CMS to weigh comments on disqualifying convictions in crafting background check regulations

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Long-term care stakeholders generally support proposed regulations on background checks of direct care workers, according to an informational memorandum issued Friday by the Centers for Medicare & Medicaid Services.

The Affordable Care Act created a work group to address background checks of long-term care professionals who work directly with residents, the memo noted. Federal authorities focused on this issue after a 2011 report found that 92% of nursing facilities employed at least one person with a criminal conviction.

The Long-Term Care Criminal Convictions Work Group received public comments from 18 entities, including trade associations, consumer advocates and federal agencies, according to the CMS memo. Comments on the group's proposals were accepted through Sept. 16.

Most commenters supported proposals about convictions that would disqualify someone from working with long-term care residents, the memo stated. However, “several comments” addressed an item on felony crimes related to controlled substances. This item pertained to the "unlawful manufacture, distribution, prescription, or dispensing of a controlled substance." Some argued that drug and alcohol abuse convictions should be considered as well, and one commenter asked for carve-outs for marijuana-related crimes. These convictions should not necessarily disqualify someone from long-term care employment, especially given recent state laws allowing marijuana use, the commenter stated.

There was more disagreement about how long convicted criminals should be banned from working in long-term care and how to calculate these time periods. Some commenters were in favor of lifetime bans for certain crimes and some argued against any lifetime bans, the memo stated. One commenter brought up reoffenders, arguing that the rule should specify that the clock would be “reset” after a second offense.

CMS now will consider “further action” on this issue, including standards for state background check systems, according to the document. 

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