Home Health & Hospice Week

What you need to know to prepare for stricter requirements.

Ohio is the latest state to adopt stricter criminal background check laws for home health agencies. And growing media attention to criminal acts by home care workers, combined with lawmakers’ renewed interest in strengthening background checks for health care staff, is putting your HHA in a position for serious change.

Thanks to the Affordable Care Act’s provision to create a National Background Check Program for various providers -- including HHAs and hospices -- more and more states are opting to participate as they tighten up laws on home care workers’ criminal background checks. The Act’s provision even offers financial support for states that elect to adopt the NBCP standards.

Remember: The higher the risk, the tougher the background checks. When you’re hiring someone "to work with vulnerable people, a higher degree of due diligence is needed," stresses attorney Lester Rosen, founder and president of Employment Screening Resources.

Prepare For Heightened Scrutiny

And the fact that states are adopting stricter background-check laws for HHAs isn’t surprising, says attorney Elizabeth E. Hogue, Esq. "Horror stories about home care staff who steal from patients or who assault them appear every once in a while in the media and seem to feed the flames," she notes.

The media does tend to sensationalize any instances of home care workers taking advantage of vulnerable patients and make them sound like regular occurrences. "On the other hand, I have never seen any statistics about the number of these types of events or the percentage of home care workers who engage in them, so perhaps it is more rampant than we realize," Hogue says.

Do You Have A System In Place?

Best practice: "In order to prepare for these more stringent requirements, I think agencies need to be certain that they have a system or process for tracking and reviewing the results of background checks," Hogue advises. "Once a system is in place, it will be less likely that mistakes will be made. The person responsible for the system must be very reliable and detail-oriented because they are sometimes responsible for hundreds of staff in this regard."

In some states, not just any run-of-the-mill system will do. In Ohio, for instance, the new law requires more detailed and thorough background checks. These checks include searching more state and national databases, including searching lists of sex offenders, abuse charges and prison inmates.

Unfortunately, background checks are not perfect, Rosen states in guidance posted on his website (www.esrcheck.com). "Although mistakes are uncommon, there are technical reasons why a person can come up ‘clear’ when in fact they have a criminal record." This can happen when you omit a check of a court system or when the applicant has used different names in the past.

Don’t Forget About Checks After Initial Hire

"A key question is what staff may do after they are employed, because many states require background checks only upon hire," Hogue points out. "It seems that there may be a trend to check current staff, too, on an annual basis which is, of course, much more costly and burdensome for agencies."

Example: In Ohio, the new law mandates criminal background checks for home health workers every five years during their employment. In other states, home care and hospice workers have background checks even more frequently, such as every three years.

Just because the employee had a clean criminal record when you hired her doesn’t mean that she hasn’t committed a significant crime during the time of her employment. Even if no incidents occurred at your HHA, the employee may moonlight for another agency or privately, where she had abused or stole from a patient.

Takeaway: "The proverbial ‘bottom line’ seems to be that agencies should do as much as possible to be certain that staff sent to vulnerable patients’ homes cause no harm to patients or their property in view of the fact that agencies cannot provide direct supervision," Hogue recommends. "From this perspective, additional safeguards may be warranted."

Beware Of New EEOC Guidelines, Too

While you’re strengthening your background check process, beware that the Equal Employment Opportunity Commission recently made significant changes to "Enforcement Guidance on the Consideration of Arrest and Conviction Records under Title VII of the Civil Rights Act of 1964."

"Aside from an agency simply making such background checks part of their hiring process, it is important for them to be aware of the EEOC guidance concerning the use of criminal background checks," says attorney John Gilliland with The Gilliland Law Firm PC. You must abide by Title VII if your agency "employs at least 15 employees during each working day in each of 20 or more calendar weeks in the current or preceding year."

And even if your HHA isn’t subject to Title VII, beware that some states -- like Indiana -- have similar laws, Gilliland notes. The Title VII changes set forth discrimination prohibitions related to employers’ use of criminal records in making employment decisions (see story below for more details on the EEOC changes). The EEOC has defined two main categories of unlawful discrimination:

1. Disparate treatment occurs when your treat one individual differently because of her race, national origin, or other protected bias, Gilliland says. Example: You reject an African American applicant based on her criminal record but hired a similarly situated White applicant with a comparable criminal record.

2. Disparate impact occurs when your policy or practice "has the effect of disproportionately screening out a group protected by Title VII, e.g., due to race or national origin," Gilliland explains. The only exception to this rule is if you can prove "that the policy or practice is job-related for the position in question and is consistent with business necessity."

Resource: To read the entire updated guidance from the EEOC, go to www.eeoc.gov/laws/guidance/arrest_conviction.cfm.