHenry, Ogle, Stephenson, Whiteside, and Winnebago) in the 
northern part of the state and only five of the mandated provider types 
(i.e., skilled nursing facilities/nursing facilities; intermediate care 
facilities for persons with mental retardation, home health agencies, 
long-term care hospitals/hospitals with swing beds and home-and-
community-based service facilities over eight beds). The smaller scope 
allowed grant funds to be used to subsidize the cost of the fingerprint 
background checks. The reduced scope retained a true representation of 
the geographic, social and economic structure of the entire state. 
Illinois consists of an extraordinary amount of border counties where 
workers can live in one state and work in another. Eight of the ten 
counties bordered another state. The scope captured enough rural area 
to be characteristic of the plain states. Illinois has one of the most 
concentrated metropolitan areas in the United States; therefore, one of 
the counties included in the pilot was a highly populated urban area.
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    Illinois developed a background check process for the Pilot 
that included several steps. First, an applicant seeking a 
position in a long-term care facility where he or she may have 
access to a resident; the resident's living quarters; or the 
resident's financial, medical or personal records, was asked to 
fill out a disclosure and authorization form. The employer 
logged into the Illinois Department of Public Health (IDPH) 
online Web portal to the Health Care Worker Registry (HCWR) 
\60\ to check for any disqualifying offenses or substantiated 
findings. If no offenses or substantiated findings were found, 
the employer checked the following registries through links 
provided in the Web application: Office of Inspector General 
List of Excluded Individuals and Entities; Illinois Sex 
Offenders Registration, Illinois Department of Corrections Sex 
Registrant, Inmate Search and Wanted Fugitives; and National 
Sex Offender Public Registry. If no matches were found, the 
applicant was sent to a livescan vendor to have his or her 
fingerprints electronically scanned. After the applicant's 
fingerprints were scanned, the livescan vendor sent a data file 
to IDPH who then sent it to the Illinois State Police (ISP). 
The ISP conducted a state-based criminal history records search 
and forwarded the file to the FBI for a national search. The 
results of the background check were sent to IDPH 
electronically and matched to the applicant's social security 
number and transaction control number (provided by the livescan 
vendor). If no criminal record was found, the applicant's name 
was moved to the status of ``Direct Access Worker'' and an 
automatically generated email was sent to the employer with 
notification that the applicant was eligible to work. If any 
criminal record was found, the IDPH reviewed the information 
and made a determination as to whether there was a 
disqualifying conviction. As soon as the determination was 
entered into the web application an automatically generated 
email was sent to the employer stating whether the conviction 
was disqualifying. The applicant was mailed a copy of the rap 
sheet along with a waiver application (if applicable) when the 
conviction was disqualifying. If the applicant was convicted of 
any subsequent criminal activity after the background check has 
been completed, the ISP automatically notified the IDPH as part 
of their ``rap back'' process.\61\ As soon as a determination 
is made by the IDPH on the conviction, an email was 
automatically generated and sent to the employer.
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    \60\ Illinois received additional grant funds from CMS to develop a 
web-based application system to coordinate their background checks, the 
IDPH Online Health Care Worker Registry (HCWR).
    \61\ A ``rap back'' system involves maintaining the fingerprints of 
individuals who have been cleared in a law enforcement database, 
allowing detection of any subsequent disqualifying crimes that these 
individuals may commit. When this occurs, the database notifies the 
department that requested the background check as part of their 
oversight for a particular industry (e.g., Illinois' Department of 
Public Health), which in turn notifies the employer of their employee's 
relevant arrest or conviction.
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                                RESULTS

    Illinois was late entering the pilot study because of 
difficulties faced early on (i.e., having to reduce the scope 
of the pilot). However, between October 2006 and September 
2007, 6,315 background check applications were submitted to 
IDPH for screening of which 3.1 percent (1,924) were either 
disqualified based on prior offenses, substantiated findings, 
or criminal histories or were withdrawn by the applicants 
themselves.

