Compliance Tips for Employee Background Checks
When
it comes to background checks and credit checks, healthcare employers, like
those in other regulated industries, have to comply with a myriad of
regulations. Not only do healthcare employers have to follow the same
background check laws that apply to any employer, but additional regulators
such as the Department of Health and Human Services (HHS) Office of Inspector
General (OIG) and the Centers for Medicare and Medicaid Services (CMS) also
come into play, and even certain sections of the Affordable Care Act (ACA) have
specific implications for healthcare background screening.
As
you review your background screening process and policies, here are five key
factors to keep in mind.
●
Be
Mindful of ‘Ban the Box’
In case
you’re not familiar already, “Ban the Box” is an initiative that provides
applicants a fair chance by removing the conviction history question on job
applications and delaying the background check inquiry until later in the
hiring process. Although not all areas are affected by these policies, over 100
cities and states have adopted them and last November, President Obama issued
an executive order “banning the box” for federal employees. “Ban the Box” has
very much become a nationwide movement and employers should be extremely
mindful of any state, federal, or local policies affecting them.
●
Don’t
Use “Blanket” Exclusion Policies
According
to the Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on
employers’ use of arrest and conviction records in hiring; employers must not
establish blanket hiring policies disqualifying individuals with criminal
histories. While employers can still conduct background checks, they should
focus on the relevance of the criminal history to the position sought. The
Guidance establishes performing individualized assessments as a best practice
for compliance.
●
Follow
FCRA Requirements for Using Consumer Reports
Any
employer running criminal background checks must review and comply with the
“Notice to Users of Consumer Reports,” a document revised by the Consumer
Financial Protection Bureau (CFPB) which establishes employers’ duties and
responsibilities under the federal Fair Credit Reporting Act (FCRA). The
document outlines that employers can only order background checks when there’s
a permissible purpose, that they must make a proper disclosure, obtain consent,
make specific certifications to a Consumer Reporting Agency (CRA) – which
includes third-party background check firms – and follow adverse action
responsibilities.
●
Don’t
Combine Disclosure/Authorization Forms With Anything Else
The
disclosure requirement of the FCRA is a key area that has been under significant
scrutiny in the last few years. Employers must make a proper disclosure to the
applicant and obtain consent. The disclosure has to be on a separate
stand-alone document unencumbered by extraneous information. This means
employers should steer away from adding extra verbiage to it or combining it
with the employment application.
●
Run
Comprehensive Exclusion Checks on all Healthcare Personnel
According
to OIG’s Special Advisory Bulletin issued in May 2013, healthcare employers
cannot make payments to excluded personnel. The Advisory Bulletin established
monthly screening of the OIG List of Excluded Individuals and Entities (LEIE)
as a best practice. Checking the LEIE, however, is not enough. Section 6501 of
the ACA requires states to terminate any individual or entity if they are
terminated under Medicare or any other Medicaid State Plan. For healthcare
employers, this means that screening all providers and staff against all
publicly available state Medicaid exclusion lists is the recommended best
practice for ACA compliance.
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