LEGAL ISSUES IMPACTING NURSING HOMES: CRIMINAL HISTORY, EXCLUSION SEARCHES, and SEX OFFENDERS

1. LEGAL ISSUES IMPACTING NURSING HOMES: CRIMINAL HISTORY, EXCLUSION SEARCHES, and SEX OFFENDERS Presented By: Carla J. Cox Jackson Walker, LLP November 3, 2009

2. CRIMINAL HISTORY • Criminal history as licensing criteria • TDADS may deny an initial facility license, or refuse to renew a facility license based on criminal history • Whose history is reviewed by TDADS? • Applicant or license holder • Partner, officer, director, or managing employee of applicant/license holder • Person who owns or controls owner of physical plant • Controlling person

3. CRIMINAL HISTORY (Licensing criteria—continued) • Definition of controlling person • Person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility • Includes: a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility

4. CRIMINAL HISTORY (Licensing criteria—continued) • Controlling person also includes: • The controlling person of a controlling person or entity • Person who because of familial or personal relationship has actual control • Controlling person does not include: • Employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over NF operation

5. CRIMINAL HISTORY (Licensing criteria—continued) • Crimes TDADS may consider to deny license regardless of date: • Offenses listed in Texas Health and Safety Code, § 250.006(a)(24 crimes) or (c)(burglary); • Rule 40 TAC § 99.2 adds the following crimes: • Offense relating to the practice of a health-related profession without a license • Offense relating to drugs, dangerous drugs, or controlled substances

6. CRIMINAL HISTORY (Licensing criteria—continued) • Crimes considered regardless of date—Rule 40 TAC § 99.2 adds the following crimes under the Texas Penal Code: : • (i) Section 22.015, Coercing, soliciting, or inducing gang membership; • (ii) Section 22.09, Tampering with consumer product; • (iii) Section 22.10, Leaving a child in a vehicle; • (iv) Section 32.42, Deceptive business practices; • (v) Section 32.51, Fraudulent use or possession of identifying information; • (vi) Section 35.02, Insurance fraud

7. CRIMINAL HISTORY (Licensing criteria—continued) • Crimes considered regardless of date (cont.): • (vii) Section 42.072, Stalking • (vi) Section 35.02, Insurance fraud; • (viii) Section 42.10, Dog fighting; • (ix) Section 43.05, Compelling prostitution; • (x) Section 43.24, Sale, distribution, or display of harmful material to minor; • (xi) Section 43.25, Sexual performance by a child; • (xii) Section 43.251, Employment harmful to children;

8. CRIMINAL HISTORY (Licensing criteria—continued) • Crimes considered regardless of date (cont.): • (xiii) Section 43.26, Possession or promotion of child pornography; • (xiv) Section 46.06, Unlawful transfer of certain weapons; • (xv) Section 46.13, Making a firearm accessible to a child; • (xvi) Section 48.02, Prohibition of the purchase and sale of human organs; • (xvii) Section 49.07, Intoxication assault; or • (xviii) Section 49.08, Intoxication manslaughter.

9. CRIMINAL HISTORY (Licensing criteria—continued) • Crimes considered if occurred within 5 years preceding application date: • An offense listed in Texas Health and Safety Code, § 250.006(b): • (1) Class A misdemeanor or felony under Section 22.01, Penal Code (assault); • (2)  Offense under Section 30.02, Penal Code (burglary); • (3)  A felony under Chapter 31, Penal Code (theft); • (4)  Class A misdemeanor or felony under Section 32.45, Penal Code (misapplication of fiduciary property or property of a financial institution); • (5)  Class A misdemeanor or felony under Section 32.46, Penal Code (securing execution of a document by deception); • (6)  Offense under Section 37.12, Penal Code (false identification as peace officer); or • (7)  Offense under Section 42.01(a)(7), (8), or (9), Penal Code (disorderly conduct).

10. CRIMINAL HISTORY (Licensing criteria—continued) • Additional crimes considered if occurred within 5 years preceding application date per 40 TAC § 99.2(a)(2): • An offense under any of the following sections of the Texas Penal Code: • (i) Section 30.03, Burglary of coin-operated or coin collection machines; • (ii) Section 30.04, Burglary of vehicles; • (iii) Section 31.03, Theft; • (iv) Section 31.04, Theft of service; • (v) Section 32.21, Forgery; • (vi) Section 32.31, Credit card or debit card abuse;

11. CRIMINAL HISTORY (Licensing criteria—continued) • Additional crimes considered if occurred within 5 years preceding application date per 40 TAC § 99.2(a)(2) (cont.): • An offense under any of the following sections of the Texas Penal Code: • (vii) Section 32.33, Hindering secured creditors; • (viii) Section 32.48, Simulating legal process; • (ix) Section 33.02, Breach of computer security; • (x) Section 42.061, Silent or abusive calls to 9-1-1 service; • (xi) Section 42.07, Harassment; or • (xii) Section 42.091, Attack on assistance animal.

