Earlier this month, on October 1st, 2019, the “Georgia Long-Term Care Background Check Program” went into effect. The law requires nursing home employees with “direct access” to residents pass a national background check. On this week’s episode, nursing home abuse attorneys Rob Schenk and Will Smith discuss the statute, what it means to resident safety, and how it improves upon already existing laws.
Schenk: Hello out there. Hope you’re having a spooky October. My name is Rob Schenk.
Smith: And I’m Will Smith.
Schenk: And we are your hosts for this episode. I want to give a big, enormous shout-out to Érica Scherner Ferreira who is – Gene, can we put her picture up here? She probably won’t like that. We’re going to put her picture up here. Erica is my wife’s younger sister and is Brazilian and speaks – still is able to speak English fluently and has been instrumental in sending out the email invites and getting the information I need from the guests and has made this particular production day possible and has made at least 15, 16, 17 episodes possible. So big – how do I say it? – bom dia? No, that means good day. How would I say, “good job?”
Smith: You’re looking at the – I’m not married to a Brazilian. I don’t know. I’ve met Erica before and she’s great.
Schenk: She’s great.
Smith: She’s a smart girl. Both of Daniela’s sisters are.
Schenk: Some would say she has three sisters.
Smith: Okay, all three of her sisters are.
Schenk: But well done, so thank you, Erica.
Smith: Thank you, Erica, from America. Thank you.
Schenk: Hey, that’s pretty good. Thank you, Erica, from America. Backgrounds checks at nursing homes – we’re bringing this up at this time because earlier this month, on October 1st, the Georgia Long-Term Care Background Check program took effect although it was signed into law in 2018, in May or 2018. It takes effect now and compliance starts in a few months in January in 2020.
So we talked about this – if you want to go and look it up, we talked about this on the podcast, I believe about the time that it was enacted in May of 2018 – I’ll have to put up the episode number on that – but at any rate, so we’ll be talking about that.
Smith: Yeah, and this is an interesting topic for a couple of reasons. It also exposes what people don’t really understand about arrest, about crimes and about fingerprints. I wasn’t a criminal defense attorney in another life and fingerprints are – there’s a sort of mystique in the public mind about what fingerprints are and that they’re the end all, be all of identification, and they’re not.
First of all, one of the things that this new background legislation is addressing is the cracks in which you may find people with a criminal record. They fall through these cracks. Originally Georgia was a name-only background check system.
Schenk: And what does that mean?
Smith: So it means that if you were to run a background check for your employer, they would look up, for me, they would look up “William Franklin Smith III,” and my date of birth and my exact name would be what they would use. The problem with that is very clear from the get-go is that even though the GCIC, which is the Georgia Crime Information Center, even though it should have updated information about all my aliases, which are “Will,” “William,” never “Willy,” but whatever, it’s still not completely accurate. And now the GCIC is different than the NCIC, and the NCIC is the National Crime Information Center database. So any time you get arrested and people talk about your record, this is what they’re talking about.
And the problem with your record is there are a lot of offenses that are not fingerprintable. And some of those county ordinances, city ordinances, you may not get a fingerprint. And so you have to keep that in mind when you’re looking at the whole picture.
But what this law is intended to do is just strengthen the net that we’re throwing out there to try to catch people who work or have what the legislation says direct access to residents. And now it’s going to include fingerprint. It’s going to include looking at different databases, so not only are they going to run your GCIC or your NCIC, but they also look at the National Sexual Offender Registry.
And sexual offenders are not the only criminals they’re trying to catch here. You’ve got to think it’s anybody who has direct access to nursing home residents, you’re looking at possible financial exploitation. So a facility who does a more thorough background may see that somebody has written bad checks or they’ve gotten other fraudulent activity that they’ve been arrested for. That’s all important stuff. And the hope is by having now, not just name but also fingerprint and also looking at the different databases, the GCIC plus the NCIC, that you’re going to catch more people.
Schenk: Yeah, you’re casting a wider net.
Smith: You’re casting a wider net, exactly.
Schenk: And so the new law now in terms of who is subject to the background check and the fingerprint check on the database is owners of nursing homes, applicants for employment at nursing homes, employees currently providing care or owning a personal care home, assisted living community, private home care provider, home health agency, hospice care, nursing homes, skilled nursing home facilities or adult day care. So not only are they expanding the actual background check but they’re expanding the category of persons subjected to it.
Smith: And this is important because it is not just, again, I have to stress this, it’s not just sexual or physical crimes they’re concerned about. It’s also financial exploitation. So really, especially when you’re dealing with personal care homes or smaller ALFs, you’ve got somebody who has direct control over these individuals that are getting constant streams of money. So if you’ve got somebody who has, you know, fraud or certain other financial crimes in their past, you don’t want them in charge of individuals that are getting a constant stream of money from family or the government.
