CRIMINAL BACKGROUND CHECKS AND CREDENTIALING:
KNOW THE LIMITS OF WHAT YOU CAN ASK AND
WHAT YOU CAN DO WITH THE INFORMATION YOU GET
OUTLINE
1.Are hospitals required by law or accreditation standards to conduct criminal background checks?
A.The Medicare Conditions of Participation do not require background checks.
B.Joint Commission Standard HR. 01.02.05 EOP 4 (which only applies to licensed independent practitioners who are paid staff or who are contract employees) states “[t]he hospital obtains a criminal background check on the applicant as required by law and regulation or hospital policy.”
C.State law may require background checks for employees who work with certain populations or in certain settings.
2.Could a hospital be liable for “negligent credentialing”or “negligent hiring” if it fails to conduct a criminal background check?
A.Criminal background checks have been widely used in other industries.
B.It is unclear if a court would find that a hospital was negligent for not conducting a background check, but there is a risk of such liability.
3.Should a hospital rely on criminal background checks conducted by state licensing boards?
A.More and more licensing boards are requiring criminal background checks as a condition of licensure.
B.Consider whether the state board’s background check is extensive enough to meet the hospital’s standards and what the state board will do with that information.
4.Is information obtained from a criminal background check already available in the National Practitioner Data Bank (“NPDB”)?
Generally, no. The NPDB,which merged with the Health Integrity and Protection Data Bank (“HIPDB”) earlier this year, contains health carerelated convictions entered in federal or state court. The NPDB includes licensure actions that result from criminal activity, but an NPDB report will not include the criminal activity itself.
5.What information is obtained as a result of a criminal background check (e.g., arrests, indictments, convictions, plea agreements)?
Any record that is available at a courthouse should be obtained as a result of a background check. Note that searches limited to electronic databases may not result in complete information about an applicant.
6. What legal requirements apply to the manner in which criminal background checks are conducted?
A.Hospitals must comply with the federal Fair Credit Reporting Act (“FCRA”).
B.The FCRA requires hospitals to make a clear and conspicuous disclosure in writing to the individual that a consumer report may be obtained.
C.The FCRA also requires hospitals to obtain the applicant’s written authorization to perform the background check.
D.The disclosure and authorization forms required by the FCRA must be in a separate document. They cannot be combined with the release and authorization forms that applicants typically sign when they apply for Medical Staff membership.
7.What if an applicant refuses to sign the authorization form required by the FCRA?
The application would be incomplete, and should not be processed.
8.Does a hospital need a new authorization form if it wants to do a background check mid-cycle?
No. The FCRA does not require a new authorization form prior to each background check. However, the credit reporting agency may require a new authorization form as a matter of policy.
9.How does the Equal Employment Opportunity Commission (“EEOC”) view the use of criminal background checks in the employment process?
A.In April 2012, the EEOC issued updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” This EEOC guidance only applies to physicians who are employees.
B.The EEOC is specifically concerned with the following:
- A violation of the prohibition against employment discrimination under TitleVII of the Civil Rights Act occurring when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
- An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not jobrelated and consistent with business necessity (disparate impact liability).
- A defense to a disparate impact claim is that the policy or practice is “job related and consistent with business necessity.” This can be demonstrated by showing that the following three factors were considered: (1) the nature and gravity of the criminal offense(s); (2) the time that has passed since the conviction and/or completion of the sentence and(3) the nature of the job held or sought; and that an opportunity for an individualized assessment be provided which consists of notice to the individual, an opportunity to demonstrate that the exclusion should not be applied and consideration by the employer as to whether the information provided by the individual warrants an exception to the exclusion.
C.The EEOC takes the position that an arrest record standing alone may not be used to deny an employment opportunity, but an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.
D.The EEOC’s Guidance does not restrict an employer’s right to continue to make reasonable employment decisions based on convictions that are jobrelated and consistent with business necessity.
10.What does the EEOC suggest in terms of best practices for employers?
- Eliminate policies or practices that exclude people from employment based solely on any criminal record (e.g., excluding an applicant from employment solely on the fact that he/she was once arrested).
- When asking questions about criminal records, limit inquiries to records for which exclusion would be jobrelated for the position in question and consistent with business necessity.
