Criminal care.

As seen on ABC-TV's "20-20" - and throughout the health care system

Tom Johnson (not his real name) seemed as though he would be a welcome addition to the 11-7 shift at the Sunset View Nursing Home and Convalescent Center (not the actual name). With 209 beds usually at around 91% occupancy and the nursing staff chronically short-handed, his presence would be much appreciated.

When the DON reviewed his application, them were some inconsistencies, but nothing she had not seen before in her 19 years of reviewing job applications. Two, instead of the required three, references were listed, and there were a couple of gaps between employment that could not be accounted for - but, again, this was nothing that she had not seen before. Besides, Mr. Johnson had apparently worked as an RN for the past 15 years in three different states - just the kind of experienced staff she would like to have on board.

During the routine pre-employment screening, the previous employers would not release any information except his job title and dates of employment. Those kinds of responses were nothing unusual these days. Everyone was "sue happy". As far as the gaps in employment, Mr. Johnson said that he was unemployed during those periods. The DON had no reason to think otherwise and made no further inquiries. She did check with the state nursing board and confirmed that he had a valid license as an RN.

Company policy did not require her to check with out-of-state nursing boards and she did not do so. Also, neither company policy nor state regulations required her to conduct either in-state or out-of-state criminal record searches on any new or current employees. Sure, she had heard stories of nurses' aides, even RNs, who had been hired with unknown criminal records. Some of these employees then went on to commit crimes at their new job, terrible incidents - but nothing like that had ever happened at Sunset View and she was sure that it never would. Besides, if the state or the Feds didn't require such checks, she was certainly not going to try to convince her management company to start doing it on its own.

Tom Johnson was assigned to the 11-7 shift as soon as he finished new staff orientation, and everything was fine for the first few weeks of his employment. Then the DON started to receive reports from staff about episodes of disruptive behavior with some of the residents. There were also one or two residents who were refusing to see their families when they came to visit. Some of these residents were reportedly having difficulty leaving the lounge area and common areas and going to bed at night. Many were complaining that they didn't want to be "alone at night".

Then, about two weeks later, a female resident told another staffer that she did not want to be alone with Mr. Johnson. When asked why, the woman at first would not say, but just repeated that she did not wish to be alone with him. Eventually, the 91-year-old resident lowered her head in her hands and began to sob. When she could bring herself to speak, she told the DON that Mr. Johnson had fondled and raped her, and had done so on more than one occasion since coming to Sunset View.

The DON immediately notified the Administrator of the situation. The Administrator in turn called the police. The police interviewed the 91-year-old resident as well as several others at the facility. After a short investigation, they placed Mr. Johnson under arrest and charged him with multiple counts of rape and sexual misconduct. In all, five female residents had been sexually assaulted by Mr. Johnson during his brief tenure at Sunset View.

After Mr. Johnson's arrest, the police requested a criminal record search and information from the other state licensing boards. The criminal record search revealed that Mr. Johnson had been convicted seventy-four times for crimes involving sexual misconduct! It also revealed that he was currently wanted on a felony warrant in a state that he had listed on his application as one where he had worked as a nurse. In addition, in checking with the state licensing boards, the police discovered that Mr. Johnson's nursing license had been revoked in the previous state for resident abuse. The revocation had occurred after he had applied for and received his current state license, so state licensing authorities had had no reason to suspect any problems when they granted his license.

A Liability Russian Roulette 

The tragic story you have just read is, unfortunately, not fiction, but very true. It is one of many such costly, painful and unnecessary scenarios that play out in nursing homes and other health care settings all over the country.

How costly? In 1993, health care providers paid out over $100,000,000 (yes, one hundred million dollars) in damages to residents or their families/estates who were victims of employees with prior criminal records.(1) The average settlement was almost $200,000. The cost in terms of negative publicity and loss of trust, as well as the pain and suffering caused to the victim and their families, was incalculable.

Why was it unnecessary? Because in most cases, resident abuse is avoidable and very inexpensive to combat. But nursing homes must seize the initiative.

