Caught Between Laws: Challenges for Health Care Providers in Using Criminal History Information in Employment Decisions

I. The Affordable Care Act and the National Background Check Program

Section 6201 of the ACA directs the Department of Health and Human Services (HHS) to create a national program to “identify efficient, effective, and economical procedures for long term care facilities and providers to conduct background checks on a statewide basis for all potential direct access employees.” Based on this mandate, HHS created the National Background Check Program (NBCP), which provides grants to states to implement statewide background check programs that require FBI fingerprint checks for direct access workers in long term care facilities and include “rap back” systems to notify long-term care providers of post-background check criminal convictions. Under the NBCP, HHS has awarded more than $50 million to 24 states to develop background check programs.¹ In its 2015 Work Plan, the HHS Office of the Inspector General (OIG) announced plans to review the procedures implemented by participating states to determine the outcomes of the states’ programs and whether the programs have led to any unintended consequences.²

The vast majority of long-term care facilities conduct background checks for at least some of their prospective employees.³ As more states expand their background check systems under the NBCP, these facilities may receive more thorough information about the conviction records of their prospective and current employees. This information will need to be applied effectively and in compliance with applicable legal requirements in making employment decisions.⁴

The NBCP is voluntary, and Federal law does not require long-term care facilities to conduct background checks or exclude individuals from employment based on background check results.⁵ State laws, on the other hand, require many long-term care providers to conduct background checks and to exclude from employment individuals with certain specified criminal convictions.⁶ For example, 41 states require home health agencies to conduct background checks on prospective employees, and 35 states specify convictions that disqualify individuals from certain types of home health agency employment.⁷ As long-term care providers use improved data to comply with state laws and protect their patients, however, they must also contend with new, more stringent EEOC guidance limiting the use of criminal background checks in employment decisions.

Download: Caught Between Laws: Challenges for Health Care Providers in Using Criminal History Information in Employment Decisions

1. “CMS National Background Check Program” (last modified Nov. 3, 2014).
2. OIG Work Plan – Fiscal Year 2015, at 8.
3. Wright, Stuart, HHS Deputy Inspector General for Evaluation and Inspections, “Memorandum Report: Nationwide Program for National and State Background Checks for Long-Term Care Employees – Results of Long-Term-Care Provider Administrator Survey, OEI-07-10-00421” (Jan. 19, 2012), available online.
4. In addition, employers need to ensure that the background checks they perform comply with both the notification and authorization requirements of the federal Fair Credit Reporting Act and, if applicable, state and local “ban the box” legislation prohibiting inquiries into criminal records prior to extension of a conditional offer. (See August 13, 2014 Client Alert.)
5. The OIG has authority to exclude individuals and entities from Federally funded health care programs based on conviction of certain offenses; excluded individuals are added to the OIG’s List of Excluded Individuals and Entities (LEIE). Health care entities have a responsibility to routinely check the LEIE, and to avoid hiring excluded individuals or billing for items or services furnished, ordered, or prescribed by excluded individuals, but are not required to independently conduct background checks or to exclude employees based on the results of background checks separate from the LEIE.
6. Ritchie, Brian P., Acting Deputy Inspector General for Evaluations and Inspections, “Memorandum Report: State Requirements for Conducting Background Checks on Home Health Agency Employees, OEI-07-14-00131” (May 29, 2014), available online.
7. Id.