- Is the EEOC Guidance law?
Although the Enforcement Guidance does not have the force of law, it is an indication of how the EEOC will view employer requests for arrest and conviction information. Employers that comply with state or local laws that require the exclusion ofindividuals with certain criminal histories from specific positions can still be targeted by EEOC lawsuits.
12.Are there any restrictions on the type of criminal background information that hospitals can request on application forms for practitioners who are going to be employees?
A.The EEOC does not specificallyprohibit employers from asking applicantsany particular questions about their criminal history. The EEOC is concerned with what employers do with the information they obtain. The EEOC merely suggests that, as a best practice, employers limit inquiries to matters in which an exclusion would be jobrelated and consistent with business necessity in order to prevent decisions that could result in disparate impact or disparate treatment from occurring.
B.Before deciding what type of criminal background information to request on an application form, it is important to check state law. Many states have restrictions on the type of criminal background information that employers can request on application forms.
C.It is also important to check local law as well. In addition to a handful of states, a number of cities have adopted “ban the box” laws. “Ban the box” laws are laws that prohibit employers from making any inquiries about an applicant’s criminal history on application forms. These laws do not prohibit employers from ever inquiring about an applicant’s criminal history, but require that these types of inquiries be postponed until later in the hiring process.
13.Are there any restrictions on the type of criminal background information that hospitals can request on application forms for practitioners who are NOT going to be employees?
It is important to consult state law on this issue because some states have human relations acts or other laws that restrict the type of criminal background information that can be requested of independent contractors on application forms. It is probably a good idea to have similar standards for employed and nonemployed practitioners.
14.What types of questions should be asked on an application form if the hospital is going to conduct criminal background checks?
A.Carefully worded questions should ask about the applicant’s criminal history. The questions should ask not only about convictions, but also about arrests, indictments, pleas of nolo contendere, and so on, provided that they are permissible under state law. In order to safeguard against claims regarding applicants who are seeking employment, you may want to limit your inquiries to ones that solicit information that would be jobrelated and consistent with business necessity.
B. The same questions should be asked even if a hospital does not conduct background checks.
15.What does it mean for a record to be “expunged,” and would an expunged record show up on a criminal background check?
A.“Expungement” means that a record no longer has legal significance – it is as if the event never occurred. However, the record is not necessarily physically destroyed. Arrest and conviction information may continue to exist even if other parts of a record are expunged, so it may show up on a background check.
B.Many states prohibit employers from considering criminal background records where the record has been expunged.
C.If your state does not prohibit you from asking about criminal records that have been expunged, and you want to ask about expunged records, the question on your application should make it clear that expunged records need to be disclosed.
16.What should a hospital do with information that a physician has a criminal history?
A.There are several options. First, the Medical Staff Bylaws could state that consideration will be given to the nature of the crime and the time that has elapsed, and that the individual will be given an opportunity to address the matter. Upon consideration of this information, each applicant will be considered on a case-by-case basis.
B.Second, the Bylaws could objectively define a criterion whereby certain crimes committed within a stated time period might result in an applicant being ineligible for appointment; however, this determination would only be made after considering any response from the applicant. For instance, the Bylaws could provide that “If an applicant has, within the last seven years, been convicted of, or entered a plea of guilty or no contest to, any felony relating to controlled substances, illegal drugs, insurance or health care fraud or abuse, or violence, the applicant will be informed such crimes typically render an applicant ineligible for appointment. The applicant will also be advised that he or she may provide a written response explaining why an exception should be made. After consideration of any written response, a determination will be made upon recommendation of the Credentials Committee and Medical Executive Committee whether the applicant is ineligible for appointment.”
C.Third, the Bylaws could objectively define criteria whereby certain crimes committed within a stated time period will result in an applicant being ineligible for appointment. In this option there would be no consideration of the applicant’s response. For instance, the Bylaws could provide that if an applicant has, “within the last seven years, been convicted of, or entered a plea of guilty or no contest to, any felony relating to controlled substances, illegal drugs, insurance or health care fraud or abuse, or violence,” the applicant would be ineligible for appointment.
