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.