Labor & Employment Law Daily Wrap Up, DHHS NEWS—NY did not ensure six of 10 audited nursing homes complied with staff background checks, (Jul 13, 2026)

By Jordan Sonderegger

Four New York nursing homes allowed six employees to provide care to residents before their required background checks were completed.

The New York Department of Health did not ensure that selected nursing homes complied with federal requirements prohibiting the employment of individuals with disqualifying backgrounds during calendar year 2023, the HHS Office of Inspector General (OIG) found. The deficiencies and potential deficiencies, which affected eight of the 100 staff members reviewed at 10 selected facilities, occurred because the state's monitoring was not adequate and because nursing homes did not follow their own internal policies, putting residents at risk of abuse, neglect, exploitation, or mistreatment. The OIG recommended that the state strengthen its monitoring activities and reinforce guidance to nursing homes (OIG Report, No. A-02-24-01012 (July 6, 2026)).

Background. Federal regulations (42 C.F.R. §483.12(a)(3)) prohibit nursing homes participating in Medicare and Medicaid from employing individuals who have been found guilty of abuse, neglect, exploitation, mistreatment of residents, or misappropriation of resident property; who have a finding entered into the state's nurse aide registry; or who have license discipline in effect as a result of such a finding. Although the regulation does not explicitly require criminal history checks, the OIG noted that its prohibition implicitly requires them, and CMS interpretive guidance instructs that facilities “must be thorough in their investigations of the histories of prospective staff.” The audit was part of a nationwide OIG series examining nursing home employment of individuals with disqualifying backgrounds. Approximately 1.2 million people reside in Medicare- and Medicaid-certified nursing homes, more than half of whom depend on Medicaid to pay for their long-term care. New York was among the states that chose not to participate in the National Background Check Program for long-term care providers established by the Patient Protection and Affordable Care Act. In New York, the state agency verifies compliance with background screening requirements during recertification surveys. Surveyor protocols call for reviewing a sample of five employees hired within the previous four months at each facility, along with the facility's written criminal history record check (CHRC) policies.

Audit scope. From the 597 Medicaid-certified nursing homes in New York as of April 2024, the OIG nonstatistically selected 10 facilities based on geographic location and CMS Five-Star Quality Rating System scores, pairing one highly rated (4 to 5-star) and one poorly rated (1 to 2-star) facility in each region. Auditors reviewed 10 staff members—direct hires and contracted employees—at each facility, for a total sample of 100.

Findings. Six of the 10 facilities did not comply or did not document compliance with background check requirements. Four nursing homes allowed six non-licensed staff members—including a service aide, an assistant administrator, a social worker, a certified nursing assistant, a housekeeping attendant, and a cashier—to provide care before their background checks were completed. Five of the six were employed between four days and almost two years before their checks were completed, and the facilities failed to submit documentation showing that the required weekly supervision of temporary employees occurred. The sixth worked for 17 years before a background check was completed; the facility's parent company had used a third-party agency that did not submit the CHRC through the state agency, as state regulations require.

At a fifth facility, the OIG could not determine whether a background check was completed before a certified nursing assistant, hired through a staffing agency as a temporary employee, began providing direct care, because the facility did not provide a hire date. A sixth facility allowed an occupational therapist to provide direct care for almost six months before verifying the staff member's license. Once the checks and license verification were completed, the OIG found that none of the six delayed-check employees had disqualifying offenses, and the occupational therapist had no disqualifying license action. If any had a disqualifying history, however, the facilities would not have known until after the staff members had already provided care to residents.

Inadequate monitoring. The deficiencies occurred because the state agency's monitoring was inadequate to prevent nursing homes from employing individuals with disqualifying backgrounds, the OIG found. The state's recertification surveys—which review only five employees hired in the prior four months—may not provide adequate coverage because they do not span the entire period between surveys, which must occur at least once every 15 months. Nursing homes also did not consistently implement their own policies and procedures for completing background checks and license verifications before employees began working.

Recommendations. The OIG made two recommendations: that the state agency strengthen its monitoring activities, such as by expanding the timeframe covered by recertification surveys, and that it reinforce guidance directing nursing homes to complete background checks and license verifications for all direct hire and contracted staff before they start work. The state agency did not indicate concurrence or nonconcurrence. It stated that it investigated each of the sampled cases, issued citations where appropriate before the audit exit, and, in March 2026, issued a Dear Administrator Letter reminding providers of their responsibilities for background checks and license verification. The OIG commended those actions but continued to recommend that the state expand the timeframe covered by its surveys.

News: Safety AgencyNews Reports