D.In the second and third options, there is no need to “deny” the applicant. Rather, the applicant is determined to be ineligible for appointment. Before adding this concept, it is necessary to check both state and local laws, as some of these laws may prohibit exclusion based upon certain crimes.
17.What does the FCRA require if a hospital receives a criminal background report with negative information?
A.Before taking action based on a report from a consumer reporting agency, the hospital would have to provide to the applicant a copy of (1) the criminal background report, and (2) a statement of the applicant’s rights under the FCRA.
B.The applicant then has certain rights under the FCRA to challenge the accuracy of the background report.
18.What should a hospital do if an applicant does not disclose criminal history information on an application?
A.The Medical Staff Bylaws and application forms should contain a provision stating that any misstatement or omission on the application form is grounds for not processing the application further. The Bylaws should give the applicant an opportunity to provide a written explanation for the statement in question and then a decision about whether the application should continue to be processed can be made.
B.When an application is not processed because of a blatant misstatement, it is an administrative action. There is no professional review action. Thus, there is no need for a Medical Staff hearing or for a report to the NPDB.
19.What if a hospital discovers during a term of appointment that a physician has been charged with or convicted of a crime?
A.The Medical Staff Bylaws should impose a requirement for immediate disclosure of certain actions, including, but not limited to, any criminal indictment, charge, or conviction.
B.The Medical Staff Bylaws should also have a provision stating that a Medical Staff member’s privileges may be automatically relinquished if the individual is arrested, indicted, or convicted of certain crimes. Before adding this concept, it is necessary to check both state and local laws, as some of these laws may prohibit exclusion based upon certain crimes. There should also be a provision that makes it clear that before an automatic relinquishment occurs, the Medical Executive Committee will consider the nature of the crime and any information that the practitioner provides.
C.If the Bylaws do not contain automatic relinquishment provisions, leave of absence, “precautionary” suspensions or Medical Staff investigations are other options.
20.Who should pay for the criminal background check – the hospital or the applicant?
There is no requirement one way or the other. The hospital is free to build the cost of a background check into the application fee or it may absorb some (or all) of the cost itself.
21.Should hospitals have a separate policy on background checks for Medical Staff applicants, or can background checks be addressed through revisions to the Medical Staff Bylaws?
A.There is no need for a separate policy. The necessary provisions can be included in the Medical Staff Bylaws.
B.Several elements are needed:
(1) The general eligibility criteria for Medical Staff membership should define the types of crimes (as permitted by state and local laws) that could potentially make someone ineligible for Medical Staff appointment and clinical privileges.
(2)There should also be a provision that makes it clear that before a determination of ineligibility is made, the Medical Executive Committee will consider the nature of the crime, the amount of time that has elapsed, the nature of the practitioner’s practice and any information that the practitioner provides.
(3)The Bylaws should also contain a statement by which Medical Staff members and applicants authorize the hospital to conduct a criminal background check. As discussed above, on its own, this authorization is not enough to conduct a check. But it’s a good idea to include it in governing documents.
(4)There should also be a provision stating that certain criminal events may lead to the automatic relinquishment of appointment and privileges. The types of crimes that may lead to automatic relinquishment are subject to definition and may be limited by state law. An automatic relinquishment should not occur until after the MEC has had an opportunity to consider the nature of the crime, the amount of time that has elapsed, the nature of the practitioner’s practice and any information that the practitioner provides.
22.If a hospital decides to obtain criminal background checks, should they be obtained only at initial appointment or at reappointment as well?
A.Background checks are often required only at initial appointment. In smaller communities, hospitals are more likely to hear about any criminal activity by a Medical Staff member during the previous two years. This may not be true in larger communities.
B.Bylaws should give authority to conduct a background check at any time during the appointment cycle.
23.Can a hospital do criminal background checks only when a “red flag” is raised about an applicant?
A.Consistent with good credentialing practices, hospitals always have the option of seeking more information when a red flag has been raised.
B.However, a case-by-case approach could lead to charges that the hospital has treated an applicant unfairly.
C.If a “red flag” approach is used, be sure to document the need for a criminal background check.
24.How is a criminal background check conducted?
A.Information about residences of applicant is obtained.
B.Records of county courthouses are reviewed for relevant information.
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