Prevent­ing home-care crime

Feds, states take steps to pre­vent home-care crime

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They are rare events. But se­ri­ous crimes against home­bound pa­tients by their care­tak­ers do hap­pen. In Brunswick County, N.C., po­lice charged former home health provider Lisa Veron­ica McGee McClain, 43, with steal­ing a 74-year-old pa­tient’s per­sonal in­for­ma­tion. McClain, em­ployed by a lo­cal home­care agency, al­legedly re­moved $260,000 from the pa­tient’s bank ac­count be­tween 2009 and 2011. She was ar­rested last year in Washington on a war­rant for the thefts, but was er­ro­neously re­leased, leav­ing her still at large to­day, ac­cord­ing to Brunswick County Sher­iff’s Of­fice De­tec­tive Ed­ward Carter.

As health­care com­pa­nies look to­ward ag­gres­sive growth in the most in­ti­mate of set­tings—pa­tients’ own homes—more Amer­i­cans are ask­ing how much they really know about the new home-care aide who walks through the front door.

They soon might learn more about th­ese providers. Na­tion­wide, many peo­ple who de­liver home care will fall un­der a new pro­gram in the Pa­tient Pro­tec­tion and Af­ford­able Care Act that will pay for back­ground checks for any nurse, ther­a­pist or aide who comes into con­tact with a long-term-care pa­tient.

CMS of­fi­cials say the pro­gram is vol­un­tary for now, but that it might be pru­dent for state lead­ers to plan for a con­gres­sional man­date in the near fu­ture. The CMS re­cently made such back­ground checks manda­tory for hospice work­ers and is con­sid­er­ing do­ing so for other providers.

A sec­tion of the ACA now of­fers states up to $3 mil­lion in match­ing grants to carry out screen­ing pro­grams, though a lengthy 2008 report on a sim­i­lar pi­lot pro­gram in seven states noted that em­ploy­ers of home-care work­ers also bear at least some of the costs through state pro­cess­ing fees for the back­ground checks.

The HHS’ in­spec­tor gen­eral’s of­fice is study­ing the is­sue and will report later this year on how many home-health agen­cies em­ploy work­ers with crim­i­nal back­grounds. An Oc­to­ber report on nurs­ing homes found 92% em­ployed at least one staffer with a crim­i­nal con­vic­tion.

Mark Kim­sey, co-founder and ad­min­is­tra­tor of home health at Mis­sion Health­care, San Diego, says get­ting a deep un­der­stand­ing of care­givers’ back­grounds is im­por­tant be­cause of the vul­ner­a­bil­i­ties of the pa­tients.

“When you are in their home, you have ac­cess to their most in­ti­mate en­vi­ron­ment,” he says. “Th­ese clients may sleep while the care­giver is in a home … so a charge where some­one is ac­cused of theft, as­sault and bat­tery, pos­ses­sion of nar­cotics of any sort or any con­trolled sub­stance” is cause for con­cern.

The greater scru­tiny of home-care worker back­grounds comes as the go-go home health­care in­dus­try gears up for sub­stan­tial growth in the coming decade. Home-care aide em­ploy­ment is ex­pected to bal­loon by 70% be­tween 2010 and 2020. The in­dus­try cur­rently em­ploys about 1.2 mil­lion peo­ple pro­vid­ing ser­vices to an es­ti­mated 8.6 mil­lion Amer­i­cans per year, ac­cord­ing to data from the Joint Com­mis­sion and the La­bor De­part­ment.

But the num­ber of peo­ple cy­cling through those jobs will be far higher than the num­ber of new po­si­tions since the in­dus­try is marred by high turnover. Wages for en­try level home-care aides are among the low­est in health­care. More­over, “though they them­selves are pro­vid­ing health­care, they do not have health cov­er­age,” says Hol­lis Turn­ham, the Mid­west di­rec­tor of PHI, a home-health work­force devel­op­ment or­ga­ni­za­tion based in New York. “It’s not just wages, it’s the whole com­pen­sa­tion package that makes th­ese jobs unattrac­tive and dif­fi­cult to do.”