                               POST-PILOT

    Illinois is currently in the process of implementing a 
fingerprint-based background check process statewide, using all 
the automation features introduced during the pilot. 
Fingerprint background checks are now required for unlicensed 
direct care workers for multiple health care settings and 
unlicensed workers who have (or may have) contact with 
residents, residents' living quarters, or residents' personal, 
financial, and medical records in many long-term care 
settings.\62\ Furthermore, since health care providers are now 
required to initiate fingerprint background checks through the 
Department of Public Health's (IDPH) web application, IDPH can 
legally store the fingerprints and use the rap back to notify 
IDPH of any future convictions that are associated with those 
fingerprints.
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    \62\ Long-term care settings currently required to screen 
applicants in Illinois include assisted living and shared housing 
establishments; community living facilities; children's respite homes; 
freestanding emergency centers; full hospices; home health agencies; 
hospitals; life care facilities; long-term care settings; post-surgical 
recovery care facilities; and sub-acute care facilities.
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                                MICHIGAN

Michigan CMS Background Check Pilot Program for Long-Term Care 
Workers
Grant award: $3,500,000
Abuse prevention training program award: $1,500,000
Administering State Agency: Michigan Department of Community 
Health

    Michigan used the funds from the CMS Background Check Pilot 
program to enhance the comprehensive background check program 
they already had in place. The major improvement they made was 
to develop, in partnership with Michigan State University, an 
online application that provides health and human service 
agencies with a systematic process of conducting the background 
checks. In addition to receiving funds to supplement and expand 
their background check program, they were one of three states 
awarded an additional $1.5 million to create and deliver a 
comprehensive adult abuse and neglect prevention-training 
program for employees and managers of long-term care settings.
    Prior to the pilot, Michigan performed background checks on 
a limited number of employees in nursing homes, county medical 
care facilities, homes for the aged, and adult foster care 
facilities. They relied primarily on name-based background 
checks with fingerprint background checks required only for 
employees residing in Michigan for less than three years. Using 
pilot funds, Michigan expanded the scope of facilities covered 
to also include hospices, hospitals with swing bed long-term 
care units, assisted living facilities that are classified in 
Michigan as ``homes for aged,'' psychiatric hospitals, and 
intermediate care facilities for the mentally retarded. They 
performed background checks on all prospective long-term care 
employees who will have direct access to patients with plans to 
check current employees in the future.
    Michigan's background check program had three stages. 
First, the provider entered the applicant's personal 
information into the online system where it was screened 
against five integrated registries: Office of Inspector General 
List of Excluded Individuals and Entities, Michigan Nurse Aide 
Registry, Michigan Public Sex Offender Registry, Offender 
Tracking and Information System, and Internet Criminal Access 
Tool. Second, if no convictions for a relevant crime were 
found, the applicant was required to complete a digital 
fingerprint scan which was submitted to the Michigan State 
Police and then to the FBI. Third, if a match was found, a 
notice was sent to either the Department of Community Health or 
the Department of Human Services where the department staff 
examined the applicant's criminal history to see if it was 
exclusionary.\63\
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    \63\ Michigan's list of disqualifying crimes can be found in 
Appendix B.
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    During the pilot, Michigan developed new functionality to 
integrate a rap back process that would allow the Michigan 
State Police to legally store the fingerprints and provide 
either the Michigan Department of Community Health or 
Department of Human Services with notifications of any future 
convictions that are associated with those fingerprints.One 
limitation of Michigan's background check system was a limited 
appeal process if an applicant was deemed inappropriate to work 
in a facility due to their criminal background. Appeals were 
only granted to applicants if their criminal record was found 
to be inaccurate, or if the record should have been expunged 
from the record.

                                RESULTS

    Because Michigan had such a comprehensive background check 
system already in place, between March 2006 and September 2007 
they were able to process 103,251 background check applications 
for those applying to work in long-term care settings. During 
that 18 month period, they excluded 6,932 applicants (6.0 
percent) from working with vulnerable older persons because of 
prior offenses, substantiated findings, or criminal histories.
    In 2006, Michigan enacted a law that not only expanded the 
scope of facilities that were required to perform background 
checks on potential employees, but also expanded the types of 
workers required to have background checks. In addition to 
``direct care'' workers (people who provide personal, hands-on 
care to residents/beneficiaries), workers who had ``direct 
access'' to a resident/beneficiary's property, financial 
records, and/or treatment information also had to undergo a 
background check.\64\ The law also required Michigan's 
Department of Community Health to cover the cost of background 
checks for long-term care workers with no charge to the 
applicant or the facility. Approximately one-quarter of the 
total costs were to be reimbursed through a Medicaid match. 
State officials have reported substantive cost-savings as a 
result of the Michigan program, including one-year crime 
prevention savings of $37 million.
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    \64\ Private duty long-term care workers were not included.
---------------------------------------------------------------------------

