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Implementing NBCP Registry Searches

How to Implement NBCP Registry Searches: Alternative Workflows


Registries are State- or Federally-managed databases that may contain disqualifying information about individuals applying for direct patient access employment in long term care (LTC) settings. (A State criminal justice organization’s law enforcement repository is not considered a registry.) This resource paper provides information about how States are implementing registry searches in their National Background Check Program (NBCP)–compliant programs. It is intended as a guide for States that are developing or improving their State background check processes and business rules on registries. Topics addressed include how the requirements of the Affordable Care Act fit with pre-existing legal requirements regarding registries; what efficient registry search techniques are being used; and having employers instead of a State agency perform the registry search. Related document: For an introduction to the types of registries relevant to NBCP, see the “Using Registries in the National Background Check Program” resource document [1].


How do the Affordable Care Act requirements regarding registries fit with existing registry requirements?
How have States incorporated efficient registry searches into the applicant screening process?
Which entity is responsible for registry searching?
Employer search: Work flow and impact
State agency search: Work flow and impact
Combined State agency and employer search: Work flow and impact
Registry owner search: Work flow and impact
Summary
Additional Resources


How do the Affordable Care Act requirements regarding registries fit with existing registry requirements?

The Affordable Care Act [2] requires that State background check programs “utilize a search of State-based abuse and neglect registries and databases, including the abuse and neglect registries of another State in the case where a prospective employee previously resided in that State.” The Affordable Care Act also requires States to search “the records of any proceedings in the State that may contain disqualifying information about prospective employees (such as proceedings conducted by State professional licensing and disciplinary boards and State Medicaid Fraud Control Units).” (See Additional Resources below.)

Existing requirements: Even prior to the Affordable Care Act, Federal regulations for Medicare and Medicaid participation have required all States to maintain nurse aide registries containing individual certification and competency information and whether or not the individual aide has a substantiated finding of neglect, fraud, or abuse (42 CFR § 483.156 Registry of nurse aides). Before hiring a nurse aide, a Medicare- or Medicaid-participating facility must verify that the applicant has met competency requirements and it must search a misconduct registry. Applicants having negative information in these areas may not be hired (§483.13(c) (1) (ii)).

Expanded requirements: The Affordable Care Act enables States to extend the existing restriction to other (LTC) settings and to additional personnel categories; it also allows the State to specify searches of other “State-based registries” and “proceedings” related to neglect, fraud, abuse, and competency. Several States have adopted statutory or regulatory language that prohibits employment in positions in addition to nurse aide by individuals with court or agency findings of abuse, neglect, and/or fraud, without specifying the source of the information. Because several registries can contain the same broad category of findings (i.e. neglect, fraud, abuse, and competency), States often do not reference a specific registry in their disqualification criteria.

How have States incorporated efficient registry searches into the applicant screening process?

Registries used: Most State NBCP programs incorporate registry searches into their applicant eligibility screening process by using a set of registries that includes at a minimum the State’s nurse aide registry, a health professional licensing and certification database, and the Medicare Exclusion Database (MED). (The MED draws from the List of Excluded Individuals and Entities (LEIE) maintained by the Office of the Inspector General, U.S. Department of Health and Human Services (HHS)). Many States also use statewide abuse registries (child and adult), sex offender registries (statewide and/or national), and State court databases. Registries from States where the applicant has resided (or worked) within a given period (most commonly seven years) are also searched. NBCP States report using as few as 3 and as many as 13 registries for each screening. Most States use between 4 and 6 registries for in-State applicants.

Automation: Almost all registries have a searchable website; but even so, automated registry searching can greatly reduce the time burden for the employer or State staff. The time factor is an even greater consideration when a registry is updated frequently, because negative registry findings can exclude both new applicants and also current but previously cleared employees. The most effective automated search criterion is applicant Social Security number (SSN). Virtually all registries maintain their records by individual SSN, and background check agencies in most States store applicant SSNs in accordance with State privacy and security guidelines.

