Friday, January 29, 2016

5 Factors To Keep In Mind For Background Checks

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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Tuesday, January 26, 2016

Clarification comes a week after one CMS official had discussed the end of Meaningful Use

Meaningful Use Stage Three to Continue Even As the Agency Moves to Implement MACRA’s Value-Based Payment Law

Talk about mixed messages! Is the federal Meaningful Use (MU) program about to end? Or is it going to continue and evolve in significant new ways?

Alert pathologists and clinical laboratory executives may have picked up on the conflicting statements about the future plans for Meaningful Use that have been made in recent weeks by certain officials from the Centers for Medicare and Medicaid Services (CMS).

Because thousands of hospitals and hundreds of thousands of physicians have made substantial capital investments in electronic health records to qualify for federal incentives, any major change to the Meaningful Use requirements will have broad consequences.

Medical laboratories have a big stake in this issue as well, since they must invest substantial money into creating the interfaces needed to connect their labs’ laboratory information systems (LIS) to the EHRs of client hospitals and physicians.

CMS Drops Bombshell at J.P. Morgan Healthcare Conference

The first significant discussion about major changes to the Meaningful Use program came on January 12, 2016. That’s when CMS Administrator Andy Slavitt, MBA, made the surprise announcement during a speech to the J. P. Morgan Healthcare Conference in San Francisco.

“Now that we effectively have technology into virtually every place [health]care is provided, we are now in the process of ending meaningful use and moving to a new regime culminating with the Medicare Access and Children’s Health Insurance Program Reauthorization Act of 2015 (MACRA) implementation,” declared Slavitt to a surprised audience. “The meaningful use program as it has existed will effectively be over and replaced with something better.”

During his presentation, Slavitt indicated that three provider-reporting programs will be sunset and aligned into a single new program, but he said details of the next stage would not emerge for several months.

Andy Slavitt, MBA, Acting Administrator at the Centers for Medicare and Medicaid Services, surprised physicians and healthcare executives when he announced on Jan. 12 that the meaningful use program, which had rewarded providers for demonstrating their use of electronic health records, would be phased out this year. “The Meaningful Use program as it has existed will now be effectively over and replaced with something better,” he said. (Photo copyright: Politico.)

Slavitt’s comments about ending Meaningful Use were widely reported. While addressing the group, he said that, by phasing out the MU incentive program this year, the agency wanted to streamline and simplify programs in preparation for the implementation of MACRA, which repealed the Medicare sustainable growth rate (SGR) formula that calculated payment cuts for physicians. The new legislation also established a timeline for replacing Medicare’s existing fee-for-service payments with two payment tracks:

2. Alternative payment models (APMs) by January 2019.

Slavitt described the MACRA legislation as a “major item squarely on our punch list [at CMS].”
“The stakes for this program are high,” he told the audience. “As any physician will tell you, physician burden and frustration levels are real. Programs that are designed to improve often distract. Done poorly, measures are divorced from how physicians practice and add to the cynicism that the people who build these programs just don’t get it.”

CMS Gave No Warning MU Was Ending

Given the content of Slavitt’s announcement, reaction to his statements about the impending end to the Meaningful Use program as it now exists caused a big stir among healthcare executives tasked with handling information technologies at their hospitals or physician practices.

Apparently officials at CMS noticed the reaction generated by Slavitt’s presentation at the J.P. Morgan 34th Annual Healthcare Conference. About one week later, a blog post titled, “EHR Incentive Programs: Where We Go Next” was published by CMS on its website. The blog’s authors were Andy Slavitt and Karen DeSalvo, the National Coordinator at CMS. It was a message to the healthcare industry that, in fact, Meaningful Use was to continue. What was changing was that Meaningful Use—the measurement of certified EHR technology by providers—would be managed by CMS in a manner that is consistent with the requirements of the Medicare Access and CHIP Reauthorization Act (MACRA) that Congress passed in 2015.

In a related story about CMS’ new direction for Meaningful Use titled, “CMS, ONC: Transition to MACRA Will Not Mean the Elimination of MU, EHR Incentives,” FierceEMR wrote, “The Meaningful Use incentive program is transitioning, but it’s not over, and electronic health record incentives are here to stay, the Centers for Medicare & Medicaid Services and the Office of the National Coordinator for Health IT clarified on Tuesday [January 19, 2015].”