12. CRIMINAL HISTORY (Licensing criteria—continued) • Deferred adjudications do not count as convictions • 40 TAC § 99.2(e) and Health and Safety Code § 250.006(d) implies person must have “successfully completed” period of deferred adjudication and received a dismissal or discharge in order for the deferred adjudication not to be a conviction • Clarification provided by TDADS that a person placed on deferred adjudication has not been convicted (See May 13 letter attached to handout)

13. ADMINISTRATOR’S LICENSING:Criteria–Criminal History • TDADS may deny or not renew license • Based on nature and seriousness of crime • Extent that license offers opportunity to engage in same type of crime • Relationship of crime to fitness to perform duties of NF administrator

14. ADMINISTRATOR’S LICENSING: Criteria–Criminal History • Crimes that reflect inability to adequately perform as NF administrator—Offenses under: • Chapters 19-22 of the Texas Penal Code (offenses against persons—homicides, kidnapping, sexual offenses) • Chapters 28-35A of the Texas Penal Code (offenses against property—robbery, etc.) • Chapters 42-43 of the Texas Penal Code (offenses against public order and decency—disorderly conduct, etc.) • Chapters 46-49 of the Texas Penal Code (offenses against public health, safety, and morals—gambling, alcohol)

15. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Verification of employability: • Employees for whom criminal history check is required: • Any employee in a nursing home • Includes licensed persons such as RNs • Nurse aides—must also check Nurse Aide Registry (“NAR”) • Criminal history and NAR check must be done prior to permanent employment

16. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Verification of employability: • Immediate discharge required: • Conviction of crime that bars employment • NAR or Employee Misconduct Registry (EMR) shows employee committed act of abuse, neglect, or mistreatment or • Misappropriation of resident’s property

17. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Emergency requiring immediate employment • Not defined • May employ on interim basis • Criminal history and NAR must be requested within 24 hours • Employment pending criminal history check—facility must ensure that person has no direct contact with a consumer until criminal history and employability check completed—Provider Letter 09-21

18. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes absolutely barring employment—250.06(a): • (1)  Offense under Chapter 19, Texas Penal Code (criminal homicide); • (2)  Offense under Chapter 20, Texas Penal Code (kidnapping and unlawful restraint); • (3)  Offense under Section 21.02, Texas Penal Code (continuous sexual abuse of young child or children), or Section 21.11, Texas Penal Code (indecency with a child); • (4)  Offense under Section 22.011, Texas Penal Code (sexual assault); • (5)  Offense under Section 22.02, Texas Penal Code (aggravated assault); • (6)  offense under Section 22.04, Texas Penal Code (injury to a child, elderly individual, or disabled individual);

19. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes absolutely barring employment (cont.): • (7)  Offense under Section 22.041, Texas Penal Code (abandoning or endangering child); • (8)  Offense under Section 22.08, Texas Penal Code (aiding suicide); • (9)  Offense under Section 25.031, Texas Penal Code (agreement to abduct from custody); • (10)  Offense under Section 25.08, Texas Penal Code (sale or purchase of a child); • (11)  Offense under Section 28.02, Texas Penal Code (arson); • (12)  Offense under Section 29.02, Texas Penal Code (robbery); • (13)  Offense under Section 29.03, Texas Penal Code (aggravated robbery);

20. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes absolutely barring employment (cont.) : • (14)  Offense under Section 21.08, Texas Penal Code (indecent exposure); • (15)  Offense under Section 21.12, Texas Penal Code (improper relationship between educator and student); • (16)  Offense under Section 21.15, Texas Penal Code (improper photography or visual recording); • (17)  Offense under Section 22.05, Texas Penal Code (deadly conduct); • (18)  Offense under Section 22.021, Texas Penal Code (aggravated sexual assault); • (19)  Offense under Section 22.07, Texas Penal Code (terroristic threat);

21. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes absolutely barring employment (cont.): • (20)  Offense under Section 33.021, Texas Penal Code (online solicitation of a minor); • (21)  Offense under Section 34.02, Texas Penal Code (money laundering); • (22)  Offense under Section 35A.02, Texas Penal Code (Medicaid fraud); • (23)  Offense under Section 42.09, Texas Penal Code (cruelty to animals); or • (24)  Conviction under the laws of another state, federal law, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements of an offense listed by this subsection. • Section 250.006(c)—Offense under 30.02, Texas Penal Code or similar offense in other state.

22. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes barring employment involving direct contact with consumer within 5 years from date of conviction—Section 250.006(b): • “Direct contact” means any contact with resident • Any employee in a nursing home will have some contact with a resident

23. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes barring employment—5 years • (1)  Offense under Section 22.01, Texas Penal Code (assault), that is punishable as a Class A misdemeanor or as a felony; • (2)  Note 5 year rule does not apply to burglary convictions for NF employees—bar is permanent • (3)  Offense under Chapter 31, Texas Penal Code (theft), that is punishable as a felony; • (4)  Class A misdemeanor or felony under Section 32.45, Texas Penal Code (misapplication of fiduciary property or property of a financial institution);

24. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Crimes barring employment—5 years (cont.) • (5) Class A misdemeanor or felony under Section 32.46, Texas Penal Code (securing execution of a document by deception); • (6)  Offense under Section 37.12, Texas Penal Code (false identification as peace officer); or • (7)  Offense under Section 42.01(a)(7), (8), or (9), Texas Penal Code (disorderly conduct).

25. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Facility may exercise discretion with regard to convictions that are “contraindications” to employment under Section 250.004(b): • If a person has criminal conviction of any kind, the facility should review the conviction to determine if the conviction bars the person from employment in a facility under Section 250.006 or if the conviction may be a contraindication to employment • “Contraindication” not defined—provides facility some leeway in hiring decisions

26. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Deferred adjudications do not count as convictions for eligibility for employment • In deferred adjudication, there is no adjudication of guilt—it is deferred • If person fails to successfully complete deferred adjudication period, an adjudication of guilt is entered and person is convicted

27. EMPLOYMENT ELIGIBILITYChapter 250 TX Health & Safety Code • Do employers have to run new criminal history check on current employees annually? • No per Provider Letter #2007-50 • If employer learns that a current employee has a past or new conviction that bars employment • Employee must be immediately discharged

28. OBTAINING CRIMINAL HISTORY RECORDS • Section 250.04, Tex. H & S Code: • Provides criminal history checks to be done through Texas Department of Public Safety (“TDPS”); • TDPS only checks Texas criminal history • What about convictions of similar crimes in other states?

29. OBTAINING CRIMINAL HISTORY RECORDS • Options: • Use TDPS and • Ask on employment application if the employee has been convicted of a crime in another state • Attach list of crimes barring employment to employment application • There is risk that employee will not disclose out-of-state conviction • Information on TDPS computerized criminal history system does not include Class C misdemeanors—for some crimes listed as bars to employment or licensing criteria, person can be convicted of Class C misdemeanor

30. OBTAINING CRIMINAL HISTORY RECORDS • Ask for convictions on application and use an outside company (consumer reporting agency) to conduct an “employee misconduct check” for a fee to obtain criminal history information on a national basis • Using consumer reporting agency for employee misconduct investigation: • Changes made to Fair Credit Reporting Act (“FCRA”) by Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) • Not the same as a “consumer report” • May only investigate compliance with: • Federal, State or Local laws or regulations • Rules of a self-regulatory organization • Pre-existing written polices of employer

31. OBTAINING CRIMINAL HISTORY RECORDS • Employee misconduct investigation vs. consumer report: • Advance notification of investigation to employee or applicant not required • Consent of employee/applicant not required • Do not have to provide employee/applicant with a copy of investigation report—must only give a summary • Do not have to wait a “reasonable” amount of time between giving employee/applicant a copy of the report and taking adverse action—may give summary after taking adverse action (i.e. refusing to hire) • Employee/applicant does not have the right to dispute the accuracy or completeness of information in the report

32. NURSE AIDE/ EMPLOYEE MISCONDUCT REGISTRY • Nursing homes are required to check both the Nurse Aide Registry and the Employee Misconduct Registry before hiring an individual to determine if: • The person is listed in either registry as having committed an act of abuse, neglect, exploitation, misappropriation, or misconduct against a resident or consumer and is, therefore, unemployable.  • Three methods available to perform these required searches: • calling DADS’ toll-free number at 1-800-452-3934; • searching DADS’ Sanctions Database at http://www.dads.state.tx.us/providers/NF/credentialing/sanctions/ • using DADS’ Employability Status Search at http://www.dads.state.tx.us/providers/employability/esearch.cfm

33. NURSE AIDE/ EMPLOYEE MISCONDUCT REGISTRY • Statutory conflicts between Chapter 250 (Nurse Aide Registry law) and Chapter 253 (Employee Misconduct Registry law) • Chapter 250—Requires discharge of any employee listed in NAR— • Example: A former Nurse Aide applies for a job as a cook but is listed in the NAR • Facility has to check NAR and cannot employ person for any job • Chapter 250 applies to licensed applicants and employees of nursing homes such as nurses

34. NURSE AIDE/ EMPLOYEE MISCONDUCT REGISTRY • Conflicts (cont.) • Chapter 253 does not apply to nurse aides and licensed employees • Chapter 253 only applies to employees who provide personal care services, active treatment, or any other personal services