Presenting and recording registry search results in an automated background check tracking system standardizes and automates the processes of registry searching (and employee re-checks) and allows for feedback to the applicant, the monitoring agency, and the registry checking organization. Technical assistance (TA) is available from the NBCP to help State agencies meet privacy and security guidelines while implementing automated registry searching and employee re-checks.

Which entity is responsible for registry searching?

NBCP States have adopted one or a combination of the following approaches to having registry searches performed for LTC applicants:

Approach 1. The prospective employer performs the registry search—This is the approach followed by most NBCP States.

Approach 2. The State background check agency performs the registry search—This approach has been adopted by several NBCP States that have elected to conduct all aspects of the background check.

Approach 3. Some combination of 1 and 2—At least two NBCP States have adopted this approach, where employers conduct initial searches and the State subsequently verifies certain findings.

Approach 4. The prospective employer or the State agency forwards the applicant’s information, and the owner of the registry performs the search—One NBCP State has adopted this approach for a particular registry whose records are not electronically searchable; the State background check agency will then receive the registry search findings from the registry owner.

Employer search: Work flow and impact (approach 1)

While variations do exist, the following is a generic work flow for employer-conducted automated registry searches as part of a comprehensive background screening under the NBCP:

Step 1. Employer enters or verifies the demographic information of the applicant.
Step 2. The employer verifies the applicant holds the competency certifications or professional licenses required for the position applied for, including under other names and prior addresses.
Step 3. The employer is presented with the appropriate registries and verifies automated search results (and/or conducts website searches).
Step 4. The employer records the registry search results and hiring action (e.g., “cleared registries,” “not hired”). In some States, the employer might flag the search results for State review.
Step 5. The employer provides the applicant with the registry search results, and if needed, the appropriate procedure for disputing registry findings.
Step 6. If registries are clear of negative findings, the employer authorizes the applicant for fingerprinting.

Note that each subsequent employer may need to perform Steps 1–4 prior to hiring a previously cleared applicant, depending on the level of automation.

Advantages of an employer registry search:

  • Results from a registry search can exclude an applicant before the employer and/or applicant has spent time and money obtaining a fingerprint-based background check.
  • The employer can verify registry results directly with the applicant.
  • The applicant can dispute registry contents directly to the registry owner.
  • The State background check agency does not become a choke point in the work flow because of a backlog in searches.

Disadvantages of employer registry search:

  • Because each employer makes an individual hiring decision, no statewide eligibility determination based on registry results is made. Thus, an applicant must have a new registry search performed with each new employer, even if the applicant was recently cleared by a previous employer.
  • When registry searches are performed by individual employers, interpretations of the registry search results and decisions based on them are not consistent. States find that statewide eligibility decisions cannot be based on any specific employer decision.
  • Notwithstanding the above, State agencies may require a mechanism to verify or audit employer registry searches and subsequent hiring decisions to ensure basic compliance.

State agency search: Work flow and impact (approach 2)

While variations do exist, the following is a generic work flow for agency-conducted automated registry searches as part of a comprehensive background screening under the NBCP:

Step 1. The employer collects applicant demographic information, and submits it and payment to the State background check agency. In most States, the employer sends the applicant to be fingerprinted electronically; in States that still use paper fingerprint cards, the employer mails the fingerprint card, release forms, etc., to the State agency or its agent.
Step 2. The State agency or its agent verifies the paperwork, payment, and demographic information. If fingerprint cards were submitted, they either are scanned or are physically transferred to the State criminal justice information system (CJIS) office for processing.
Step 3. The State agency verifies the applicant holds the competency certifications or professional licenses required for the position applied for, including under other names and prior addresses.
Step 4. The State agency is presented with the appropriate registries and verifies automated search results (and/or conducts website searches).
Step 5. The State agency records the registry search results and eligibility action (e.g., “cleared registries,” “not cleared”) within the automated background check system; the employer logs in to the system and checks the results. In some States, the State agency might flag the search results for supervisor review.
Step 6. The State agency provides the applicant with the registry search results, and if needed, the appropriate procedure for disputing registry findings.