Low mo­rale and in­ad­e­quate worker train­ing drive much of the con­cern about pa­tient safety. “There are peo­ple who come to this work with bad in­ten­tions and bad mo­tives,” Turn­ham says. “There are also peo­ple who have not had the train­ing and skills de­velop- ment to deal with stress­ful sit­u­a­tions, and they do bad things. But the over­whelm­ing ma­jor­ity … want to do the right thing, and want the skills to do the right thing.”

No na­tional sys­tem ex­ists to track crimes against home-health pa­tients. As a re­sult, re­searchers are un­able to study the ex­tent of the prob­lem or whether wages, ben­e­fits, worker mo­rale, ris­ing em­ploy­ment or other fac­tors are lead­ing to an in­crease in crimes in home care.

A CMS spokesman says the agency doesn’t keep na­tional statis­tics, even though the Con­di­tions of Par­tic­i­pa­tion in Medi­care re­quire each state to main­tain a toll-free hot­line for agen­cies to re­ceive home-health com­plaints.

Any­one armed with an In­ter­net con­nec­tion, how­ever, can find rea­sons to be cau­tious about home care. Crime col­umns in lo­cal news­pa­pers of­ten carry re­ports of small thefts and fi­nan­cial crimes by home­care work­ers. Paul Green­wood, an as­sis­tant district at­tor­ney in San Diego and a na­tion­ally known ex­pert on el­der-abuse is­sues, says those tend to be the most com­mon crimes against home-care pa­tients.

“If the sus­pect is a care­giver … the last thing that sus­pect wants to do is smack around the client, be­cause that will raise sus­pi­cions,” Green­wood says. “What they will try to do is fleece the vic­tims. The first item that al­ways goes is the jew­elry. That is the No. 1 thing to go, ev­ery time. That will end up in a pawn shop.” Some­times the crimes do in­volve some form of phys­i­cal as­sault. In the Cincin­nati area, former reg­is­tered nurse Cisse Kane, 53, was con­victed in Septem­ber 2011 of gross sex­ual im­po­si­tion against a home-based pa­tient who only has use of her fin­gers and toes. An ap­peals court last Septem­ber up­held the ver­dict de­spite Kane’s claims that the vic­tim’s tes­ti­mony could not be be­lieved be­cause she was un­der the in­flu­ence of pre­scrip­tion drugs and al­co­hol dur­ing the in­ci­dent, ac­cord­ing to the court’s rul­ing.

State law­mak­ers are inch­ing to­ward greater reg­u­la­tion of the in­dus­try. In Cal­i­for­nia, a long bat­tle over back­ground checks of home-care work­ers be­gan in 2010 af­ter the Los An­ge­les Times re­ported more than 200 peo­ple con­victed of vi­o­lent crimes had been ap­proved to care for el­derly home-care pa­tients. It turned out many of those care­tak­ers were fam­ily rel­a­tives of the pa­tients re­ceiv­ing care through Cal­i­for­nia’s In Home Sup­port­ive Ser­vices pro­gram.

The ef­fort to pre­vent con­victs from be­ing paid to pro­vide care in the home ran into le­gal bar­ri­ers. Cal­i­for­nia pri­vacy laws pre­vented au­thor­i­ties from in­form­ing pa­tients about the crim­i­nal back­grounds, and a state judge ruled that coun­ties could not dis­crim­i­nate against ap­pli­cants for home-care jobs based on con­vic­tions for vi­o­lent crimes or some “las­civ­i­ous” acts since those re­stric­tions hadn’t been specif­i­cally listed in state law as grounds for dis­qual­i­fi­ca­tion.