Schenk: So whenever, and again, a lot of time – maybe this will all be different, but a lot of times I feel like the regulations and laws governing nursing homes don’t have a lot of teeth.
Schenk: However, the violations for violating… I’m sorry, the penalties…
Smith: The fines. The fines for violating can be, what, like $10,000?
Schenk: Yeah, so penalties for violations range from monetary penalties to license revocation. Failure to comply with the new law subjects facility to liability for civil monetary penalties for $500 for each day that a violation occurs up to $10,000.
Smith: Yeah, and you’ve got to remember these are all – we did one a couple years back on the CMPs, the civil monetary penalties, and there are – the whole landscape of that is just fraught with ways of getting out of it. You can appeal it. There’s a whole process before they actually find you, and not to mention a lot of times these regulations are just not enforced. So it’s a good step in the right direction, but it’s not going to be complete. It’s also problematic because fingerprints are not the end all be all. There’s a database called – it’s something like IAFIS – it’s the Integrated Automatic Fingerprint Information System – very unimaginative acronyms on this side of the aisle.
Smith: GCIC, NCIC, IAFIS. But it’s like some 70 million, I think I read, registrations in it, 70 million sets of fingerprints, which sounds like a lot, but it’s not. There’s a lot of people that are missing there. You get a fingerprint every time you buy a gun, you join the military, you join the police force, but you don’t get fingerprinted every single time you get arrested. There’s a lot of offenses out there that are ordinances or that are simply not put into the system. You’ll have a lot of these – we would get whenever you have a criminal matter, the prosecution is going to give you your client’s criminal background, their GCIC. You would look at it and a lot of times it would have misinformation on it, it would have other people’s information on it, or it wouldn’t have everything that you knew your client had been involved in. In some ways, it’s kind of like how they tell you to always check your credit report because it really is just garbage in, garbage out. If a human putting that in there doesn’t put that information in right, then it’s not in there right. So it’s not like everybody’s fingerprint is on file and all you have to do is run the fingerprint and it automatically tells you their entire life story. There’s a lot of cracks that you can still fall through.
Schenk: What about that scene in “Batman: Dark Knight Rises,” where he takes the bullet that has been shot through the wall and he pieces it back together and he finds the Joker’s fingerprint on it, and from there he figures out where the Joker lives and all that kind of stuff.
Smith: Oh yeah.
Schenk: Will’s not a big movie guy. He’s not a big science fiction person. No, I’m referencing right now an article written a couple years ago – no, last year – by Ken Curry, and I can’t remember where I got this from but I think it might be the AJC, but he has actually a pretty good timeline with regard to the Georgia Assembly’s movement on background checks in long-term care, and it starts as early as April 12 of 1995 when the name-based law went into effect. That law requiring a name-based criminal record check of GCIC information for all nursing home employee applicants. The new law at the time did not require current employees to undergo a criminal record check. Through the Department of Community Health, Georgia law required owners and directors to have both state and national fingerprint checks but not their employees.
Then fast forward to 2010, so 15 years later, Georgia still required name-based background checks through GCIC on any employee or applicant for employment in a nursing home, excluding people employed by the nursing home prior to July 1, 1995, and then at that time, the CMS started to develop its own parameters for background checks, and then July of 2012, Georgia received about $2.5 million from CMS federal grant money for the purposes of trying to develop a uniform background check system. June 1 of 2015, Georgia instituted the Georgia Voluntary Background Check program, a pilot fingerprint-based background check program that only home health agencies and employees of private home care providers would initially be allowed to participate in. By August of 2015, Department of Community Health opened the pilot program up to long-term care providers. Once the program was fully functional, applicants for the employment with hospice, acute care long-term hospitals and employees in nursing homes would also be able to participate.
So it really is a long time coming, I feel like, but as Will keeps saying, it’s only one piece of the puzzle to try to figure things out. Name-based is still exceptional because you’re going to be able to get, first of all, the ordinances that have been violated or other type of information where there was no fingerprint done, which can be quite often, as Will said, So it’s just kind of an additional piece of the puzzle.
Smith: And also the whole system is problematic. I remember I would always have people ask me, “Hey, if I get a DUI in Georgia, does that affect my license in Tennessee?” and the most accurate answer I could ever give them would be, “Maybe.” It just depends on if Georgia notifies Tennessee, you know? And that’s the problem with the system. You have these different – it’s kind of like America intelligence pre-9/11, where we had the whole issue of the FBI not communicating to the CIA and the different branches of government hiding things from each other. That’s what we have now. We have multiple different databases, multiple different ways in which information is input into those databases, and multiple different identifiers in those databases that correspond to an actual person. So the whole thing needs to have a better coherent structure to it so there’s just one database that everybody is a part of, and if you want employment in the healthcare field, you have to pass through that database, which is what they’re trying to do now, but again, there are so many opportunities for missing something.