In their blog comments, Slavitt and DeSalvo also emphasized that CMS is bound, under current law, to continue forward with measuring provider use of EHRs, as required by the Meaningful Use rules. They noted that Stage Three MU would continue. Meanwhile, the agency is moving forward to implement the requirements of MACRA, they said.

Further, the CMS officials noted that the agency had heard the comments and complaints by hospitals and physicians about the burdensome aspect of using EHRs and attempting to comply with the Stage Three Meaningful Use requirements. They wrote, “The approach to meaningful use under MACRA won’t happen overnight. Our goal in communicating our principles now is to give everyone time to plan for what’s next and to continue to give us input. We encourage you to look for the MACRA regulations this year; in the meantime, our existing regulations—including meaningful use stage three—are still in effect.”

Source(s): Andrea Downing Peck,

For more information on this and other healthcare compliance topics related to HIPAA, OSHA, Medicare and HR, simply email your questions to
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Friday, January 22, 2016

I Quit . . . It Began With a Toxic Employee

This is my personal example of how toxic employees hurt organizations.

Many years ago I worked for a new company that was growing fast! It had amazing potential and was just beginning to develop its own unique culture that was different from similar companies within the same industry. My stock in the company was rising quickly. Within six months of being hired, I was being considered for promotion. I loved my job and the people I worked with!

One of my co-workers was rewarded with the promotion that I was seeking. This only helped me work harder and really focused me on being even more productive at my job. My co-worker who was promoted became my supervisor, but we were still close friends. One day, my supervisor came to me and told me that one of my other co-workers came to him and told him various things about me that he knew were not true. He could not figure out why one of my co-workers would try to discredit me so badly.

It was a couple of weeks later that things became more clear. My supervisor came to me and told me that the came co-worker who attempted to discredit me, had just done the same thing to another of his co-workers. It had become obvious that this co-worker was a toxic employee. He was upset that he was not considered for the promotion, so his goal was to discredit all of the co-workers he viewed as competition.

All of the signs of a toxic employee were there:

  • He spread gossip about other co-workers
  • Did not care about his co-workers
  • Only worked hard when somebody was looking
  • He was over-confident
  • Said, "that's their problem", "this is stupid", and "that's not my job"
  • Pushed his work on other co-workers
  • He bullied other co-workers
How companies deal with toxic employees says a lot about the company itself, but it also has a huge effect on its culture. After many complaints about this toxic employee, the company finally responded . . . they promoted him. This toxic employee was promoted into a newly created position and given the chance to work from home 50% of the time.

It turned out that this type of decision making was taking place throughout the company. Toxic employee were being rewarded for their "efforts" in multiple departments. Promoting and rewarding this type of behavior had a ripple effect throughout the company. It was the change to the culture of the company that was most noticeable. Rather than being unique, in a positive way, within their industry, the company earned the reputation as being one of the worst organizations to work for.

If the company would have tried to correct the behavior of these toxic employees or simply terminated their employment with the organization, things might have turned out different. However, as the situation was, during the next few months, many of the effective and productive employees found new places for employment, including myself.

Good and productive employees don't want to work with toxic employees who suck the life out of a company. If there are toxic employees within your company, it is vital that you act quickly to correct the situation. Otherwise, they will have a negative effect on the culture of your company and your best employees will leave.

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Wednesday, January 20, 2016

Using PTO During Inclement Weather

What are your policies for unpredictable time off?

Winter’s here and while it may not be a popular decision, employers can, in some cases, make workers use paid time off (PTO) when severe climate conditions hit and employees can’t get into work, according to a SHRM article.
One legal expert in the article noted that short of a state law prohibition or a written company policy that says otherwise, if the business is open, an employer can make an employee use PTO.  This typically only applies to exempt employees, not non-exempt workers who are only paid if they come to work.

Should the weather become a problem and an employer closes down for a few days as a result, then it has to pay an exempt worker their full salary if the worker has done or eventually does any work at all during the week, no matter where it takes place.
Experts in the article noted that creating a solid “inclement weather policy” is critical, so there is little confusion should bad weather interrupt the work week. Any policy must detail rules for exempt and non-exempt employees.
If an employer is going to invoke PTO use as a possibility for weather-related lost work time, should a business remain open, then that specific information must be spelled out clearly in an effective, legally sound policy. Of course, the same expert warned that invoking PTO under these circumstances could negatively impact worker morale.
Apart from a clear policy on PTO and bad weather, there is also the issue of employee safety. An employer will not want to take responsibility if an employee is ordered to work by a manager during risky weather conditions and the employee has an accident en route. In the end, common sense – and a clear policy on PTO and time off for bad weather – should rule, say experts.
(SHRM website)

