Nursing home facilities have a responsibility to ensure that staffers are adequately screened, trained and supervised. It appears, at least according to a six-month investigation by journalists in Northern Texas, that hundreds of certified nursing assistants with serious or violent criminal histories have been hired to care for elderly and vulnerable patients in the region’s nursing homes.
Further, the report by WFAA-8 revealed many of these individuals were working in the homes legally. There were, however, several instances in which the nursing assistants were convicted of certain offenses that should have made them ineligible to work in that capacity, yet they were hired anyway. All of this, advocates fear, is putting residents at risk of nursing home abuse.
Some of the crimes for which the CNAs were convicted included things like continuous violence against family, aggravated assault with a deadly weapon, aggravated sexual contact with a child and injury to a child. Other crimes included offenses that involved theft, like burglary and aggravated robbery. The analysis also indicated Texas’ rate of nursing home abuse was four times that of the national average. Still, to assume this problem is isolated to Texas would be erroneous.
The flaws in the Texas system occur for three primary reasons: Inadequate initial background checks, no required background checks for re-certification and deferred adjudication probation, which means offenders don’t have a “final” conviction.
The first issue, inadequate background checks, involves the process by which the state requires applicants to be board-certified. It goes through the Texas Department of Public Safety. This is different than the process required by numerous other industries, such as for teachers, which require federal background checks. The DPS checks reportedly did not cover numerous state convictions, which resulted in applications being allowed to obtain certification when in fact they were barred for life.
The second loophole involves not requiring additional background checks upon re-certification for their positions. Texas requires CNAs to become re-certified every two years. However, it does not mandate another criminal background check. That is left to the employer/ nursing home. The journalists identified numerous instances wherein people committed crimes after they were initially certified – crimes that should have barred them from working in nursing homes and resulted in a denial of re-certification. However, because of the lack of background checks during this process, CNAs with violent convictions continued to work without issue.
The final loophole identified was the most common. It involves deferred adjudication with probation. Florida has a similar process. Basically, one can avoid a formal conviction so long as they meet certain requirements and serve the ascribed amount of time on probation. CNAs may even plead guilty to serious violent crime. However, because they served probation and had adjudication withheld, they are able to go to work (or continue working) as caregivers. In one case, a CNA pleaded guilty to aggravated assault with a deadly weapon after she tried to run over someone with her car. However, because her adjudication was withheld, legally speaking, she has no conviction, which means she’s eligible to continue working directly with elderly and vulnerable populations.
Our nursing home abuse lawyers know it’s especially important for nursing homes to identify and address these issues because nursing home abuse is notoriously underreported as it is. Residents often cannot voice what happened to them, or else may be too afraid.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Criminal Caretakers: Hundreds of certified aides with criminal histories working in nursing homes, November 2017, By Charlotte Huffman, Mark Smith, WFAA-8
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FAHCA: Florida Nursing Homes Still Non-Compliant With Emergency Power Rule, Nov. 9, 2017, Orlando Nursing Home Abuse Lawyer Blog