                               POST-PILOT

    One important component of Michigan's background check 
program that continues to evolve is the online application. A 
second component which Michigan continues to work on is the 
appeals process for applicants that have been denied employment 
because of their past criminal activity. The Michigan Workforce 
Background Check system is being modified to incorporate and 
track the appeals process so that people with minor infractions 
can have the opportunity to demonstrate that they have been 
rehabilitated. Michigan has requested and received approval 
from HHS to bill Medicaid for the cost of FBI checks as an 
allowable administrative cost.

                                 NEVADA

Nevada Criminal Background Check Pilot Program for Long-Term 
Care Workers
Grant award: $1,891,018
Administering State Agency: Nevada State Health Division

    Nevada has been conducting fingerprint-based state and 
national criminal background checks for certain long-term care 
settings since 1997. As one of the fastest growing states in 
America, many of Nevada's residents have lived and worked in 
other states, making a national fingerprint background check 
critical for long-term care workers. Before the Pilot, the 
majority of fingerprints were collected manually using ink-
based cards. Theses cards first had to be scanned by the Nevada 
Department of Public Safety for the state-based check, and then 
mailed to the FBI for the national check. This process took 90 
to 120 days and often required re-fingerprinting due to the 
poor quality of the ink-based cards. Realizing the need to also 
check applicants against the FBI registry, Nevada used the 
majority of their Pilot funds to improve their existing 
background check program by installing livescan (electronic) 
fingerprinting machines across the state. By increasing the 
number of locations from which applicants' prints could be 
submitted electronically, they were able to significantly 
reduce the processing time of fingerprint background checks.
    As part of the Pilot, Nevada expanded the scope of workers 
who were required to have a criminal background check.\65\ It 
now includes all prospective long-term care employees who will 
have direct access to patients and independent contractors 
working in intermediate care facilities, skilled nursing 
facilities, residential care facilities, and agencies that 
provide personal care services and/or nursing care in the home. 
Persons applying for a license to operate intermediate care 
facilities, skilled nursing facilities, and residential 
facilities for groups must also undergo a criminal background 
check.
---------------------------------------------------------------------------
    \65\ The facility must do a criminal history background check when 
the employee is first hired and at least every five years that the 
person remains employed there.
---------------------------------------------------------------------------
    Under Nevada statute, providers were required to submit the 
employee's fingerprints to the Department of Public Safety, 
which conducted the background check search and notifies the 
provider and the Bureau of Licensure and Certification of the 
results.\66\ Although Nevada does not conduct name-based 
criminal checks (except in the rare instance where an 
individual's fingerprints cannot be taken) they do check 
applicants against the National Sex Offender Registry, the 
Central Repository for Nevada Records of Criminal History, and 
the Certified Nurses Aide Registry. The fingerprint check 
serves as a back-up and the long-term care agencies are 
required to keep a copy of the fingerprints submitted to the 
Central Repository for Nevada Records of Criminal History for 
future inspections by the Health Division.
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    \66\ Prior to the pilot, the Department of Public Safety only 
notified the Bureau of Licensure and Certification if an applicant had 
a criminal background or a disqualifying offense. To streamline and 
track the background check process, the Department of Public Safety now 
shares the results of all background checks with the Bureau of 
Licensure and Certification.
---------------------------------------------------------------------------

                                RESULTS

    At the end of the pilot, Nevada had installed 37 new 
livescan fingerprinting sites across the state thus drastically 
reducing the average time it took to perform a background check 
from about 80 days to less than 20 days. In addition to 
providing more timely results to employers, shorter turn-around 
times also allowed Nevada to better identify previously missed 
``job-hoppers'' who had criminal histories but were rarely 
caught. Between January 2006 and September 2007, Nevada 
excluded 349 people (1 percent) who applied for health care 
positions because they had criminal backgrounds or 
disqualifying offenses. Although this percentage seems low, it 
may reflect effective screening of applicants by employers 
before they submitted fingerprints, or it may be that increased 
awareness of the background check program now acts as a 
deterrent for people with criminal histories.

