Download NAHC Background Checks Statement 9-25-14

September 25, 2014
Chairman Tim Walberg
Ranking Member Joe Courtney
Subcommittee on Workforce Protections
Committee on Education and the Workforce
U.S. House of Representatives
Washington, DC 20515
Dear Chairman Walberg and Ranking Member Courtney:
Thank you for the opportunity to present our views on background checks in connection with
your September 17, 2014 hearing on H.R. 5423, the Certainty in Enforcement Act of 2014. The
issues involved in screening prospective employees for criminal record backgrounds have been
longstanding in home care, presenting a myriad of challenges in complying with state and
federal laws regulating the home care community as health service providers, engaging in best
practices in employment and service, and fully respecting the civil rights of applicants for
employment as well as existing employees. My testimony focuses on the recent Enforcement
Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
under Title VII of the Civil Rights Act of 1964 issued by the Equal Employment Opportunity
Commission.
At the outset, it must be stated that the National Association for Home Care & Hospice (NAHC)
and its members fully support efforts to ensure all civil rights guaranteed to employees and
applicants for employment. Likewise, NAHC supports all appropriate efforts to protect the
highly vulnerable patient population served in home care along with the integrity of the
numerous federal and state programs that finance this essential care.
In that regard, NAHC strongly supports the use of criminal background checks as an
employment screen for individuals who have direct patient contact, access to health
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information on patients, or responsibilities related to health care financing, including payments
by federal and state health care programs. Comprehensive criminal background checks are an
essential tool for home care providers in meeting their responsibilities to protect patients,
payers, and their organization.
Background on Home Care
Home care is a very diverse set of services provided to every age group throughout the nation.
It is estimated that over 12 million people receive home care from non-family members each
year. The patients and clients range from newborns to those in their end of life. Pediatric home
care includes high tech services such as ventilator care to newborns and much more.
Developmentally disabled youths and adults receive extensive skilled and personal care
services. Persons with physical disabilities also rely on extensive home care to remain in the
community. The elderly population is the predominant recipient of home care, much of it
funded by Medicare, Medicaid, the Administration on Aging, state programs, and through
private payment. Medicare alone covers 3.5 million beneficiaries each year under its home
health benefit. Medicaid covers many more with nearly $60 billion in spending for skilled and
personal care services
Typically, home care patients/clients are confined to their home due to the severity of their
illness, injury, mental limitations or functional incapacity. Many of the elderly patients/clients
live alone or with their aged spouse. Home care patients/clients are among the most vulnerable
citizens in the country, subject to acute and chronic infirmities, dependent upon others for their
recovery or maintenance of activities of daily living. As such, they are at high risk of abuse—
physically, emotionally, and financially. In addition, many patients/clients use multiple
prescription medications thereby creating an opportunity for others to acquire drugs otherwise
not available to them. Finally, many home care patients/clients receive funding for their care
from government programs, creating a risk of fraud by the provider.
The risks referenced above are heightened by the fact that in many instances the home care
caregiver is alone with the patient/client. While supervision does occur, it is periodic rather
than continuous and may not even occur with the caregiver present.
It is estimated that the total professional and nonprofessional caregivers in home care is
approximately 2 million persons. The US Department of Labor estimates the nonprofessional
workers at nearly 1.7 million and growing rapidly. While the actual number of paid individual
caregivers is unknown, California, for example, uses several hundred thousand in a Medicaid
program known as “In-Home Supportive Services.”
The nonprofessional caregivers are personal care assistants, homemaker-home care aides, and
home health aides. Under Medicare home health and hospice benefits, home health aides are
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credentialed through training, competency testing, and ongoing in-service training. These aides
are employed by Medicare participating home health agencies and hospices that adhere to
comprehensive Conditions of Participation. Outside of the Medicare services, the
nonprofessional staff may be comparably credentialed through state licensure requirements,
payer standards, or on a voluntary basis. However, not all aides are credentialed.
Professional staff includes nurses, physical therapists, speech-language pathologists,
occupational therapists, respiratory therapists, dieticians, medical social workers and others.
The vast majority of these professional workers are subject to state licensing requirements.
Home care providers range from individuals to small “mom and pop” sized companies to large
public companies to international franchise operations. Some home care companies are
affiliated with a health care institution or health system. Others are freestanding. There are
over 12,000 Medicare participating home health agencies, over 3,000 Medicare hospices, and
estimated 15-20,000 private pay enterprises across the country.
While the situational and environmental risks may be high, home care providers have taken
their responsibilities to protect the patient/client and the payers of the services very seriously.
Among the valuable tools available to mitigate the risks are criminal background checks on
existing and prospective staff.
