Criminal background checks bill advances in Congress.

Though most current legislation affecting the nursing home industry seemed unlikely to pass this Congress as of News Notes press time, one possibility was a bill representing the first step in establishing a national system of criminal background checks of prospective nursing home employees. Under a provision in the appropriations bill for the Department of Justice (DOJ) and other agencies for the fiscal year beginning October 1, a nursing facility or home health agency could request of DOJ a search and release of records, if any, of would-be employees in direct patient care. The search would involve the records of the Criminal Justice Information Services Division of the Federal Bureau of Investigation. A fee not to exceed $50 per request could be charged. The provision also gives the employer legal immunity should employment be denied because of information in the background check.

A similar provision was not, however, in the House funding bill as of press time, and needed to exist for President Clinton to sign any final legislation before Congress's adjournment. The author of the provision, Sen. Herbert Kohl (D-WI), considerably softened it from his earlier version that mandated background checks and included fines of up to $10,000 for facilities willfully disregarding the requirement. Congress next year is likely to take up additional background check legislation which might build on Kohl's.

As part of its nursing home improvement campaign launched in July, the Clinton administration asked Congress to pass legislation establishing a national registry of nursing home employees convicted of abusing residents and to require nursing homes to conduct criminal background checks on all potential personnel.

Providers, meanwhile, weighed in with their reactions. In designing a system of background checks, said Barbara Gay, AAHSA congressional affairs director, "We feel a protection against liability is necessary." This would protect against lawsuits filed by prospective employees who did not get a job because of the background check. Also, "providers are very nervous about reporting negative information" to any national registry, said Gay, "because they can be sued." Sharing of negative information "is a very touchy area in employment law." She added that providers are also concerned over any fees the government would Charge. "Some states have used their background check programs as revenue raisers," charging fees out of proportion to the actual cost of conducting the check.