                               POST-PILOT

    After the pilot, Nevada has continued to expand the 
background check program and has assumed portions of the cost 
of fingerprint-based criminal history background checks for 
prospective long-term care employees.

                               NEW MEXICO

New Mexico CMS Background Check Pilot Program for Long-Term 
Care Workers
Grant award: $1,100,000
Administering State Agency: New Mexico Department of Health

    Since 1999, New Mexico's Caregivers Criminal Screening Act 
has required health care facilities to perform nationwide and 
statewide criminal background checks on persons whose 
employment or contractual service with a care provider include 
direct care or routine and unsupervised physical of financial 
access to any care recipient \67\ served by that provider.\68\ 
The Act requires over 20 different types of long-term care 
settings to screen direct care employees.\69\ However for the 
purposes of the pilot, New Mexico only reported data on the 
care provider types specifically identified in the CMS 
Background Check Pilot Program requirements (i.e., skilled 
nursing facilities/nursing facilities; long-term care 
hospitals/hospitals with swing beds; intermediate care 
facilities for persons with mental retardation; home health 
agencies; home-and-community-based service group homes over 
eight beds; and personal care agencies).
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    \67\ Care recipient is defined as any person under the care of a 
provider who has a physical or mental illness, injury or disability or 
who suffers from any cognitive impairment that restricts or limits the 
person's activities.
    \68\ The Caregivers Criminal History Screening Act stipulates that 
care providers can only conditionally employ a caregiver pending 
completion of the criminal history screening.
    \69\ See Appendix D for list of long-term care settings in New 
Mexico's Background Check Pilot Program Final Report.
---------------------------------------------------------------------------
    Due to a limited information technology (IT) 
infrastructure, New Mexico's Department of Health can not 
utilize livescan (electronic) fingerprinting. Instead, they use 
inked fingerprint cards to collect fingerprints. Although 
fingerprint cards are prone to low-quality fingerprinting, and 
their use can cause significant delays in processing, New 
Mexico did not use the pilot funds to upgrade their IT 
infrastructure to utilize electronic fingerprinting. Instead, 
they used the $1.1 million they received from the Pilot to 
improve the efficiency of the existing background check process 
by: 1) providing for training and technical assistance for 
individuals who process fingerprints throughout the state; 2) 
developing an integrated web-based application allowing 
agencies and providers to access criminal history information 
as well as check on the training status of applicants; 3) 
establishing methods to monitor provider compliance; 4) 
replacing outdated scanning equipment and software; and 5) 
conducting research for statutory and regulatory reforms for 
system improvements.
    New Mexico's criminal history screening had three stages: 
1) application submission and processing, 2) employment fitness 
determination, and 3) administrative reconsideration (if 
needed).
    During the first stage, application submission and 
processing, the applicant's personal information was entered 
into an online system and screened against three integrated 
registries: Nurse Aide Registry, New Mexico Employee Abuse 
Registry, and Caregivers Criminal History Screening Program 
(CCHSP) database. Simultaneously, their fingerprints were 
scanned and electronically sent to the New Mexico Department of 
Public Safety for a statewide criminal history search and to 
the FBI for a nationwide criminal history search. If the 
fingerprints come back without a match (no criminal history 
found), the CCHSP database is updated and the care provider 
facility is sent a letter stating that the applicant's 
background check is clear. If a match is found either through 
the registry screening or the fingerprint search, the 
application is sent to the CCHSP for further review.
    The second stage of New Mexico's criminal background check, 
employment fitness determination, occurred only if the direct 
care worker is found to have a criminal history. The CCHSP 
legal assistants review the rap sheets and determine if there 
is any part of that individual's criminal history that would 
disqualify them from employment in accordance with the 
Caregivers Criminal History Screening Act and Rule. If there is 
an item in their criminal history that meets the threshold 
determined by the CCSHP disqualification list \70\ then a 
disqualification letter is sent to the direct care worker and 
the care provider facility. If the item does not meet the 
threshold, it was updated in the CCHSP database and processed 
for clearance.
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    \70\ New Mexico's list of disqualifying crimes is included in their 
final report which can be found in Appendix D.
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    The third stage of the criminal background check, 
administrative reconsideration, is the appeals process. If an 
applicant is sent a disqualification letter by the CCHSP, they 
can request that their employment fitness determination be 
reconsidered. The applicant is required to submit all 
supporting documents and may be requested to provided 
additional material if the reconsideration committee deems it 
necessary.

