The Ohio Department of Health has proposed new administrative rules scheduled to take effect January 1, 2013 that will significantly impact the obligations of a home health agency (“HHA”) regarding background checks of its current and potential employees. 

Currently, HHAs are required to request the Superintendent of the Bureau of Criminal Identification and Investigation (“BCII”) to conduct background checks on employment applicants. The current rules list “disqualifying offenses” that prohibit an HHA from hiring an offending applicant and also contain some exceptions to the obligation to check an applicant’s background. The new rules, although containing the same general scheme of regulation, alter the specifics of that scheme drastically. 

Effective with the new rules, HHAs must conduct criminal background checks on applicants before hiring and on all employees at least once every five years. HHAs must initially check current employees hired prior to January 1, 2008 no later than thirty days after the anniversary of the employee’s date of hire and employees hired on or after January 1, 2008 no later than thirty days after the fifth anniversary of the date of hire. Prior to conducting the required checks, the chief administrator of an HHA must check six specified electronic databases, ranging from the Health and Human Services Office of Inspector General exclusion database to the database of inmates maintained by the Ohio Department of Rehabilitation and Correction. 

The new rules also enhance the list of “disqualifying offenses” and provide a tiered exclusionary period system based on the offense committed. The current rules contain a list of approximately fifty disqualifying offenses for HHA employees providing direct care to a child and another list of approximately fifty-five offenses for HHA employees providing direct care to an older adult. The new rules contain a single list of approximately one hundred twenty-seven offenses for HHA employees providing direct care to any individual. The new rules also fix permanent, ten-year, seven-year, five-year, and no-time exclusionary periods. For the duration of the specified period, an HHA may not employ or continue to employ an individual providing direct care who committed or pled guilty to an offense enumerated under each time period. 

HHA chief administrators continue to have express obligations under the new rules, similar to the current regime. Administrators must provide each applicant and employee forms and fingerprint impression sheets, obtain the completed forms and impression sheets, and forward them to the superintendent of the BCII. Also, administrators must, like the current rule, maintain documentation of compliance, which includes maintaining a roster of applicants and employees with the name of each applicant and employee, the date the criminal record check request is submitted to the BCII, the date the criminal records check request is received from the BCII, a determination of whether the results yield any disqualifying offenses, and the date the employee starts work. 

Finally, the new rules alter the definition of “direct care,” which will include skilled nursing care, physical therapy, speech-language pathology, occupational therapy, medical social services, and home health aide services provided in a patient’s home. It further includes any activity that requires the person performing the activity to be routinely alone with the patient or routinely have access to a patient’s personal or financial documents. The new rule also broadens the term by applying it to “a patient” rather than merely “an older adult” as under the current rule. 

To be sure, the new rule imposes fresh and perhaps onerous obligations on HHAs and their administrators. The new rules are expected to take effect on January 1, 2013.