Day 2, Morning Plenary 2 Complying with the NBCP and EEOC Requirements

Transcription

1 Day 2, Morning Plenary 2 Complying with the NBCP and EEOC Requirements Rebecca Ward, RN, BSN, CMS Julia Gabis, Esq., & Mandy Rosenblum, Esq., CNA Team

2 Session Overview Long term care providers must carefully balance their obligations under NBCP with the requirements of the Equal Employment Opportunity Commission (EEOC) In this session, we will: Review the requirements of Title VII and the EEOC s current guidance on the use of background checks in employment decisions Explore how to comply with State NBCP legislation without creating potential Title VII liability for long term care providers Examine the efforts of participating States to protect their long term care providers Offer approaches that address the complexity of these competing obligations. 2

3 In This Session Affordable Care Act requirements EEOC guidance on criminal background checks Considerations for States Potential areas of concern Best practices. 3

4 Balancing Act Considerations for States NBCP States have latitude to set exclusions Interest in protecting vulnerable populations Employers must abide by State law... BUT they remain subject to Federal employment discrimination claims. 4

5 Select NBCP Requirements Specify disqualifying offenses Determine who qualifies as direct access employee Provide independent process to: Dispute accuracy of records Appeal disqualification. Immediately report results to provider 42 USC 1320a-7l(a)(3), (4) 5

6 Offenses under NBCP May be considered: Mandatory and permissive exclusions under Medicare law (42 USC 1320a-7l(a)(6)(A), (B) citing 42 USC 1320a-7) Offenses specified by State (42 USC 1320a- 7l(a)(6)(A)(ii)). Should not be considered: Juvenile adjudications (18 USC 5038(a)) Expunged matters Sealed records (42 USC 14616). 6

7 EEOC Guidance EEOC Enforcement Guidance 4/25/2012 Title VII Disparate treatment Disparate impact EEOC: National data support finding that criminal record exclusions have a disparate impact based on race and national origin. 7

8 EEOC Guidance Statistics Arrests among African Americans and Hispanics are disproportionate to their presence in the population. African Americans and Hispanics are more likely than Whites to be arrested, convicted, or sentenced for drug offenses... while the drug use rates of all three groups are similar. If conviction rates remain unchanged, 1/3 of African American men and 1/6 of Hispanic men will be incarcerated during their lifetime... versus 1/17 of White men. EEOC Enforcement Guidance, p. 3 8

9 Caregiver Demographics Exclusions can affect workforce: Long term care paraprofessionals African Americans = 33% Hispanic or other persons of color = 15%. Licensed practical nurses African Americans = 26% 2007 study prepared for the National Commission for Quality Long Term Care 9

10 Rap Sheets Common mistakes in rap sheets: Incomplete dispositions Double entry of an arrest Incorrect entries Inclusion of expunged or sealed case information Reporting of non-serious offenses (e.g., loitering, false fire alarm, vagrancy, disturbing the peace) (28 CFR 20.32). 10

11 EEOC Guidance Exclusions Criminal record exclusions must be job related and consistent with business necessity Nature and gravity of conviction Time passed since conviction/sentence completed Nature of job held or sought. 11

12 Applying EEOC Guidance to NBCP Disqualifying convictions Categories of disqualification Time periods for disqualification. Individualized assessment (appeals/variances) Rap sheet inaccuracy Rehabilitation Job sought (supervision, opportunity for misconduct). 12

13 Independent Assessment EEOC Facts/circumstances surrounding the offense or conduct Number of offenses for which individual was convicted Older age at the time of conviction or release Performed similar work post-conviction and no known incidents of criminal conduct Length/consistency of employment before/after offense Rehabilitation efforts (e.g., education/training) Employment or character references and other information regarding fitness for position Whether individual is bonded under a Federal, State, or local bonding program. 13

14 Independent Assessment ACA Affordable Care Act must consider appeals of disqualifications based on: Passage of time Extenuating circumstances Demonstration of rehabilitation Relevancy of disqualifying information to employment. 14

15 Independent Assessment State Examples The prison, jail, probation, parole, rehabilitation, and employment records since commission of the crime NC Gen. Stat. 131E-265 (b)(6) Degree of participation in offense, degree to which victim contributed to or provoked offense OH Admin. Code (A)(7)(h) Similarity between victim and persons served by the program MN Stat. 245C.22, Subd. 4 (2014) Social conditions that may have contributed to offense NJ S.A. 45: Circumstances surrounding commission of offense that demonstrate unlikelihood of repetition. CA Health & Safety Code (c)(2)(G) 15

16 Areas of Concern Being overly cautious in excluding workers Variability of exclusion criteria Inaccurate rap sheets Employers acting on incomplete information Limiting evidence in appeal process. 16

17 Best Practices CMS Long Term Care Criminal Convictions Work Group, guidance on conviction/exclusion periods Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert- Letter Attachment-.pdf Uniform application of exclusion criteria Verify rap sheets Use caution when sharing information with employers Robust, independent review process. 17