                                RESULTS

    Between April 2005 and June 2007, New Mexico processed 
13,145 applications and excluded 649 health care applicants (2 
percent) because they had criminal backgrounds which included 
disqualifying crimes. One of the major successes of the pilot 
was identified as the substantial improvement in compliance by 
care provider agencies. New Mexico found that using resources 
to train, assist, and inform in the beginning of the background 
check process is a better use of resources than trying to fix 
problems as they arise during the process. New Mexico's 
background check process is budget-neutral to the state. The 
state paid for the background checks by charging the long-term 
care providers an application fee.

                               POST-PILOT

    After the pilot ended, New Mexico continued the background 
check program for the long-term care settings identified in the 
pilot as well as the facilities identified in the 1999 
Caregivers Criminal Screening Act. In addition, New Mexico 
began screening general acute care hospitals. Post-Pilot, New 
Mexico also expanded the types of caregivers to include 
students who participate in clinical practicum trainings in 
both long-term care and general acute care (and meet the 
caregiver definition) as well as a select number of volunteers.
    New Mexico has plans to improve the current IT system to 
allow providers to submit applications electronically now that 
the New Mexico Department of Public Safety has the capability 
to accept and match electronic fingerprints in their state 
repository. This process will allow CCHSP to end its current 
labor intensive process and reduce processing time.

                               WISCONSIN

Wisconsin CMS Background Check Pilot Program for Long-Term Care 
Workers
Grant award: $1,500,000
Abuse prevention training program award \71\: $1,500,000
---------------------------------------------------------------------------
    \71\ Michigan, Alaska, and Wisconsin were awarded additional funds 
to create a deliver a comprehensive adult abuse and neglect prevention-
training program for employees and managers of long-term care settings.
---------------------------------------------------------------------------
Administering State Agency: Department of Health and Family 
Services

    Prior to participating in the CMS Background Check Pilot 
Program, Wisconsin lacked an automated system that utilized 
fingerprint-based background checks for long-term care 
employees. They used the pilot funds to test the feasibility of 
establishing a more comprehensive approach to screening 
applicants for jobs in the state's long-term care sector. 
Specifically, they enhanced their existing name-based criminal 
background check system by adding a fingerprint-based 
background check program.
    Beginning in February 2006, Wisconsin received $1.5 million 
to cover fingerprint-based background checks in four counties: 
Dane, Kenosha, La Crosse, and Shawano. These four counties were 
chosen to represent specific populations, communities, and 
trends that exist within Wisconsin--rural and urban settings, 
rapid and slow growth populations, border counties with high 
interstate movement, and a variety of commuting patterns.
    The Pilot required providers to have background checks for 
prospective employees in long-term care settings, including 
skilled nursing facilities; nursing facilities; intermediate 
care facilities for persons with mental retardation; home 
health agencies; long-term care hospitals; hospitals with swing 
beds; hospice providers; personal care agencies approved by the 
Medicaid program; and community-based residential facilities 
with at least nine beds. The state trained these providers in 
procedures for conducting coordinated registry checks and 
criminal history checks, using both the state's name-based 
system and state and federal fingerprint-based checks. Records 
were searched in the following registries: Office of the 
Inspector General List of Excluded Individuals and Entities, 
Wisconsin Nurse Aide Registry, and Nurse Aide Registries in 
other states if the applicant had lived in another state. If 
the applicant had a finding in any of the above registries, he 
or she was denied employment and the background check ended. If 
the applicant passed the registry review, fingerprint scans 
were sent to the Wisconsin Department of Justice which 
simultaneously searched the state fingerprint database and 
forwarded the prints to the FBI for a federal fingerprint 
search and the Department of Health and Family Services for an 
Integrated Background Check Information System Check.
    Wisconsin employers have long been accustomed to requesting 
and receiving full criminal history information on applicants--
including the actual ``rap sheets'' that are maintained by law 
enforcement agencies, since Wisconsin is an open-record state, 
which means that criminal records are accessible to the public. 
Because of this, Wisconsin employers are more accustomed to 
making ``fitness determinations'' about crimes that are not 
automatically disqualifying under state and federal law, but 
which the provider may or may not deem sufficiently serious to 
exclude an applicant.\72\ State officials also believe that 
employers are sufficiently well-informed to use background 
check information appropriately for making decisions about an 
individuals' suitability for employment.
---------------------------------------------------------------------------
    \72\ Wisconsin's list of disqualifying crimes is included in 
Appendix B.
---------------------------------------------------------------------------
    State officials indicated that they did not have concerns 
about long-term care providers receiving applicants' criminal 
information directly and making fitness determinations. State 
officials argue that there are minimal confidentiality risks in 
allowing providers to receive sensitive criminal history 
information on individuals as long as they observe proper 
security procedures for handling and storing this information. 
The Wisconsin Department of Justice conducts periodic audits to 
review security procedures used by providers.

