March 2011

Information Bulletin 11-01
NH-153
BC-55
HOSP-58

Change in Employment Status of Nursing Assistants who have a Single Occurrence of Neglect on the Nurse Aide Registry - Do Not Disregard

EFFECTIVE MARCH 1, 2011, NURSING ASSISTANTS WHO HAVE A SINGLE OCCURRENCE OF NEGLECT ON THE MINNESOTA NURSE AIDE REGISTRY (NAR) MAY PETITION THE OFFICE OF HEALTH FACILITY COMPLAINTS (OHFC) TO HAVE THE FINDING REMOVED. IF THE PETITION IS GRANTED, NURSING ASSISTANTS WILL HAVE THE ABILITY TO APPLY AND BE EMPLOYED AT MEDICARE CERTIFIED NURSING FACILITIES (CERTIFIED NURSING FACILITIES) AS REQUIRED AT 42 CFR 483.13. THIS IS SUBJECT TO A BACKGROUND STUDY CLEARANCE.

Purpose:

Permanent findings of neglect on the Nurse Aide Registry (NAR) can have significant adverse effects on the careers of nursing assistants and impact the ability of providers to maintain a sufficient employment pool. The purpose of this Bulletin is to inform providers that an administrative process is being implemented by OHFC which will allow nursing assistants who have a single occurrence of neglect and whose employment history does not show a pattern of abuse or criminal disqualification under Minnesota Statutes, section 245C, to petition to have the neglect finding removed from the NAR.

Background:

Federal regulations, at 42 CFR, part 483.13, prohibits providers in nursing facilities from employing any individual who has been found guilty of mistreatment in a court of law, or has a finding of abuse, neglect, or misappropriation of funds on the NAR. This includes findings of maltreatment under the Minnesota Vulnerable Adults Act (Minnesota Statutes, section 626.557). Currently, this finding of neglect is permanent and prevents nursing assistants from working in certified nursing facilities.

The federal government was concerned that permanent bars from employment had significant adverse effects not only on nursing assistants but providers as well. Many of the incidents which resulted in these findings of neglect were related to the nursing assistant being distracted or using poor judgment which resulted in harm to the vulnerable adult. The federal government decided that permanently barring a nursing assistant from working in nursing facilities due to these types of neglect was inappropriate and did not meet the intent of the original legislation which was aimed at preventing the abuse of vulnerable persons. As a result, the federal government directed state agencies to develop a procedure allowing nursing assistants who have a single finding of neglect on the NAR to petition the state agency to have it removed (section 1819(g)(1)(D) and section 1919(g)(1)(D), removal of name from nurse aide registry).

Health Regulation researched the process used by other state agencies surrounding Minnesota to remove single findings of neglect from the NAR. Information gathered during this research indicates that there is a wide range of processes being utilized by state agencies ranging from drafting legislation to using an administrative procedure to process petitions. Although in the past, Health Regulation considered following a legislative pathway, based on this research it was decided that an administrative process conducted through the background study unit of the Office of Health Facility Complaints would be the most effective and efficient process.

Effective March 1, 2011, any nursing assistant with a single finding of neglect on the NAR may petition OHFC to have the finding removed after one full year from the date that the finding was entered onto the NAR. If the petition is approved, it will remove the neglect finding which currently prohibits nursing assistants from working in nursing facilities.

NOTE: This process does not change the requirement that all employees must pass a criminal background study under Minnesota Statues, section 245C, prior to employment. Facilities must submit a new criminal background study to the Department of Human Services prior to hiring any employee. Even if a nursing assistants' petition is granted and their single finding of neglect is removed from the NAR, nursing assistants with a substantiated maltreatment finding will continue to be disqualified from working at a facility licensed by MDH for seven years under the state background study statute (Minnesota Statutes, section 245C). Unless the nursing assistants' disqualification is set aside, they will continue to be disqualified from working in a licensed facility. As part of the background study process, nursing assistants will be informed how to request reconsideration of their disqualification.

Process:

OHFC, working together with the NAR, will identify nursing assistants who meet the criteria for removal and provide them with instructions and forms on the petition process. The petition includes information related to employment since the finding of neglect, information related to rehabilitation, and a statement regarding why the nursing assistant believes that the finding of neglect should be removed.

Starting March 1, 2011, OHFC will identify nursing assistants for the past five (5) years (2005 - 2010) who currently have a single finding of neglect on the NAR and whose finding meets the criteria of one full year from the date the finding was entered on the NAR. OHFC will send letters of notification to the identified nursing assistants, including a petition packet. After March 1, 2011, all nursing assistants will automatically receive this information in their disqualification packet.

OHFC must make a decision within 45 days of receipt of a completed petition whether or not to grant the petition request. If approved, petitioners will be notified by mail and the NAR will be notified to remove the finding from the registry. Removal of this finding allows the nursing assistant to apply at federally certified nursing facilities, contingent upon passing a criminal background study check. If the petition is denied, the nursing assistant will have the right to request a reconsideration of the decision by the director of OHFC. The finding must be appealed within 15 days of receipt of the final decision by the petitioner. The director will have 15 working days from the receipt of the request to notify the petitioner. The director's decision is final and the petitioner will not be able to reapply for one full year from the date of the director's final determination.

For questions about this bulletin, please call the OHFC background study Unit at 651-201-4200.