Healthcare providers and organizations must maintain compliance with relevant Federal health care laws and regulations. Employers are held responsible for having programs and policies to ensure they do not employ or contract with excluded or sanctioned individuals.
The U.S. Department of Health and Human Services Office of Inspector General (OIG) prohibits healthcare companies from hiring anyone sanctioned from participating in federal programs such as Medicare and Medicaid.
Federal laws for background checks in healthcare
The Centers for Medicare and Medicaid Services (CMS) has awarded more than $65 million to 28 States to design comprehensive national background check programs for employees that have direct access to patients. The CMS program's purpose to provide a framework for states to develop an efficient and effective procedure for conducting background checks. The program is administered by the Centers for Medicare & Medicaid Services (CMS), in consultation with the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI).
MEDICARE PRESCRIPTION DRUG, IMPROVEMENT, AND MODERNIZATION ACT OF 2003
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) established a Background Check Pilot Program. The purpose of the pilot program was to “identify efficient, effective, and economical procedures” for conducting State and national criminal background checks on prospective “direct patient access employees,” as defined in the statute.
The pilot was administered by the Centers for Medicare & Medicaid Services (CMS), in consultation with the Department of Justice (DOJ) and Federal Bureau of Investigations (FBI). The pilot program operated from January 2005 through September 2007.
Pilot States CMS selected seven states to participate in the Background Check Pilot Program. The states represented a mix of rural and urban areas and included ethnically and culturally diverse populations. The pilot states included:
- New Mexico
In 2010, the Patient Protection and Affordable Care Act (P.L. 111-148) became Federal law.
Patient Protection and Affordable Care Act
Section 6201 the Patient Protection and Affordable Care Act (PPACA) requires the Secretary of Health and Human Services to establish a nationwide program to identify efficient, effective, and economical procedures for long term care facilities or providers to conduct background checks on prospective "direct patient access" employees on a nationwide basis.
This program is an extension of the pilot program that was established under Section 307 of the Medicare Prescription Drug Improvement and Modernization Act of 2003 (MMA). The nationwide program is open to States that did not participate in the Background Check Pilot Program established under MMA.
The Act requires that each State participating in the nationwide program must make a determination as to whether an employee has direct patient access. A “direct patient access” employee is defined as any individual who works at a long-term care facility or provider of services and provides direct care, treatment, or services to patients (as determined by the State participating in the nationwide program).
To engage in the nationwide program and receive the federal funding, a State must:
- Enter into an agreement with HHS to conduct background checks under the nationwide program on a State basis.
- Comply with all of the requirements set forth under the Act.
- Provide partial funding for the program.
If a State participates in the nationwide program, all of the following types of long-term care facilities and providers within the State will be required to conduct background checks on prospective “direct patient access” employees in compliance with the Act:
- Skilled nursing facilities.
- Nursing facilities.
- Home health agencies.
- Providers of hospice care.
- Long-term care hospitals.
- Providers of personal care services.
- Providers of adult day care.
- Residential care providers that arrange for or directly provide long-term care services, including assisted living facilities that provide a level of care established by the Secretary.
- Intermediate care facilities for the mentally retarded.
- Any other facility or provider of long-term care services under such titles as the participating State determines appropriate.
The Act does not require a background check for an individual who volunteers at a long-term care facility or provider of services.
A State may delay the implementation of the nationwide program for up to one year after entering into the agreement with HHS if the State can demonstrate good cause why it cannot fully
HHS will work with interested States to develop agreements for conducting background checks on a State basis. The agreement between HHS and a State must include the following elements:
- A description of the types of employees who will be subject to background checks, including the definition of a “direct patient access” employee;
- The methods that the State will use to identify direct patient access employees, including any required notification or application process for employers and employees;
- How the State will provide its share of partial funding for the nationwide program;
- The procedures that the State will use to ensure that long-term care facilities and providers within the State conduct background checks on prospective employees in compliance with the Act, including penalties for noncompliance;
- How the State will protect the privacy of employee and applicant information;
- How the State will ensure that background checks are conducted in a timely manner;
- (G) Any other requirements that HHS determines are necessary to carry out the nationwide program.
Types of background checks
States that participate in the NBCP must require HHAs to conduct the following background checks. HHAs that want to receive federal funding must conduct these checks even if it’s not required by their state.
- A fingerprint-based search of state and federal (FBI) criminal history. The FBI search will uncover federal crimes as well as crimes committed in any state that have been reported to the FBI. This can uncover felony convictions for healthcare-related fraud, theft, or other financial misconduct; Medicare or Medicaid fraud; or the unlawful manufacture, distribution, prescription, or dispensing of controlled substances.
- A search of abuse and neglect registries including:
- The federal Office of Inspector General (OIG) List of Excluded Individuals and Entities (LEIE). This lists individuals who are forbidden to work in a healthcare capacity due to criminal offenses such as Medicare or Medicaid fraud; patient abuse or neglect; certain felony and misdemeanor convictions; and suspension, revocation, or surrender of a license.
- State abuse and neglect registries in the caregiver’s current state and any other states where the person has worked as a home health aide.
Background checks even play a crucial role in determining if an applicant can be trusted. In fact, healthcare screening is purposely designed to serve this purpose.
Also, periodic criminal checks occur and tend to be a good idea for those in long-term positions where they have contact with patients. They can be used as an ongoing process when doubts arise regarding staff members. Some health agencies in fact conduct a thorough screening of current employees every two years to deter fraud and protect the safety of patients.
How Orange Tree Can Hep
At Orange Tree, we create custom background check packages designed for your industry and business needs. We know the many challenges that you face during the hiring process and can help you decide what background checks are best to meet your unique hiring goals.
Want to learn more about how our team can be of service to your organization? Schedule a call today.
The foregoing is not legal advice, express or implied. We recommend you seek the advice of your own legal counsel for all aspects of employment law.
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