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Long-term care providers and states should agree on what a “direct access employee” is and whether that person has a criminal conviction that should keep him or her from working in a nursing home, according to a a recently released report from the Long-Term Care Criminal Convictions Work Group.

The work group consists of Centers for Medicare & Medicaid Services employees and volunteers from 11 state agencies. It was formed in response to a March 2011 report from the Department of Health and Human Services Office of Inspector General, which found 92% of nursing facilities employ at least one person with a criminal conviction. 

Yet the need for direct care workers is expected to brow by 34% by 2015, which means long-term care providers want some flexibility in who they hire. CMS asked the group to formulate a common definition of direct access employee and recommending which convictions should disqualify someone from becoming this type of worker.

Currently, it up to each state to define who is a direct access employee, and most states do not have a standard definition, according to the report. Under the work group’s “consolidated definition,” a direct access employee is someone who owns, is employed by, or has a contract/agreement with a facility. The employee also must have physical contact with residents or their property, or access to their personal or financial information. 

Rather than recommend specific crimes that would disqualify potential employees, the work group proposed a number of categories of crimes. This would give states the flexibility to determine which specific convictions would fall under the various categories. These categories included crimes against a vulnerable individual, crimes against another person and crimes related to the distribution of controlled substances.

The report also proposes “rehabilitation factors” that would allow someone with a disqualifying conviction to be employed, such as passage of time or extenuating circumstances.

CMS will review the work group’s recommendations, and asked for stakeholder comments on the report in an April 12 letter to state survey agency directors.