                                RESULTS

    Overall, Wisconsin's pilot program screened 14,748 
applicants and disqualified 640 applicants based on a 
disqualifying criminal history finding (4.3 percent). Most 
long-term care workers who were disqualified due to their 
background check results were disqualified before the 
fingerprint background check. The staged pilot process allowed 
employers to stop the process as soon as any disqualifying 
information was found. Many employers indicated that they will 
continue the up-front free registry searches post-pilot.
    Wisconsin officials reported that the overall results of 
the pilot verify the effectiveness of Caregiver Law 
requirements. Wisconsin's process is straightforward. The 
state's Offenses List is relatively short and the conditions 
apply to everyone the same way--all the crimes result in 
lifetime bans unless the person completes a Rehabilitation 
Review. Anomalies are handled on a case-by-case basis. This is 
a more effective process than establishing different time lines 
for different offenses. No records need to be kept at the state 
level regarding where individuals are employed and the state 
agency does not need to keep copies of fingerprints or 
background check results.\73\
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    \73\ The Wisconsin Pilot program did not attempt to assess the 
value of a ``rap back'' system, in which fingerprint records are 
retained in a state-administered database so that individuals who have 
been checked and cleared once do not have to be re-fingerprinted each 
time they change jobs.
---------------------------------------------------------------------------
    Many of the participating employers indicated they 
appreciated acquiring criminal history information through the 
FBI fingerprint-based background check, which eliminated the 
need to track down out-of-state results for caregivers who have 
lived outside of Wisconsin. They also said that overall the 
pilot provided a measure of increased assurance for long-term 
care employers that their employees did not have a history of 
committing abuse, neglect, or stealing client property. The 
state's automated system developed during the pilot, decreased 
turnaround time for fingerprint-based background checks to 
between 24 and 48 hours for those submitted electronically.

                               POST-PILOT

    Wisconsin has required background checks for caregivers 
working in regulated healthcare and daycare settings since 1998 
and supports a requirement for all caregivers nationwide to 
undergo a thorough background check. After the pilot, they have 
continued their background check program.

                   ABUSE PREVENTION TRAINING PROGRAM

    Wisconsin was one of three states to receive additional 
funding to develop and provide innovative abuse and neglect 
prevention training for Wisconsin's direct caregivers. 
Wisconsin's experience with the Abuse and Neglect Prevention 
pilot project demonstrated a critical need for direct 
caregivers, especially those who are non-credentialed, to 
receive training that offers the behavioral and interpersonal 
skills to respond positively in potentially abusive situations. 
Wisconsin's efforts to provide meaningful training to direct 
caregivers and their supervisors and managers received an 
extremely positive response. The response was so great, and the 
need for training resources was so clear, that the Department 
identified additional funding to continue training through 
2008.
                            A P P E N D I X

                              ----------                               

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    APPENDIX D - State Prepared Reports Submitted to CMS

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