Many nursing homes and assisted living facilities may be unsure whether they are required to conduct background checks for independent contractors with direct client contact (such as dieticians and medical directors). The question arises because there appears to be a conflict between the Texas Health and Safety Code and a DADS handbook.
Under Texas Health and Safety Code Section 250.002, nursing homes and assisted living facilities are required to conduct criminal background checks ONLY on actual employees and applicants offered employment, NOT independent contractors. Please note that, under Chap. 250, Home and Community Support Services agencies (“HCSSAs”) are required to conduct criminal background checks on vendors, personnel and volunteers having direct contact with residents or clients. DADS Provider Letter #06-48(dated Feb. 6, 2007) also notes that nursing homes and assisted living facilities must check the criminal history record of all employees and those applicants to whom the nursing home offers employment. The provider letter also reinforces the statement that only HCSSAs are required to perform criminal history checks on all personnel (including vendors) and volunteers whose duties would or do involve direct contact with consumers.
However, there is a conflicting sentence in the appendix to several DADS manuals (available at http://www.dads.state.tx.us/handbooks/appendix/02.htm). The sentence states the following:
Anyone made an offer of employment in one of the covered agencies/facilities [which includes nursing homes and assisted living facilities] or who applies for a contract to provide services in one of the covered agencies/facilities must have a criminal history check, unless the person is licensed under another law of this state. (emphasis added)
We confirmed with DADS that DADS’ program staff recognizes that the appendix is outdated and plans to delete or update the appendix when there is an opportunity to do so. We also confirmed that nursing facilities and assisted living facilities are only required to conduct criminal history checks on actual employees and applicants offered employment, not independent contractors.