GUEST COLUMN

OIG broadens background checks for home health

By John C. Gilliland, II
Health Care Attorney
Crestview Hills, KY

News: The Office of Inspector General’s (OIG) Compliance Program Guidance for Home Health Agencies states that home health agencies should conduct reasonable and prudent background investigations of applicants for employment and prohibit the employment of individuals who have been recently convicted of a criminal offense or who are listed as debarred, excluded, or otherwise ineligible for participation in federal health programs. Consistent with that recommendation, as part of the federal budget package passed last October, Congress included a process for home health agencies to request FBI criminal background checks of applicants for employment.

Background: For the past several years, the number of states which require criminal history checks for home care employees has steadily increased. In some states, detailed requirements are established by statute and address such matters as what crimes prohibit home care employment and for whom and when criminal history checks must be conducted. In other states, the requirement is general, stating only that agencies must conduct such checks. When a state does address the issue, it typically requires criminal history checks for clinical staff employees but not office staff.

The increasing concern of state governments to have the criminal background checks of home care employees also has been reflected in the proposed new Medicare conditions of participation for home health agencies. In the proposed COPs, HCFA proposed criminal background checks of home health aides stating:

"Home care patients are a vulnerable and confined population. It is necessary to ensure the provision of safe, quality care to patients in their homes. We are proposing one specific measure in this proposed rule — a criminal background check of home health aids as a condition of employment. . . . Proposing criminal background checks as a condition of employment for home health aides is one vehicle to guard beneficiaries from abusive practices in the sanctity of their homes. . . ."

Although state and Medicare requirements focus on criminal background checks of clinical employees, the desirability of criminal and other background checks for all employees was recently emphasized by the OIG of the United States Department of Health and Human Services. In the OIG’s Compliance Program Guidance For Home Health Agencies the Inspector General stated:

"For all new employees who have discretionary authority to make decisions that may involve compliance with the law or compliance oversight, home health agencies should conduct a reasonable and prudent background investigation, including a reference check, as part of every employment application.

"The application should specifically require the applicant to disclose any criminal conviction . . . or exclusion action. Pursuant to the compliance program, home health agency policy should prohibit the employment of individuals who have been recently convicted of a criminal offense related to health care or who are listed as debarred, excluded, or otherwise ineligible for participation in federal health care programs. . . ."

Aside from fraudulent activity, the OIG recommended:

"Since providers of home health services have frequent, relatively unsupervised access to potentially vulnerable people and their property, a home health agency should also strictly scrutinize whether it should employ individuals who have been convicted of crimes of neglect, violence, or financial misconduct."

The federal government’s concern for background checks of home care employees also was addressed by Congress in the recent federal budget package for fiscal year 1999.

Title I, Section 124, of the conference report permits home health agencies to submit a request for FBI criminal history information for applicants for employment in a position involved in direct patient care. Regulations concerning how to make such requests must still be established, but requests will need to be submitted within seven days after fingerprinting the applicant and a fee, not to exceed $50 per request, may be charged.

Finally, aside from specific statutory or regulatory requirements, there also is the issue of negligent hiring. Failure to conduct a reasonable and prudent background check of a home care employee could provide the basis for a lawsuit against your agency. If a patient is harmed by an employee for whom a background check was not conducted, and the check could have avoided that harm, your agency could be held to have been negligent in its hiring procedures.

What This Means to You: Clearly, the trend is to require or, at least, strongly encourage home health agencies to conduct background checks for employment applicants. When a state law requires background checks, it tends to be for criminal background checks of clinical employees to guard against hiring persons who would present a risk to patients. But, as recommended by the OIG, an effective corporate compliance program goes beyond criminal history checks for clinical staff and includes checks of other employees for financial misconduct and exclusion from participation in federal health programs.

As you develop your agency’s policies concerning background checks, there are a number of things you should consider:

What does your state law require? Does your state require any type of background checks for home care employees? If so, what are the specific requirements? If your agency provides services in more than one state, you need to know the law of each state. Your policies must be consistent with applicable state law.

