A wrongful death lawsuit has been filed in federal court against a Kansas assisted living and retirement facility. The lawsuit accuses the assisted living center of “grossly wanton and negligent” practices after it failed to conduct a timely background on a certified nursing assistant (CNA). The CNA is now facing criminal charges for raping a 68-year-old resident who suffered from dementia.
The resident passed away on August 25, 2020, after enduring an unknown number of sexual assaults at the hands of the CNA in the five months that she was a resident of the assisted living facility. The resident’s daughter became concerned beginning on July 30, 2020, when a hospice nurse reported inexplicable physical concerns to her about her mother. A male CNA eventually admitted to actions that led to the concerns, but denied wrongdoing.
Prior to his confession, the resident’s daughter filed abuse and neglect reports with the police and the Kansas Department for Aging and Disability Services. A state investigator advised the daughter that her mother should receive a sexual assault exam at the hospital. The operator of the assisted living center called the daughter, advising against the exam because it was overly invasive.
The daughter, however, went forward with the exam and moved her mother to a different nursing facility. The analysis of the assault kit took several months, but eventually found the accused CNA’s DNA. Although no autopsy was performed at the time of the resident’s death, the lawsuit states that a contributing factor to her death was the brutal assault.
The assisted living facility was required to conduct a criminal background check upon the individual’s hire, but delayed for over six months, all the while allowing the CNA to provide care to residents of the facility. When the criminal background check was finally conducted, it revealed that the CNA had several charges against him, including rape allegations, a sexual battery conviction, and a federal prison sentence for food stamp fraud.
Compliance Perspective
Issue
Criminal background checks must be conducted on all employees upon hire and prior to their starting employment. It is imperative that administration and the human resource departments ensure that background checks are completed, and that each applicant is lawfully permitted to be employed at a nursing facility. Even during these challenging times of recruiting employees, it remains essential that background checks are completed before an individual can begin employment.
Discussion Points
- Review your policies and procedures for conducting background checks on all new employees prior to their start date. Update your policies as needed.
- Train staff who are responsible for conducting background checks about the seriousness of completing the screenings prior to any employee starting employment with the facility. Document that the trainings occurred and file the signed documentation in the employee’s education file.
- Periodically audit to ensure that all background checks are completed in a timely manner, and that employees are eligible to work in the nursing facility.
FOR MORE INFORMATION ON THIS TOPIC view: OFFICER OF INSPECTOR GENERAL (OIG) EXCLUSION LIST and STAYING ON TOP OF EMPLOYEE CHECKS.
