Background checks in the home care industry are used to help find the best candidate for the job available. They verify that the applicants are who they claim to be, and typically include education, employment history, civil records, references – and, yes, criminal history. Having access to a candidate’s (and existing employees’) criminal history helps home care organizations keep their patients, other employees and even the business itself safe and secure. Elderly and disabled patients are particularly vulnerable to those with nefarious intentions who are providing at-home services, which are often unsupervised. Unfortunately, patients have been the victims of theft and violence by home care workers that were not properly screened in the hiring process, opening home health care agencies to liability exposures along with a damaged reputation.
It’s important to note that although there is no one federal requirement for criminal background checks for home health workers, there are 40 states offering some form of vetting with laws, varying widely from one state to another in how and when criminal convictions can be used. For instance, many states utilize “ban-the-box” initiatives to eliminate employment barriers for qualified job seekers with criminal backgrounds. Furthermore, in certain states, ban-the-box laws prohibit inquiries about criminal history on job applications and prevent use of a background check until the final stages of hiring.
Additionally, some states are going further to regulate a segment of home health care workers, such as in California, which passed the Home Care Services Consumer Protection Act, effective January 2016. This law impacts the people who use home care services, the workers who provide them, and the companies that hire those workers. It requires new state licensing of some companies that provide non-medical home care. The companies that hire home care aides must use only workers who have been background-checked and registered by the state. The companies and employees affected by the California law are those that provide services involving transportation, telephone calls, correspondence, laundry, shopping for personal care products and groceries, meal preparation and planning, and housekeeping. The list of services also includes ambulating, positioning, transferring, exercising, and performing hygiene-related activities such as personal grooming, and toileting issues such as incontinence, dressing, and bathing. The law mandates that companies that employ home care aides must obtain licensing in order to hire such employees. These companies are called home care organizations. (Note: Companies exempt from this regulation include licensed home health care agencies, hospice agencies, retirement communities providing continuing care, residential care facilities that care for the elderly, employment agencies, county service providers, and health facilities.)
Under the California law, home care aides employed by home care organizations that provide “private duty” non-medical home care services must list themselves with a state registry online. They must pass a criminal background check that involves being fingerprinted, and they are required to pay a registration fee. They are also required to go through yearly training mandated by the state, and they must pass a TB (tuberculosis) check.
When conducting background checks, it’s also important that a home health organization follow guidelines released by the Equal Employment Opportunity Commission and the Federal Trade Commission (FTC). Basically, these guidelines mandate that an organization must obtain prior written authorization from applicants and employees to conduct a background check. 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. 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.
It is critical that home health providers – whether they are providing medical and/or non-medical services – conduct background checks prior to hiring individuals and to periodically conduct background checks after an individual has been hired to help mitigate both professional and employment practices liability exposures and safeguard their reputation in the community. Equally important is for organizations to be well versed in the laws and regulations involving background checks in the jurisdictions where they conduct business. Bottom line: It’s good risk management for a home care business to screen their employees – within the parameters of the law – whether or not it is mandated.
Manchester Specialty provides home health care organizations with comprehensive insurance solutions to protect against the various exposures they face, including Entity Professional Liability and Employment Practices Liability coverage. We also have access to discounted background check services to assist your insureds with this important practice in minimizing their risk. For more information about our programs, please contact us at 855.972.9399.