Only nine states currently require nursing homes to conduct criminal background checks on prospective nurses' aides and only five require them for registered nurses.(2) None currently require them of administrators or non-direct care positions. Nevertheless, this does not relieve the nursing homes of potential liability for damages resulting from negligent hiring practices. A fairly new legal tort (civil action) on the legal scene is the "negligent hiring tort." Although worded slightly differently in different states, it has one central theme. If an employer does not take all reasonable actions to verify a prospective employee's suitability for a position, the employer may be liable for damages suffered as a result of that employee's actions, or inactions, while on the job.

The courts have found that checking a prospective employee's background for a criminal record, especially those employed in health care positions, is a reasonable action. Not doing so may leave the employer liable for damages if an incident of abuse occurs. This could include not checking for a criminal record and professional license verification, both in-state as well as in other states where the employee is known to have worked.

True, nothing may ever happen as a result of failing to conduct such background checks. But it is like playing Russian ROulette with your nursing home. A very painful result is only a matter of time.

Initial Signs of Abuse

Without getting into an in-depth study of signs and indicators of possible abuse in your nursing home, there are some basic things to watch for that may tell you there is a problem:

Physical Abuse

Unexplained injuries or explanation inconsistent with medical findings, such as:

* Fractures

* Welts

* Lacerations

* Punctures

* Burns, either unusual location, type, or shape similar to an object (i.e, iron, cigarette burn).

* Bruises (presence of old and new, shape similar to object, bilateral on upper arms, clustered on trunk)

Sexual Abuse

* Torn, stained or bloody underclothing

* Unusual difficulty in walking or sitting

* Pain, itching, bruising, or bleeding in the genital area

* Unexplained venereal disease or genital infections

* Unexplained hostility or fear of staff or family member

Psychological/Emotional Abuse

* Confusion

* Excessive fears

* Insomnia, sleep deprivation, or need for excessive sleep

* Sudden and unexplained change in appetite

* Unusual weight gain or loss

* Notable loss of interest in self, activities, or environment

* Ambivalence about staff

* A sense of resignation that seems out of context

* Withdrawal from previous social activities

* Agitation 

This is not an exhaustive list and is meant only as a guide. If one or more of these signs are present with a resident, there may be an issue in need of follow-up. Also, their presence does not always mean, obviously, that there is a problem with abuse or mistreatment. They must be used in conjunction with all other known information about the resident and the circumstances in which they came to light. They are, however, possible abuse indicators and should be incorporated into orientation and in-service staff training programs on abuse identification and prevention.

No direct care staff should begin work in your nursing home before completing such an orientation program. In addition, all current staff should attend an in-service course on abuse identification, proper reporting procedures and prevention at least once, and preferably twice, a year. All training should be documented and placed in the employee's permanent file. These abuse indicators, as well as the staff's responsibilities in identifying and reporting them, should be issued in written guidelines that all staff have access to 24 hours every day.

The policy and procedures manual on this topic should include:

* Definitions of abuse and mistreatment

* Abuse indicators, both physical and emotional

* State and agency reporting requirements

* Telephone numbers of law enforcement agencies 

* Instructions on how to properly fill out required documentation

* An up-to-date on-call list for supervisors and administrators

* Instructions on identifying and preserving possible evidence

* The rights of the alleged victim and the alleged abuser (if there is one)

* A set time frame for completing each step of the process

* A checklist to ensure that all steps were completed and when

Civil and Criminal Liability

The civil liability of not conducting thorough criminal and professional background checks for nursing home owners, as well as all health care providers, is increasing every day. Although small in number compared to the hundreds of thousands of dedicated professionals at all levels who work, unheralded, in the long-term and health care industries, the fact remains that there are those with serious criminal histories who seek out and and find positions caring for the most vulnerable of our citizens.

Those individuals very often are able to find those positions for one reason: since most states do not require nursing homes and other health care providers to conduct criminal and out-of-state licensing checks, they simply do not do so. That is an outrage and should be offensive to every professional in the industry. After all, if you cannot honestly say that you can even protect the physical well being of your residents from staff who have serious criminal records, what really is the level of care you are providing?

Is it criminal care?

References

1. According to a compilation of all cases in West-Law files on long term care and hospital settlements for cases involving employee related crimes against residents during 1993.

2. According to the Gannett News Service, of the 1.9 million certified nurses aides in the United States, as many as 5% have criminal records involving violence or theft.

David DeBatto is President and CEO of The Sun Group, Inc., a consulting, training and investigations firm based in Haverhill, MA.