Top Legislative Issues
Criminal History Background Checks for Home Care Workers and Home Care
Worker Registry
Memo in Support
Bill Number: A2003-B, Morelle /S.4371-A, Hannon
Summary:
HCP strongly supports this bill, which creates a practical, comprehensive, and valuable criminal background check system for the home care industry and also requires all prospective direct care home care employees, including consumer directed caregivers, to undergo criminal history record checks. The bill also creates a Home Care Worker Registry that will provide home care employers with comprehensive information about prospective employees in a timely and user-friendly manner. The combinations of the background check process and Registry will result in the hiring of qualified and competent personnel providing the same protections to all home care recipients.
Position:
HCP supports public policy that facilitates uniform, timely employee screening standards and enhances the ability of providers to employ a reliable and trained workforce. The cost of such measures and standards must be borne by both private and public payers to prevent the imposition of additional unfunded government mandates on providers. The State must employ all technology available to provide for timely and error proof results. Consumer directed caregivers must be required to undergo the same criminal history checks as other home care workers to provide for the health and safety of the patients they serve.
HCP supports the creation of a statewide home care worker registry that would provide employers with any required information on a prospective employee. Such registry must provide protections against the release of such private information to groups or individuals who are not using the information for employment purposes.
Requirements for criminal background checks or the establishment of a registry of home care workers must ensure that providers can access valid and valuable information regarding applicants for employment in a timely manner, and that those providers are held harmless for their good faith use of such information in the employment process. Standards for provisional employment with reasonable, yet not restrictive, supervision provisions must be included in any new system. This legislation meets these needs.
Regulations were enacted by DOH on April 1, 2005, that require nursing homes and home care agencies to perform and to pay for criminal history checks for prospective employees. The provisions of Federal statute upon which the DOH regulations rely are extremely limiting. In order to rectify the problems created by the use of the Federal statute, the State must enact legislation that relies on a more flexible Federal law that allows for the creation of a criminal history record check system to be run through DCJS using the Federal Bureau of Investigation's (FBI) criminal history database.
This bill amends current Executive Law as it relates to the criminal background check provisions enacted in 2004 within the Mental Hygiene Law to include similar provisions for nursing homes and home care agencies and follows many of the same provisions included in the current regulations.
Under the system created in this bill, nursing homes, home care agencies, and temporary staffing agencies would submit a prospective home health aide, personal care aide or certified nurse aide employee's personal information and fingerprints to DCJS for a complete check of the prospective employee's criminal history via the FBI. Upon receipt of criminal history information from DCJS, DOH would determine whether the individual were suitable for hire as a direct care worker in any of the above settings. This information would be kept on file at DOH and updated periodically by DCJS. Once the employee's information were filed and maintained within the Department, providers would only need to ask the Department for information on such employee.
The Federal statute used to implement current regulation does not allow for the creation of a registry and thus employers must check an employee's criminal history each and every time that worker moves to a new job. This is very costly and time consuming. Nursing homes and home care agencies experience a great amount of turnover, something recognized by DOH in the justification for its current regulations. The method proposed in this bill would provide faster, more efficient and more effective criminal history record checks. It would enable employers to have access to timely, comprehensive information that they could use to hire competent and qualified employees while ensuring that their patients were protected.
Further, the creation of a registry reduces the number of times an employee will be required to be fingerprinted, a process that can be inconvenient and humiliating for the employee. Under this legislation, following the initial submission of the employee's fingerprints to DCJS, the employee's information is returned to DOH to allow it to make a determination of whether such individual qualifies for employment. This information is kept on file at DOH and updated annually by DCJS. In creating a permanent record (a registry) of prospective employees, this bill should significantly decrease the fiscal impact to the State in future years because it eliminates the need for duplicative checks as is the standard under the current regulations.
This bill provides better protection to both the patient and the employer by providing the employer with timely, nationwide criminal history information relative to the prospective employee prior to hiring.
HCP is committed to creating a criminal history system for home care providers that is flexible, fair and provides needed information quickly to allow for timely hiring of home care workers. This is something the current regulations do not accomplish. HCP strongly supports this legislation because it will eliminate the onerous hiring requirements to which the industry is currently subject and replaces it with a valuable, logical criminal history record check system to further strengthen the home care industry.
Enactment of this legislation is imperative if the State is going to develop a reasonable and workable criminal history system that will be acceptable to both the State and the home care industry. HCP strongly supports enactment of this legislation. Your leadership on this issue is needed immediately. We respectfully request that you support this legislation.
