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Criminal History and Fingerprinting Requirements during the PHE

Posted Nov 19, 20202 min Read

Regulatory & Clinical

As a reminder, on March 28, 2020, the Indiana Department of Health (IDH) issued a LTC Newsletter clarifying the requirements for criminal history checks and fingerprints for nursing facilities hiring CNAs and unlicensed employees during the public health emergency.  This LTC Newsletter is still in effect and highlights are as follows:

  • Indiana Code § 16-28-13-4(a) requires that the facility owner or staffing agency “apply” for the limited criminal history within three (3) days of hiring the CNA or unlicensed employee.  However, the requested report does actually need to be obtained at the time of hire.  IDH only requires documentation that a facility has applied for either the limited criminal history or the more extensive fingerprint-based history available through the Indiana State Police.
  • Once received, if the requested report indicates that the individual committed a disqualifying offense (for the full list, see Indiana Code § 16-28-13-3(a)(1-2)), then the individual would be prohibited from being further employed by the facility.  If the limited criminal history is inconclusive, the facility should request a fingerprint.
  • Facilities must also continue to adhere to the federal requirements of participation.  42 CFR 483.12 prohibits any individuals that:
  • Have been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law;
  • Have a finding entered into the nurse aide registry concerning abuse, neglect, exploitation, or misappropriation of property; or
  • Have a disciplinary action in effect against his/her professional license as a result of a finding of abuse, neglect, exploitation, or misappropriation of property.
  • Unlike state law, federal regulation does not specify how a facility performs the background check/screening.  Accomplishing this screening through a state-based limited criminal history is usually sufficient, but not always if the facility knows that the employee lived and worked in another state.  Most facilities go beyond the limited criminal history with a third-party vendor that can pull from many databases and provide documentation to the facility on that prospective employee’s background.  This can also be done with a federal background check, but that system also requires a fingerprint and delays will occur.

Best practices indicate that facilities should wait until these background checks are completed before hiring an individual, but the LTC Newsletter still stands should an individual be hired before the limited criminal history check is completed, so long as it was requested within three (3) days of hire and compliance with the federal requirements of participation are maintained (i.e., through a third-party vendor).