The above steps are often done in parallel with the fingerprint submission and criminal history check. Some State agencies issue preliminary eligibility determinations based only on registry results, while awaiting the criminal history check results.

Advantages of State agency registry searching:

  • Registry results and decisions can be directly incorporated into the eligibility determination. A new registry search may not be required when an individual changes employers within the State.
  • Interpretations of the registry search results and decisions based on them are made by a single entity and so are more consistent. Registry findings can more easily be added to the statewide eligibility disqualification criteria.
  • Results are more easily monitored by the State agency.

Disadvantages of State agency registry searching:

  • It is not feasible for the State agency to complete the registry searches before initiating a fingerprint-based criminal history check. As a result, sometimes employers already will have paid for a fingerprint-based criminal history when the State agency rules an applicant ineligible based on registry data.
  • Because applicants are not present when the State agency conducts the registry search, it cannot verify results directly with applicants.
  • When an applicant disqualified by the State disputes the registry’s contents, the applicant usually will contact the State agency, rather than contacting the registry owner directly. This can complicate the registry challenge.
  • This approach adds to the State agency’s workload, such that it may become a choke point in the work flow because of a backlog in searches.

Combined State agency and employer search: Work flow and impact (approach 3)

Sometimes States elect to have employers conduct initial searches and for the State to subsequently verify certain findings. In this workflow, the employer stops the fingerprint authorization to allow the State to complete registry verification. This flow involves additional notification and time before fingerprinting, but occasionally is the best solution for a State.

Registry owner search: Work flow and impact (approach 4)

Rarely, it can be necessary to search a registry that is not automated for public searching. In this case, the registry search might need to be performed by the owner of the registry.

Step 1. Employer or State agency transmits the applicant information to the registry owner.
Step 2. The registry owner researches its records and transmits a finding back to the State background check agency.
Step 3. The State agency incorporates this finding into the applicant’s registry search results within the background check system.

Advantages of registry owner registry searching:

  • The State background check agency can incorporate a registry that would not be otherwise available.
  • The registry owner maintains control over the interpretation of its data.

Disadvantages of registry owner registry searching:

  • This approach can substantially delay the registry searching process.
  • By dividing the registry searching process into two activities, the overall screening procedure becomes more complicated.

Summary

Usually, a registry search is one of the first steps in the background check process. Using a search of all available registries as a first level of screening not only might save money and resources, but also could prevent an unsuitable job applicant from being provisionally employed with access to vulnerable individuals.

Additional Resources

  1. “Using Registries in the National Background Check Program” Resource Page
    An overview of the primary registries that may be used in NBCP-compliant screening programs. It also contains an Excel file with information and links to registries for all 50 States and the District of Columbia. Available on the NBCP TA website at http://bgcheckinfo.cna.org/resources/lessons-learnedpromising-practices/registries
  2. Section 6201 of the Patient Protection and Affordable Care Act (2010)
    This legislation calls for the establishment of a nationwide program of Federal and State background checks on prospective direct access employees of long term care facilities and other providers. Legislation is available at https://democrats.senate.gov/pdfs/reform/patient-protection-affordable-care-act-as-passed.pdf
  3. Updated Special Advisory Bulletin, U.S. Department of Health and Human Services, Office of the Inspector General
    This publication describes health care provider responsibilities and tools regarding the prohibition against certain individuals and entities participating in Federal health care programs. Issued on May 13, 2013, it provides guidance to the health care industry on the individual applicant is listed on the HHS’s Office of the Inspector General “List of Excluded Individuals and Entitles” (http://oig.hhs.gov/exclusions). Publication is available at https://oig.hhs.gov/exclusions/files/sab-05092013.pdf