Na­tion­ally, the vol­un­tary back­ground check pro­gram de­scribed in the re­form law doesn’t de­fine which crimes would dis­qual­ify some­one to work in a pa­tient’s home or any other longterm-care fa­cil­ity. It merely says that a his­tory of health­care fraud and “pa­tient abuse” car­ries au­to­matic re­jec­tion from the oc­cu­pa­tion. More­over, the law says states must set up a process in which con­victs may ap­peal em­ploy­ment de­nials, in­clud­ing “con­sid­er­a­tion of the pas­sage of time, ex­ten­u­at­ing cir­cum­stances, demon­stra­tion of re­ha­bil­i­ta­tion, and rel­e­vancy of the par­tic­u­lar dis­qual­i­fy­ing in­for­ma­tion with re­spect to the cur­rent em­ploy­ment of the in­di­vid­ual.”

An in­dus­try poised for growth

The grow­ing con­cern about safety for home­bound pa­tients comes at a time when pay­ers, providers and pa­tients all agree sub­stan­tial growth in the in­dus­try would be a good thing. All three stake­holder groups have rea­sons to pre­fer care de­liv­ered in the home. And that’s fu­el­ing growth. For in­sur­ers and providers, home care is much cheaper than time spent in the hospi­tal. It also has the po­ten­tial to im­prove con­ti­nu­ity of care and avoid Medi­care fi­nan­cial penal­ties for pre­ventable read­mis­sions.

“It’s ex­plod­ing,” says Michael El­sas, CEO of Co­op­er­a­tive Home Care As­so­ci­ates, a medium-sized home-care agency in New York with $60 mil­lion in an­nual rev­enue. “From a de­mo­graphic van­tage point, the de­mand will con­tinue to in­crease as baby boomers hit the sys­tem. The boomers rep­re­sent a whole new type of pop­u­la­tion. They are go­ing to want to stay in their homes.”

Given the ex­plod­ing op­por­tu­ni­ties, most new en­trants into the home-based care busi­ness are for-profit busi­nesses, not hos­pi­tals. The Medi­care Pay­ment Ad­vi­sory Com­mis­sion re­ported to Congress last March that home health­care providers av­er­aged 18% profit mar­gins on Medi­care busi­ness dur­ing the 2000s. Pay­ment changes in the re­form law are ex­pected to hit av­er­age Medi­care mar­gins for home care, but they are still ex­pected to re­main at 14% in 2012, ac­cord­ing to MedPAC.

The in­dus­try em­ploys a wide va­ri­ety of tech­ni­cal work­ers, many of whom al­ready re­quire li­censes. Home-vis­it­ing clin­i­cians in­clude nurse prac­ti­tion­ers, reg­is­tered nurses and li­censed prac­ti­cal nurses pro­vid­ing med­i­cal ser­vices for chronic con­di­tions re­quir­ing post-acute or pri­mary care ser­vices such as heart disease and di­a­betes. The home is a com­mon site for phys­i­cal, oc­cu­pa­tional and speech ther­apy, as well as hospice and pal­lia­tive care.

How­ever, scores of non­med­i­cal di­rect-care staffers work in the field as per­sonal-care aides and home health aides, clean­ing homes, pro­vid­ing bathing and cook­ing ser­vices, and trans­port­ing pa­tients. They are not just em­ployed by hos­pi­tals or for-profit agen­cies re­im­bursed by Medi­care, Med­i­caid and pri­vate in­sur­ers, but are of­ten em­ployed by fam­i­lies as “pri­vate duty” care­givers with­out in­surance re­im­burse­ment.

Phyl­lis Stadt­lander, CEO of Iowa Health Home Care, dis­puted a pop­u­lar no­tion that non­med­i­cal per­son­nel are more prone to com­mit crimes against pa­tients. “Is one more trou­ble­some than the other? Not in my ex­pe­ri­ence. Not if I’ve in­vested in them ap­pro­pri­ately,” she says.

The var­i­ous jobs are sub­ject to a dizzy­ing ar­ray pro­fes­sional stan­dards, with the less-med­i­cal roles gen­er­ally re­quir­ing less li­cens­ing and cer­ti­fi­ca­tion. In some states, non­med­i­cal home­care work­ers are not reg­u­lated at all.