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Tuesday, January 19, 2016

The New OSHA Injury and Illness Reporting Requirements

OSHA Launches Serious Event Reporting Online Form

  • Calling OSHA’s free and confidential number at 1-800-321-OSHA (6742).
  • Calling your closest Area Office during normal business hours.
  • Using the new online form.
The online form has only recently become available as a method of reporting. The “Serious Event Reporting Online Form” can now be found at . States under Federal OSHA jurisdiction and those states with State Plans for the Public Sector can use the form but most states with State Plans for both Public and Private Sectors cannot use the form yet.

When reporting using the form, the first step is a validation check – employers are asked to “Enter State of Event to determine reporting requirements.” After the validation check, the form either opens or state-specific information is provided.

One of the Frequently Asked Questions on OSHA’s webpage is:
Q: If the Area Office is closed, may I report the incident by leaving a message on OSHA’s answering machine, faxing the Area Office, or sending an e-mail?
A:  No, if the Area Office is closed, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye using the 800 number (1-800-321-6742).
Section 1904.39(b)(1) clearly notes that the online reporting form may also be used to report an incident when the Area Office is closed:
[I]f Area Office is closed, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye using either the 800 number or the reporting application located on OSHA’s public Web site at
29 C.F.R. §1904.39(b)(1)(emphasis added)

Employers should be aware before starting the online form that they will need to provide some specific information regarding the incident, its location, information about what happened and when it happened, and contact information for the company and for each of the victims. Without answering all the asterisked questions on the form, the submission will be rejected.

For more information on this and other healthcare compliance topics related to HIPAA, OSHA, Medicare and HR, simply email your questions to
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Friday, January 15, 2016

Proposed Changes to the I-9 Form

US Citizenship and Immigration Services (USCIS) has published a notice and comment request in the Federal Register regarding proposed changes to Form I-9, Employment Eligibility Verification. Form I-9 must be completed by an employer for all newly hired employees to verify their identity and authorization to work in the US.
According to USCIS, the changes are needed because, despite the agency’s efforts to improve the form and instructions, employers and employees continue to make errors when filling out the form. Many of the proposed changes would reduce technical errors and help employers and employees complete the form on their computers after downloading it.
For example, the proposed form would:
        Check certain fields to ensure information is entered correctly;
        Provide additional spaces to enter multiple preparers and translators;
        Include drop-down lists and calendars;
        Provide instructions on the screen that users can access to complete each field;
        Include buttons that will allow users to access the instructions electronically, print the form, and clear the form to enable users to start over;
        Provide a dedicated area to enter additional information that employers are currently required to notate in the margins of the form; and
        Generate a quick-response matrix barcode, or QR code, once the form is printed and can be used to streamline audit processes.
Other proposed changes include:
        Requiring employees to provide only other last names used in Section 1, rather than all other names used;
        Streamlining the certification in Section 1 for certain foreign nationals; and
        Separating the instructions from the form to bring the form in line with USCIS’s practices.
Comments, which will be accepted until January 25, 2016, may be submitted electronically. After the comment-period ends, USCIS may make changes to the Form I-9 based on comments received and will publish a second notice in the Federal Register.
Employers should continue to use the current version of Form I-9 until further notice.

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Tuesday, January 12, 2016

The Move Away From Fee-For-Service Healthcare

White House Launches Medicare's Most Aggressive Accountable Care Effort Yet

The move away from fee-for-service Medicare forged ahead for 21 accountable care organizations entering a new more aggressive phase of a program that puts doctors and hospitals at even greater financial risk so they can improve quality, lower costs and potentially reap better pay.

The announcement by the Centers for Medicare & Medicaid Services about the number of participants in the “next generation” ACO model is significant because there had been concern some ACOs would lose interest or wouldn’t take on the more aggressive goals of the program. “In addition to being paid for positive patient outcomes (providers) will also receive penalties for negative ones,” the Obama administration said.

ACOs, which are proliferating across the country, put doctors, hospitals and a team of providers including social workers under the same umbrella to care for populations of patients. The ACO has a contract with Medicare to improve quality, lower costs and then keep any money saved from year to year based on the arrangement with the health plan.
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In all, there are more than 475 Medicare ACOs across the country serving nearly 9 million Medicare beneficiaries since the so-called “Medicare Shared savings program” began in 2012 under the Affordable Care Act. The smaller number in the next generation program are taking on greater financial risks.

