Criminal Background Checks

February 22, 2021 | Health System Risk Management


State statutes or regulations may require healthcare employers in the acute care sector to obtain criminal background checks of individuals seeking employment for certain types of healthcare positions, or for current employees in those positions. State laws vary significantly as to which employers must conduct background checks, which databases they must check, which job positions require background checks, what types of convictions may prohibit employment in hospitals or other healthcare facilities, and whether criminal background checks are routinely required after the employee's initial hire.

Background checks should encompass obtaining information about regulatory noncompliance. The U.S. Department of Health and Human Services' (HHS) Office of Inspector General (OIG) provides a List of Excluded Individuals and Entities (LEIE) through their LEIE downloadable databases, which identifies healthcare personnel who have been charged with fraud, abuse of patients or residents, or other crimes, thus precluding them from participating in any federally funded healthcare program, including Medicare and Medicaid. Healthcare organizations must check the list before hiring because no program payment will be made for services or items that an excluded person furnishes, orders, or prescribes. Strategic Insights for Health Systems links to this list each month.

Strategic Insights for Health Systems

Employment background checks may be conducted by government agencies or private enterprises, such as credit reporting agencies regulated by the Fair Credit Reporting Act (FCRA), using various databases. Credit reporting agencies may maintain their own proprietary databases and compile information from various sources, such as those described here. However, the accuracy of the information in the reports depends on the extent to which the enterprise has updated or otherwise verified the information it obtained from source databases. A common problem, for example, is inclusion of arrest records without any indication of whether a person was convicted (Appelbaum). Employers may obtain criminal history information from vendors that supply such information, but when doing so, employers must abide by requirements of the FCRA. The act considers such vendors to be consumer reporting agencies and thus requires employers to obtain the individual's written consent to conduct the background check, among other obligations.

State law enforcement agencies (e.g., state police) conduct statewide background checks regarding crimes committed within that state. Federal Bureau of Investigation (FBI) background checks are conducted by state law enforcement agencies that provide identifying information and a set of fingerprints to the FBI to match against criminal background information maintained in the FBI database. The FBI database includes information on federal crimes and crimes reported by states. However, information in FBI records may not indicate whether the victim of a crime was a resident of a long-term care facility or a patient in an acute care facility—information that a reasonably prudent employer would find relevant in interpreting the applicant's background. Consequently, additional background information should be obtained from other sources. By some estimates, only half the records at the FBI have up-to-date information. (Fields...

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