The strictest reg­u­la­tion comes from the CMS, but it only ap­plies to agen­cies that re­ceive Medi­care pay­ments. Such agen­cies are bound by Medi­care con­di­tions of par­tic­i­pa­tion that re­quire home-care work­ers to treat pa­tients’ prop­erty with re­spect and no­tify home-health re­cip­i­ents that each state has a toll-free hot­line for com­plaints and ques­tions. How­ever, Medi­care cov­ers only med­i­cal needs, not home­health aides’ ser­vices. And the re­quire­ments do not ap­ply to state-based Med­i­caid pro­grams.

Pro­fes­sion­ally, some health­care-re­lated dis­ci­plines are reg­u­lated by par­tic­u­lar li­censeg­rant­ing boards, such as those for nurses and ther­a­pists. Like­wise, or­ga­ni­za­tions such as the Joint Com­mis­sion, the Ac­cred­i­ta­tion Com­mis­sion for Health Care and the Com­mu­nity Health Ac­cred­i­ta­tion Pro­gram pro­vide vol­un­tary cer­ti­fi­ca­tions, which home-care com­pa­nies can use as they pro­mote them­selves in com­pet­i­tive mar­kets.

But much of the work of reg­u­lat­ing the ex­pand­ing home-vis­it­ing health­care work­force falls to state gov­ern­ments. While the So­cial Se­cu­rity Act re­quires home-health agen­cies to fol­low state laws, state stan­dards vary greatly. A na­tional ex­am­i­na­tion of those stan­dards was last con­ducted in 2008, when the Na­tional Con- fer­ence of State Leg­is­la­tures re­ceived fund­ing from the AARP Pub­lic Pol­icy In­sti­tute to study the vari­a­tion among states’ home health­care laws. At that time, sev­eral states had no re­quire­ments, while oth­ers had man­i­fold rules gov­ern­ing which work­ers were ex­empt from back­ground-check re­quire­ments and which crimes bar en­try into the field.

A fed­eral pi­lot pro­gram, which con­ducted back­ground checks on di­rect pa­tient-care work­ers in seven states in 2006 and 2007, found that nearly 7,500 peo­ple were ex­cluded for past crimes among the more than 204,000 to­tal ap­pli­cants. An­other 38,400 peo­ple with­drew their back­ground check ap­pli­ca­tions be­fore they could be com­pleted, ac­cord­ing to an Au­gust 2008 report on the pro­gram.

But not ev­ery­one sees such mea­sures as a panacea. “Ob­vi­ously a crim­i­nal back­ground check is im­por­tant, and drug screen­ing is im­por­tant,” El­sas says. “But I would sug­gest that the in­ter­view­ing and train­ing process that we do does more to af­fect pa­tient safety.”

Cisse Kane, the home-care worker con­victed of a sex crime against a pa­tient in Ohio, was pro­hib­ited from men­tion­ing dur­ing his trial that his em­ployer per­formed a crim­i­nal back­ground check on him be­fore he was hired, ac­cord­ing to court records. Nev­er­the­less, pro­po­nents of back­ground checks such as AARP ap­plaud their wider use. The or­ga­ni­za­tion lob­bied for their in­clu­sion in the re­form law.

“Crim­i­nal back­ground checks are one step that can be used to screen home-care work­ers and other work­ers and help pre­vent pos­si­ble abuse and ne­glect of in­di­vid­u­als who need longterm care ser­vices and sup­port,” says Rhonda Richards, se­nior leg­isla­tive rep­re­sen­ta­tive for AARP. “I think ev­ery so of­ten you hear prob­lems, in the me­dia or anec­do­tally. Cer­tainly abuse or ne­glect of older adults is an is­sue, and this is one step that can be taken.”

San­dra Ste­wart, a nurse with Iowa Health Home Care, is part of a bur­geon­ing work­force set to surge 70% by 2020.

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