Unlike earlier ACOs that have contracted with Medicare, participants can take on more financial risk “up to 100%.”

“We are moving Medicare and the entire healthcare system toward paying providers based on the quality, rather than the quantity of care they give patients,” U.S. Secretary of Health and Human Services Sylvia Burwell said. “Americans will get better care and we will spend our healthcare dollars more wisely because these hospitals and providers have made a commitment to change how they do business and work with patients.”

The ACO program is all part of the Obama administration’s effort announced last year to shift 50% of Medicare payment to value-based models and away from fee for-service by 2018. Large health insurance companies are doing the same thing in the private sector led by UnitedHealth Group, Aetna, Anthem and Blue Cross and Blue Shield plans across the country that are shifting tens of billions of dollars in payments to value-based models like ACOs, medical homes and bundled payments to providers.

While there are challenges in reducing costs while at the same time improving quality, those involved with the “next generation” phase say they see more opportunities to provide more cost-effective options that will still provide Medicare beneficiaries better service.

For example, Universal American, which contracts with Medicare to provide health benefits to seniors, said it is covering telehealth consultations that an ACO in its network will use to keep beneficiaries healthy and at home.

“Telemedicine services received at a beneficiary’s home will be covered and allow physicians to offer care through telephonic, online and other electronic communications,” said Richard Barasch, chief executive officer of Universal American, which contracts with Houston-based Accountable Care Coalition of Southeast Texas, one of the 21 next-generation Medicare ACOs.

For more information on this and other healthcare compliance topics related to HIPAA, OSHA, Medicare and HR, simply email your questions to
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Wednesday, January 6, 2016

New Gun Control Rule Eases Sharing of Mental Health Data

On Monday, HHS finalized a rule allowing certain health care providers to disclose -- without consent -- the names of patients with mental health issues to the FBI's firearms background check database, Politico reports (Pittman, Politico, 1/4).


The National Instant Criminal Background Check System, or NICS, launched in 1998 and is used by gun dealers to ensure they are not selling weapons to individuals who are prohibited from owning firearms, such as individuals with severe mental health issues and those convicted of felonies (iHealthBeat, 5/23/14).
Such individuals are prohibited from purchasing firearms under the 1993 Brady law, which also prohibits individuals who have been involuntarily committed to a mental health facility, found incompetent to stand trial or deemed to be a danger to themselves from owning guns.
However, federal health care privacy rules had prohibited providers from sharing mental health information without the consent of patients (Politico, 1/4).
Meanwhile, many states have declined to release certain information to the NICS, citing prohibitions under HIPAA, despite the law's allowance to disclose data when it is required by law.
In September 2013, HHS' Office for Civil Rights sent a proposed rule to the Office of Management and Budget that would ease legal barriers under HIPAA that prevent some states from reporting certain medical data to the database (iHealthBeat, 5/23/14).

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Final Rule Details

The final rule modifies HIPAA to allow certain covered entities to disclose to the NICS the names of individuals who are barred from owning a firearm for mental health reasons (Slabodkin, Health Data Management, 1/5).
According to The Hill, the rule clarifies that only limited information would be disclosed, such as:
  • A patient's name; and
  • The submitting entity.
The rule states, "Underlying diagnoses, treatment records and other identifiable health information are not provided to or maintained by the NICS" (Ferris, The Hill, 1/4).
Further, the final rule removes the threat of legal repercussions against eligible health providers for disclosing information to the database.
According to Politico, the rule is scheduled to take effect in February (Politico, 1/4).

Obama Admin Unveils Executive Actions on Gun Control

Meanwhile, the White House also unveiled several gun control-related executive actions.
Among other things, the changes target online merchants, who often avoid conducting background checks on their clients despite the high volume of online sales.
Attorney General Loretta Lynch (D) said, "Right now it's really an Internet loophole," adding, "Gun sales are moving online" (Shear/Lichtblau, New York Times, 1/4).
The executive actions clarify that online firearms merchants must obtain a license, just like their brick-and-mortar counterparts. Further, the Bureau of Alcohol, Tobacco, Firearms and Explosives created an Internet Investigations Center to track illegal online trafficking of firearms.
The executive actions also include proposals to improve the efficiency and effectiveness of the background check system (White House release, 1/5).