Avoiding F606 Deficiency in 2024 Long Term Care Surveys

In November 2023, the Office of Inspector General (OIG), U.S. The Department of Health and Human Services published their recommendation on criminal background checks to the state of Louisiana. In this publication, OIG recommended that Louisiana should enhance their background check requirements and include surveying of employee backgrounds as part of their evaluation of nursing facilities.  Louisiana agreed.

Moving forwards, long term care organizations should expect that their surveyors may look into the backgrounds of their licensed and unlicensed staff.  F606 is one deficiency that surveyors could issue when they start focusing on staff background credentialing. 

The CMS State Operations Manual, Appendix PP, states that long term care organizations shall not hire anyone with a finding of abuse, neglect, exploitation, or theft. (Deficiency Tag F606).  Further, most states have strict guidelines on prohibition to hire employees with certain specified criminal convictions.

F606 deficiency applies when a facility employs or engages an individual with history of abuse and is defined under 42 CFR §483.12(a)(3) and (4) as follows:

§483.12(a) The facility must— 

§483.12(a)(3) Not employ or otherwise engage individuals who— 

(i) Have been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law; 

(ii) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property; or 

(iii) Have a disciplinary action in effect against his or her professional license by a state licensure body as a result of a finding of abuse, neglect, exploitation, mistreatment of residents or misappropriation of resident property. 

§483.12(a) (4) Report to the State nurse aide registry or licensing authorities any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff. 

Under F606, “staff” includes employees, the medical director, consultants, contractors, and volunteers. Staff also includes caregivers who provide care and services to residents on behalf of the facility, students in the facility’s nurse aide training program, and students from affiliated academic institutions, including therapy, social, and activity programs. Finally, the F606 requirements also apply to unlicensed staff such as maintenance or laundry service providers.  

Federal guidelines relating to F606 require facilities to monitor for abusive employees by performing the following screening procedures:

• Search of state nurse aide registry, 
• Search of state licensing authorities, 
• Check information from previous and/or current employers, and 
• Make reasonable efforts to uncover information about any past criminal prosecutions.

Although the federal guidelines do not expressly require performing “criminal background checks,” many states currently require FBI conducted background checks for all facility employees who come in contact with patients.  But, administrators must note that the FBI database, while overall excellent today, has shortcomings.  For example, the FBI criminal database relies on local and state law enforcements to regularly upload criminal information to the database. However, these uploaded records may be delayed, inaccurate, wrong or may never happen. 

In 2011, the OIG highlighted some of the inaccuracies associated with the FBI’s criminal background checks:

• Convictions arising from a violation of probation: Background check records received from the FBI did not contain the convictions leading to the imposition of probation periods. In addition, many charges had no corresponding disposition information (e.g., conviction, dismissal), so we could not determine whether a conviction occurred.
• Removal of convictions after court programs: Some individuals’ criminal records did not contain convictions because they were removed following a judicial diversion program (e.g., completion of an alcohol and substance abuse education course). 
• Lack of specificity of crimes: FBI-maintained criminal history records do not contain detailed information (i.e., whether the victim of a crime was a nursing facility resident) to determine whether a conviction disqualifies an individual from nursing facility employment under Federal regulation.

While F606 may be issued by itself, the rules outline other deficiencies which require an evaluation of F606 requirements.  Here are a few example deficiencies which may accompany or trigger F606 tag:

1. ‍Misappropriation of property and exploitation (F602) as defined under §483.5 - “the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident’s belongings or money without the resident’s consent.” Surveyors should consider a F606 tag if they determine the facility employed or engaged an individual with a requisite criminal background.
2. Residents have the right to be free from involuntary seclusion (F603) as defined under §483.12(a)(1) - “separation of a resident from other residents or from her/his room or confinement to her/his room (with or without roommates) against the resident’s will, or the will of the resident representative.” Surveyors will consider a F606 tag as a potential tag for additional investigation.
3. Lack of written policies and procedures for pre-employment evaluation (F607) of employees for abuse. - Written policies must include the following components:                    

• Screening [See §§483.12(a)(3) and 483.12(b)(1)]; 
• Training [See §483.12(b)(3)]; 
• Prevention [See §483.12(b)(1)]; 
• Identification [See §483.12(b)(2)]; 
• Investigation [See §483.12(b)(2)]; 
• Protection [See §§483.12(b)(2) and 483.12(c)(3)]; and
• Reporting/response [See §§483.12(b)(2), 483.12(b)(4), 483.12(b)(5), 483.12(c)(1) and (4)].

Since 2018, only 300 agencies have been cited with F-606 deficiency. However, the problem of hiring the wrong employees is more prevalent than is being cited by surveyors and could become an issue over the next few years.  In 2011, OIG estimated that over 70% of nursing facilities employed staff with a prohibited criminal conviction. Look at these statistics published by the OIG in 2011:

• 1,100 (7%) of certified nursing facilities had 0% employees with criminal convictions;
• 8,021 (51%) of certified nursing facilities had 5% employees with criminal convictions; and
• 4,089 (26%) of certified nursing facilities had 5% to 15% employees with criminal convictions.

See, Nursing Facilities’ Employment Of Individuals With Criminal Convictions, OIG Publication, 2011.

Given the OIG plans to focus its 2024 efforts on fraud, abuse and waste, plus the heightening scrutiny of the patient safety in long term care organizations, we anticipate that surveyors will issue more of these F-0606s in their future surveys. See, OIG’s General Compliance Program Guidance, Nov. 2023). See, also, our blog on OIG’s recommendations to Louisiana to enhance 2024 surveys by checking for employee credentialing. 

Here is how you can avoid F606 deficiencies in 2024:

1. Develop Written Background Check Policies and Procedures.

2. Upgrade Your Background Check Procedures:

• Clearly define who must get a background check;
• Consider verifying identity, education, past employment and license;
• Don't forget to check the abuse and exclusion databases for all employees, contractors and vendors;
• Pay attention to the FBI criminal background report and augment if there are deficiencies and unknowns.

3. Track Important Due Dates: Some states require LTC organizations to run background checks every few years or under certain circumstances. Also, don't forget that OIG guidance requires “periodic” checks of the federal and state fraud and abuse registries. Automate your background check tracking to stay ahead of due dates for licensing, background checks and verifications.

4. Properly Store Required Documents: Centrally and securely store your employee credentialing documents, including background checks, is important at the time of surveys; and,

5. Organize Background Check Processes: While many background check organizations offer to conduct the background check, they do not help you coordinate, and onboard the data into your employee files. Make sure you properly upload and maintain the background check documentation in each employee file.

Keeping track of and tracking of all the necessary due dates and documentations for each employee can very quickly become a cumbersome task, requiring the attention of several full time staff. Perla is a secure, cloud based staff credentialing management software that specializes in the LTC industry. Visit us at Perla to find out how you can implement an easy-to-use staff credentialing management software to manage all your staff due dates and significantly reduce your time and costs. Click here to book a demo.