State Requirements for Conducting Background Checks on Home Health Employees

The importance of background checks and screening in hiring home health employees can’t be understated in light of the enormous responsibility they have in patient care and safety, and their access to vulnerable populations such as the elderly, people with disabilities or convalescents in their homes.

However, there are primarily state regulations, but no federal laws or regulations, that require home health agencies (HHAs) to conduct background checks prior to hiring individuals or to periodically conduct background checks after individuals have been hired. In fact, state requirements for background checks vary as to what sources of information must be checked, which job positions require background checks, and what types of convictions prohibit employment. (Note: Background checks are a requirement if an organization wishes to participate in Medicare.)

According to a 2014 report issued from the Office of Inspector General (OIG), of the 50 states and the District of Columbia, 41 states (and D.C.) required HHAs to conduct background checks on prospective employees. Of the 10 states that had no background check requirement, four states reported that they had plans to implement background-check requirements. Thirty-five states specify convictions that disqualify individuals from employment, and 16 of these 35 states allow an individual who has been disqualified from employment to submit an application to have his/her disqualification waived.

There are two types of background checks that states may require home health care agencies to use, according to the OIG: Statewide and Federal Bureau of Investigation (FBI). Statewide background checks are typically conducted by a state law enforcement agency, such as the state highway patrol or state police, and include information about crimes committed by the individual within that state. In an FBI background check, a state law enforcement agency initiates the process by providing the FBI with an individual’s identifying information and a set of fingerprints. The FBI checks them against the criminal background information maintained in its database and sends the results back to the state law enforcement agency. The FBI’s database includes information both on federal crimes and state-reported crimes from all states.

In addition, the Affordable Care Act (ACA) established the National Background Check Program for national and state background checks on direct patient access employees of long-term care facilities and providers. This voluntary program awards grant funds to states to conduct background checks on prospective long-term-care employees. Under the program, prospective “direct patient access” employees in any of 10 provider types, including HHAs, must perform three types of background checks: checks of state databases, such as abuse and neglect registries; checks of statewide criminal history records; and checks of FBI criminal history records. But there are limitations with FBI background checks, as the agency relies on local, state, and federal law enforcement agencies to report criminal records. It is possible that not all criminal history record information is accurate and up to date. For this reason, many HHAs also report checking other sources of information as well – a best practice that should be followed by all home health care agencies.

Employee Background Checks Best Practices

Following are several best practices for employee background check for home health care agencies when hiring employees:

  • For thorough background and employment verification, use services available to the health care industry offering tiered packages that include: a validated criminal database, arrest records, a validated nationwide sex offender registry search, a validated Department of Corrections search, Social Security number verification, government sanctions, medical fraud and abuse.
  • Additional screening services are also available and recommended, depending on the employee and job responsibility, including searches involving Medicare/Medicaid sanctions, education verification, employment verification, medical license verification, drug testing, and motor vehicle reports, among others.
  • If the HHA is in a state that requires an FBI fingerprint background, be sure to comply with the law, but again, it’s highly recommended that the organization also conducts a primary source criminal background check, such as county criminal record searches. This ensures that you are checking the latest publicly available information as it’s estimated that the FBI database is missing final disposition information for at least half of the records in the system, which can impact the safety of patients.
  • In addition to conducting thorough background checks on potential new hires, it’s also important to ensure that an HHA conducts background checks on its staff on an ongoing basis. Background checks represent a moment in time, and the information may change as time goes on. In fact, over the last few years, there have been calls by several states for increasing oversight and requirements for the home health care workforce, with some states making criminal background checks more frequent, detailed and uniform among home- and community-based care workers.
  • Be sure the HHA reviews its practices to ensure compliance with federal laws as well as any state requirements regarding background checks. In March of 2014, the EEOC and the Federal Trade Commission (FTC) released two short guides explaining how both agencies’ respective laws apply to background checks performed for employment purposes. One guide is available for employers, the other for employees.

In a nutshell, an organization must obtain prior written authorization from applicants and employees to conduct a background check. Also, applicants and employees must be notified that a background check will be conducted. The employer must describe the scope of the background check, and inform applicants and employees that information received from the background check may result in adverse employment action. This notice and authorization should be on a separate page from the job application itself. Moreover, the applicant or employee must be notified that a refusal to authorize the background check may result in adverse employment action, such as rejection of the application or termination of employment. If adverse employment action is to be taken based on any part of the results of the background check, the applicant or employee must be provided with written notice at least seven days in advance, along with a copy of the background check and the FTC’s summary of rights under the FCRA. After the adverse action is taken based on a background check report, the applicant or employee must be issued a second notice, advising them that they were not hired (or were discharged or disciplined) because of information in the report, providing the name and contact information of the company that provided the report, and providing certain additional information, including the individual’s right to dispute the accuracy of the report and to obtain a free report from the report provider within 60 days.

Employment background checks are a critical component in the hiring process and staffing for home health care firms, and one of the most effective ways to ensure that employees do not have a record that jeopardizes the organization and its clients. An HHA must review each state’s background check requirements and ensure that its policies comply with the law.  In addition, it’s prudent to review a home health agency’s Professional Liability insurance program and Employment Practices Liability Insurance (EPLI) to make sure coverage will respond should a workplace-related issue arise, such as claims of discrimination, wrongful termination, and harassment, among others.

Manchester Specialty offers a full portfolio of insurance and risk management services to the home health care industry, including EPLI coverage; HR tools for policies, guidelines and procedures; and access to, and discounts on, employment verification and criminal background check services. For additional information about all of our products and services, you or your local agent/broker can contact us at 855.972.9399.