USE OF BACKGROUND CHECKS
State Requirements
According to the National Conference of State Legislatures, all states except Louisiana,
Montana, Nevada, and North Dakota have laws governing criminal background checks for some
level of in-home direct care workers. “State Policies on Criminal Background Checks for InHome Direct Care Workers,” National Conference of State Legislatures, prepared for AARP
Public Policy Institute, December 18, 2008. In California, Kansas, South Dakota, Tennessee, and
Vermont the background checks are discretionary for some or all of the employees listed in the
state statute. However, the voluntary nature may be illusory as some states, such as California,
preclude Medicaid payment for those convicted of certain crimes. The state requirements vary
widely, with many states limiting the background checks to “home health agencies,” while
others requiring checks for all licensed home care providers and services financed through
programs such as Medicaid.
Most states prohibit employment automatically if designated criminal offenses are revealed by
a criminal history. Only a few states allow employers to decide whether a background warrants
disqualification or do not mention disqualifying crimes in the statute. For example, North
Carolina lists a number of crimes such as homicides, sex-related offenses, offenses against
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vulnerable individuals, drug-related offenses, and fraud, but gives the home health agency
complete discretion on whether to disqualify the individual based on these offenses. Where
disqualification is automatic, the offenses vary from state to state, but generally include
homicide and other violent crimes, fraud, and drug-related crimes.
The time period for automatic disqualifications varies as well. Some offenses such as homicide
or criminal sexual assault can lead to a lifetime employment ban. Others have time limitations,
such as a 15 year ban following completion of sentence or probation in Minnesota for fraud
against federal health programs.
Many states offer waiver or appeal rights that can give an opportunity to reconsider an
employee applicant despite the criminal record. NCSL reports that 25 states outline some type
of waiver or appeal process. In some of these states, a disqualification can be overturned upon
evidence of successful rehabilitation. Accuracy appeals are also available.
Finally, some states allow for conditional employment pending the outcome of the criminal
background check. Conditional employment may be time-limited or subject to direct
supervision.
NCSL concludes that “[t]he widespread use of mandatory criminal background checks for inhome direct care workers suggests states view the process as an important screening tool for
hiring qualified workers for older people and people with disabilities.” NAHC agrees with this
view.
Federal Requirements and Activity
While most laws requiring criminal background checks in home care originate at the state level,
these state laws are given federal effect through Medicare laws that require providers of
services to comply with all applicable State laws and regulations including any state and local
licensing requirements. See, e.g. 42 USC 1395x(o)(4); 42 CFR 484.12 (Medicare Conditions of
Participation for Home Health Agencies).
Specific federal activity involving criminal background checks in home care is growing and
evidences a strong Congressional and Administration interest in using the checks as a tool to
protect patients and federal payment programs. Section 307 of the Medicare Prescription Drug,
Improvement, and Modernization Act (MMA) of 2003 (PL 108-173) created a pilot program
within the Department of Health and Human Services “to establish a program to identify
efficient, effective, and economical procedures” for conducting state and federal checks on
prospective home care employees. Seven states originally participated in the pilot program. The
program’s success led to a congressionally-authorized nationwide expansion under Section
6201 of the recent Patient Protection and Affordable Care Act (ACA). Section 6201 establishes
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federal minimum standards on the use of background checks while allowing states to establish
certain parameters including the addition of disqualifying crimes. Overall, the program is a
strong indication that national policy favors the use of criminal background checks in home
care. The program established under MMA and expanded under the ACA creates a framework
for federal home care programs while allowing states to tailor the background check
requirements to meet their unique goals and standards.
The original pilot program indicated effectiveness while not triggering wholesale
disqualifications. The report on the pilot revealed that of the 204,339 background checks,
158,476 employees were cleared for employment with 269 of those cleared based on
rehabilitation review and appeals processes. “Evaluation of the Background Check Pilot
Program—Final Report,” Abt Associates, Inc., August 2008. The pilot disqualified 7,463
applicants with an additional 38,400 records withdrawn prior to a final fitness determination
decision. Abt suggests that the withdrawn may include those deterred based on an expectation
of disqualification or unrelated reasons.
Any concern about the disparate racial or ethnic impact of using disqualifying criminal
background checks in home care is likely misplaced. Home care is the fastest growing
occupation in the US according to the Bureau of Labor Statistics (BLS). Among the areas
employment projected to grow the most is personal care attendants, home care aides and
nurses. In many parts of the country there already is a staff shortage. That is not an
environment for improper or illegal discrimination. Also, the facts currently demonstrate that
employed home caregivers are 48% white non-Hispanic, 31% African American, 15% Hispanic
and Latino, and 7% other race/ethnicity.
It is notable that in six of the seven pilot states, the fitness determination was made not by the
employer but by analysts that worked either for the State health care provider regulatory
agency or the State central repository. In such a process, the risk of discriminatory rejection of
employment by the employer is no concern.
