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Section 6201 of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act) requires that States provide an appeal process for applicants initially determined ineligible for employment and specifies that the appeal process be independent of the initial fitness determination that results from the background check process. When an applicant is notified of a negative fitness determination (that is, one that indicates that the applicant is ineligible for employment), the applicant may choose to appeal the determination by challenging whether the results from a name-based search are for the correct person, disputing the accuracy or completeness of a criminal background check, or requesting a rehabilitation review to evaluate mitigating factors. This resource document lists the key elements and steps of appeal processes and discusses how various types of appeals are handled.
What are the key elements of an appeal process?
What are the steps in an appeal process?
How is an appeal of a name-based registry check handled?
How does the State background check unit handle a criminal background check appeal?
What are the key criteria for rehabilitation review policies?
What factors might a reconsideration review committee take into account?
What are the grounds for granting a waiver or exemption under a rehabilitation review?
An appeal process generally includes procedures and policies that address:
- The process of notifying applicants of their appeal rights;
- Which parties have the right to file an appeal (usually applicants only, but could include employers);
- The process of filing an appeal;
- With whom to file an appeal;
- Time frame in which to file an appeal;
- Time frame for issuing a decision;
- Rules for employment during the appeal process;
- The independence of the appeal process; and
- The confidentiality and privacy of applicants’ information.
The Affordable Care Act requires that States “provide an independent process by which a provisional employee or an employee may appeal or dispute the accuracy of the information obtained in a background check.” Specific appeal steps differ depending on the information that is the subject of the appeal. For example, applicants follow different dispute resolution procedures if they appeal the results of a criminal history search versus information from a name-based registry search.
An applicant may appeal a negative fitness determination by:
- Challenging the finding that the applicant is the true subject of the results from a name-based registry background check;
- Challenging the accuracy and completeness of the criminal history record;
- Requesting a rehabilitation review, which gives the applicant the chance to demonstrate that the applicant should be allowed to work because he or she does not pose a risk to patients, facilities or their property. State rehabilitation review policies vary with respect to the types of convictions that may be subject to review and the documentation required.
The appeals steps differ for the three options above. Please see the Fitness Determination Appeal Process Flow Diagram (Attachment 1) for further detail on typical appeals steps.
Name-based searches can return information about someone other than the applicant. If an applicant appeals the results of a name-based search because of misidentification, the appeal is processed by the background check unit. In such cases, the applicant must identify the information that is believed to be in error and provide the information the background check unit requires to further clarify the name-based search. The background check unit then makes a determination regarding the alleged misidentification.
Appeals related to the accuracy and completeness of information resulting from registry searches, such as abuse and neglect registries and licensure databases, are not included in the background check process. Individuals are generally required to appeal findings of misconduct and other violations at the time of the incident, following the rules of the specific registry program. In some States this is done through a “fair hearing” process and appeals must be filed within a specified period of time following the alleged incident. After the allowed period for appeals, misconduct findings reported in a registry are final and not subject to appeal at a later date, such as at the time of an employment-related background check. Hence, an applicant undergoing a background check cannot appeal the completeness and accuracy of findings from a registry check unless still within the appeal period allowed by the registry.
The only bases for challenging the results of criminal history record checks are that the findings are incorrect or incomplete. The background check unit may approach such appeals in two ways:
- By instructing the applicant to file an appeal with the “owner” of the criminal history database (e.g., the State’s Department of Public Safety or the Federal Bureau of Investigation) and request that the owner transmit the corrected criminal history to the background check unit; or
- By requesting that the applicant supply evidence of errors or omissions in the record directly to the background check unit for review.
In an appeal made to the owner of a criminal history database the applicant may request the removal of arrest records if: charges were never filed, charges were dismissed, or the individual was acquitted in court. Once the owner of the database makes a determination regarding the appeal, an updated criminal history is transmitted to the background check unit and the amended criminal history is used in reconsidering the fitness determination.
The Affordable Care Act requires each State to establish criteria for reconsidering negative fitness determinations through a rehabilitation review process. States’ rehabilitation review policies and procedures may include:
- The process for requesting reconsideration, which may include a time limit from the date the fitness determination was issued;
- Details on the types of additional documentation that will be considered during a review;
- Information about the review proceeding, including whether the proceeding is an informal review of written documentation by an in-house panel or a formal hearing conducted by an administrative department;
- Rules on whether the applicant may attend the proceeding and answer questions; and
- Rules for issuing a written decision.
States vary in the factors they will consider in a rehabilitation review. In determining whether an applicant is employable if he or she has committed a disqualifying offense, a review panel or reconsideration committee may take into account:
- Evidence of the actual disposition of any arrest in cases where an incorrect disposition was presumed or recorded in error;
- The age of the applicant at the time of the offense;
- The amount of time that has lapsed since the offense;
- The total number of disqualifying offenses;
- Any mitigating circumstances surrounding the offense or non-mitigating circumstances, (e.g., whether violence was involved);
- Evidence that the applicant successfully completed parole, probation, incarceration, or a work-release program;
- Activities evidencing rehabilitation (e.g., attendance at a drug or alcohol rehabilitation program);
- Whether a conviction was expunged by the court or an unconditional pardon was granted;
- The relevancy of disqualifying information with respect to the proposed employment;
- Personal references; and<
- Employment history.
Some States may consider other factors.
There are several grounds for granting a waiver or exemption through a rehabilitation review. An applicant may receive a revised fitness determination through a rehabilitation review when the documentation provided demonstrates that the applicant has satisfied one of the following grounds for reconsideration:
- A background check result contained a factual error;
- The background check unit applied statutes or standards erroneously, or presumed something that was not true;
- The employment of the applicant presents no risk of harm to a long term care patient or resident; or
- The disqualifying conviction does not directly bear negatively upon the applicant’s fitness for employment.
Individual States may approach the waiver or exemption process in different ways, depending on State statues, regulations, and historical practices.
- Applicant Appeal Process flow diagram
This diagram presents the steps in a typical appeal process for an applicant with an initial negative fitness determination. The rows in the diagram show the different participants and the flow across the diagram shows the sequencing of decisions and notifications.
- Section 6201 of the Patient Protection and Affordable Care Act of 2010: Nationwide Program for National and State Background Checks on Direct Patient Access Employees of Long-term Care Facilities and Providers.
This section of the Affordable Care Act authorizes the National Background Check Program and can be found here: http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf.