Why is it important now to pay attention to screening and background checks in a way that it was not 5 or 10 years ago? Goals for Session 10/17/2013

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1 Hiring and Screening in Long Term Care Attorney Scott M. Paler Attorney Brian Purtell DeWitt Ross & Stevens S.C. DeWitt Ross & Stevens S.C. (608) (608) Goals for Session New considerations for screening program Requirements for providers WI Caregiver Background Checks LEIE EEOC considerations and interrelations Third-party background checks Social media/unofficial sources 2 Why is it important now to pay attention to screening and background checks in a way that it was not 5 or 10 years ago? 3 1

2 Increased regulatory attention Increased attention on NH patient protection OIG Guidance on Excluded Persons-impacts all providers who participate in federally funded health programs ACA requirements, pilots, and grants 4 Increased regulatory attention EEOC has announced new guidance on use of criminal history information (obtained both from employment application and background checks) for first time in 25 years. OFCCP has provided new guidance on use of criminal history information by federal contractors for first time in many years. Many states have announced laws restricting use of credit history information. 5 More lawsuits Hunter, et al v. First Transit, Inc., Case No. 09-CV-6178 (N.D. Ill. 2011) ($5.9 million settlement for alleged procedural violations during background checks of applicants/employees) Hall v. Vitran Express, Inc., Case No. 1:09-cv-800 (N.D. Ohio 2009)($2.6 million settlement for alleged procedural violations during background checks of applicants/employees) EEOC v. Pepsi (2012) ($3.1 million settlement for use of criminal background check results in manner that disadvantaged minorities) Anecdotally, have also seen increase in administrative actions in Wisconsin. 6 2

3 Legal Issues Compliance Employment discrimination Wis. Stats Disparate impact Negligent hiring Resident protection 7 Provider Issues Enforcement for noncompliance Sufficient workforce Discrimination vs. patient protection Resident safety Quality of care Public relations/consumer expectations 8 Requirements and Compliance 9 3

4 Requirements State Requirements- WI CBC National Requirements F226: Have procedures to Screen potential employees for a history of abuse, neglect or mistreating residents as defined by the applicable requirements at (c)(1)(ii)(A) and (B). This includes attempting to obtain information from previous employers and/or current employers, and checking with the appropriate licensing boards and registries. NA Registry List of Excluded Individuals and Entities Wisconsin Caregiver Law Sources: Wis. Stats DHS 12 and Appendix Crimes affecting Eligibility Applicability: "Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services. 11 Wisconsin Caregiver Law Applicability: "Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services. "Entity" includes a temporary employment agency that provides caregivers to another entity 12 4

5 Wisconsin Caregiver Law Applicability: "Caregiver" means any of the following: A person who is, or is expected to be, an employee or contractor of an entity, who is or is expected to be under the control of an entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity. A person who has, or is seeking, a license, certification, registration, or certificate of approval issued or granted by the department to operate an entity. A person who is, or is expected to be, an employee of the board on aging and long-term care and who has, or is expected to have, regular, direct contact with clients. 13 Wisconsin Caregiver Law Process: BID Review BID Action necessary from BID Submit CBC Review results Action necessary from results Check every four years, including BID, unless meeting very specific exception. 14 Wisconsin Caregiver Law Compliance Hot Spots: Failure to complete four year renewal, including BID Out of state requirements Recordkeeping 15 5

6 Wisconsin Caregiver Law Legal Hot Spots: Timing of check conducted CCAP instead of CBC Blanket policies on who won t be hired or contracted with substantially related 16 Requirements-LEIE List of Excluded Individual and Entities (LEIE) What: Database of individuals and entities excluded from participation in federal health care programs. Why: Legal prohibition on payment for items or services furnished by (1) excluded persons or (2) at the medical direction or prescription of an excluded person. 17 Requirements-LEIE List of Excluded Individual and Entities (LEIE) How: Online individual or multiple checks, database and update download When: Upon hire or contracting Credentialing Updates 18 6

7 Requirements-LEIE List of Excluded Individual and Entities (LEIE) Why more than ever: OIG Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programs May 8, 2013 Probably not an FYI 19 Requirements-LEIE LEIE: What offenses warrant exclusion? Mandatory and Permissive authority Primarily for fraud and abuse Interference with investigations License revocation Drug offenses and care related findings can lead to exclusion LEIE LEIE: Ramifications of hiring or contracting with excluded individuals or entities. OIG granted Civil Monetary Penalty (CMP) authority Under the CMP authority, providers such as hospitals, nursing homes, hospices may face CMP exposure if they submit claims to a Federal health program for health care items or services provided, directly or indirectly, by excluded individuals or entities. OIG Special Advisory Bulletin 9/99 7

8 EEOC Considerations Overview: EEOC: use of criminal background checks disproportionately hurting minorities. In 2012 EEOC announced plan to start pursuing disparate impact cases under Title VII. To avoid EEOC suit, EEOC tells employers: Consider Green Factors. Nature of Crime, Nature of Job, Age of Offense. Do individualized assessment. Remove criminal history question from job application. Remember that Title VII takes precedence over state law criminal history disqualifiers. Two major background screening cases filed by EEOC in EEOC Considerations Hotspots: No Felons Allowed policies Balancing EEOC concerns with state law requirements Employment application criminal history questions Is it still OK to exclude all felons or all convicts, as many employers did in the past? 24 8

9 Bright lines rules have come under attack at both the federal and state level. While bright line rules may come into play when Wisconsin Caregiver Act applies, more nuanced analysis required otherwise. 25 How should an employer decide whether to exclude a candidate based on criminal history information when that candidate is not covered by the Wisconsin Caregiver Act? 26 Consider Wisconsin s substantial relationship test and the rules of thumb. Consider the EEOC s guidance (nature of crime, nature of job, how long ago crime took place, individualized assessment criteria) Consider other applicable state laws in out-of-state situations. 27 9

10 What about when the candidate is covered by the Wisconsin Caregiver Act? 28 Despite EEOC guidance, best strategy is still to follow state law. 29 Your employment application has always included a criminal history question. Is that still advisable? 30 10

11 That is increasingly dangerous. EEOC advises against it, believing it is used as a first cut to the applicant pool in a way that disadvantages minorities. Wisconsin has a substantial relationship test, and you risk receiving information you do not want. Several state laws impose restrictions. Do you receive applicants from out of state? 31 Municipalities increasingly passing ordinances on this issue. Generally best to push carefully worded criminal history question to back end of hiring process (e.g., upon providing conditional offer of employment). 32 Screening: Social Media/Internet Research Screening Verification of references Background Information not on resume/application If it s public, it s fair game, right? 11

12 Screening: Social Media/Internet Research Create standardized policies and procedures for HR to follow. Consistency is key, treat every applicant the same. If social networking sites are used, access the sites as late in the hiring process as possible. Segregate who does the research from the decision maker. Have the researcher only report non-protected job related information. 34 Licensing Checks More than CBC results Out of state Graduate nurses 35 Sex Offender Search Employees Residents? Volunteers? 36 12

13 CCAP Value Cautions Timing 37 Reference Checks Important effort State law protections Watch for unexplained gaps eligible for rehire? 38 Third Party Checks Benefits Cautions Requirements of FCRA Out-of State checks 39 13

14 Review and Policy Development/Review 40 What types of policy and procedural areas should you be reevaluating at this point? 41 Your employment application. Is it seeking criminal history information or other information that it should not be seeking? Your background screening policy. Do you have one? If so, has it been updated to reflect regulatory and case law changes in the last few years? 42 14

15 Your hiring decisions. Are you only relying on legally permissible information? Are you going through the procedures required by the Fair Credit Reporting Act? Have you considered how to incorporate EEOC guidance as to process? 43 Thank you! Attorney Scott M. Paler Attorney Brian Purtell DeWitt Ross & Stevens S.C. DeWitt Ross & Stevens S.C. (608) (608)