So the most that a facility can do to protect itself is just do everything it can so that it can’t be held responsible. “Hey look, we looked at the CNA database. We looked at the sex offender registry. We looked at the GCIC. We looked at the NCIC. We even called up the IAFIS and every other acronym that’s out there. We called them all. It’s not our fault that this person – nobody input into the system that this person has been arrested for disorderly conduct that involved abusing somebody else.”
Schenk: Right. Will, talking about a national registry, the next thing is one world government.
Smith: One world government, that’s what we need. One world government. One ring to rule them all.
Schenk: What is that?
Smith: Lord of the Rings.
Schenk: That’s Lord of the Rings. One ring to rule them… You like Lord of the Rings.
Smith: And so that’s what we need. Also in the – I guess now’s the time in any podcast where I mention I used to be a CNA…
Schenk: And I think I might have talked about this before, but if there is a Nursing Home Abuse Podcast drinking game, it most certainly is Will mentioning he was a CNA.
Smith: Right. Right, well every time we do this podcast, it’s a new subject matter and it’s always relevant. But the only time I did any sort of background check is when I went for employment the first time. I didn’t take one for the actual school. And I think that’s something that should change and it may have. I know a lot of has changed for what it takes to become a certified nursing assistant now. I think it’s 70 clinical hours. Mine was not that many. Mine was a two-week course and that was it. But I think that even going into nursing school, and maybe this is the case of what happens, that you have to undergo background checks, I think if you’re going to do anything in the healthcare field and you’re going to have access to patients, access to medications, access to that kind of privileged information, Social Security numbers, dates of birth, you should undergo frequent background checks, because one thing that happens a lot of times is people enter a field that requires a background check, they pass the initial background check. Then something happens while they’re practicing in that field and it’s never updated or nobody catches it. That’s another problem.
Schenk: I know that for lawyers in Georgia, we have to go through a comprehensive moral fitness qualification.
Smith: It’s insane.
Schenk: So they talk to your employers all the way back, I think 15 to 20 years. They’re talking to references, like what else do you got to do?
Smith: Well you have to be totally honest, because that’s the one thing that people mess up on as lawyers like, “Oh, I didn’t mention this traffic ticket.” Oh well, now you’re not going to sit for the bar. Yeah, I think they should do something like that for healthcare too. The reason they do that for attorneys is that we have control over IOLTA accounts, we have access to personal information. We are in a fiduciary, in many ways, position, and that level of responsibility requires I think a thorough examination of somebody’s background, because again, it’s not just – you want to know who’s taking care of your elderly or who has direct access. I don’t want somebody opening up a nursing home that has a history of fraud and deceit, that has been arrested for other things similar to that in other states. It’s not just physical abuse or sexual abuse. But that’s a huge problem as well.
We did the bulldog investigation for WABS – too many acronyms today – some local news station interviewed us about sexual abuse in nursing homes. This is before the law went into effect – it was earlier this year, and it was talking about this law. But it was – there’s nothing you can do for the residents. So residents who have criminal backgrounds, residents who have sex offender registry backgrounds, there’s nothing you can do there, at least at this point. Maybe that will change in the future.
And we’ll see where this goes because I mean it hasn’t even been enforced yet because it’s not until January of 2020 that they’re going to start saying, “Okay, you’ve had enough time to implement it.
Schenk: Right. Well I think we’ve kind of beat that one to death or covered it substantially. Will, do you have any plans for Halloween?
Smith: No, are you going to dress up as one of the Avengers?
Schenk: Actually this will be the first Halloween married – married Halloween, so we’re considering – I don’t know, you never liked G.I. Joe, but we are considering the old going together as two characters – I would be Destro and she would be Baroness.
Schenk: So Destro was – he had like a silver mask, but essentially he was a bald guy and I would be the bald guy, and the Baroness is raven-haired and big glasses.
Smith: Where would you be going?
Schenk: Nowhere. We’d just dress up for the kids who come or don’t come to our place.
Smith: Yeah, do any kids come over there?
Schenk: No. I’ve never lived in a location ever in my life where kids actually visit. I’m either in a cul-de-sac in a middle of nowhere, in an apartment or a condo or a town home where there are no children.
Smith: Yeah, well I mean I grew up in the mountains so…
Schenk: So candy to you was if you found a grub root or like, “Oh hey, here’s a carrot I pulled up out of the ground.”
Smith: Yeah, or “Here’s some sassafras bark.”
Schenk: Oh right, right. Right, that’s for real. I’m just making these things up. You actually know the forest, the mountain candy. Well at any rate, we appreciate you making it this far into the program. That’s going to complete this episode of the Nursing Home Abuse Podcast. You can consume each and every episode as they come out, which is bi-monthly, every other week, on Monday mornings on our YouTube channel or on NursingHomeAbusePodcast.com, or you can check us out wherever you get your podcast from. And with that, we will see you next time.
Smith: See you next time.