Fighting a Modern Legend.

In September, representatives of the long-term care industry, the FBI and HCFA negotiated an agreement toward a long-sought goal in nursing home security: a system for national criminal record checks for prospective employees. This move, however, might be more valuable for public relations than for residents of skilled nursing facilities.

Although nursing homes are not totally immune from assaults and thefts, FBI statistical experts acknowledge that cases of violence by nursing home employees against residents are probably very rare. In fact, incidents of elder abuse in private homes are more common, with some estimates suggesting that one of every 20 senior citizens experiences a physical attack by a family member. It is uncertain how often thefts occur in nursing homes, because elderly residents often accuse staff of stealing items that actually have been stored or given to relatives.

Despite limited evidence to show that nursing home residents are being abused or stolen from, stories of larcenous or brutal nursing home employees have reached urban legend proportions. Washington psychologist Maxine Silverman believes the popularity of such stories reflects the helplessness that people fear comes with age and disability. Occasional "hidden camera" news reports documenting light-fingered nursing home employees or home healthcare aides add credibility to the legend and stimulate calls for greater protection against criminals.

Two nursing home associations, the American Health Care Association (AHCA) and the American Association of Homes and Services for the Aging (AAHSA), have repeatedly asked Washington for help in accessing a national criminal record registry that can quickly identify convicted felons among applicants for nursing home positions. Current laws permit a voluntary system in which nursing homes can pay to have applicants fingerprinted by a local sheriff. The fingerprints are digitized and submitted to the FBI for matching against computerized files of felons. The entire process takes at least three weeks before a job applicant can be cleared or identified as a convicted criminal. Nursing home lobbyists have championed the cause of a system that will respond more quickly and will not add to the already burdensome cost of hiring new personnel.

In May 1999, nursing homes won a minor victory. Congressman Joseph Crowley of New York City, a Democrat with less than five months' service in the House, introduced H.R. 1984, the Elderly Protection Act of 1999. Crowley's bill includes provisions to establish "methods by which state direct-care registries can pool and share criminal background-check summaries and documented findings of patient abuse" and sets forth procedures for criminal and abusive work history-background checks. Title I of the bill would define as a federal crime deliberate physical or psychological violence against people 62 years of age and older. Another section of the bill calls for a permanent prevention program against domestic elder abuse and funding for nonprofit community initiatives to coordinate intervention--not only against elder abuse, but also against neglect and exploitation. In effect, without singling out nursing homes as the villains in elder abuse, H.R. 1984 offers several solutions.

Crowley's bill, however, has no chance of becoming legislation this year. The freshman congressman failed to enlist any cosponsors from among more senior legislators. H.R. 1984 was assigned to a House subcommittee, which has yet to schedule any hearings on the issue. In addition, despite Senator Charles Grassley's (R-IA) highly publicized hearings on nursing home abuses, Crowley found no one to introduce his legislation in the U.S. Senate.

As the 106th Congress draws to a close, neither the Clinton administration nor the Republican congressional leadership wants to move Crowley's bill out of the parliamentary dungeon. Civil libertarians might see H.R. 1984's provisions as yet another small step toward Big Brother government, while cost-conscious moderates might wince at the idea of the FBI spending its limited budget on reviewing the felony records of thousands of healthcare job applicants.

Tom Burke, senior spokesperson for AHCA, suggests that one stumbling block has been the Clinton administration's dogged insistence that the voluntary system of criminal record checks can be effective. Washington officials believe that too few nursing home administrators are aware of the program's existence. They contend that if more nursing homes knew of and used the service, the prospect of being detected by the fingerprint files could deter habitual criminals from even applying for nursing home positions.

With this in mind, the Department of Justice and the FBI approached the nursing home industry and HCFA with a request to publicize the option of paying for a national check of job applicants against the FBI fingerprint files. According to Burke, a lengthy conference call on September 14 among representatives of AAHSA, AHCA and the federal agencies resulted in an agreement that partially met all parties' interests. AAHSA and AHCA pledged to help publicize the current voluntary criminal record check. Simultaneously, the two associations will spend the next year designing a system that meets the criminal record check needs of healthcare providers more effectively. If the voluntary system does not achieve its goals of making long-term care safer for residents, the federal agencies will assist AAHSA and AHCA in legislating their "dream" system.

This compromise appears viable, but can it make a significant difference in the lives of most SNE residents? One possible obstacle is that many nursing home staff members are recent immigrants and foreign nationals, who are unlikely to have their fingerprints on file with the FBI even if they have criminal records. Therefore, the current system, in effect, allows foreign-born job applicants to escape the scrutiny that would catch an American felon. It is not clear that an "improved" system proposed by the nursing home associations would correct this problem.

It also is not clear who should pay for the program. Supporters of the voluntary criminal record check maintain that nursing homes should pay, because using the program improves their public image. Supporters of an alternative system point out that money spent by SNFs on this program is diverted from the care provided to the residents.

Polygraph tests and a thorough review of employment references might be more effective than fingerprint matches for determining the suitability of an employee. Nevertheless, it appears that criminal record checks and access to FBI files will become part of the long-term care employment process. Even if criminal record checks won't entirely eliminate abuses against elderly residents, perhaps they will at least calm people's exaggerated fears of rampant crime in nursing homes.