Further federal support for the use of criminal backgrounds checks in home care is found in the
Medicare hospice program. Since 2008, Medicare has required all participating hospices to
obtain a criminal background check on all hospice employees who have direct patient contact
or access to patient records, 42 CFR 418.114(d). Subcontractor staff are also subject to the
same requirement. Under the rule, hospices must obtain the background in accordance with
state law. In the absence of state law requirements, the hospice must obtain criminal
background information within 3 months of the date of employment for all states that the
individual has lived or worked in the past 3 years.
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EEOC GUIDANCE
As stated, NAHC strongly supports full compliance with all civil rights law related to
employment. At the same time, NAHC supports appropriate use of criminal background checks
in the screening of workers who provide direct patient care in the home and those who have
access to sensitive health care or identity-related information.
The recent EEOC guidance is a thoughtful effort to provide direction to employers that must
comply with civil rights laws along with laws requiring or encouraging prospective employee
criminal background checks to protect vulnerable consumers and others. However, the
guidance presents complexities and confusion for most home care businesses and could benefit
from simplification.
It is always difficult for businesses to comply with state and federal laws that may actually
require conduct that is inconsistent or in conflict. With home care services, that difficulty is
readily apparent as most states require criminal background checks that either mandate the
exclusion of a prospective employee from employment or strongly encourage such while the
EEOC guidance appears to establish a position that such exclusion is presumptively a violation
of civil rights laws.
The guidance is useful in distinguishing between acceptable and unacceptable uses of criminal
background checks in hiring processes and decisions. However, it presents itself in a nature and
form that renders it useful only for a small segment of the population capable of digesting its
complex, 52-page legal analysis.
Most home care businesses are small operations without in-house legal staff or access to the
resources necessary to consult expert legal counsel on hiring policies and decisions. Certainly, it
is not feasible for most home care companies to render compliant “individualized” hiring
determinations involving applicants with criminal backgrounds supported by expert legal
representation and guidance. The volume of hiring decisions alone make such impractical and
uneconomical.
The NAHC membership consists of the wide range of home care companies presented by the
industry at large. In recent weeks, we consulted with various members to determine how they
have reacted to the new EEOC guidance. While admittedly anecdotal, the information gathered
indicates that the vast majority of smaller companies are unaware of the guidance and do not
routinely employ legal counsel on hiring policies, practices, or decisions. Those companies
aware of the guidance expressed confusion triggered by the complexities of the guidance,
particularly with respect to discretionary employment disqualifications.
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Most home care companies consulted expressed that the hiring decisions are primarily guided
by state law when employment disqualification is required. They cite the vulnerable population
that they service and the program integrity responsibilities they have to the various third-party
payers. This operational approach may be summarized as one where doubts about whether to
hire someone with a criminal background are resolved by favoring disqualification in order to
protect patients and payers.
At the same time, the home care companies consulted indicate that they do hire individuals
with criminal records when not otherwise specifically prohibited from doing so under state law.
With these, the companies take a variety of factors into account including the nature of the
offense subject to conviction, post-conviction activities of the person, and the length of time
since the conviction.
The approaches taken to criminal records may be fully compliant with the guidance. However,
its denseness and complexity can leave one with too many uncertainties for comfort.
HR 5423
NAHC supports HR 5423 in that it provides a bright-line standard for in home care providers
subject to state and/or federal requirements on criminal background checks. By providing a
“safe harbor” under employment rights laws for certain employers obligated to follow state
and/or federal criminal background check requirements, the bill would alleviate the complexity
and confusion now caused by the EEOC guidance and enforcement actions that may create
uncertainties in relation to existing health care provider regulations. Our experience is that the
existing background check laws offer a reasonable balance in protecting the civil rights of
prospective employees while providing essential protection to the vulnerable patients and
clients served in home care. In addition, we would recommend that the Committee
1. Encourage the EEOC to collaborate with the Centers for Medicare and Medicaid Services
and the US Department of Health and Human Services to develop coordinated, simple
compliance guidance in laypersons’ terms along with a communications plan to educate
health care providers on their responsibilities relative to criminal background checks;
2. Encourage the EEOC to collaborate with federal and state health care regulators to
develop model standards that achieve joint compliance with laws that are designed to
protect health care consumers and payers and the laws designed to protect the civil
rights of employees and job applicants;
3. Develop overall guidance regarding the use of criminal background checks in hiring that
is in plain English.
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NAHC believes that the best solution to concerns raised regarding the EEOC guidance on the
use of criminal background checks, in health care employee hiring, is to collaborate with the
regulators of health care entities on the state and federal level. The “safe harbor” created by
HR 5423 will definitely achieve a clarity and consistency between health care requirements on
criminal background checks and employment rights laws. Implementing HR 5423 and applying
the existing laws requiring background checks will be most successful through a collaborative
and coordinated effort of EEOC and federal/state health care regulators.
CONCLUSION
Thank you for the opportunity to offer this testimony. Please do not hesitate to call on us if you
need further information on the home care perspective.
Respectfully submitted,
William A. Dombi
Vice President for Law
National Association for Home Care & Hospice
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