Conducting Required Reviews Can Save Your Facility from Embarrassment – and Worse!
Even though we know the old saying “an ounce of prevention is worth a pound of cure,” background checks on personnel can sometimes fall through the cracks. Here are a few examples of times that make us wish we would have doubled-checked to be sure they were getting done:
- A state surveyor is on-site investigating and advises that the allegation of neglect or abuse is against a tech who was convicted for beating up his father a year before he was hired.
- In employing a favorite PRN nurse who has been around for a couple of years, you learn that she never obtained a license when she moved here from Texas. You realize there may now be returnable overpayments, because she is not appropriately licensed to perform the services in our state.
- You want to impress your new venture partner, and cringe when they discover in due diligence that your team has not checked the excluded provider or debarred contractor lists in a few years.
To help avoid these issues, ambulatory surgery centers (ASCs) should be conducting the following types of reviews on a routine basis:
1. Criminal Background Checks on Non-Licensed Persons: This is a newer state law requirement that might catch you by surprise. Last year, ASCs were added to the list of employers required to conduct criminal history and security checks. See Act 311 of the 2016 Regular Session, which amended LA RS 40:1203.1 et seq effective on June 2, 2016. The Louisiana Department of Health (LDH) has jurisdiction to review employment files to ensure compliance with this requirement.
ASCs must request a criminal history and security check from the Louisiana State Police before offering to employ or contract with a “nonlicensed person” or with any licensed ambulance personnel if the person will provide nursing, health-related, medical or supportive assistance services. Non-licensed persons include individuals “who are paid for providing nursing care or other health related services directly related to patient care” to patients in hospitals and most other LDH-licensed providers.
The request and the $26 fee should go to the Office of State Police. Additionally, hospitals can only contract with staffing companies who comply with these requirements and should get certification letters to confirm that the staff meets licensure and certification standards and that they have completed past criminal background checks. Hospitals are prohibited from hiring individuals who have certain criminal convictions. If the individual has been hired temporarily, he or she must be terminated immediately and will be ineligible for unemployment compensation.
2. Excluded Providers/Debarred Contractors: While an Office of Inspector General (OIG) Special Advisory Bulletin issued May 8, 2013 acknowledged that there is no specific statutory or regulatory requirement to check the List of Excluded Individuals and Entities, it recommends that providers check the list prior to employing or contracting with persons and “periodically.” The OIG updates the list on a monthly basis and suggests that checks should occur monthly to best mitigate risks.
While the checks are not required, it is important to remember that under the Social Security Act § 1128(a)(6), civil monetary penalties can be imposed on any provider that contracts for items or services payable under federal healthcare programs with an individual or entity that the provider knows or should know is excluded from participation in a federal healthcare program. Under the OIG’s regulations, providers can be penalized up to $10,000 for each item plus an assessment of up to three times the amount of the claim, and program exclusion.
3. Other Licensure Checks: The Centers for Medicare & Medicaid Services (CMS) Conditions of Participation generally require that medical staff possess requisite “training” and “experience” and that various other types of providers possess required credentials. See 42 CFR §482.12. In Louisiana, La. R.S. 48:9321(b-c) specifically mandates that a hospital’s medical executive committee have “develop[ed] and implement[ed] a mechanism to review credentials at least every two years,” and have “develop[ed] and implement[ed] a mechanism for determining that all medical staff hold current Louisiana licenses.”
Take a little time to ensure background and licensure checks are being conducted routinely, because dropping the ball on these reviews can lead to unfortunate consequences for hospitals including not just embarrassment but also penalties, fines and overpayments.