1. Subjects of background checks.

You need to identify what job titles or employment classifications will be subject to background checks. Are you going to conduct background checks only for clinical employees, or will you follow the advice of the OIG and have background checks for any employee exercising discretionary functions in your agency? Perhaps you will conclude that it is best to conduct background checks for all employees of your agency because. It is conceivable that any employee could become involved in fraudulent activity.

What about independent contractors? Will you require background checks for them, too? The OIG recommends it.

2. Applicants for employment and current employees.

You may require background checks for applicants, but what about current employees? If it is important to have background checks for new employees, it would seem just as important to check the backgrounds of your present employees.

3. Nondiscrimination issues.

Because members of some minority groups are arrested more often than whites in proportion to their numbers in the population, courts have held that a conviction for a felony or misdemeanor may not, by itself, lawfully constitute an absolute bar to employment. The concern is that making a conviction an absolute bar to employment will have a disproportionate affect on the employment opportunities of members of those minority groups.

The courts have held, however, that an employer may give consideration to the relationship between a particular conviction and an applicant’s fitness for a particular job. The decisions indicate that misdemeanor and felony convictions can be cause for rejection only if their number, nature, and recentness would cause the applicant to be unsuitable for the position. In other words, a mere conviction cannot bar employment; you have to determine the relevance of the conviction to the job. Note, however, that some state laws may absolutely bar home care employment of individuals convicted of certain specific crimes; you need to check your state’s law.

Part of your employment policies concerning criminal conviction information probably will include inquiring about prior criminal convictions on written applications for employment. Reflecting the legal requirements from a nondiscrimination perspective, it is important to accompany such inquiries with a statement that a conviction record will not necessarily be a bar to employment and that factors such as age and time of the offense, seriousness and nature of the violation and rehabilitation will be taken into account. Subject to what your state’s law may require, possible wording in that regard could be:

"Have you ever been convicted or pleaded guilty to a felony or misdemeanor? If so, please explain. (Note: A conviction record will not necessarily be a bar to employment. Factors such as age and time of the offense, the seriousness and nature of the violation and rehabilitation will be taken into account.) "

You also should inquire about exclusion from participation in health care programs. Wording in that regard could be:

"Have you ever been debarred, excluded, suspended, or otherwise made ineligible for participation in any federal or state health care program, such as Medicare or Medicaid? If so, please explain."

4. The background check itself.

You will need to decide what background checks your agency will conduct. Possibilities in that regard are noted in the sidebar to this article.

5. Payment for the background check.

You need to check your state law to see if there is any prohibition on requiring an applicant for employment to pay any fees required for a background check. In the absence of such a prohibition, you probably can place the expense on the applicant.

6. Types of criminal convictions which are relevant to various jobs in your agency.

Unless restricted by state law, what criminal convictions will be relevant to you in deciding to hire someone is at your discretion. From a nondiscrimination perspective, you should only consider convictions which are relevant to the job involved. For example, for clinical employees you would be concerned with crimes involving abuse, physical violence, or theft, to name a few. For persons working in the office and dealing with claims submission and billing, you would be especially concerned with convictions for crimes involving financial responsibility, e.g., embezzlement, fraud, tax evasion.

If the background checks are handled by the hospital’s human resource department, be sure it is knowledgeable concerning the nature of home care employment. Some convictions which might be acceptable in a hospital due to direct supervision of the employee may not be prudent in home care where employees function much more autonomously and third party reimbursement is greatly dependent upon the employee’s documentation.

7. Conditional hiring.

Because of the delay in obtaining the results of a criminal background check, some agencies may want to hire someone immediately subject to a satisfactory background check. If the background check is unsatisfactory, the employee may be terminated. Agencies taking this approach must be concerned with the potential liability for negligent hiring if they conditionally employ a person who harms a patient before the criminal history is received and that history shows convictions for abuse. If it was important to conduct the criminal background check in the first place, it would seem to be equally important to know the results prior to placing the employee in a position which could result in harm to the patient or fraud in the operation of the agency.

Dealing with the delay before the results of a criminal or other background check is received appears to be one of the biggest problems for agencies.

8. Enforcement of policy.

Finally, whatever policy you adopt, be sure that you follow it. The policy will be evidence of the standards you have adopted for the operation of your own agency. Do not commit yourself to an approach you will not follow.