Federal Regulation Regarding Hospice Employee Criminal Background Checks
In June 2008, the Centers for Medicare & Medicaid Services (CMS) published a final rule in the Federal Register revising the conditions of participation that hospices must meet to participate in the Medicare and Medicaid programs; this final rule included the addition of a requirement for criminal background checks for hospice employees. (See Additional Resource 1.) In January 2009, CMS issued interpretive guidance on implementation of this requirement, and the guidance became effective immediately. (See Additional Resource 2.) Hospice providers are one of the 10 provider types included in the National Background Check Program (NBCP) and this resource document provides NBCP participating States with information on the hospice criminal background check requirements.
The requirements for hospice employee criminal background checks, as described in the full text of Title 42 Part 418 Section 114(d) of the Code of Federal Regulations, are:
The hospice must obtain a criminal background check on all hospice employees who have direct patient contact or access to patient records. Hospice contracts must require that all contracted entities obtain criminal background checks on contracted employees who have direct patient contact or access to patient records.
Criminal background checks must be obtained in accordance with State requirements. In the absence of State requirements, criminal background checks must be obtained within three months of the date of employment for all States that the individual has lived or worked in the past 3 years.
Below, please find excerpts from the responses to comments included in the 2008 Federal Register final rule:
[In 42 CFR 418.114(d)] we proposed a new requirement that a hospice obtain a criminal background check for all hospice and contract employees before employment at the hospice. We believe that this is an important safety measure to protect both patients and the hospice. We did not propose any specific type, scope, or frequency requirements for completing the background check (page 32159).
This includes all current paid hospice employees, volunteers, and contracted employees, as well as any new employees. … We understand that hospices would likely not actually conduct background checks on contracted employees. We have added a statement to § 418.114(d)(1) that hospices must require, as part of their written agreement with a contractor, that the contractor provides the hospice a background check for each contracted employee who has direct hospice patient contact or access to hospice patient records. We believe that requiring all individuals who have direct patient contact or access to patient records to have background checks will help hospices assure that patient rights are protected at all times (page 32161).
We agree that if a State has particular laws or regulations requiring criminal background checks for hospice employees and contractors, then hospice compliance with such State requirements satisfies the intent of this requirement. If a State does not have any requirements, or does not have requirements for a specific discipline, then the requirements of this final rule must be met. In this final rule, we require hospices to obtain a criminal background check within three months of the date of employment for all states that the individual has lived or worked in for the past three years (page 32161).
…if a State has criminal background check requirements for a specific discipline, and the hospice complies with the State requirements for that discipline, then the hospice is in compliance with this Federal criminal background check requirement. This means an individual does not need a criminal background check if his or her license is current and State licensure requires a background check. If a State does not have such criminal background check requirements, then the hospice must comply with the Federal requirements described above (page 32161).
- 2008 CMS Federal Register final rule—Medicare and Medicaid Programs: Hospice Conditions of Participation (see pages 32159 and 32161 in particular for responses to comments). Accessed at: https://www.gpo.gov/fdsys/pkg/FR-2008-06-05/pdf/08-1305.pdf.
- 2009 CMS Center for Medicaid and State Operations/Survey and Certification Group Memorandum: Hospice Program Interpretive Guidance. Accessed at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/SCLetter09-19.pdf.
- State Operations Manual, Appendix M – Guidance to Surveyors: Hospice. (2010). Accessed at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_m_hospice.pdf.