Over the last two years, the Office of Inspector General for the Department of Health and Human Services (“OIG”) has conducted a series of audits focusing on State and nursing home compliance with Federal and State requirements that prohibit employment of individuals with disqualifying backgrounds.[i] The stated focus of the audits is to “determine whether Medicaid beneficiaries in nursing homes in selected States were adequately safeguarded from caregivers with a criminal history of abuse, neglect, exploitation, mistreatment of residents, or misappropriation of resident property, according to Federal requirements.”[ii]
Federal regulations setting forth the Conditions of Participation (“COP”) for long term care facilities in the Medicare program prohibit nursing homes from employing or otherwise engaging individuals who have a history of the following disqualifying offenses:
- Have been found guilty of abuse, neglect, exploitation, misappropriation of property, or mistreatment by a court of law;
- Have had a finding entered into the State nurse aide registry concerning abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property; or
- 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.[iii]
CMS and the OIG have interpreted this regulation to imply that nursing homes must perform a background check to ensure the facilities do not employ or engage individuals with these offenses.[iv] CMS’s State Operations Manual (“SOM”) related to long term care facilities states that nursing homes “must be thorough in their investigations of the histories of prospective staff.”[v] The investigation must include inquiry of the State nurse aide registry or licensing authorities, the information from previous and/or current employers, and reasonable efforts to uncover information about any past criminal prosecutions.[vi] The SOM also requires that facilities report to the State nurse aide registry or licensing authorities knowledge of any court actions that would indicate a licensed staff member’s unfitness to serve.[vii] Examples of convictions that may indicate unfitness to work in a nursing home include, but are not limited to, child abuse, sexual assault, theft, and assault with a deadly weapon.[viii]
In addition to Federal law, most States have laws related to background checks in the nursing home and/or healthcare industry. The OIG has completed audits of New Jersey, Hawaii, Alabama, Florida, and Louisiana and has two unnamed State audits in progress.[ix] As an example of the OIG’s audits and findings, we are focusing on Alabama in this article, as it contains four recommendations that reveal the OIG believes tighter oversight by the State is needed and signals that background checks may be a focus of upcoming survey activity.
Beginning July 1, 2023, Alabama long term care providers, including nursing homes, were required to query the State’s newly-created Elder and Adult in Need of Protective Services Abuse Registry regarding employees and prospective employees hired on or after January 1, 2023.[x] The Registry contains the names of individuals convicted of abuse and neglect, financial exploitation of an elderly person (over age 60) or person in need of protective services, or against whom an elder abuse protection order has been issued. Also entered into the Registry are individuals whom Alabama’s Department of Human Resources has investigated and found to have committed an act of abuse, elder abuse, emotional abuse, exploitation, financial exploitation, intimidation, neglect, sexual abuse, or undue influence against an elderly person or an adult in need of protective services. [xi]
The OIG’s Alabama audit found numerous instances of noncompliance by the facilities it examined and inadequate oversight by the State. It determined that the State Survey Agency only reviewed compliance with background checks during surveys for allegations of abuse and neglect. It did not have a process for verifying that nursing homes completed background checks or Registry queries before hiring staff, nor did the State review facility compliance with background check requirements during periodic surveys.[xii] In light of these findings, the OIG emphasized the federal government’s expectation that facilities complete background checks and take any actions required by the COP. Facilities that fail to do so may be cited with deficiencies as outlined in the SOM, including certain F tags related to freedom from abuse, neglect, and exploitation at F600–F610.[xiii]
The OIG issued the following recommendations to the Alabama Survey Agency as a result of the audit:
- Develop a process for verifying that nursing homes complete a background check and a Registry query before employees begin work,
- Educate nursing homes on the importance of conducting timely background checks and Registry queries,
- Require nursing homes to develop policies and procedures to conduct Registry queries before employees begin work, and
- Conduct a review of nursing homes’ compliance with background checks and Registry check requirements.[xiv]
In its response to the audit, the State agency stated that it would amend its rules to require providers to develop policies and procedures for conducting background checks, that it would begin reviewing facilities’ compliance with the requirements, and that it planned to hire additional staff to review nursing homes’ documents and implementation of procedures.[xv]
The OIG’s criticism of State oversight did not stop with Alabama. Four of the five published audits found deficiencies in State enforcement of background check requirements. As a result of this recent scrutiny, providers around the country should expect increased survey activity regarding employee background checks. Providers should review the OIG audit findings, State law and the SOM to develop robust policies and procedures.[xvi]
Although requirements may differ by State, facilities should ensure that employee background checks are thorough and timely. At a minimum, a comprehensive check should include:
- Criminal History: FBI fingerprint checks (state and federal levels).
- Abuse Registries: Search of any State-maintained Abuse Registry.
- Sanctions Databases: OIG List of Excluded Individuals/Entities (LEIE).
- Verifications: Employment history, education, and professional licenses, including any disciplinary actions.
- Other: Motor Vehicle Records (MVR) and drug testing.
Checks should be conducted for all staff who provide resident care. The SOM interprets “staff” to include the medical director, consultants, contractors, volunteers, all 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.
Checks should be completed through reputable reporting agencies, ideally those accredited by the Professional Background Screening Association (PBSA).[xvii] Initial screenings should be conducted before hire, and if an employee is arrested for a disqualifying offense, they must be removed immediately from direct contact with residents. Operators should be aware of any State specific requirements for ongoing employee monitoring and disqualifying offenses, as not all criminal history may be automatically disqualifying, and State law may provide mechanisms for expungement or exemptions of certain offenses. In anticipation of increased survey activity, facilities should maintain records of all checks to prove compliance.
In summary, background checks are not just paperwork; they are a critical safety tool to protect residents, avoid sanctions and lawsuits, and prevent reputational damage.
[i] Information concerning the OIG Series is available at https://oig.hhs.gov/reports/work-plan/browse-work-plan-projects/w-00-24-31553/.
[ii] Id.
[iii] 42 C.F.R. §483.12(a)(3).
[iv] OIG August 2025 review of Alabama background check compliance, A-04-08104, at https://oig.hhs.gov/reports/work-plan/browse-work-plan-projects/w-00-24-31553/.
[v] SOM Appendix PP at F606 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] OIG Series at https://oig.hhs.gov/reports/work-plan/browse-work-plan-projects/w-00-24-31553/.
[x] See Elder and Adult in Need of Protective Services Abuse Registry, aka “Shirley’s Law,” Ala. Act No. 2022-161, Ala. Code §§ 38-9G-1, et seq.; Ala. Admin. Code r. 660-5-41-.07(II)(8)(c) and 660-5-41-.07(III)(8)(A). The Registry can be accessed at https://dhr.alabama.gov/adult-protective-services/alabama-elder-and-adult-in-need-of-protective-services-abuse-registry/ (visited 2/13/2026).
[xi] Ala. Code § 38-9G-2(a)(11).
[xii] OIG August 2025 review, A-04-08104, at https://oig.hhs.gov/reports/work-plan/browse-work-plan-projects/w-00-24-31553/.
[xiii] Id.
[xiv] Id.
[xv] Alabama response to OIG recommendation within Id.
[xvi] OIG Series at https://oig.hhs.gov/reports/work-plan/browse-work-plan-projects/w-00-24-31553/.
[xvii] https://www.thepbsa.org/