35. NURSE AIDE/ EMPLOYEE MISCONDUCT REGISTRY • How to resolve conflicts • Run employability search on all applicants for all jobs on the TDADS website • This search will return consolidated results from TDADS’ Nurse Aide Registry, Medication Aide Registry, and Employee Misconduct Registry • Results will include subject’s status on the individual registries and determination if this status makes the subject unemployable in a regulated facility/agency

36. EXCLUDED PERSONS • Medicare and Medicaid are prohibited from paying for any items or services furnished by an individual or entity that is excluded from any federal health care program (CMS Jan.16, 2009 letter) • Providers have obligation to screen all employee and contractors to determine if they are excluded • Obligation to screen is considered by CMS a condition of participation

37. EXCLUDED PERSONS • Facilities obligations (cont.) • CMS states providers should be required to search the HHS-OIG website monthly to capture exclusions and reinstatements that have occurred since last search • CMS states providers should be required to immediately report any exclusion information discovered to State Medicaid agency • Civil monetary penalties and recoupment of overpayments may be imposed against facility that employs excluded individuals

38. EXCLUDED PERSONS • What is correct site to search? • CMS letter says HHS-OIG website: http://exclusions.oig.hhs.gov/ • However, HHS-OIG online search only allows search by name (not SSN#) and only 5 names • HHS-OIG has downloadable exclusion database and monthly updates (has name, DoB, profession, but not SSN) • However, it may be difficult to run a comparison between your employees and the persons on the database • Can purchase software to run comparison (so vendors advertise)

39. EXCLUDED PERSONS • The Excluded Parties List Systems (EPLS) is the electronic version of the Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs (List) including persons excluded by HHS • The EPLS is the official list of all excluded persons • Allows for more sophisticated searches by name and SSN# • Unless you have purchased software it may be difficult to run comparative searches on either the HHS-OIG or EPLS data base

40. SEX OFFENDERS • Who has to register? • Any person with a “reportable conviction or adjudication” must register as a sex offender • On September 1, 1997, the registration requirement was made retroactively applicable to any person whose “reportable conviction or adjudication” occurred on or after September 1, 1970 if the person was still in the Texas criminal justice system for that offense on or after September 1, 1997 • Therefore, many current residents or applicants for residency in nursing homes will not be in the sex offender registry

41. SEX OFFENDERS • More future applicants and future residents will be registered sex offenders • Can you ask whether a current or prospective resident is a registered sex offender? • Yes, but many facilities don’t ask for fear of offending applicants or residents • It is more difficult to request information from persons who are already residents than applicants

42. SEX OFFENDERS • Can you have a policy that the facility will not admit registered sex offenders? • Yes—it will be much easier not to admit a registered sex offender than to discharge one • Can you have a policy that provides that being a registered sex offender is grounds for discharge? • Yes—policy should state that a person who is a registered sex offender endangers the safety of other facility residents • In Medicaid facilities, discharge must comply with TDADS rules on discharge at 40 TAC § 19.502

43. SEX OFFENDERS • Will this policy hold up? • Probably if the offender is a risk level two or three: • Level one (low): indicates that the person poses a low danger to the community and will not likely engage in criminal sexual conduct • Level two (moderate): indicates that the person poses a moderate danger to the community and may continue to engage in criminal sexual conduct • Level three (high): indicates that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct

44. SEX OFFENDERS • How do I find out if someone is a sex offender and what level they are? • The Texas Sex Offender Registry website: https://records.txdps.state.tx.us/DPS_WEB/SorNew/index.aspx • Do I want to check all current residents in the registry? • Maybe, but if they are and haven’t been a problem, it may create a dilemma

45. SEX OFFENDERS • If registered sex offender is low risk and has caused no problems, it may be difficult to support policy saying that such person is a danger to others • However, if you allow low risk patient to stay, the sex offender registry information is public and may come to attention of other residents/family

46. SEX OFFENDERS • Discharge of resident who is determined to be sex offender: • If done on the basis that resident endangers the safety of other residents • This must be documented in resident’s clinical record • Discharge may be as soon as practicable

47. SEX OFFENDERS • Resident must receive written notice of grounds for discharge which must contain: • (1) reason for transfer or discharge; • (2) effective date of transfer or discharge; • (3) location to which the resident is transferred or discharged; • (4) statement that the resident has the right to appeal the action as outlined in DHS’s Fair Hearings, Fraud, and Civil Rights Handbook by requesting a hearing through the Medicaid eligibility worker at the local DHS office within 10 days; • (5) the name, address, and telephone number of the regional representative of the Office of the State Long Term Care Ombudsman, Texas Department on Aging, and of the toll-free number of the Texas Long Term Care Ombudsman (1-800-252-2412)